Bud Brayton said that Lincoln did not seem to be satisfied by the explanations offered by the bridge engineers about the currents in the river. He approached Brayton and said, “Young man, are you employed on the bridge? If so will you go with me to the head of the draw pier and answer some questions?” Brayton readily complied. After a time, Lincoln said that he understood the situation. He thanked young Brayton, said good night, and rejoined the other men who had come with him to Rock Island. He then boarded the special Rock Island car that had brought him west from Chicago and returned to the lakeside city.53
Lincoln’s departure from Springfield in the first week of September; his letter to Governor Grimes in which he expressed willingness to speak in Iowa (although there is no evidence that he did in fact do so); the newspaper report that he was expected in Davenport; Judd’s letter acknowledging that Lincoln did in fact visit the Rock Island Bridge; Bud Brayton’s later memories of Lincoln’s appearance on the span; and the detailed knowledge that Lincoln revealed of the bridge during the trial: all of these point to the conclusion that Lincoln did in fact visit the bridge and did study its structure and its operation, although probably only in the company of other men who went there with him. It would have been highly out of character for him to go into such an important case without inspecting the object of the controversy, particularly when by simply taking a train from Chicago to Rock Island he could quite easily have done so.
Lincoln’s preparations were now complete. The trial was about to begin.
EIGHT
A Very Serious Obstruction
The U.S. Circuit Court for the Northern District of Illinois met on Tuesday morning, September 8, 1857, on the third floor of the Saloon Building in Chicago. Promptly at nine o’clock, Judge John McLean took his seat on the bench and rapped his gavel for order. Looking across the courtroom, the judge could see that the seats inside the bar were all occupied and that the spectators’ benches were packed; not surprisingly, for Chicagoans knew that the trial the newspapers were already calling the Effie Afton case would have far-reaching consequences for the transportation future of the country. Adding to the crowd, the sheriff had brought prospective jurors to be examined and selected, men who eyed the lawyers with curiosity and listened somewhat nervously as the judge spoke.
The counsel table was lined with the attorneys who had come to do battle in the case: Hezekiah Wead of Peoria, T. D. Lincoln of Cincinnati, and Corydon Beckwith of Chicago for the plaintiffs, and Norman B. Judd of Chicago, Abraham Lincoln of Springfield, and Joseph Knox of Rock Island for the defendants. Henry Binmore of the St. Louis Missouri Republican was on hand with his shorthand pad, eager to transcribe the proceedings for his readers in the Missouri City, while Robert R. Hitt was ready to do the same for readers of the Chicago Press.1 Another reporter (unnamed in the newspaper accounts) represented the Chicago Tribune. The Chicago and St. Louis reporters knew that when they filed their reports, newspapers in cities and towns throughout the country would reprint them, anxious to apprise their readers of the drama that was now unfolding in Judge McLean’s courtroom.
According to Binmore’s reports, John M. Douglass appeared with Judd, Knox, and Abraham Lincoln for the defendants, although there is no indication that he actively participated in examining witnesses or making arguments. Douglass was a lawyer of skill and some influence who had practiced for several years in Galena before moving to Chicago, where he became counsel (and eventually president) of the Illinois Central Railroad.2 He may have acted as an assistant to Judd, Knox, and Lincoln, helping them schedule witnesses and access the depositions and other documents they would need during the trial. Lawyers who perform these functions in complicated trials often render valuable services, though their names appear infrequently in the records.
Judd was the first attorney to speak. He rose from his seat and, with the suavity that characterized his many courtroom appearances, asked Judge McLean to clarify a question relating to the use of depositions. So many of these out-of-court transcripts had been taken that some were already likening the case to Jarndyce v. Jarndyce, a trial described in Charles Dickens’s Bleak House that dragged on for generations, impoverishing the litigants while it enriched the lawyers. Judd said that both sides would have “exceptions to considerable portions of the depositions,” and he wanted to know if the exceptions should be taken up before the trial began. It was a reasonable question, and Judge McLean lost no time in answering it. The only objections that could be raised before the trial began would be “of a formal character,” he said, “involving the regularity of giving notice of taking depositions, and the residence of parties, and so on. As to the materiality of evidence, that could only be ascertained during the progress of the case.”3
The next question related to the selection of jurors. Congress had in its earliest statutes laid down some general rules for this but left broad discretion to the courts to flesh out the details. Jurors in federal courts were to have the same qualifications as jurors in the state courts of the federal district and, to the extent practicable, be selected in the same manner. When, from challenges or other reasons, there were not enough prospective jurors to make up a full jury panel, the judge could order the marshal to summon “talesmen” from among bystanders who were in the courtroom or close by and otherwise qualified to serve as jurors.4
The accustomed practice in the U.S. Circuit Court for Illinois was to call prospective jurors in groups of four, permitting first one side and then the other to examine them.5 When the trial began only thirteen prospective jurors were present, and by the time of the court’s adjournment at two o’clock only eight had been selected, so McLean ordered the marshal to summon talesmen.6
Each prospective juror was questioned about his place of residence, his occupation, his previous knowledge of the case, and his willingness to be impartial. All were, of course, white men, for women had no right to serve on juries in the middle of the nineteenth century, and anyone, male or female, who was not white was disqualified from jury service in Illinois and much of the rest of the country as well.7 None of the prospective jurors had any personal interest in the Rock Island Railroad or the Railroad Bridge Company, although one explained that he operated a small “eating place” on the railroad between Chicago and Rock Island and that it drew most of its business from railroad traffic; he didn’t think this would affect his ability to be impartial. Most but not all of the prospective jurors lived in Chicago. Two were from Peoria. One was from the town of Marengo, west of Chicago; another was from Macomb, in the west central part of the state. The operator of the “eating place” was from Sheffield, a coaling stop on the Chicago and Rock Island Railroad. One came from the Logan County town of Lincoln, named for Abraham Lincoln in 1853. Not surprisingly, all of the prospective jurors had read about the case in the newspapers, but most assured the judge that they had not formed any rigid opinions about it. The talesmen summoned by the marshal were brought into the courtroom at three o’clock and subjected to the same questioning as those who had gone before.8
The newspaper accounts did not specify which of the attorneys examined the jurors, so we do not know if Lincoln participated in this part of the trial. Nor was it altogether clear from the printed stories how many of the prospective jurors were challenged for cause and how many were challenged without any specification of cause (challenges of this sort are called peremptory). At least three of the prospective jurors admitted that they had formed opinions about the case that would be hard, perhaps even impossible, to change. They were excused by the judge. The plaintiffs issued peremptory challenges to at least three of the prospective jurors, and the defendants to at least one. One of the prospective jurors was found acceptable by both the plaintiffs and the defendant but sought to be excused because of the “necessities of his business.” Judge McLean denied his request. The examination concluded by four o’clock, when twelve jurors were sworn. Their names as set forth in the Chicago Press were Isaac Underhill, Richard Vinecose, James Clark,
Elisha D. Putnam, Isaac Dempsey, E. Rice, H. G. Otis, J. P. Warner, H. H. Husted, William P. Ross, C. D. Smith, and John Elting.9 (The spelling of these names varied slightly in the Missouri Republican and the Tribune, bearing witness to the imperfections of the reporters who were transcribing the proceedings. Hitt was so imperfect that he repeatedly wrote the name of Abraham Lincoln as “Abram Lincoln”).10 None of the jurors were, so far as the evidence shows, notable individuals in their own right. But by taking their places in the jury box in Chicago’s Saloon Building on September 8, 1857, all were destined to play a part in history.
As lead attorney for the plaintiffs, it fell to Judge Wead to make the first opening statement. A canny courtroom advocate with ample experience addressing juries, Wead was sometimes criticized for an excessively combative spirit, a quality that impressed his clients but struck impartial observers as unattractive.11 His zeal, however, translated into strong and decisive words in the courtroom. “May it please the Court, and gentlemen of the jury,” Wead began, “this is an action brought by the owners of the steamboat Effie Afton, to recover from the Bridge Company at Rock Island, the value of a steamboat, and a portion of her cargo, and such other damages caused by the destruction of her freight, as she may be entitled, under the law and the evidence, to recover.”12
Wead reviewed the basic facts of the case: the circumstances leading up to the Effie Afton’s collision with the bridge on May 6, 1856, and the losses that were suffered as a result of the collision and the fire that followed. He told the jurors that the Effie Afton was an unusually long boat and that it was carrying an unusually heavy cargo at the time of the collision. The water in the river was running high, and it was windy. When the Afton first arrived at the bridge, it found “several boats lying there.” Some were detained in going up the river and some in going down, on account of the difficulty in passing the draw. The next morning, the Afton attempted to pass through the draw, but it collided with the bridge, caught fire, and was destroyed.13
Wead told the jurors that the bridge was built at a point in the river where there was an island, and the channel between the island and the Iowa side of the river was “narrower than anywhere in that neighborhood, or, as I am told, anywhere on the Mississippi River.” The water was thus “compressed into a very narrow channel.” As it flowed under the bridge, it struck the draw pier at an angle, creating eddies and cross-currents. “Although the draw pier is one hundred and sixteen feet in width,” Wead said, “it does not admit a current of one hundred and sixteen feet in width for boats to use in passing up and down.”
Judge McLean interrupted Wead to ask if that was “the exact width of the draw.” Judd hastened to supply the answer. “One hundred twenty feet is the width,” he said. Wead admitted that that was “somewhere about it.” Knox then intervened. “It is one hundred twenty feet at the top,” the Rock Island lawyer said, “but the piers are a little narrower at the bottom.”14
Wead believed that the main issue in the trial would be whether the angle at which the water currents approached the draw of the bridge made it “hazardous.” He said that this question could only be answered by witnesses who had practical experience navigating the river, not by “experts” whose knowledge of navigation was purely theoretical. Before the bridge was built, there was no obstruction of the river, Wead said. “The river has always been free, without difficulty of navigation there.” (Here he was conveniently ignoring the treacherous natural obstructions lurking in the Rock Island Rapids less than a quarter of a mile upstream.) Wead thought that a suspension bridge might be built without obstructing the navigation of the river, or a tunnel dug under the river channel. “With the question as to whether they may build a bridge, or whether that bridge shall be destroyed, we have nothing to do, but we have the right to insist that if they build a bridge they shall do it so as not to obstruct our lawful navigation of the river.”15
As Wead resumed his seat, Judd rose to present the defendants’ opening statement. “I have listened with some attention to the statement of the case on the other side,” the Chicagoan told the jurors. That statement was “mistaken as to the facts.” The Effie Afton decided not to go through the bridge on the first day it arrived at Rock Island because of the high wind that was blowing over the river, not because the bridge was obstructing navigation. Just a quarter of a mile above the bridge the Rock Island Rapids awaited boats, Judd said, and they were “such an obstruction as prevents useful navigation.” Wead had failed to tell the jury about the Afton’s erratic movements on the morning of the collision. “The first thing she did was to run into the ferryboat John Wilson,” Judd said. Then she tried to make a race to the bridge, quickly passing by another boat (the J. B. Carson) that had started out first. There was “a good channel” in the draw, Judd said, but in passing the Carson on the Davenport side the Afton entered an eddy. “As a necessary consequence she was out of the channel and in the wrong place, and the result of that was her bow ran across the entrance of the draw and struck the small pier on this side.” The Afton got in a dangerous position—a “very dangerous position,” Judd said—“by the negligence of the parties having the management of that boat.”
Judd then made an accusation that was calculated to astonish the jurors. He told them that the small fires that broke out on the Afton at the time of the collision were successfully put out in five or ten minutes, but the great fire that consumed the boat and damaged the bridge did not begin for another hour or more. “How, how did it happen?” Judd asked. “I will tell you how it would happen. The boat had got where it would probably be lost. She had no insurance except as against fire, and some of them conceived the design that it was better to take ‘half a loaf than no bread.’ And so the boat burned, and I think we can show beyond all question that the burning was from design.”16
If gasps of astonishment swept across the courtroom at this accusation, nobody would have asked why. Judd was accusing the steamboat owners of deliberately starting the fire that destroyed the Afton and brought down a section of the bridge. It was a shocking charge.
Judd was only warming to his case. He next referred to the concerted opposition to the bridge that had been organized in river cities such as Pittsburgh, St. Paul, and St. Louis. This opposition was “under the lead of the St. Louis Chamber of Commerce,” Judd charged, “organized at a meeting held on the 16th December [1856].” T. D. Lincoln was offended by this charge. “You really do not state that?” the Cincinnatian asked Judd almost impulsively. Judd was not daunted. He said that he had a deposition showing that the lawsuit had to be “vigorously pursued, because a decision in this case might prevent their tearing down all the other bridges. I have read it.” The influence of the St. Louis Chamber was so great that no pilot “dares to express his true opinion” about the cause of the collision, and opposition to the Rock Island Bridge had been “organizing from Pittsburgh to St. Louis.” Judd said he had been at the bridge when he saw a boat approach and the captain order all of the passengers to get off and walk around the bridge because it was “dangerous”—but as soon as the passengers were off, the boat came “kiting up through the bridge.” “Why do they do this?” Judd asked. “So that passengers may go and tell half the world what great danger they have been in from this bridge.”
Judd next refuted Wead’s assertion that the bridge had been built at the narrowest point of the river for the convenience of the railroad, disregarding the needs of the river navigation. He insisted that the span was “located by skillful engineers as being the most convenient point for the uses to which it was to be applied.” Boats could “easily pass” through it, Judd said, adding that the Effie Afton could have successfully passed through it on the day of the collision “if she had been properly managed.”
T. D. Lincoln then asked for leave to address the court. He said that, as far as he knew or believed, neither the Chamber of Commerce of St. Louis, nor any other combinations, had anything to do with this case. He insisted that he had never received compe
nsation from anyone but the plaintiffs. He then showed the jurors “a rough sketch of a map” and spoke to them about it. Judd and Knox followed this up with what Henry Binmore called “a few desultory remarks” and the reporter for the Tribune called “more explanations.”17 So far as the newspaper accounts reveal, Abraham Lincoln did not take part in the opening statements. After cautioning the jury not to speak concerning the case among themselves or to anyone outside the courtroom, Judge McLean adjourned the court to the following morning.
Wead and his colleagues knew from the outset that if they were to prevail in their lawsuit against the Rock Island Bridge they would have to call on witnesses who were scattered widely through the river country. Some of the men who had experience on the Upper Mississippi, or who had personal knowledge of the Effie Afton’s disastrous collision with the bridge, hailed from such distant locations as Pittsburgh, while many others came from St. Louis, and a good number lived and did most of their business in the river towns of Ohio and Kentucky. The lawyers knew that it would be difficult, if not impossible, to bring all of those witnesses to Chicago to testify, so they began months before to take their depositions with the understanding that if the witnesses could not attend the trial, the attorneys would read their depositions to the jury. Testimony read to jurors from written depositions does not have the force and effect of testimony given on the witness stand, where the jurors can personally observe the witnesses’ demeanor and judge whether they seem to be open and sincere in what they say or are hesitant or unsure. But written testimony is better than no testimony at all, so the lawyers in the Afton trial made abundant use of the depositions they had spent months gathering.
It is customary for attorneys in all jury trials to stand whenever they address the jury—it is a mark of respect for the men (and later the women, when they were admitted to juries) who hold their clients’ futures in their hands. The newspaper accounts of the Effie Afton trial do not disclose whether T. D. Lincoln and the other lawyers who read depositions followed this practice, although it is reasonable to assume that they did.
Lincoln's Greatest Case: The River, the Bridge, and the Making of America Page 13