On May 7, 1858, a man named James Ward filed suit in the U.S. District Court for the District of Iowa asking for a court order declaring the Rock Island Bridge a “common and public nuisance.”12 Ward was a resident of St. Louis and a part owner of three steamboats that regularly plied the Mississippi between St. Louis and St. Paul.13 The defendant named in his suit was the Iowa-based Mississippi and Missouri Railroad Company. Unlike Hurd’s suit in Chicago, which sought to recover damages for the loss of the Effie Afton, Ward’s Iowa suit did not seek damages—although he did complain that his boats had been injured by the bridge. Instead he alleged that the bridge was erected in violation of treaties, acts of Congress, and his own rights of navigation of the river. And he asked that it “be abated and removed.”14
Since Ward was a citizen of Missouri, and the Mississippi and Missouri Railroad Company was an Iowa corporation, the district court in Iowa had jurisdiction over the parties under the Diversity of Citizenship Clause of the U.S. Constitution.15 Whether the court had jurisdiction over the subject matter of the suit (the Rock Island Bridge) was another and, as it eventually turned out, critical issue. In any case, Ward’s suit did not entitle him to a jury trial, for actions asking for equitable remedies (such as abatement of a nuisance) are not covered by the constitutional guarantee of trial by jury.16
What Ward’s suit did entitle him to was a hearing before Iowa’s U.S. District Judge James M. Love. Love was a Virginia-born appointee of President Franklin Pierce and, as it happened, a friend of Samuel Miller, one of Ward’s attorneys in the suit. Miller was one of Iowa’s most interesting lawyers, for he had been a physician in his native Kentucky before gaining admission to the bar and moving across the Mississippi to Iowa in 1850. His move was inspired in part by his opposition to slavery and in part by his conviction that Keokuk’s location on the Mississippi about 150 miles below Rock Island destined it to become a great commercial center.17 River traffic and a thriving steamboat presence would, in Miller’s view, contribute to Keokuk’s future, while the bridge at Rock Island would seriously threaten it by diverting transportation to the railroad. Love, who was a former partner of Miller’s own legal partner in Keokuk, apparently shared that opinion, although he did not share Miller’s politics, for Miller was a Republican and Love a Democrat.18
Acting through the St. Louis Chamber of Commerce and the St. Louis City Council, steamboat interests in the Missouri city contributed large sums to finance Ward’s lawsuit.19 Extensive depositions were taken, some as far away as Detroit, Cincinnati, and even New York City, before Judge Love issued his decree in April 1860, agreeing with Ward that the bridge was a nuisance and ordering that it be torn down.20 Since the jurisdiction of the federal court for Iowa extended only to the middle of the Mississippi, however, Love could not order the total demolition of the Rock Island Bridge, only the portion of it on the Iowa side of the state line—a line that ran down the middle of the river. So he ordered the demolition of the piers and superstructure that were in Iowa, but not those that were in Illinois.21
The case was appealed to the United States Supreme Court, where it was argued on December 18, 1862. The nation was then in the midst of the war that pitted armies commanded by Confederate president Jefferson Davis, an old foe of the Rock Island Bridge, against forces commanded by United States president Abraham Lincoln, the bridge’s onetime defender. Strangely, Samuel Miller had by that time become a member of the Supreme Court, thanks to an appointment by Lincoln in July 1862.22 (Lincoln apparently knew nothing of Miller before he appointed him except that he was reputed to be a skillful lawyer and that his appointment was warmly recommended by prominent politicians in Iowa.)
As the former attorney for James Ward, Miller of course recused himself from the Supreme Court appeal. On January 20, 1863, a decision was announced by Associate Justice John Catron of Tennessee, a southern Democrat who, despite his state’s secession from the Union, remained loyal to the federal government. Concluding that if there was in fact any obstruction to navigation at Rock Island, it was on the Illinois side of the bridge, Catron announced that the Iowa court had no authority over it, for the Iowa court’s jurisdiction extended only up to the state line. Ordering the removal of the Iowa portion of the bridge would not solve any problems, since the facts did not show any obstruction on the Iowa side of the river. When T. D. Lincoln of Cincinnati, who was James Ward’s attorney in the Supreme Court, argued that the public was entitled to the free navigation of the whole river from bank to bank, Catron scoffed. “According to this assumption,” the Tennessean wrote, “no lawful bridge could be built across the Mississippi anywhere; nor could the great facilities to commerce accomplished by the invention of railroads, be made available where great rivers had to be crossed.” Judge Love’s order was reversed.23
Three more efforts were made to bring down the Rock Island Bridge, two that were legal and another that, judging from newspaper reports, was bizarrely illegal.
Dissatisfied with the Supreme Court’s ruling that the U.S. District Court in Iowa had no jurisdiction over the Illinois portion of the Rock Island Bridge, steamboat owners began a new effort against the bridge, this time in the U.S. District Court for the Northern District of Illinois. This court, of which Thomas Drummond was the presiding judge, was located in Chicago, where the original lawsuit against the bridge had come to grief with a hung jury. The new action aimed to overcome the problem of dealing with Chicago jurors by invoking the district court’s admiralty jurisdiction.
Admiralty law concerns itself with maritime matters, including the rights and duties of ship owners and operators, both on the high seas and in inland navigable waters. The U.S. Constitution assigns jurisdiction in admiralty cases to the U.S. District Courts but, following the English practice, exempts them from trial by jury.24
The new action was begun with the filing of a libel—the initial pleading in admiralty cases—against the bridge by the Galena, Dubuque, Dunleith, and Minnesota Packet Company. This company, often called the Minnesota Packet Company for short, had lost a large steamboat named the Grey Eagle when it collided with the Rock Island Bridge on May 9, 1861, and sank. Like the Effie Afton, the Grey Eagle had been built at Cincinnati at considerable expense, with some reports saying that it cost more than $60,000. Unlike the earlier boat’s, however, the Grey Eagle’s collision resulted not just in the loss of the boat but also in seven deaths.25 The libel asked the district court to impose a lien for $70,000 against the Illinois portion of the bridge. The Mississippi and Missouri Railroad Company and others intervened as claimants, filing formal objections to the court’s admiralty jurisdiction. Their objections were quickly sustained by the district court and, on appeal, by the circuit court, and the libel was dismissed without trial.
A second appeal was then taken to the United States Supreme Court, where a decision was announced on December 30, 1867. Sustaining the lowers courts’ dismissal, Associate Justice Stephen J. Field of California—like Samuel Miller, a Lincoln appointee to the High Court—wrote the opinion for a unanimous Court. “A maritime lien can only exist upon moving things engaged in navigation,” Field wrote, “or upon things which are the subjects of commerce on the high seas or navigable waters. It may arise with reference to vessels, steamers and rafts, and upon goods and merchandise carried by them. But it cannot arise upon anything which is fixed and immovable, like a wharf, a bridge, or real estate of any kind. Though bridges and wharves may aid commerce by facilitating intercourse on land or the discharge of cargoes, they are not in any sense the subject of maritime lien.”26
In August 1860, residents of both Chicago and St. Louis were shocked by news that Josiah Bissell and a young attorney from Rock Island named Walter F. Chadwick had been arrested in Chicago for conspiracy to set fire to the Rock Island Bridge.27 News of the arrests quickly spread to the East Coast, where the New York Times reported that “evidence of the plan formed to burn the bridge is said to be conclusive.”28 The Chicago Press and Tribune told its readers that, ab
out a year earlier, a large quantity of combustible material had been discovered on the span by the bridge watchman, who successfully removed it before it could be ignited. The authorities suspected an attempted arson and, from that time forward, kept “vigilant eyes” on the bridge.29 According to the Press and Tribune, Bissell had come to Chicago the following April and offered to give a private detective who had previously done some work for him $5,000 to “cause the bridge to be burned.” He told the detective that lawsuits would never be effective to remove the span, “but let it once be burned and we’ll get out an injunction against rebuilding it. Do you see?”30
Alerted to the plot by the detective, the authorities prepared a trap. When a suspicious package came from St. Louis addressed to the detective, it was taken to a room where the grand jury was meeting and found to contain fifty champagne bottles “filled with a highly combustible, treacle-like fluid known as ‘Greek Fire.’” One of the bottles was opened and a portion of its contents was poured into a saucer and lit, unleashing a fire which “well-nigh burned up the jury room.”31 Bissell and Chadwick, who was alleged to have acted as Bissell’s accomplice, were quickly arrested and indicted. The Davenport Gazette reflected much of the outrage felt by pro-railroad interests when it wrote that Bissell “has for years been smelling around this bridge and doing dirty work among steamboat men to collect evidence of its being an obstruction to navigation. In a thousand ways he has proved himself an unscrupulous, unprincipled knave, utterly unworthy of the confidence of any honest man, much less of such a body as the St. Louis Chamber of Commerce. His arrest on this charge has not surprised us, for we have long believed, and even intimated in these columns, that he was none too good to burn the bridge if he could get the chance.”32
Freed on bail advanced by business interests in St. Louis, Bissell went to trial a few months later. His lawyer argued that the charges against him had been manufactured to prevent him from continuing to act as the St. Louis Chamber of Commerce’s agent in attempts to bring down the bridge, and that the bridge owners wanted to “destroy him and remove him out of the way.”33 Chamber of Commerce officials from the Missouri city admitted that Bissell was acting in their behalf but denied that he had been authorized to do anything illegal. However strong the evidence against Bissell and Chadwick had seemed at first, and however sure the river men in St. Louis were that Chicago jurors favored railroad interests over those of steamboats, convictions could not be obtained. The jury returned a verdict of not guilty, apparently on the curious ground that the indictment did not properly state that the Illinois end of the bridge touched the city of Rock Island and that the Illinois court thus lacked jurisdiction of the case.34
Still convinced that he could not obtain a fair jury trial in Chicago, Jacob Hurd filed a second, and separate, suit for damages sustained in his loss of the Effie Afton, this time in an Illinois state court, where the jury pool would be uncontaminated by Chicagoans. Hurd’s initial filing was in February 1859, in the circuit court for Rock Island County, but before it could be brought to trial, opposition from the railroads and its attorneys forced several changes of venue. The suit finally wound up in the circuit court for McDonough County, Illinois, where, in 1875, the judge dismissed it.35
It had been nearly twenty years since the Effie Afton struck the bridge and burned, and in all of that time every effort that creative lawyers in Illinois and deep-pocketed steamboat owners in St. Louis could conceive had failed to bring down the bridge. By 1875, even Jacob Hurd had left the scene, for he had been killed in 1866 by a boiler explosion on the steamboat W. R. Carter near Vicksburg. His body was never recovered.36
THIRTEEN
The Great and Durable Question
More people had probably seen Lincoln in action in the Effie Afton trial than in any of his previous courtroom battles, for the crowded city of Chicago was fast becoming the legal as well as the commercial and transportation center of the Middle West, and the bridge controversy had excited greater attention than any other struggle of Lincoln’s legal career. The spectators who filled Judge McLean’s courtroom day after day had been impressed by the lanky Springfielder’s ability to handle himself “on his feet,” as courtroom lawyers routinely must. But a new opportunity to display Lincoln’s talents to the general public was revealing itself in the form of a series of debates with Stephen A. Douglas, who was seeking reelection to the Senate.
Lincoln was eager to become Douglas’s Republican opponent in 1858, in part to redeem himself from his disappointing failure to win election to the Senate in 1855, in part because he had fundamental disagreements with Douglas about slavery in the United States. His growing reputation as a skillful lawyer was not the only dividend he won in the Effie Afton trial, for that hectic two weeks in the courtroom of Judge McLean had brought him and Norman Judd closer together. As Judd watched Lincoln’s courtroom performance, his respect for Lincoln’s legal abilities had grown along with his sense that Lincoln had a real political future.
After his role in foiling Lincoln’s senatorial ambitions in 1855, Judd had abandoned his Democratic affiliation, joined Lincoln in the new Republican Party, and won election to the influential post of Republican state chairman. Once merely courtroom colleagues, Judd and Lincoln were now political allies. When the Republican state convention convened in Springfield in June 1858, Judd called the delegates to order, certified their credentials, and led an enthusiastic delegation from Cook County that paraded through the hall with a banner proclaiming “Cook County for Abraham Lincoln.” Lincoln scholar Allen C. Guelzo has called the convention “an unsullied triumph for Norman Judd’s organizing skills.”1 It was only the second time in American history that a candidate for election to the U.S. Senate had been nominated by a major party, and though the act was not formally binding—the senator would not be elected by popular vote but by the state legislators chosen in the upcoming fall election—it was an important boost for Lincoln’s chances.2 Accepting the nomination, Lincoln gave his famous “House Divided Speech,” setting out his views on the future of slavery in the United States in prose that reverberated through Illinois and beyond.
Repeating a biblical phrase, as he often did, Lincoln told the delegates who nominated him that “‘A house divided against itself cannot stand.’ I believe this government cannot endure, permanently half slave and half free.” He continued: “I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new—North as well as South.”3 Lincoln made a powerful argument against the spread of slavery into the western territories, condemning Senator Douglas’s doctrine of popular sovereignty as “a mere deceitful pretense for the benefit of slavery,”4 for it permitted a simple majority of the voters in a territory—all white men, of course—to decide whether slavery would or would not be permitted in the territory.
Douglas did not care whether slavery was “voted down or voted up,” but Lincoln did. He charged that Douglas had been part of a conspiracy among President James Buchanan, former President Franklin Pierce, and Chief Justice Roger B. Taney of the U.S. Supreme Court to nationalize slavery. The supposed conspiracy centered around Taney’s controversial decision in Dred Scott v. Sandford, announced in Washington on March 6, 1857, only a few months before Lincoln joined Judd in the defense of the Effie Afton trial. It was not Lincoln’s first reference to Dred Scott; he had roundly criticized the decision in a speech in Springfield in June, 1857.5 It was one of his most forceful, however, and it would set the tone for much of his debate with Douglas in the upcoming election.
On July 24, in part at the urging of Judd, Lincoln wrote Douglas, asking him to meet him in a series of debates in different parts of I
llinois.6 Judd personally tracked Douglas down and delivered the letter to him in Chicago, reacting with restraint when the senator berated him for having abandoned the Democratic Party.7 Douglas was much more famous than Lincoln and did not want to share his celebrity with his lesser-known opponent, but he knew that a refusal to debate Lincoln would seem cowardly. So he set dates on which he would meet Lincoln in seven of Illinois’s congressional districts.
The Dred Scott decision was one of the principal subjects in the debates, as was Douglas’s Kansas-Nebraska Act and his doctrine of popular sovereignty, and both men’s views on slavery. Douglas revealed himself on the debate platforms as an unabashed white supremacist. “I say to you, in all frankness, gentlemen, that in my opinion a negro is not a citizen, cannot be, and ought not to be under the constitution of the United States,” he declared in the debate at Charleston, Illinois, on September 18. “I say that this government was created on the white basis. It was made by white men, for the benefit of white men and their posterity forever, and never should be administered by any except white men.”8 Douglas reaffirmed his belief in popular sovereignty, saying that if a state chose to “keep slavery forever, it is not my business, but its own; if it chooses to abolish slavery, it is its own business—not mine. I care more for the great principle of self-government, the right of the people to rule, than I do for all the negroes in Christendom.”9
Prodded by Douglas’s persistent race-baiting and the knowledge that racial prejudice was pervasive in Illinois, as it also was in other northern states, Lincoln made some very racist statements of his own—statements that in later years would haunt (and, in the views of many, stain) his memory. In the debate at Charleston, Illinois, on September 18, he said: “I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races[.] . . . I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will for ever forbid the two races living together on terms of social and political equality.”10 But even as he was making these statements, he made it very clear that, in contrast to Douglas, he believed that slavery was wrong, that its spread into the western territories should be stopped, and that it should be placed “in the course of ultimate extinction.”11 At Galesburg, Illinois, on October 7, he said that he regarded slavery “as a moral, social and political evil.”12 At Quincy, Illinois, on October 13, he affirmed his belief that blacks were “entitled to all the rights enumerated in the Declaration of Independence—the right of life, liberty and the pursuit of happiness,” and that they were “as much entitled to these as the white man.” If the black man “is not my equal in many respects,” Lincoln said, “in the right to eat the bread without leave of anybody else which his own hand earns, he is my equal and the equal of Judge Douglas, and the equal of every other man.”13 (Lincoln consistently called Douglas by his early judicial title.) Lincoln acknowledged that there was a great difference of opinion in the country about slavery, but he thought that “the difference of opinion, reduced to its lowest terms, is no other than the difference between the men who think slavery is wrong and those who do not think it wrong.”14
Lincoln's Greatest Case: The River, the Bridge, and the Making of America Page 20