Lincoln's Greatest Case: The River, the Bridge, and the Making of America
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19 Ibid.; CP, September 10, 1857.
20 SLMR, September 12, 1857.
21 Ibid.; CT, September 10, 1857; CP, September 10, 1857.
22 Ibid.
23 SLMR, September 12, 1857; CT September 10, 1857.
24 Twain, Autobiography of Mark Twain 1:274–78.
25 High-pressure boilers forty-two inches in diameter were generally limited to a maximum pressure of 110 pounds per square inch; in boilers of greater or lesser diameter the pressure was adjusted upward or downward by reference to this standard. See 10 Stat. 61–75, sec. 9, Third.
26 SLMR, September 12, 1857.
27 Ibid.; CT, September 10, 1857.
28 SLMR, September 12, 1857.
29 Ibid.; CT, September 10, 1857.
30 SLMR, September 12, 1857.
31 SLMR, September 13, 1857.
32 Ibid.
33 Ibid.
34 Ibid.
35 Ibid.
36 Ibid.
37 Ibid.
38 Ibid.
39 In a reflective essay published in the Missouri Republican on September 16, Binmore said that he tried to “abstract” the testimony “so as to present depositions which are much alike on all the points of interest,” though he claimed (not entirely accurately): “The oral testimony you have in full.”
40 Saltonstall, “A Recollection of Lincoln in Court,” 636–37. This article was published under the name of F. G. Saltonstall. Saltonstall was incorrectly identified in Wilson, Intimate Memories of Lincoln, 67, as “an able lawyer and shrewd judge of men.” He was in fact a stock and bond broker (and sometime commission merchant) identified as such in various sources, including the U.S. Census for Chicago in 1880 and Chicago city directories for 1855–56, 1861, 1862, and 1864.
41 Saltonstall, “A Recollection of Lincoln in Court,” 636.
42 Ibid., 637.
43 For references to Lincoln’s whittling, see Donald, Lincoln, 170; Rice, Reminiscences of Abraham Lincoln, 294; Burlingame, Abraham Lincoln: A Life 2:293; Emerson, Lincoln the Inventor, 7. Lincoln’s whittling was graphically portrayed in Steven Spielberg’s 2012 motion picture, Lincoln.
9. A CHORUS OF PROTESTS
1 SLMR, September 14, 1857.
2 SLMR, September 13, 1857.
3 Ibid.
4 SLMR, September 16, 17, 1857.
5 SLMR, September 13, 1857.
6 Ibid.
7 Ibid.
8 SLMR, September 14, 1857.
9 SLMR, September 13, 1857.
10 SLMR, September 14, 1857.
11 SLMR, September 15, 1857.
12 CP, September 12, 1857.
13 SLMR, September 13, 1857.
14 SLMR, September 12, 1857.
15 SLMR, September 16, 1857.
16 Ibid.
17 Ibid.
18 Ibid.
19 Ibid.
20 SLMR, September 14, 1857.
21 SLMR, September 16, 1857.
22 SLMR, September 13, 1857.
23 SLMR, September 16, 1857.
24 Ibid.
25 SLMR, September 17, 1857.
26 Greenleaf, A Treatise on the Law of Evidence, 5th ed., 430 (emphasis in original); see Smith, A Selection of Leading Cases on Various Branches of the Law, 6th American ed., 2:106 (“testimony of a witness cannot be received for the purpose of supporting an issue, to which he is a party of record.”).
27 Bridges v. Armour, 46 U.S. [5 Howard] 91, 94.
28 This rule was abandoned, in some cases by statutory enactments and in others by judicial decisions, barely half a century after the Effie Afton case was tried. See Wigmore, Select Cases on the Law of Evidence, 2nd ed., 150, explaining that the rule “gradually became incongruous.” Even witnesses who are directly interested in a suit may have valuable information to impart; in fact, they often have information that cannot be supplied by any other witnesses.
29 SLMR, September 16, 1857.
30 DG, September 12, 1857.
31 SLMR, September 16, 1857.
32 Illinois Daily Journal, September 12, 1857.
10. THE BRIDGE ITSELF ON THE STAND
1 SLMR, September 17, 1857; CT, September 16, 1857.
2 Ibid.
3 See Doc. No. 203, affidavit of Seth Gurney dated November 12, 1856, in Documents of the Assembly of the State of New York, Eightieth Session—1857, vol. 3 (Albany: C. Van Benthuysen, 1857).
4 SLMR, September 18, 1857; CT, September 16, 1857.
5 Ibid.
6 “The common law rejects the testimony of parties, of persons deficient in understanding, of persons insensible to the obligation of an oath, and of persons whose pecuniary interest is directly involved with the matter in issue.” Halsted’s Digest of the Law of Evidence (New York: Jacob R. Halsted, 1856), 1 (emphasis added).
7 In his instructions to the jury, Judge McLean described the type of float used here as “the instrument of a staff with cross boards, graduated to float from two feet below the surface to twelve.” SLMR, September 26, 1857.
8 SLMR, September 20, 1857; CT, September 17, 1857.
9 Larkin, John B. Jervis, xi, xii, xiv, xix, 6–15, 16–32, 36, 39, 48, 49, 51, 52, 56, 60, 61–80, 95, 110, 124–26.
10 Ibid., 126.
11 SLMR, September 20, 1857; CT, September 17, 18, 1857.
12 SLMR, September 20, 1857; CT, September 18, 1857.
13 Ibid.
14 Ibid.
15 Wood, History of the Republican Party and Biographies of Its Supporters, Illinois Volume, 250–53.
16 SLMR, September 21, 1857; CT, September 21, 1857.
17 SLMR, September 21, 1857; CT, September 18, 1857.
18 Magee, The John Deere Way, 4–5.
19 SLMR, September 21, 1857; CT, September 18, 1857.
20 SLMR, September 21, 1857; CT, September 21, 1857.
21 Ibid.
22 SLMR, September 20, 1857; CT, September 18, 1857.
23 Ibid.
24 SLMR, September 21, 1857.
25 Ibid.
26 CT, September 21, 1857.
27 Ibid.
28 Ibid.
29 Ibid.
30 Ibid.
31 Pennsylvania v. Wheeling and Belmont Bridge Company, 54 U.S. [13 Howard] 518 (1852). For discussion of the Wheeling Bridge case, see chapter 5.
32 Pennsylvania v. Wheeling and Belmont Bridge Company, 59 U.S. [18 Howard] 421, 437–49 (1856) (McLean, J., dissenting on ground that act of Congress was unconstitutional and void).
33 SLMR, September 22, 1857; CT, September 21, 1857.
34 Ibid.
11. A VIRTUAL TRIUMPH
1 CT, September 22, 1857.
2 Wead’s closing argument as given here is taken from Hitt’s summary in CP, September 22, 1857. See PAL:LDC 3:344–52 for a printed summary.
3 Knox’s closing argument as given here is all taken from Hitt’s summary in CP, September 23, 1857. See PAL:LDC 3:352–59 for a printed summary.
4 What we know of Lincoln’s speech is derived from Robert Hitt’s report in the Chicago Press and from a typed transcription of his notes preserved in the Library of Congress. Both of these sources identify Lincoln as the “Hon. Abram Lincoln.” Both are somewhat shortened summaries, not full transcripts, of what Lincoln said; see CP, September 24, 1857; Robert R. Hitt Papers, Manuscript Division, Library of Congress, Washington, DC.
5 Burlingame, Abraham Lincoln: A Life 1:320.
6 RHP, as quoted in PAL:LDC 3:360.
7 See discussion in chapter 3.
8 CT, December 29, 1895.
9 Whitney, Life on the Circuit with Lincoln, 231 (emphasis added).
10 CT, December 29, 1895.
11 Wilson, Lincoln’s Sword, 78.
12 McGinty, The Body of John Merryman, 102.
13 Whitney, Life on the Circuit with Lincoln, 232.
14 Emerson, Lincoln the Inventor, 35–53.
15 Judd, “An Evening with Mr. Lincoln,” 520–23.
16 Ibid., 523–24.
17 CP, Sep
tember 24, 1857.
18 RHP, as quoted in PAL:LDC 3:365.
19 The excerpts from McLean’s charge given here are taken from CP, September 25, 1857. A printed account of the charge is in PAL:LDC 3:366–81.
20 CT, September 25, 1857.
21 SLMR, September 8, 1857.
22 CT, September 25, 1857.
23 In the nineteenth century, it was generally assumed that the Seventh Amendment to the U.S. Constitution required that juries in federal courts consist of twelve members and that their verdicts be unanimous. See Springville City v. Thomas, 166 U.S. 707 (1897) (unanimous verdict as essential feature of trial by jury in common-law cases); American Publishing Co. v. Fisher, 166 U.S. 464 (1897) (Utah statute authorizing jury verdict by vote of nine jurors unconstitutional). In the second half of the twentieth century, however, the United States Supreme Court held that juries with fewer than twelve members will satisfy the amendment. See Colgrove v. Battin, 413 U.S. 149, 160 (1973) (jury of six members satisfies Seventh Amendment). The Seventh Amendment provides: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” The Seventh Amendment applies only to suits in federal court, not to those in state courts. It applies only to civil suits seeking monetary relief, not to those seeking equitable relief (injunctions, specific performance, or other nonmonetary remedies traditionally available only in the English courts of chancery). Further, the amendment does not apply to issues of maritime or admiralty rights.
24 CP, September 26, 1857; Illinois Daily Journal, September 28, 1857; Chicago Daily Democrat, September 26, 1857.
25 CP, September 25, 1857.
26 Chicago Daily Democrat, September 26, 1857.
12. THE BRIDGE STANDS
1 Wead to Hurd, October 15, 1857, Jacob S. Hurd Papers, Public Library of Cincinnati and Hamilton County, Cincinnati.
2 Bissell to Hurd, November 30, 1857, Jacob S. Hurd Papers, Public Library of Cincinnati and Hamilton County, Cincinnati.
3 Johannsen, Stephen A. Douglas, 591.
4 J. S. Hurd to Hon. S. A. Douglas, December 28, 1857, Stephen A. Douglas Papers, University of Chicago.
5 Johannsen, Stephen A. Douglas, 110.
6 Online catalog of Stephen A. Douglas Papers, University of Chicago.
7 Johannsen, Stephen A. Douglas, viii.
8 Cong. Globe, 35th Congress, 1st Session, January 4, 1858, 184.
9 “Railroad Bridge across the Mississippi River at Rock Island,” April 15, 1858, 35th Congress, 1st Session, House Report No. 250, 5; SLMR, May 5, 1858.
10 Warren, Report on Bridging the Mississippi River between Saint Paul, Minn., and St. Louis, Mo., 143–45.
11 PAL:LDC 3:381; Pratt, Personal Finances of Abraham Lincoln, 56, 162, 166.
12 The suit began with the filing of a bill in chancery. Ward; PAL:LDC 3:381.
13 Ward; SLMR, August 24, 1858.
14 SLMR, August 24, 1858.
15 U.S. Const., Art. III, sec. 2 (the judicial power extends to controversies “between citizens of different states”).
16 The Seventh Amendment to the U.S. Constitution guarantees the right of trial by jury “in suits at common law, where the value in controversy shall exceed twenty dollars.” A suit for abatement of a nuisance is an action in equity (often, particularly in the nineteenth century, called “chancery”) and not a “suit at common law,” so there is no constitutional right to a jury trial in such a suit. See Parsons v. Bedford, 28 U.S. [3 Peters] 443, 446 (“courts of equity use the trial by jury only in extraordinary cases”).
17 Ross, Justice of Shattered Dreams, 8, 10–11, 15, 16, 17, 19–25, 38–39; McGinty, Lincoln and the Court, 108–10.
18 Ross, Justice of Shattered Dreams, 39, 75.
19 Chicago Press and Tribune, November 20, 1858; June 18, 1859.
20 Ward; Chicago Press and Tribune, April 5, 1860.
21 Decree in Ward.
22 McGinty, Lincoln and the Court, 110.
23 Mississippi and Missouri Railroad Company v. Ward, 67 U.S. [2 Black] 485 (1863).
24 U.S. Const., Art. III, sec. 2 (the judicial power of the United States extends “to all cases of admiralty and maritime jurisdiction”). The Seventh Amendment guarantees trial by jury “in suits at common law, where the value in controversy shall exceed twenty dollars.” The phrase “suits at common law” does not include suits in equity or of admiralty and maritime jurisdiction. Parsons v. Bedford, 28 U.S. [3 Peters] 433, 446. See 1 Stat. 77. sec. 9 (district courts have “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction,” and “the trial of issues of fact, in the district courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury”). In admiralty courts, causes are usually determined by the court without the aid of a jury. Benedict, The American Admiralty, Its Jurisdiction and Practice, 106. Under the Admiralty Rules adopted by the U.S. Supreme Court in 1842, an admiralty case is tried before the judge; there are no juries in admiralty proceedings proper. Hughes, Handbook of Admiralty Law, 2nd ed., 410.
25 Merrick, Old Times on the Upper Mississippi, 144, 189, 272.
26 The Rock Island Bridge, 73 U.S. 213, 216 (1867).
27 Chicago Press and Tribune, August 9, 1860.
28 “Arrest for Conspiracy to Burn a Bridge,” New York Times, August 9, 1860.
29 Chicago Press and Tribune, August 9, 1860.
30 “A Plot to Burn the Rock Island Railroad Bridge,” Geneseo [Illinois] Republic, August 16, 1860, quoting from Chicago Press and Tribune, August 9, 1860.
31 Ibid.
32 DG, August 10, 1860.
33 CT, December 12, 1860.
34 CT, December 18, 1860.
35 Hurd, Jacob, et al., vs. Chicago R. I. & P. R. R. et al, File No. 440, Clerk’s Index of Civil Cases, Circuit Court of McDonough County, Macomb, Illinois. Record Book I, pp. 501, 544, 599; Book L, pp. 10, 81. Disposed of Sept. 1875, Judgment Book 28, p. 75; Fee Book R, p. 88.
36 PAL:LDC 3:310n8; Way, Way’s Packet Directory, 1848–1994, 326, 477.
13. THE GREAT AND DURABLE QUESTION
1 Guelzo, Lincoln and Douglas: The Debates That Defined America, 56.
2 Donald, Lincoln, 205.
3 CWL 2:461–62 (emphasis in original, but division into paragraphs ignored). The biblical phrase is from Matthew 12:25 and Mark 3:25.
4 CWL 2:399.
5 CWL 2:400–409.
6 CWL 2:522.
7 Burlingame, Abraham Lincoln: A Life 1:484.
8 CWL 3:177.
9 CWL 3:322. One transcript of this statement quotes Douglas here as using the word “nigger” rather than “Negro.” Both Douglas and Lincoln were frequently (although not consistently) quoted as having used that word. Although it is clear that Douglas used it to derogate African-Americans, it is not as clear that Lincoln did so.
10 CWL 3:145–46.
11 CWL 3:276.
12 CWL 3:226.
13 CWL 3:249.
14 CWL 3:254.
15 CWL 3:112.
16 CWL 3:231.
17 McCulloch v. Maryland, 17 U.S. [4 Wheaton] 316 (1819).
18 CWL: 3:28, 232, 278.
19 CWL 3:255.
20 Guelzo, Lincoln and Douglas, 116–17; Holzer, The Lincoln-Douglas Debates, 10–11. Both Binmore and Hitt had assistants who helped them with the reports.
21 Donald, Lincoln, 227–28.
22 CWL 3:339.
23 Leroy, Mr. Lincoln’s Book, 73–77, 145, 149.
24 CWL 3:397n1.
25 CWL 3:396–97.
26 Dodge, Personal Recollections, 11.
27 Ibid.
28 The Lincoln Log, August 15, 1859, http://www.thelincolnlog.org.
29 Holzer, Lincoln at Cooper Union, 8–10.
30 Ibid., 119–48.
31 CWL 3:555.
32 Holzer,
Lincoln at Cooper Union, 157.
33 Ibid., 210–11.
34 See Jones v. Johnston, 59 U.S. [18 Howard] 150–58 (1855).
35 PAL:LDC 3:442.
36 Johnston v. Jones, 66 U.S. [1 Black] 209–27 (1861); PAL:LDC 3:452.
37 Burlingame, Abraham Lincoln: A Life 1:621–24.
14. HISTORY’S VERDICT
1 “Republican Platform of 1860,” May 17, 1860, American Presidency Project, http://www.presidency.ucsb.edu/ws/index.php?pid=29620.
2 CWL 4:52.
3 CWL 7: 17; 5:537.
4 12 Stat. 392–93.
5 12 Stat. 489–98. For the variety of gauges before the Civil War and the difficulties they presented to travelers and shippers, see White, Railroaded, 2–3, 8–9.
6 12 Stat. 503–5.
7 Stat. 537; Slattery, Illustrated History of the Rock Island Arsenal and Arsenal Island: Part Two, 16–20.
8 CWL 6:68.
9 12 Stat. 807; CWL 6:68n1. The congressional vote in favor of four feet eight and a half inches was largely the result of eastern lobbying. The final vote in the Senate was 26 to 9, with only three senators east of the Mississippi supporting five feet. Starr, Lincoln and the Railroads, 224.
10 CWL 7:16; see also CWL 7:228.
11 CWL 7:382n.
12 13 Stat. 356–64; see Borneman, Rival Rails: The Race to Build America’s Greatest Transcontinental Railroad, 40; White, Railroaded: The Transcontinentals and the Making of Modern America, 22–26 (described the 1864 amendment as “the worst act money could buy”).
13 Faust, Historical Times Illustrated Encyclopedia of the Civil War, 383.
14 Long, The Civil War Day by Day, 723–24; McPherson, Battle Cry of Freedom, 318–19.
15 Long, The Civil War Day by Day, 724; Wolmar, The Great Railroad Revolution, xxii.
16 Riebe, “The Government Bridge,” 71–73.
17 DG, March 10–14, 1868.
18 DG, March 13, 14, 16, 1868; April 9, 14, 1868.
19 DG, March 17, 18, 1868.
20 Brayton, “The Crossing of the River,” 49; Nothstein, “The First Railroad Bridge to Cross the Mississippi,” 20.
21 DG, April 23, 24, 1868.
22 DG, April 23, 1868.
23 14 Stat. 75–76; Hayes, High Road to Empire, 70–71. The act authorized the secretary of war to fix the location of the bridge.
24 Hayes, High Road to Empire, 53, 70–71; Flagler, History of the Rock Island Arsenal, 166–68.
25 15 Stat. 485–87.
26 15 Stat. 258–59.