Sterns Hatch, a hotelkeeper from Des Moines who had been a deputy marshal at Rock Island at the time of the Afton collision, gave a deposition in which he testified that he had a conversation with Captain Hurd on the levee “some two or three hours after the occurrence.” Hatch asked Hurd how far the Afton had gotten above the bridge pier “before she swung around,” and Hurd had answered “the boat was thirty or forty feet above the pier.” Hatch then asked Hurd what had caused the boat to swing around in the draw of the bridge. “I can hardly answer that question,” Hurd answered, “but for some cause her machinery on that side did not work well, and the boat got on a shear and the pilot could not straighten her and she came round against the bridge.”23
Robert Lowers was a resident of Davenport who saw the fire that engulfed the Afton from his home. Like many others on both sides of the river, he went down to the bank to see what had caused the conflagration. In the office of a firm called Lawler and Company he found a crowd gathered around a man who was addressed as the “captain” of the boat. “Someone asked the captain if the boat was insured,” Lowers said. “The captain replied that she was insured against fire, but the bridge was the cause of the fire.” Lowers said he was not certain that the man who said these words was in fact the captain of the Afton, but added, “My impression is that it is the same man as I have just been introduced to as Captain Hurd, but I cannot state positively.”24
D. Clarence McNeil, a physician and surgeon from Camanche, Iowa, a small town about forty miles upriver from Rock Island, was a passenger on the steamboat Vienna when the Effie Afton collided with the bridge. While he was still on board the Vienna McNeil saw the Afton strike the bridge’s right-hand pier and swing around under the span. As soon as the Vienna docked at Rock Island he made his way out to the bridge and onto the Afton. “The Afton had not swung clear round and under before I got to her,” McNeil said. He helped passengers who were scrambling to get off the stricken boat, some onto the bridge and others onto the J. B. Carson, which had pulled up to the Afton. McNeil said he heard two men talking. “One of the men was tall,” McNeill said. “Fresh complexion; sandy whiskers; his hair lighter than his whiskers, and a little appearance of baldness. The other was a man of dark hair and whiskers about the same length as the first one but heavier. The dark-haired man says, ‘Well, she is insured.’ The other says, ‘No, she’s lost.’ The other said ‘I thought she was insured,’ and the reply was, ‘She is, but only against fire.’ By this time three or four persons had joined the group, and one of them said to the parties, ‘It is a pity she don’t burn. She is good for nothing,’ and with an oath said, ‘I would burn her and get the insurance.’” McNeill got the impression that the sandy-haired man was the captain because “he appeared to be giving orders.” “After hearing this conversation,” McNeill continued, “I started to go down on the pier, and heard the cry of fire. A man immediately run down to see, and came back and reported that a stove had been turned over, but the fire was put out.” McNeill continued to help passengers get off, then went on shore and from there back to the Vienna, where he sat down to breakfast. After a while he again heard the cry of fire. He “got up from the table and looked out and saw the flames just bursting out.” McNeil said that “it was at least an hour and a half from the time I first saw her swing around against the bridge until the fire broke out.”25
Following McNeil’s shocking testimony, the defense attorneys offered the depositions of some of the plaintiffs’ witnesses and recalled some of their own live witnesses to exhibit inconsistencies or clarify points that had been insufficiently covered in the principal presentations. In all, the defense had presented, through depositions or live testimony, more than thirty witnesses. The Chicago Tribune told its readers that “the mass of testimony put in by the defence has been truly formidable.”26 Combined with the more than eighty witnesses presented by the plaintiffs, the jurors had a lot of evidence to help them make their decision.
Before he finally closed his case, however, Judd wanted to make one last point. It was a point that he thought important, and potentially powerful. While Benjamin Brayton was still on the stand, Judd offered a written statement certified by the superintendent of the Chicago and Rock Island Railroad showing the number of trains, train passengers, and freight tonnage that had passed over the bridge from September 8, 1856, through August 8, 1857—a key period in the life of the young span. If admitted into evidence, the statement had the potential of doing great damage to the plaintiffs’ case, so their lawyers lost no time in objecting to it. T. D. Lincoln argued that the question to be decided in the trial was whether the Rock Island Bridge interfered “with the free and easy navigation of the river,” and that could not be answered by showing how much traffic passed over the bridge. The bridge was “equally an obstruction no matter how much business was done upon it.” To allow this evidence to come in “would lead to endless evidence upon the comparative commerce of rivers and railroads.”27
Joseph Knox argued the point for the defense. He said that his clients viewed the river as a “free stream.” But it was “a startling doctrine” to assert that “however great the public necessities of the Union,” they could not be shown in a court of law, “for it amounted to saying that a bridge could not be built,” a doctrine that “could not be tolerated in this country where the greatest good of the greatest number was sought.” The “true doctrine was that these varying interests should be made to harmonize, each giving as much as it can.” Knox referred to the Peoria Bridge case, in which John McLean was the judge, as a precedent for the proposition that the interests of bridges and river traffic should harmonize. “The Court there said that the right of free navigation of the Illinois River was not inconsistent with the right of the State to provide means of crossing by bridges or otherwise,” Knox explained. “Such bridges do not essentially injure the navigation. The interests are coexistent and neither can impair or destroy the other.”28
Abraham Lincoln’s argument on this vital point followed Knox’s. He gave a history of the Peoria Bridge case—a history he was well acquainted with, having been one of the attorneys in the case. He said that the defense in the current litigation “expected to try this case with the admission that the bridge must not be a material obstruction.” But he thought there was “a qualification to the obstruction in all cases—the materiality of it—and that was to be affected by the necessity of the bridge.” The plaintiffs held that their vested interest in free navigation “could not be interfered with,” but the courts were beginning to decide otherwise, “conforming, as they should do, to the nature and wants of our country.”29
Answering Lincoln, Hezekiah Wead accused the defendants of arguing that, because the bridge was “an immense advantage,” the boat owners were not entitled to recover for their loss. If this argument was accepted, Wead said, the Mississippi would no longer be a “free navigable stream.” The question to be decided in the case was not how much traffic was passing over the bridge—or how much there might be in the future—but whether the bridge was an obstruction. If the extent of future traffic over the bridge could be considered, Wead asked, “where would it end? . . . Would the rule be varied with each successive year?”30
As Judge McLean considered the attorneys’ arguments on this question, he reviewed the already famous Wheeling Bridge case, in which the Supreme Court had originally ruled that the suspension bridge over the Ohio River was a material obstruction to navigation, but then had been overruled by Congress, which declared the bridge a lawful span and required steamboats passing under it not to interfere with its elevation or structure. McLean had written the Supreme Court’s original opinion in Wheeling Bridge31 and vigorously dissented from his colleagues’ subsequent decision to submit to the will of Congress.32
It seemed that McLean still harbored some bitterness about the result in Wheeling Bridge, for he observed that, because of it, “not a steamboat from Pittsburgh can pass without leveling its chimneys.” McLean thought the evi
dence offered by the defendant had “little bearing” on the issues of the present case, but he ruled that it could be admitted for the limited purpose of showing “the necessity of a bridge.” It could not be considered, however, for the purpose of taking away “the nature of the obstruction.”33
With that, Norman Judd read from the bridge superintendent’s statement. It showed that from September 8, 1856, to August 8, 1857, inclusive, 12,586 freight cars had passed over the Rock Island Bridge. Those same cars had been loaded with 125,860 tons of freight. In the same period, 74,179 passengers had crossed over the bridge.34
These numbers may, in Judge McLean’s mind, have had “little bearing” on the case. But the numbers were large, and large numbers have a certain power. The jurors, not the judge, would decide the future of the Rock Island Bridge, and when they did so, it was by no means clear that they would disregard the very impressive volume of commerce that was already passing over it.
ELEVEN
A Virtual Triumph
The last witnesses were heard on Saturday, September 19, the eleventh day of the trial. Closing arguments began on Monday, September 21. Henry Binmore had terminated his reports from Chicago when the witnesses’ testimony ended, so there are no accounts in his newspaper of any of the attorneys’ closing speeches. The Chicago Tribune ended its courtroom reports at the same time, telling its readers that “the case is now being argued” and “we have not room for a synopsis, even, of the very able arguments of Counsel.”1 But Robert Hitt continued to report from the courtroom. His accounts in the Chicago Press thus constitute the only printed reports of the attorneys’ arguments. Although set forth at some length in the Press, Hitt’s reports are actually abbreviated summaries of what he considered the most important remarks made by the lawyers.
As lead attorney for the steamboat owners, Hezekiah Wead had the right to speak first.2 He began by emphasizing the significance of the case. Certainly no one in the courtroom that day had any doubt that the case was an important one, but Wead’s remarks reinforced the point. He insisted that his clients had not brought their suit to prevent bridges from spanning the Mississippi, but solely to recover damages for the loss of the Effie Afton. He noted a certain arrogance in the claims of the bridge owners. They were “a grasping corporation,” he said, and to any complaint about the bridge or its location, they turned and said, “In prohibiting us you are ruining the great commercial cities.” But the question to be decided was simply whether the Rock Island Bridge was an obstruction. “The law is that the citizens of the United States have a right to the free navigation of the Mississippi River,” Wead said. “It has been eloquently called the ‘Father of Waters.’ Care has always been taken to keep it free from all obstructions.”
Wead dismissed testimony about the difficulties steamboats had in navigating the Rock Island Rapids. “We have shown that boats were detained by the bridge,” he said, “and they bring us proof that boats were detained by the rapids.” The issue was whether the bridge was an obstruction, not the rapids. He also minimized Seth Gurney’s testimony that 958 boats had passed through the bridge after August 4, 1856, and only seven had been injured. “Suppose that be true,” Wead said. “If out of a thousand boats seven must be injured, is not that an obstruction?” But how many boats the length of the Effie Afton had passed through? There had been only one, Wead said, and that showed that the bridge had “destroyed the navigation for such boats. Such boats have been shut out. . . . The old adage is, ‘Figures cannot lie,’ but I shall show you before I get through that this old man’s figures do lie.”
Wead spoke at some length about the difficulties that pilots encountered in attempting to pass through the draw of the bridge, and the collisions that followed, and he spoke at even greater length about the law that he thought was applicable to those collisions. He gave the official citations of published cases, some decided in the U.S. Circuit Courts, some in state supreme courts, and read from them. And he called on T. D. Lincoln to read some more. If the jurors were not already “nid, nod, and noddin’,” this reading of dry, technical legal opinions was well calculated to help them do so.
Joseph Knox was the next attorney to address the jury.3 Speaking in behalf of the bridge owners, he agreed with Wead about the great importance of the case, but he disagreed about almost everything else. He reviewed the involvement of the St. Louis Chamber of Commerce in the suit—an involvement that T. D. Lincoln of Cincinnati had objected to every time it came up in the testimony. Answering Wead’s charge that the bridge builders claimed the right to build their bridge wherever they wanted, Knox asserted: “We contend not that we have a right to shut off navigation, but that we have a right to build a bridge, if not materially obstructing navigation. . . . We believe the bridge is placed in the very best manner. Is it reasonable that it should not have been so placed? Would sensible and skillful men, knowing the magnitude of the investment, having so much at stake, have knowingly placed an obstacle to navigation there, which the law would remove? Common sense will show us that men in such a case would place it in the best manner possible.”
Knox reminded the jury that on the morning of the Effie Afton’s collision with the bridge, the pilot Nathaniel Parker had backed the boat out of its place at the Rock Island dock and promptly struck a ferry boat, breaking some of the Afton’s guard chains. Then, going up to the draw of the bridge, he “took a race with the J. B. Carson, passed her on the Iowa or Davenport side, just before she got to the draw.” In passing the Carson, Knox said, the Afton “must have been driven over into the eddy.” Yet Parker continued ahead, striking one of the piers of the bridge with full force. “Was that ordinary care and skill?” Knox asked. “Running a race with another boat, getting into the eddy at the foot of the pier, and then running against the stone pier with all her might?”
Knox chided the plaintiffs’ attorneys for “various absurdities” in their evidence, and he defended Seth Gurney against Wead’s accusation that the bridge caretaker was lying. “Humble as Gurney is,” Knox said, “no man is wealthier in a character for unswerving integrity. Why not bring his neighbors here to testify as to his character, if they wished to attack him? . . . We have introduced here six engineers,” Knox continued, “Jervis, Harris, Tracy, Gilbert, Brayton and Mason, and no other six engineers in this country stand higher. . . . These six men say that those piers are as well located and as well constructed in form as they can be.”
The Rock Island Bridge was, Knox said, “a work of which the country ought to be proud.” He referred to reports that a similar bridge was being planned across the Mississippi from the Illinois shore to St. Louis. It was odd, he thought, that the business leaders of the Missouri city were adamantly opposed to the bridge at Rock Island but willing to accommodate one on their home turf. He sneered, “A bridge must not be built unless it brings trade to the great metropolis of all Pikedom.” (“Pikedom” was a contemptuous term, originally applied to Missourians from Pike County but later used to describe any region inhabited by rubes and ruffians.)
Knox’s long argument—begun on Monday afternoon, the twelfth day of the trial, and concluded on Tuesday morning—ended with calm words. He was “trying to fairly and truly represent the case,” he said, and he “was willing to leave it to a jury of just men.” His speech was followed by the customary afternoon break, which gave the courtroom spectators a welcome moment of quiet before the beginning of Abraham Lincoln’s argument.4
We know a good deal from sources other than the newspapers how Lincoln must have appeared to the Chicago jurors when he rose to address them that September afternoon in 1857. He had over the years adopted familiar habits that inevitably followed him into the courtroom in the Saloon Building. Herndon said that when his partner addressed a jury he was “awkward, ungainly, odd. Sometimes his hands, for a short while, would hang by his side. . . . He used his head a great deal in speaking, throwing or jerking or moving it now here and now there, now in this position and now in that, in order to be more e
mphatic, to drive the idea home.” He “never beat the air, never sawed space with his hands, never acted for stage effect; was cool, careful, earnest, sincere, truthful, fair, self-possessed, not insulting, not dictatorial; was pleasing, good-natured.” Herndon reminded us that Lincoln’s voice was “shrill, squeaking, piping,” but as he continued to speak it “became harmonious, melodious, musical, if you please, with face somewhat aglow; his form dilated, swelled out, and he rose up a splendid form, erect, straight, dignified.”5
As detailed in Hitt’s transcript, Lincoln began his speech in a characteristically Lincolnian way by telling the jury that “he did not purpose to assail anybody, that he expected to grow earnest as he proceeded but not ill-natured.” He acknowledged that there was “some conflict of testimony in the case,” but there had been many witnesses, and “one quarter of such a number of witnesses seldom agree and even if all were on one side, some discrepancy might be expected. We are to try and reconcile them, and to believe that they are not intentionally erroneous as long as we can.”
It was a typically Lincolnian beginning for what was, in reality, to be a hard-hitting speech—Lincoln assuring the jurors that he did not intend to be disagreeable before he proceeded (in a subtly agreeable way) to be disagreeable. He wanted the jury to like him, and he knew that the first words he spoke to them would help to win them over. He was telling the jury that he was an agreeable sort of lawyer, that he had no accusations to make against his opponents in the case, that if the testimony offered by the witnesses on the two sides conflicted, it was no more than what “might be expected.”
Lincoln's Greatest Case: The River, the Bridge, and the Making of America Page 17