Joseph Knox also spent at least one evening with the Judds during the Afton trial. Mrs. Judd recalled that it was after Lincoln had delivered the first part of his closing argument and that Knox was not pleased with how Lincoln had performed. “He sat down at the dinner table in great excitement,” Mrs. Judd remembered, saying, “Lincoln has lost the case for us. The admissions he made in regard to the currents in the Mississippi at Rock Island and Moline will convince the court that a bridge at that point will always be a serious and constant detriment to navigation on the river.” Mrs. Judd recalled, however, that her husband did not agree. He said that Lincoln’s admission in regard to the currents were facts that could not be denied, but that they only proved that the bridge should have been built at a different angle to the stream, and that a bridge so built could not injure the river as a navigable stream.”16
Lincoln resumed his argument on Wednesday, September 23. Aware, no doubt, that the jurors were growing weary of all they had heard thus far, Lincoln assured them that he would “conclude as soon as possible,” but he had some more points that he wanted to make. He said that the colored map that the plaintiffs had at one point brought into the court showed that the alleged cross-currents “did not exist.” He had a model of the boat, which he used to explain that “the boat struck on the lower shoulder of the short pier as she swung around in the splash door, then as she went on around she struck the point or end of the pier where she rested. Her engineers,” Lincoln said, “say the starboard must have struck the upper point of the pier so far back as not to disturb the wheel.”
Lincoln addressed the suggestions made by various plaintiffs’ witnesses that the bridge at Rock Island should have been a suspension bridge, or that it should not have been a bridge at all but a tunnel dug under the river. He said there was no practicability in the project of building a tunnel under the river, for there “is not a tunnel that is a successful project in this world.” (Lincoln was apparently unaware that tunnels had been successfully dug under the Thames River in London.) The suspension bridge was similarly impracticable. “A suspension bridge cannot be built so high,” Lincoln said, “but that the chimneys of the boats will grow up till they cannot pass. The steamboat men will take pains to make them grow. The cars of a railroad cannot without immense expense rise high enough to get even with a suspension bridge or go low enough to get through a tunnel; such expense is unreasonable.”
According to Hitt’s newspaper report, Lincoln concluded with the observation that he had “much more to say, many things he could suggest to the jury, but he wished to close to save time.” Precisely how long Lincoln spoke was not reported, though it is clear that his closing remarks extended over parts of two days.17 It was also evident that T. D. Lincoln had not yet had his chance to argue the case, and his closing speech was a long one, for Hitt reported that it took seven hours to deliver.18 What T. D. Lincoln’s remarks were was left to conjecture, however, for they were not printed in the newspapers. Then followed Judge John McLean’s charge to the jury, also a long—even droningly long—recapitulation of the evidence and the legal issues presented in the trial. Abraham Lincoln had expressed his opinion that McLean had “considerable vigor of mind,” and his jury charge proved Lincoln right. It included detailed and precise summaries of the testimonies of dozens of witnesses that demonstrated, if nothing else, that the seventy-two-year-old judge was paying attention to what all of the witnesses had said during the trial.19
McLean’s charge included some general observations about the river, the bridge, and the case the jurors were now called on to decide. “To any one who will take a general view this is high evidence of a rising and prosperous country,” the judge said. “Bountiful as Providence has been in supplying our country with great lakes and mighty rivers, they are found inadequate to the wants of society. They are the great arteries of commerce, but like the human system, the body cannot be preserved in its healthful vigor unless the veins shall connect with the arteries and impart health and action to every part.” The Mississippi and other navigable rivers were “within the commercial power of Congress,” McLean said, and “subject to its regulation,” but “to specify what shall be a legal structure of a bridge, over any of our rivers, would be attended with great difficulty. The same river would require different regulations to meet its various localities. Upon the whole, perhaps no better rule can be suggested than that which the courts have adopted. It is a safe rule and it is adapted to all rivers and all localities. The bridge must be so constructed as not materially to obstruct navigation.”
But what, in legal contemplation, constituted an “obstruction”? McLean asked. And when was an “obstruction” a “material obstruction”? To try to arrive at any answer to this question, McLean thought it was necessary to resort to the dictionary. “To obstruct is to hinder, not to prevent,” he said. “It is used in the sense, that some inconvenience, expense or delay may be imposed, but these shall be so limited as not to be serious, such as are not material in the prosecution of commerce.”
And if the bridge was a drawbridge, what requirements did the law impose on it? “A draw in a bridge must be convenient and safe,” McLean explained. “Not, that such an accommodation must be adapted to the use of ignorant pilots or boatmen. All commercial arrangements or accommodations, are made with reference to the presumption of law, that any one who assumes the responsibility of navigating a steamboat or other vessel, is qualified to discharge so responsible a duty, and if he fail in such duty for want of capacity, care or knowledge, his employer must suffer. . . . Gentlemen of the Jury,” McLean said, “you can apply the above rule to the case in hand. Was the Effie Afton, in attempting to pass the draw, conducted with care and competent skill?” McLean now concluded:
Upon the whole, gentlemen, I feel bound to say, if you believe from the evidence, the plaintiffs’ witnesses were not mistaken in regard to the cross-currents and eddies in the draw, which endangered the passage by steamboats, and that there was no want of due care and skill in the management of the Effie Afton in attempting to pass through the draw which resulted in her total loss, you will find for the plaintiffs the value of the boat including the insurance money, which, by agreement of counsel, may be considered as a part of the damages to be recovered. But if you shall believe from the evidence, that there are no currents or eddies in the draw, which form a material obstruction to the passage of it, by boats which ply upon the river, and that the Effie Afton, in attempting to pass the draw, was not managed with that degree of care and skill which prudent and competent officers would be expected to exercise, in such a case, you will find for the defendant.
The case was now in the hands of the jury. It was about four o’clock in the afternoon of Thursday, September 24, the fifteenth day of the trial.20 The jurors had listened to more than one hundred witnesses, some engineers with lofty reputations as experts, some steamboat pilots with years of experience on the western rivers, some mere bystanders who had observed the events at Rock Island on May 6, 1856. They had heard long hours of argument from skillful attorneys who had studied the facts of the case from almost every possible angle and yet could not agree on precisely what had happened on the tragic day, or who was legally responsible for the losses suffered. Perhaps Henry Binmore had been right when, at the beginning of the trial, he had drolly told his readers in St. Louis that experts would “of course differ” on the issues in the case, and that “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.”21
The deliberations continued until well after dark. The jurors returned to the courtroom once or twice with questions for the judge. What, they asked, was the precise meaning of the legal term “expert”? McLean supplied them with additional instructions that may or may not have helped them. It was past nine o’clock when the jurors returned a final time to inform the waiting judge and attorneys of the outcome of their deliberations.22
The law r
equired that if a verdict was rendered, it be unanimous.23 But the jurors were not unanimous. They had voted in favor of the bridge by a vote of nine to three.24 The owners of the Effie Afton had failed in their attempt to assess damages against the span. All of the efforts they had brought against it had failed. The jury was hung.
The day after the trial ended, the Chicago Press said that the divided jury vote was “practically a verdict for the defendants. The bridge—that great link between the East and the West—will stand unmarred. The damages claimed by the owners of the Effie Afton, though not wholly lost, they have failed to recover.”25 The Chicago Daily Democrat editorialized that the hung verdict was “virtually a triumph for the bridge.”26
The fact that the jury was hung meant the case was not yet entirely over, however, and that the legal future of the Rock Island Bridge had yet to be finally decided.
TWELVE
The Bridge Stands
The failure of the jurors to reach a unanimous verdict required Judge McLean to dismiss them and return the case to the court’s calendar for future trial. Whether a new jury would actually be summoned to the Saloon Building courtroom was largely in the hands of Jacob Hurd, Alexander Kidwell, and Joseph Smith. They could insist on a new trial or not—the choice was theirs. Lincoln and his fellow defense attorneys had beaten back the boat owners’ first attempt to bring down the Rock Island Bridge with a judgment for damages. The bridge still spanned the river. Trains still crossed it daily carrying passengers and freight from Illinois into Iowa and back again. If the plaintiffs wanted a new trial, they needed some assurance that the new trial would produce tangible results. The result that they most favored, of course, was the demolition of the bridge, but a hefty judgment for damages could do a lot to help bring about that result.
Only three weeks after the Chicago trial ended Hezekiah Wead wrote Hurd, who had returned to his home in Ohio, urging him not to be discouraged. Wead was sure that if competent engineers could be brought from St. Louis to Rock Island to “actually find out how the current affects boats in the draw,” they would prevail in a new trial.1 Wead wrote Hurd again in November advising him that he had written Congressman Cadwallader Washburn of Wisconsin asking him to introduce a bill in Congress allowing a change of venue in the case (the law did not then authorize such a change). Wead and Hurd clearly believed that their failure to win a verdict in Chicago was due to the pro-bridge, anti-steamboat bias of the jurors there and that if they could try the case before jurors elsewhere they would win it.
On November 30, Josiah W. Bissell, the St. Louis–based engineer who had designed a suspension bridge over the Mississippi at St. Louis that was never built, and who later prepared a map of the Rock Island Bridge designed to warn steamboat operators that it was a hazard to navigation, wrote Hurd from Cincinnati, where he was making arrangements with T. D. Lincoln to go on with what he called “the Chamber of Commerce suit” against the bridge. Bissell said the St. Louis Chamber had left the matter “entirely in my hands,” and he intended “to do it up thoroughly.” He had given T. D. Lincoln some new information about the “river pirates” they were fighting, and he was going to Davenport to gather more. Bissell noted that the St. Louis Chamber had already spent $1,200 on the litigation and was willing to advance another $600, although it expected Hurd to sign a note for repayment of the money.2
Wead had apparently broached the idea to Hurd of approaching Senator Stephen A. Douglas with the suggestion that he join the plaintiffs’ team in a retrial, although Wead was not certain whether Douglas had already received a retainer from the railroad. On December 28, Hurd wrote Douglas, who was then in Washington embroiled in a bitter debate about the admission of Kansas to the Union. A pro-southern convention in Kansas had submitted a pro-slavery state constitution to President Buchanan, but Douglas had condemned the process by which the constitution was adopted as “a mockery and insult.”3 In the letter, marked “confidential,” Hurd asked the Illinois senator to advise him by mail if he was “retained by the R.R. Bridge Co. in the case of J.S. Hurd (myself) et. al., vs. said Co. The case to which I refer is for the recovery of damages for the loss of the steamer Effie Afton May 6, ’56, at the Rock Island Bridge.” If Douglas had not been retained by the Bridge Company, Hurd wanted to procure his services, and he hinted that he would pay him well. “I shall certainly beat the Co.,” Hurd said, “& desire your cooperation, also that you may share in the result.” Hurd then revealed his sympathy with popular sovereignty, the controversial political doctrine that Douglas had advanced in his Kansas-Nebraska bill of 1854 and that had enhanced his reputation as one of the Democratic Party’s national leaders. Hurd continued:
Politically I have the people in this portion of my state (southern Ohio) and the adjoining portion of Kentucky all right on the Popular Sovereignty question. Permit me to refer you to Judge H. W. Wead of Peoria, Ill, (one of my attys in the case referred to) who will vouch for my loyalty. It is needless for me to say to you the attention of (not only) the American People—but the civilized world is upon yourself as the champion and standard bearer of a cherished doctrine.4
Douglas was, of course, a lawyer as well as a powerful politician. He had been an associate justice of the Illinois Supreme Court from 1841 to 1843, although his service there was not particularly impressive (according to one of his biographers, “he made up in energy and quickness for what he lacked in depth and understanding”).5 Hurd’s appeal to Douglas seems to have been based as much in political sympathy for the senator as in admiration for his legal ability. He enclosed a steamboat ticket with the letter, inviting Douglas to travel on the river free of charge.6 Hurd apparently did not know that Douglas was as much a champion of railroads as Lincoln—Douglas once said that “no man can keep up with the spirit of the age who travels on anything slower than the locomotive.”7
There is no evidence that Douglas ever answered Hurd’s invitation. As far as the surviving record shows, the man who was within half a year to become the opponent of Abraham Lincoln in a series of bitterly argued political debates that catapulted Lincoln into national prominence never joined Hurd’s legal team in the Effie Afton case.
Wead was also making efforts to enlist the U.S. Army Corps of Engineers in the fight against the bridge. Not long after the end of the Chicago trial, he contacted Congressman Washburn who, on January 4, 1858, introduced a resolution in the House of Representatives instructing the House Committee on Commerce “to inquire if the railroad bridge across the Mississippi river, at Rock Island, Illinois, is a serious obstruction to the navigation of said river; and if so, to report to this House what action, if any, is necessary on the part of the Government to cause such obstruction to be removed.”8 Washburn was a Republican and a political supporter of Abraham Lincoln, as was his brother, Illinois congressman Elihu B. Washburne (Elihu added an e to the family name to recall its English roots), but both represented districts with close ties to river traffic. Cadwallader Washburn’s district in southwest Wisconsin was a rich source of the timber that was floated down the Mississippi in rafts, and Elihu B. Washburne represented the lead- and silver-rich district around Galena, Illinois, so it was not surprising that they sympathized with the steamboats. Elihu B. Washburne was the congressman who rendered the report to the House of Representatives in April, a report that described the Rock Island Bridge as “a material and dangerous obstruction to the navigation of the Mississippi river” but declined to recommend any federal action against it because the courts had “full and ample power to remedy any evil that may exist.”9
Not satisfied with this report, the St. Louis Chamber of Commerce urged some senators and representatives to undertake yet another study of the Rock Island Bridge, this one to be conducted by a specially appointed board of military engineers. The result was a report that was submitted to Secretary of War John B. Floyd—a former governor of Virginia who was soon to become a general in the Confederate army—in March 1859. Noting that it had been facilitated by Josiah Bissell, the ne
w report concluded that the bridge had been poorly designed and located and that it was “not only an obstruction to the navigation of the river, but one greater than there was any occasion for.” But like the earlier Washburne report it made no recommendation for any action.10
For all the available record reveals, Lincoln’s involvement in the Effie Afton case ended when he received the fee for his participation in the Chicago trial. He had been retained for his courtroom skills and had little or nothing to do with the legal proceedings that preceded the courtroom battle, so there was no reason for him to continue to represent the Bridge Company after the trial. He was busy with many other cases in the last days of 1857 and the first half of 1858, some in the courts of Illinois’s Eighth Judicial Circuit, even more in the Illinois Supreme Court and the U.S. courts in Springfield and Chicago. His fee for his Effie Afton work was apparently $400, for he deposited that amount in his Springfield bank account on September 26, 1857.11 Norman Judd, however, was of counsel to both the Bridge Company and its affiliated railroads, so he continued to work on the litigation in its later stages—which were quite extensive.
Lincoln's Greatest Case: The River, the Bridge, and the Making of America Page 19