Lincoln’s willingness to have the case tried before either Judge McLean or Judge Drummond was, if nothing else, evidence of his courtroom tact. Why should he or his colleagues express a preference for one of the two jurists when doing so might offend the other? McLean was, of course, the more eminent of the two, and the senior in both age and judicial service, for he was seventy-two years old and in his twenty-eighth year as an associate justice of the United States Supreme Court. Drummond, in contrast, was forty-seven and had served as a U.S. district judge for only seven years. Both men, however, were well-respected judges, and both could be expected to conduct a fair trial.
John McLean had been born in New Jersey in 1785, although he moved with his family to Virginia in 1789, to Kentucky in 1790, and to Ohio in 1796. He worked on his family’s farm until he was sixteen and, like Lincoln, was largely self-educated. But he was an intelligent man with a driving ambition that quickly set him apart from other Ohio farm boys. He published a newspaper before beginning the practice of law, then plunged into a long life of public service and political finagling, which included a term as head of the U.S. Land Office in Cincinnati from 1811 to 1812 and one as a member of the U.S. House of Representatives from 1813 to 1816. From 1816 to 1822, he was an associate justice of the Supreme Court of Ohio. He was thirty-eight years old when, in 1823, President James Monroe appointed him as U.S. postmaster general. Satisfied that McLean was a loyal supporter, John Quincy Adams kept him as postmaster general through his presidential term, but when Andrew Jackson assumed the presidency in 1829 McLean switched his loyalty from Adams to Old Hickory and was promptly rewarded with Jackson’s first appointment to the United States Supreme Court. Supreme Court judges in those days spent more time presiding over trials in the circuits to which they were assigned than hearing appeals in Washington. McLean’s Seventh Circuit first embraced the states of Ohio, Kentucky, and Tennessee, but after the judicial reorganization of 1837 it was redrawn to embrace Ohio, Indiana, Illinois, and Michigan.22 He had to travel (in the early days by boat and stagecoach, in later years by rail) over his far-flung circuit, presiding over trials, alone or in conjunction with the U.S. district judges in the various districts.
McLean had a reputation as a hardworking, conscientious judge, and his views on the great legal issues facing the United States were for the most part mainstream. He wrote the majority opinion in the controversial case of Pennsylvania v. Wheeling and Belmont Bridge Company in 1852, in which the Supreme Court declared the suspension bridge over the Ohio River a nuisance and ordered it to be raised to a greater height or torn down.23 Four years later, however, he refused to issue an injunction against the Rock Island Bridge, ruling that it did not constitute a nuisance as a matter of law, although a lawsuit for damages might one day be brought against its builders.24 McLean was also a perpetual dabbler in presidential politics, making it known over the years that he would be available as a presidential candidate for the Anti-Masonic, Free Soil Democratic, Whig, and finally Republican parties. Lincoln thought enough of McLean in 1856 that he expressed his support of McLean as that year’s Republican presidential nominee,25 but the national convention chose Frémont. Lincoln continued to express political support for McLean right up through the early part of 1860, repeatedly saying that he was a good candidate for the presidential nomination, although his age (he was then seventy-five) militated against him in the eyes of many Republicans.26
McLean was a large man, with a large head (in later years mostly bald although framed by long, somewhat disheveled hair) and a handsome face. He was courteous to all who entered his courtroom, although more stiff and proper than amiable.27 Salmon P. Chase, a prominent Ohio attorney and politician (he was to join Lincoln’s presidential cabinet as secretary of the treasury in 1861 and win Lincoln’s nomination to succeed Roger Taney as chief justice of the Supreme Court in 1864) knew McLean well, for both men made their homes in Cincinnati. Chase thought highly of McLean’s intentions but not of his manner. “It is a thousand pities that a man of such real benevolence of heart as the Judge possesses,” Chase once commented, “should not allow more of it to flow into his manners.”28
McLean’s most notable judicial opinion was the dissent he filed just a few months before the opening of the Effie Afton trial in the infamous case of Dred Scott v. Sandford. In his thirty-five-page dissent from the opinion of Chief Justice Roger Taney, McLean mounted a vigorous attack on slavery, arguing that Dred Scott should be recognized as a free man because he had been taken by his master to live on free soil. Slavery, in McLean’s view, was a state institution and not protected by the federal constitution or laws.29 Lincoln agreed with the views McLean expressed in Dred Scott,30 but his impressions of the judge himself may not have been altogether positive. He had, of course, seen McLean in action in Illinois in cases in which he was an attorney. But when he went to Cincinnati in 1855 to take part in McCormick v. Manny, he had an opportunity to see the Supreme Court justice in a different light. Although Lincoln was rudely excluded by the other attorneys from participating in the Manny trial, he stayed long enough in the river city to get a good impression of McLean on the bench in a very important case. Henry Clay Whitney said that when Lincoln returned from his unpleasant experience in Cincinnati, he said, “Judge McLean is a man of considerable vigor of mind but no perception at all; if you was to point your finger at him and also a darning needle he would not Know which was the sharpest.”31
Thomas Drummond was a judge everybody seemed to admire. Intelligent and well educated, he combined the work ethic of his native New England (he was born in Maine in 1809) with the legal professionalism of Philadelphia, where he studied law and began his legal career in 1833. He moved to Illinois in 1835, settling in the lead-rich mining town of Galena (at one time second only to Chicago among Illinois’s most populous cities), where he practiced law and was elected to the Illinois House of Representatives. Walter Q. Gresham, a prominent lawyer, politician, and judge who knew Drummond very well in later years, said that “all things considered, Judge Drummond was the most perfect man I have ever known.” William Howard Taft, who became acquainted with Drummond as a young man in Cincinnati and later served not only as president of the United States but also as chief justice of the Supreme Court, said that everybody who came in contact with Drummond “felt that he was of the material and timber which Supreme Court judges ought to have.”32 Lincoln knew Drummond well, for he represented clients in at least twenty-four cases in which Drummond presided, and after he became president he considered nominating him to the Supreme Court at least twice, although other considerations ultimately persuaded him to name different men.33 Drummond began his service as judge of the U.S. District Court in 1850, presiding over courts in both Springfield and Chicago until 1855, when Congress divided Illinois into Northern and Southern Districts. Drummond thereafter served in the Northern District in Chicago while Judge Samuel Treat took up duties in the Southern District in Springfield.34
When Lincoln appeared before Judges Drummond and McLean to ask that the trial of Hurd et al. v. The Railroad Bridge Company be continued to a later date, both Wead and Judd had commented on the interesting (and very important) question of whether the case was only about seeking damages or had some larger implications. “We hope that we are quite aware that nothing more will be absolutely determined by the decision in this case,” Lincoln told the judges. “That is we are quite aware, as we think, that the bridge will not be torn down, not be abated as a nuisance on any judgment in this case.” But both parties had been “shaping their testimony in this case with reference to something more” than the mere issue of damages. “If this case should be half tried,” Lincoln said, “or tried upon half the evidence that should be gone in, that would bear upon [the larger question], we should have another long law suit about this bridge, which if we get it fully tried, we may never have. Both parties do look upon it in that view. The examination of these 1,100 pages of testimony shows it.”35
As he looked about
the courtroom, Lincoln noticed a reporter who was busily taking down everything that was being said, including Lincoln’s own remarks. “I don’t know the gentleman,” Lincoln said, “—he is a gentleman to all appearance—but I would risk a trifle that he is a St. Louis reporter, and of course Judge Wead does not know him. Of course he does not.”
Judge McLean interrupted to say, “That is quite immaterial. The gentleman has a right to report.”
“Of course,” Lincoln replied, “and he may have come here on his own hook. It may be that Judge Wead don’t know him at all.” It was easy to detect a note of sarcasm in Lincoln’s remarks, but the sarcasm was justified. He knew that the upcoming trial was being closely followed in St. Louis. Newspapers from the great river city did not usually send shorthand reporters to cover trials in Chicago, particularly if the only purpose of the trial was to determine whether steamboat owners from Cincinnati could collect damages for a boat that was destroyed more than three hundred miles north of St. Louis. “To keep inside the record by the affidavit,” Lincoln continued, “it will be made to appear that the main question is the general obstruction of the navigation by this bridge.”36
The reporter Lincoln referred to was Henry Binmore, a twenty-three-year-old, British-born journalist from St. Louis who had developed a unique method of taking shorthand notes. It enabled him to work quickly and efficiently, but since his notes were of his own invention, nobody else could read them.37 He had been sent to Chicago to cover the Effie Afton trial for the St. Louis Missouri Republican, an influential newspaper that, like the steamboat interests in St. Louis, was strongly opposed to the Rock Island Bridge. If Binmore brought a degree of professionalism to his work, it was mixed with a heavy dose of anti-Chicago bias. He was by most accounts a peculiar man, variously condemned as “seedy,” “a complete little fop and fool,” and “hard to get along with.”38 He would eventually be fired by the Missouri Republican for unethical conduct, but then hired in 1858 by Stephen Douglas to report that year’s debates between Douglas and Lincoln for the pro-Douglas Chicago Times. Years later, Robert R. Hitt, who reported the same Lincoln-Douglas debates for the Chicago Press and Tribune, asserted that Binmore was paid to cover the debates for the explicit purpose of misrepresenting Lincoln’s remarks, making him “appear ignorant and uncouth beside Douglas.”39 Binmore’s anti-Lincoln malice was not so evident in his coverage of the bridge trial in 1857, although his opposition to the Rock Island Bridge was an ever-present background to his reporting.
Hitt’s own reports of the trial, printed in the Chicago Press, were not entirely unbiased either, for, as Hitt confided to his journal, Norman Judd paid him “a lot of money” for reporting the “bridge case.”40 If Henry Binmore was in the employ of the Missouri Republican, Robert R. Hitt was in the employ of Norman Judd and the railroad interests he represented.
Despite these obvious conflicts of interest, the newspaper reports of Binmore and Hitt were to become essential records of the trial. Because the official court records were destroyed in the great Chicago fire of 1871, the newspaper reports emerged as the only surviving records of the case. They enjoyed another distinction as well, for they were eventually to be recognized as one of only three verbatim transcripts of the oral testimony of courtroom witnesses in all of Lincoln’s law practice.41
After the arguments on Lincoln’s motion for a continuance were completed, Judge McLean made his ruling. The trial would be continued to a special term of the circuit court to begin in September. When the precise date of the commencement was set, Judge McLean would announce it.42
In early September, Henry Binmore wrote what he called a “summing up” of the Effie Afton story for the Missouri Republican. He had read some of the depositions taken in preparation for the trial and concluded that the steamboat owners would rely primarily on the testimony of river pilots to prove that the Rock Island Bridge was a “material obstruction” to navigation. The bridge owners, in contrast, would rely primarily on the testimony of engineers to prove that it was not. Betraying his pro-steamboat, anti-bridge bias, Binmore told his readers: “The case seems to depend, so far as agreement goes, upon whether the jury will be governed more by the plain and unvarnished facts of the case, or whether they will be ‘befogged’ by an accumulation of scientific illustrations.” Binmore continued: “As a collateral question will, of course, come up, the effect of the bridge as a nuisance, including the question as to whether it is built in such a way as to cause eddies, cross-currents, and the piling of the water, &c., &c. Scientific men will of course differ hereupon, and the men who should know all about it, disagreeing, a jury of twelve men who know nothing about it will be called on to decide the scientific question.”43
Lincoln remained in Chicago until July 18 and then went home to Springfield. He had some court cases to attend to, but none that occupied a lot of his time. He and Mrs. Lincoln were able to leave Illinois in late July for a two-week vacation, which took them to Niagara Falls and other points of interest in New York and Canada. He was back at work in Springfield by August 5. On August 17, he responded by letter to an invitation from Governor James Grimes of Iowa to give a political speech in Davenport. He told Grimes that he was engaged in the Rock Island Bridge case in Chicago, that it was scheduled to begin on September 8 (the date had since been announced by Judge McLean), and that it would probably last two or three weeks. He thought that “all hands” might come over to take a look at the bridge before the trial started, and told Grimes that if it was possible “to make it hit right,” he could speak in Davenport.44
Some accounts of Lincoln’s participation in the Rock Island Bridge case assert that he spent “months” in preparation for the trial, that he interviewed prospective witnesses, and that he took “numerous depositions for use upon the trial.”45 Some claim that he hired a steamboat (or steamboats) to take him through the draw of the bridge several times to test the boat’s reaction to the currents and the piers.46 Like the conversation with cigars between Judd, Knox, and Farnam in the Tremont House, these accounts raise more questions than they answer. They were not published until many years after the event, and it is generally agreed that, other things being equal, the passage of a long period of time between an event and the first account of it undermines its credibility. Further, the accounts were not attributed. Who was present when Lincoln hired the boat (or boats)? Who saw him use them to test the currents? We are not told. Lincoln himself said in open court that he did not come into the case until July 7, 1857, and that by that time more than a thousand pages of depositions had already been taken. How many more depositions had yet to be taken? It is clear from Lincoln’s other activities between July 7 and the opening of the trial (barely two months in all) that he was busy with other cases and that he took some time to make a sight-seeing trip with Mrs. Lincoln. There is no reason to doubt that Lincoln prepared carefully for the trial; it was his nature to prepare carefully for important cases. He certainly researched the law, studied the depositions that had been taken before he joined the defense team, and discussed the issues that would arise in the trial with his co-counsel. It is stretching the facts, however, to say that he spent “months” getting ready, or that his preparation was “prodigious.”
Some doubts have been expressed as to whether Lincoln visited the bridge before the trial.47 Not long after he wrote Governor Grimes to say that he might be able to speak in Iowa if he and the other attorneys were able to come over and “take a look at the Bridge,” the Rock Island Argus reported that Lincoln was “expected in Davenport in a few days, for the purpose of examining” the bridge.48 Sometime in the 1930s, a valuation engineer for the Chicago and Rock Island Railroad announced that the railroad archives contained a letter-book copy of a letter purporting to have been written by Judd to Lincoln on September 4, 1857, acknowledging that Lincoln had in fact visited the bridge.49 In the letter, Judd expressed the hope that Lincoln “suffered no ill effects” from his trip to Rock Island and his “inspection of the Mississippi rive
r bridge last Tuesday [i.e., September 1].” The letter was dated at Chicago and addressed to Lincoln in Springfield, and it was not in Judd’s own hand but in that of another, unidentified person.50 Because Lincoln was already in Chicago when the letter was sent to Springfield, and because Judd normally wrote out his letters in his own handwriting, some questions have been raised about the authenticity of the letter. Why didn’t Judd communicate with Lincoln personally, or at least send the letter to him in Chicago? Why didn’t he write out the letter in his own hand?51
There is no doubt that Lincoln left Springfield for Chicago during the first week of September.52 And there is good evidence that, just before or after his arrival in the lakeside city, he visited the Rock Island Bridge in conjunction with some of the other lawyers and engineers who were involved in the case. Benjamin B. Brayton, the engineer who had located the bridge, designed it, and supervised its construction, was on hand to help him inspect the span and answer his questions. Brayton’s teenage son, Benjamin B. (Bud) Brayton Jr., was also there, and years later he recorded his recollection of what had happened during the visit.
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