Lincoln's Greatest Case: The River, the Bridge, and the Making of America

by Brian McGinty

  Lincoln’s political interests extended through the summer, as the anti-Nebraska forces were preparing to form a new political party. But he also spent much of his time on his law practice. He was attending court in Chicago in July about the time that he was asked to join the defense team of the John H. Manny Company of Rockford, Illinois, a manufacturer of reaping machines. Manny had been sued in Chicago’s U.S. Circuit Court by the powerful Cyrus H. McCormick for alleged infringement of his reaper patents. Lincoln had a reputation in Illinois not only as an effective courtroom advocate but also as a lawyer with a particular interest in things mechanical. Grant Goodrich, a Chicago lawyer who had worked with him in previous patent cases, wrote that Lincoln “had a great deal of Mechanical genius, could understand readily the principles & mechanical action of machinery, & had the power, in his clear, simple illustrations & Style to make the jury comprehend them.”12 The Manny Company gave Lincoln a $1,000 retainer, probably to make sure he didn’t agree to work for McCormick.13 When Justice McLean announced that the trial of McCormick v. Manny would be moved to Cincinnati, where he lived, Lincoln prepared to go to the Ohio city. But Manny’s lead lawyer, George H. Harding of Philadelphia, and his associate, Peter H. Watson of Washington, were not enthusiastic about Lincoln’s participation in Cincinnati. They regarded him as an unsophisticated backwoodsman who would not make a good impression in the “Queen City of the West.” Instead, they hired Edwin M. Stanton, the prominent Pittsburgh-based attorney who had sued to bring down the Wheeling Bridge, to prepare the case for trial. But they neglected to tell Lincoln. McCormick was represented by Edward M. Dickerson of New York and Reverdy Johnson of Baltimore, the latter one of the most eminent appellate lawyers in the country.

  Lincoln prepared for the Manny trial during July and most of August 1855. He visited the Manny factory in Rockford, researched the law applicable to the case, and prepared an argument to be delivered in Cincinnati. But it wasn’t until he reached the Ohio city on September 20 that he learned that he was not to participate in the trial. When he presented a brief he had prepared for the case, the other lawyers accepted it without looking at it, and eventually returned it unread. When McLean hosted a dinner for the lawyers at his home just outside Cincinnati, Lincoln was not invited. In the words of Robert Henry Parkinson, a lawyer who later gathered information about Lincoln’s trip to Cincinnati, he “was throughout treated by the other counsel with marked discourtesy, sidetracked from the participation which had been assigned him, excluded from consultations as well as argument, and shown less respect than probably befell any other of those in attendance.” According to Parkinson, Stanton was the principal instigator of the discourtesy shown to Lincoln.14

  Lincoln remained in Cincinnati during the trial, although he did not enjoy himself. When he said good-bye to the woman in whose home he had stayed, he thanked her for inviting him to return but said he never expected to be in Cincinnati again. “I have nothing against the city, but things have so happened here as to make it undesirable for me ever to return here.”15 He went back to Springfield resolved to improve his legal skills; he was determined to study the law harder than he ever had before, so he would never again be regarded as an unworthy colleague of lawyers like Edwin Stanton or Reverdy Johnson.16

  As fate would have it, less than half a decade later, President Lincoln was to name Edwin Stanton to his cabinet as secretary of war, at once giving testimony to Stanton’s ability and Lincoln’s own refusal to hold grudges. And when Stanton was later reminded of the discourtesy he had shown Lincoln in Cincinnati, he remembered it with regret, saying, “What a mistake I made about that man when I met him in Cincinnati.”17 McLean went on to decide the case of McCormick v. Manny against McCormick and, on appeal to the U.S. Supreme Court, his decision was upheld.18 After Lincoln returned to Springfield, Manny’s lawyers sent him a check for the fee he would have received had he participated in the Cincinnati trial. He returned it with the explanation that he had not earned it. But they sent it back to him again, and he finally accepted the money, along with the valuable lessons the Cincinnati experience had taught him.19

  During the last months of 1855 and the first months of 1856, Lincoln was traveling with Judge Davis and other lawyers on the Eighth Circuit, appearing in the U.S. courts, arguing cases in the Illinois Supreme Court. At the same time, however, he was concerning himself with the anti-Nebraska cause, which was assuming greater importance as a political issue both inside Illinois and outside. Men who shared his conviction that slavery should not be allowed to spread into the western territories were coalescing to form a new political party. Lincoln was hesitant about joining the new party—he was an “Old Line Whig” and dedicated to Whig principles. But the new party, now called the Republicans, had announced that it would hold a presidential nominating convention in mid-June 1856 at Philadelphia. Although Lincoln was chosen as a delegate to the convention, he declined to go, instead sending a representative in his place. Still, he paid close attention to the event and frequently expressed his opinion as news of the convention made its way back to Springfield.

  The convention in Philadelphia would be the first ever for the Republican Party, and its nominees for president and vice president would be the first Republicans ever to face the voters in a nationwide election. Potential candidates for its presidential nomination included Governor Salmon P. Chase of Ohio, Speaker of the U.S. House of Representatives Nathaniel P. Banks of Massachusetts, Senator William Henry Seward of New York, and John C. Frémont, the charismatic western explorer and former U.S. senator from California. Lincoln believed that these men were too radical on the slavery issue to win the support of many of the old Whigs. He favored a candidate with more moderate views, one who would keep the old Whigs from flocking to the Democratic candidate, James Buchanan of Pennsylvania. “The man to effect that object is Judge McLean,” he wrote in June 1856.20

  John McLean had long made it known that he was interested in serving as president. He was opposed to slavery and defended the power of Congress to prohibit its spread into the territories, although he was insistent that whatever Congress did should conform to constitutional rules.21 Lincoln’s friend Orville H. Browning, a Whig lawyer from Quincy, Illinois, shared Lincoln’s views about the Supreme Court justice: “McLean, in my opinion, would be stronger in this state than anyone whose name has been suggested. We have many, very many, tender footed whigs, who are frightened by ugly names, that could not be carried for Freemont [sic], but who would readily unite with us upon McLean.”22

  But McLean was not a young man—he was seventy-one years old in 1856, while Frémont was just forty-three. When the delegates met at Philadelphia, McLean received 196 votes to Frémont’s 359 on the first ballot, and the nomination ultimately went to Frémont.23 Lincoln was not pleased (he never felt optimistic about “the Pathfinder’s” chances of winning the election), but he was pleasantly surprised by the news that he himself had received 110 votes in the vice presidential balloting.24 William L. Dayton of New Jersey ultimately received the vice presidential nod, but Lincoln received some unexpected (and unsolicited) recognition in the early voting. He realized then, if he had not before, that his voice was being heard, not just in Illinois but also outside the state.

  Lincoln’s opposition to the Kansas-Nebraska Act in 1854, his unsuccessful bid for election to the Senate early in 1855, and his abortive trip to Cincinnati to participate in the Manny trial later in the same year all took place against the backdrop of continuing activities at Rock Island. Work on the bridge continued unabated through 1854 and 1855, undeterred by the efforts of Jefferson Davis and Attorney General Caleb Cushing to stop it with an injunction. When the first trains crossed over the span in April 1856, and the Effie Afton crashed into it early in May, the stage was set for the great trial that was soon to come.

  The Effie Afton was covered by insurance when it crashed into the Rock Island Bridge, but the amount was reported to be only $15,000, far less than the value of the vessel, to say
nothing of the cargo, and the only risk the insurance covered was fire. It was of some help to Jacob Hurd and the two other men who owned the boat, and it gave the insurers the right to authorize salvage teams to go to the wreck and see what they could recover. The salvagers found that the boat itself was a total loss but that much of the cargo was still in good condition. At the same time, the Railroad Bridge Company began to rebuild the span. The stone piers had not been damaged by the fire, so only the timber trusses on the Illinois side of the turntable pier had to be replaced. The reconstruction proceeded at a good pace during the summer of 1856 and was completed early in September. Cost of the work was reported to be $12,000. The first trains passed over the rebuilt span on September 8, only four months and two days after the bridge was damaged.

  Lincoln spent much of the summer of 1856 campaigning for Frémont and other Republican candidates. He delivered more than fifty speeches in Illinois and neighboring states attacking the Democratic candidacy of James Buchanan and the Know-Nothing candidacy of former president Millard Fillmore.25 A northern man with southern sympathies, Buchanan supported Stephen Douglas’s call for “popular sovereignty” in the territories. The Know-Nothings (formally styled the American Party) were opposed to immigrants and Catholics and favored all sorts of laws that would limit their participation in the civic life of the nation. Lincoln hated slavery and Buchanan’s toleration of it, but he was also opposed to Know-Nothingism. “I am not a Know-Nothing,” he wrote to his old friend Joshua Speed. “That is certain. How could I be? How can any one who abhors the oppression of negroes, be in favor of degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that ‘all men are created equal.’ We now practically read it ‘all men are created equal, except negroes.’ When the Know-Nothings get control, it will read ‘all men are created equal, except negroes and foreigners, and catholics.’ When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty—to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy [sic].”26

  Lincoln was not surprised when, on election day, Buchanan carried Illinois with 44 percent of the vote to Frémont’s 40 percent and Fillmore’s 16 percent. Nor was he unprepared to learn that Buchanan did even better in the nation as a whole, winning 45 percent of the popular vote to Frémont’s 33 percent and Fillmore’s 21 percent. But he was encouraged by the victory of the Republican candidate for governor of Illinois, William H. Bissell. Lincoln believed that the election of 1856 was, above all, a victory for equal rights. In a speech delivered at a Republican banquet in Chicago on December 10, 1856, he referred to Buchanan’s assertion that in the election of 1856 the people had “asserted the constitutional equality of each and all of the States of the Union as States.” Lincoln rejected the idea that “all States are equal” or that “all citizens as citizens are equal” in favor of what he called “the good old ‘central ideas’ of the Republic” and “the broader, better declaration” that “all men are created equal.”27

  While Lincoln was reviewing the 1856 presidential election and pondering its significance for the future, Jacob Hurd and his partners were preparing a lawsuit. It is likely that they contemplated some kind of legal action from the date of the Effie Afton’s collision with the Rock Island Bridge. The monetary loss they suffered was enormous, and they could hardly be expected to endure it without seeking compensation from some party or parties. The bridge owners were a logical target for their judicial wrath. But where should they file their suit? Hurd and his partners were citizens of Ohio, and the Railroad Bridge Company was incorporated in Illinois, so they could rely on diversity jurisdiction in their choice of courts. Article III, section 2, of the U.S. Constitution gives federal courts jurisdiction over cases “between citizens of different states.” Congress had provided by statute that the U.S. Circuit Courts had jurisdiction (concurrently with state courts) of civil suits between citizens of different states when the amount in controversy was more than $500.28 The loss suffered by the owners of the Effie Afton was estimated to be in excess of $50,000, perhaps as much as $750,000, so the boat owners easily met the requirements for filing suit in the U.S. Circuit Court in the Northern District of Illinois.

  Whether Hurd and his partners first sought legal help in Illinois or on their home turf in Ohio is not clear, but they soon assembled a formidable team of lawyers from both states. Hezekiah M. Wead of Peoria was their lead attorney in Illinois. Born in Vermont in 1810, he had moved to Illinois in 1840, where he achieved a reputation as one of the best “river lawyers” in the state.29 An ardent Democrat in a state dominated by Democrats (Lincoln’s Whigs were in a distinct minority in Illinois), he had been a member of the convention called to revise the state constitution in 1847 and served from 1852 to 1855 as judge of Illinois’s Sixteenth Circuit. Wead’s law practice earned him the respect of his courtroom opponents, while his judicial service entitled him to be addressed (even in the heated give-and-take of trials) as “Judge Wead.” Corydon Beckwith was thirteen years younger than Wead, also a native of Vermont, and a lawyer who had achieved a considerable reputation after moving to Illinois in 1853. Practicing in Chicago, his reputation for legal scholarship was so good that in 1864 he was appointed to a brief term on the Illinois Supreme Court.30 Timothy D. Lincoln (commonly called T. D. Lincoln) was the Ohio-based member of the plaintiffs’ legal team. A native of Massachusetts, Lincoln had moved to Cincinnati in 1841, where he achieved a good reputation as an admiralty, insurance, and patent lawyer.31 He was, so far as the evidence shows, unrelated to Abraham Lincoln.32

  The case of Jacob S. Hurd, Joseph W. Smith, and Alexander W. Kidwell v. The Railroad Bridge Company was begun in October 1856, when Wead filed opening papers with the clerk of the U.S. District Court for the Northern District of Illinois in Chicago.33 In a declaration filed in November, Wead alleged that the Mississippi River was “a public navigable stream” and that all citizens of the United States had the right to navigate it “free from any interference or obstruction whatever.” He declared that Hurd, Smith, and Kidwell were the owners of the Effie Afton, a steamboat duly licensed and enrolled under the laws of the United States, and that the boat was built “at great expense” and “particularly fitted” for a trip on the Upper Mississippi between St. Louis and St. Paul. The defendant had “wrongfully and injuriously” caused a railroad bridge to be constructed across the river at Rock Island. The piers of the bridge were set at “such angles to the natural current of the river” that they constituted a “permanent obstruction in the course of said river” and materially prevented the “safe navigation of steamboats in ascending and descending the river at that point.” On May 6, 1856, while the Effie Afton was being navigated “with due care and skill,” it was “forcibly driven by the current and eddies caused by said piers” against one of the piers, so that “a large portion of the cabin was torn off,” the steamboat was “set on fire by the upsetting of the stoves,” and it was “wholly consumed with her machinery and cargo.” The losses occasioned by the collision were enormous, for the value of the steamboat was alleged to be $75,000, the owners’ personal property on board was stated to be worth $200,000 (the value of steamboat cargos often exceeded the value of the boats that carried them), and the freight being carried was valued at another $150,000. The declaration went on to say that the collision had caused the owners to lose another $500,000 in future profits, as well as the $5,000 they had paid the crew for the trip from St. Louis to St. Paul. The total of the losses was now claimed to be an astounding $930,000. A summons was served on Henry Farnam, the Bridge Company president, on September 18. On January 6, 1857, Chicago attorney Norman B. Judd filed the defendant’s plea denying that it was guilty of the “grievances” alleged in the declaration and denying liability for the claimed losses.34

  If Hurd and his partners were well represented by the lawyers who signed on to their case, they were also supp
orted by the steamboat interests in St. Louis. On December 16, 1856, boat owners and businessmen met in the Merchants’ Exchange in St. Louis and appointed a committee “to take measures to remove the railroad bridge from the Mississippi river” at Rock Island.35 A committee of steamboat captains and pilots was authorized to go to Rock Island, survey the scene of the Effie Afton disaster, and produce a report that could be used in the legal proceedings in Chicago.36

  After visiting Rock Island, the committee reported that the bridge was “a great and serious obstacle to navigation.” The Railroad Bridge Company had not lived up to its own state charter, which required it to build a bridge that did not “materially” interfere with the free navigation of the river. To make matters worse, the company had never obtained a charter from Iowa permitting it to build on the Iowa portion of the river.37 (This was wrong, for the Mississippi and Missouri Railroad had obtained permission to build and use a bridge across the Iowa half of the river when it was chartered by the Iowa legislature in 1853, and it was working closely with the Railroad Bridge Company to erect and use the Rock Island Bridge).38

  Then, on February 11, 1857, the Chicago Board of Trade convened a meeting to discuss the bridge, and the meeting was attended by a delegation from the St. Louis Chamber of Commerce that had traveled to Chicago to present arguments against the span. One of the most prominent members of the delegation was Josiah W. Bissell, an energetic engineer who had just designed a suspension bridge for construction across the Mississippi at St. Louis. Bissell’s design had won him plaudits in St. Louis, but investors there rejected it because of its exorbitant cost (estimated at $1.5 million).39 Bissell had brought a map to Chicago that showed the long pier of the Rock Island Bridge occupying the center of the main channel of the river at Rock Island. He told the Chicagoans that the Rock Island Bridge had caused tremendous losses to lumbermen and to St. Louis planing mills because of the inability of boats to carry their work through the bridge. He asserted that the St. Louis Chamber of Commerce was not opposed to bridges across the Mississippi so long as they were built “in such a manner as not to injure navigation on the river.” In response to a question, Bissell revealed that a second lawsuit was being prepared for filing against the Rock Island Bridge. This suit, he said, would be “brought by the St. Louis Chamber.”40 The Board of Trade responded by unanimously passing a resolution stating that railroads had “to a great extent superseded water communication, by opening up shorter and more active routes of transporting commodities from and to remote sections of the country.” Bridges were “of great service and benefit to the country generally,” though they should be built so that they preserved the “navigable value” of all streams. The navigable value of streams was preserved when navigation was “not destroyed thereby, or prejudiced beyond what is actually necessary for the permanent construction of such bridges.”41