His campaign was strong enough to persuade the President to delay the appointment for three weeks, so that both Butterfield and Lincoln could rush to Washington and present their cases in person. Favoring Butterfield from the start, Secretary Ewing was impressed by the endorsements he gathered, including an anti-Lincoln petition signed by disgruntled Whigs from Springfield itself, who declared they were “dissatisfied with the course of Abraham Lincoln as a member of Congress from this Congressional District.” One of them followed up with a letter declaring that Lincoln’s stand on the Mexican War had rendered him “very unpopular, and inflicted a deep and mischievous wound upon the Whole Whig party of the State.” In the end, Taylor followed his standard practice of allowing each cabinet member to make the appointments in his department and gave the office to Butterfield. Fuming, Lincoln declared that the President was getting “the unjust and ruinous character of being a mere man of straw.”
Lincoln was disappointed, not so much for himself as for the Whig party. “I opposed the appointment of Mr. B. because I believed it would be a matter of discouragement to our active, working friends here, and I opposed it for no other reason,” he wrote Ewing. “I never did, in any true sense, want the office myself.” In his view Butterfield belonged to the “old fossil” wing of the party, content to live on occasional federal appointments without ever building a strong state organization. Lincoln saw the land commissioner’s appointment as a means of building a viable Whig party in Illinois, which had never won in a presidential election or in a gubernatorial race. Properly used, that office could supplement the active local organizations that Lincoln had encouraged and the convention system that he had helped to establish.
At the end of his congressional career Lincoln returned to private life, discouraged about the prospects of his party. It did not relieve his gloom when Secretary of State John M. Clayton offered him, as a consolation prize, the office of secretary to the governor of the Oregon Territory, which he promptly declined. Then Interior Secretary Ewing, realizing the snub they had given to the most active Illinois Whig, tendered him the governorship of the Oregon Territory. Lincoln briefly toyed with the possibility but quickly concluded that it led nowhere. Oregon was strongly Democratic, and once it was admitted to the Union, it would hardly choose a Whig like Lincoln as governor or senator. Anyway, moving to the West Coast would be difficult and dangerous, especially because Eddie’s health was uncertain. He declined the offer, putting the blame, as husbands so often do, on his wife, who, he said, put her foot down about moving.
With that his public career was apparently over. As he settled back in Springfield, he must have remembered a note he gave a few months earlier to an autograph collector who requested his “signature with a sentiment”: “I am not a very sentimental man; and the best sentiment I can think of is, that if you collect the signatures of all persons who are no less distinguished than I, you will have a very undistinguishing mass of names.”
CHAPTER SIX
At the Head of His Profession in This State
“From 1849 to 1854, both inclusive, [I] practiced law more assiduously than ever before,” Lincoln wrote in an 1859 autobiographical sketch. This was a time for redirecting his career. He needed, first, to resettle his family after his sojourn in Washington, and the Lincolns moved back into their little house on Eighth and Jackson streets in Springfield. Next he had to resume his law career, his sole source of income now that he was no longer receiving a government salary. He turned down the tempting offer of Grant Goodrich to join his Chicago law firm, saying that if he moved to the city he “would have to sit down and study hard” and “it would kill him,” because “he tended to consumption.” Instead he and Herndon continued their partnership.
Political prospects played little part in these decisions. As he noted in an 1860 biography, “His profession had almost superseded the thought of politics in his mind.” Illinois offered no future for an ambitious Whig politician. He recognized that his public career was at an end.
In these years of relative tranquillity Lincoln had time for self-examination. His years in Washington did nothing to undermine his supreme self-confidence, but he could not help observing that he had less education and professional training than most of his fellow congressmen. In a brief autobiography prepared for a congressional biographical directory, he commented tersely: “Education defective.” He began, as Herndon said, “to realize a certain lack of discipline—a want of mental training and method.” Believing, as did most of his contemporaries, that mental faculties, like muscles, could be strengthened by rigorous exercise, he secured a copy of Euclid’s principles of geometry and with determination set himself to working out the theorems and problems. With quiet pride he reported in 1860 that he had “studied and nearly mastered the Six-books of Euclid.”
I
Though some of his clients had drifted away during his term in Congress, it did not take long for Lincoln to reestablish his position at the bar. He retained some clients whose cases had begun before his election to Congress and were still pending. For instance, he continued to be involved in the never-ending litigation of Nancy Robinson Dorman to recover land in Gallatin County wrongfully diverted by her stepfather. After becoming Dorman’s attorney in 1842, Lincoln kept an interest in her suit while in Congress and finally succeeded in winning a judgment in her favor in 1852. He had little difficulty in attracting new clients, because people remembered his enviable record of success in the courts before his election. Doubtless his reputation got a boost when he was admitted to practice before the United States Supreme Court in 1849, where he effectively argued a case.
After his return to Springfield he developed a sizable practice before the Illinois Supreme Court. Some of his early cases were trivial. For example, in 1851 he was asked to appear in the case of one Robert Nuckles, who was suing for damage Elijah Bacon’s cattle did to his corn. Not satisfied with the $2.50 awarded him by the local justice of the peace, Nuckles employed a local attorney to sue Bacon in the Macon County Circuit Court. This time a jury awarded him damages in the amount of $3.33. Unhappy with the verdict, Bacon wanted his lawyer to engage Lincoln’s services for an appeal to the Illinois Supreme Court. But soon Lincoln was involved in more important litigation, such as the suit of Oliver. W. Browning, who fell and broke his leg on an unrepaired street in Springfield and sued the city for failing to maintain its roads. The common law provided no remedy for Browning, but Lincoln argued that the city charter required Springfield to keep its streets in repair. Adopting Lincoln’s arguments, the supreme court ruled for Browning, establishing an often cited precedent in municipal law.
In these supreme court cases Lincoln and Herndon worked as a team. An omnivorous and rapid reader, Herndon made it his job in each case to go through all the relevant decisions he could locate in the well-stocked State Library and the Supreme Court Library, which had the reports of all the state supreme courts and the federal courts, as well as the usual legal reference works and dictionaries. Because so many of the subjects of litigation were repetitious, he compiled a kind of legal index in a large commonplace book, where he recorded the precedents he discovered on a wide variety of topics, from Streets and Improvements (a subject directly relevant to the Browning case) and Negligence in Building Bridges to larger subjects such as Corrupt Motives, Physical or Moral Nuisances, Trusts, and Specific Performances. As Lincoln & Herndon came more and more to deal with business firms, the junior partner prepared a separate, smaller notebook he entitled “Corporations,” where he listed precedents on topics like Organization, Subscription, Forfeiture of Stock, and Forfeiture of Charter. In addition, he drew up briefs for many individual cases, outlining the principal issues and precedents.
For his part, Lincoln did virtually all the paperwork involved in these supreme court cases, preparing even the most formal and routine documents in his own hand. Because Herndon in 1848 began serving as deputy clerk of court, he was not free to make frequent appearances before that b
ench, and Lincoln usually appeared alone or with some other attorney. But both partners recognized the contribution that Herndon’s research made to Lincoln’s courtroom victories, and they continued to divide the fees from these cases equally.
Lincoln & Herndon also developed a thriving practice before the United States Circuit and District courts in Illinois, which handled suits between citizens of different states, suits brought by the United States government, and other miscellaneous types of cases. Admitted to practice before the United States courts in 1839, Lincoln had appeared in at least sixty-two cases before he left for Congress, and on his return he naturally sought to pick up additional business in the federal courts, where cases were likely to involve larger questions and greater fees than the purely local litigation of the state courts. Because the court system had changed somewhat during his absence, he found abundant opportunity. The growth of Chicago made it imperative to hold sessions of the federal courts there as well as in Springfield, and Congress in 1855 divided the state into two judicial districts, with Judge Thomas Drummond presiding in Chicago and Judge Samuel H. Treat in Springfield. This multiplication of jurisdictions was a boon to lawyers, and Lincoln was soon making fairly regular appearances in the United States courts in Chicago as well as in Springfield.
In the federal courts Lincoln handled almost every kind of proceeding, including, improbably enough, a case in admiralty, involving a salvage operation on a ferryboat in the Mississippi River. Much of his time was taken by suits for debt, brought against citizens of Illinois by plaintiffs residing in other states. In seventeen cases he represented Samuel C. Davis & Company, a wholesale firm in St. Louis, which sued to collect unpaid bills in Illinois. This was not work that Lincoln enjoyed, nor was it remunerative, because he had to hire a man to visit each of the localities where a debtor lived and appraise his property in order to determine whether a court decree could be executed. As other more interesting and rewarding cases came his way, he resolved to drop Davis & Company as a client, and he wrote the firm: “My mind is made up. I will have no more to do with this class of business. I can do business in Court, but I can not, and will not follow executions all over the world.”
Other litigation in the federal courts he continued to find fascinating, especially when it involved mechanical devices and patents. His very first case in the Chicago federal court (Z. Parker v. Charles Hoyt) had to do with Hoyt’s alleged infringement of Parker’s patent for a waterwheel. Along with Grant Goodrich, Lincoln represented Hoyt. Defending their client with great energy, Lincoln explained to the jury in clear, simple language that Hoyt’s device was not a copy of Parker’s patented waterwheel but was simply an application of an age-old principle of waterpower. He reinforced his point by describing his early experience as an operator of Offutt’s sawmill at New Salem, which had been powered by the Sangamon River. When the jury came in with a verdict for the defendant, Lincoln said he “regarded this as one of the most gratifying triumphs of his professional life.”
II
The heart of Lincoln’s law practice continued to be in the circuit courts, and Lincoln & Herndon did its largest business in the Sangamon County Circuit Court. In August 1849, at the first session of that court held after Lincoln’s return from Congress, the firm had three cases on the opening day, seventeen cases on the second day, and eight on the third day. Once again Lincoln & Herndon was back in business. In 1850 the partners were involved in 18 percent of all the cases brought before the Sangamon County Circuit Court, and by 1853 they participated in about one-third of all cases.
As business increased, the small back room in the Tinsley Building, to which Herndon had moved during Lincoln’s absence, proved inadequate, and the partners rented a larger, second-floor office on the west side of the capitol square. It was a bare, unpretentious room, with two dirty windows looking out over sheds and an alley. There was no carpet. One long table occupied the center of the room, with a shorter one crossing it, to form a T, and both were covered with green baize. An old-fashioned secretary, with pigeonholes and a drawer to hold legal papers, a bookcase containing about two hundred law books, a couch, and some miscellaneous chairs completed the furnishings. The office was almost never cleaned.
In this office the partners worked until 1861. Unless they were on the circuit, both came in every morning, and they sat facing each other at opposite ends of the shorter table. From time to time, Lincoln would throw himself on the couch, resting his legs on two or three chairs or up against the wall, spilling himself out, as Herndon noted with irritable exaggeration, “easily over ¼ of the room.” Often, to his partner’s exasperation, Lincoln would read aloud from the daily newspapers or whatever book he was interested in. As he explained to Herndon: “When I read aloud my two senses catch the idea—1st I see what I am reading and 2dly I hear it read; and I can thus remember what I read the better.”
On many cases the partners worked together, with Herndon doing the research and the bookwork while Lincoln dealt with clients and the courts. But both Lincoln and Herndon handled many cases independently, or with other attorneys. In a rough division of labor, Herndon managed the office—insofar as any management was performed—and supervised the one or two students who were reading law with the firm, while Lincoln more often appeared in court. Except when he handled cases in Menard County, Herndon usually stayed in Springfield, while Lincoln went out on the circuit.
Every spring, after the adjournment of the Sangamon County Circuit Court, Lincoln set out on the round of the other circuit courts in the Eighth Judicial District. He discovered that there had been some significant changes during his two-year absence. For one thing, Lincoln now found himself one of the senior lawyers traveling the circuit. Though he was only forty years old, he was more and more frequently called—though never to his face—“Old Abe,” both because of his weather-beaten appearance and because of his many years in public life and at the bar. Some of the younger, ambitious lawyers thought of him as one of the “fossils,” who wanted to keep down new talent, and Lincoln himself, while denying any desire to discriminate against younger attorneys, conceded, “I suppose I am now one of the old men.”
Another change resulted from the election in 1848 of David Davis as judge of the Eighth Judicial District, to succeed Samuel H. Treat, who had presided over so many of Lincoln’s earlier cases on the circuit. Davis, a native of Maryland educated at Kenyon College and the Yale Law School, had known Lincoln casually for a number of years, but the two men now became closely acquainted in traveling the interminable miles of the circuit and in sitting for endless hours in the county courts. In appearance they were a curiously mismatched pair. Davis, so portly that it was said he had to be surveyed for a pair of trousers, was a stickler for immaculate clothing and perfect grooming; Lincoln, thin to the point of emaciation, seemed always to be hastily dressed, usually in a bobtailed sack coat and jeans that did not come within inches of his feet. In the winter months he added to this ensemble a circular blue cape, or sometimes a gray shawl, which he wore over his shoulders, fastened with an immense safety pin; in the summer he traveled in a white linen duster, much stained and the worse for wear. But in many ways Lincoln and Davis were much alike. Both were devoted Whigs, dedicated to promoting the country’s economic growth and national spirit. Border-state men, they detested slavery but deplored abolitionist efforts to end it. In legal matters Davis, despite his formal training, was neither particularly acute nor learned, and like Lincoln he took a commonsensical approach to the law, allowing principles to guide his decisions more often than precedents.
Davis and Lincoln did not become intimate friends. “Lincoln never confided to me anything,” Davis remarked many years later, adding that “Mr. Lincoln was not a sociable man by any means” and that he had “no strong emotional feelings for any person—mankind or thing.” That sour judgment derived from the essentially professional nature of their relationship, which was based on respect rather than affection. Each man developed a high opinion of
the other’s ability.
Davis, as he wrote to his wife, greatly admired “Mr. Lincoln’s exceeding honesty and fairness.” So great was the judge’s confidence in Lincoln that on numerous occasions when called away from the bench by family illness or other emergencies he designated Lincoln to preside in his stead. The practice of asking a prominent attorney to substitute for the judge was a fairly common one on the frontier (until the Illinois Supreme Court put an end to it in 1877), but only when the substitute was an attorney like Lincoln, who had the respect of the other members of the bar, were his rulings accepted without protest. Most of the decisions that Lincoln made as judge were in routine or uncontested cases, but he also disposed of slander suits, divorces, and actions for debt.
For the next eleven years Davis and Lincoln, together with the other lawyers, traveled essentially the same circuit twice a year. In the spring, after concluding the session of the Sangamon County Circuit Court in Springfield, the judge and his entourage moved on to Tremont in Tazewell County; then to Metamora in Woodford County; thence south to Bloomington in McLean County, and to Mt. Pulaski in Logan County; next east to Clinton in DeWitt County, Monticello in Piatt County, Urbana in Champaign County, and Danville in Vermilion County; after that south to Paris in Edgar County; then, turning west, to Shelbyville in Shelby County, Sullivan in Moultrie County, Decatur in Macon County, and Taylorville in Christian County. After that the judge went back to his home in Bloomington and the lawyers dispersed. (The route varied slightly from year to year depending in part on the condition of the roads. Sometimes counties where there was little litigation could be skipped. From time to time, the legislature changed the boundaries of the Eighth Judicial District, adding or subtracting counties.) The area traveled, as Davis grumbled, was equal to the entire state of Connecticut.
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