THE CIRCUIT LAWYER
In that briefest of all autobiographies, which Mr. Lincoln wrote for
Jesse Fell upon three pages of note-paper, he sketched in these words
the period at which we have arrived: "From 1849 to 1854, both
inclusive, I practiced law more assiduously than ever before ... I was
losing interest in politics, when the repeal of the Missouri Compromise
aroused me again." His service in Congress had made him more generally
known than formerly, and had increased his practical value as a member
of any law firm. He was offered a partnership on favorable terms by a
lawyer in good practice in Chicago; but he declined it on the ground
that his health would not endure the close confinement necessary in a
city office. He went back to Springfield, and resumed at once his
practice there and in the Eighth Judicial Circuit, where his
occupations and his associates were the most congenial that he could
anywhere find. For five years he devoted himself to his work with more
energy and more success than ever before.
It was at this time that he gave a notable proof of his unusual powers
of mental discipline. His wider knowledge of men and things, acquired
by contact with the great world, had shown him a certain lack in
himself of the power of close and sustained reasoning. To remedy this
defect, he applied himself, after his return from Congress, to such
works upon logic and mathematics as he fancied would be serviceable.
Devoting himself with dogged energy to the task in hand, he soon
learned by heart six books of the propositions of Euclid, and he
retained through life a thorough knowledge of the principles they
contain.
[Sidenote: I.N. Arnold in the "History of Sangamon County."]
The outward form and fashion of every institution change rapidly in
growing communities like our Western States, and the practice of the
law had already assumed a very different degree of dignity and
formality from that which it presented only twenty years before. The
lawyers in hunting-shirts and mocassins had long since passed away; so
had the judges who apologized to the criminals that they sentenced,
and charged them "to let their friends on Bear Creek understand it was
the law and the jury who were responsible." Even the easy familiarity
of a later date would no longer be tolerated. No successor of Judge
Douglas had been known to follow his example by coming down from the
bench, taking a seat in the lap of a friend, throwing an arm around
his neck, and in that intimate attitude discussing, _coram publico_,
whatever interested him, David Davis--afterwards of the Supreme Court
and of the Senate--was for many years the presiding judge of this
circuit, and neither under him nor his predecessor, S. H. Treat, was
any lapse of dignity or of propriety possible. Still there was much
less of form and ceremony insisted upon than is considered proper and
necessary in older communities.
The bar in great measure was composed of the same men who used to
follow the circuit on horseback, over roads impassable to wheels, with
their scanty wardrobes, their law-books, and their documents crowding
each other in their saddle-bags. The improvement of roads which made
carriages a possibility had effected a great change, and the coming of
the railway had completed the sudden development of the manners and
customs of the modernized community. But they could not all at once
take from the bar of the Eighth Circuit its raciness and its
individuality. The men who had lived in log-cabins, who had hunted
their way through untrodden woods and prairies, who had thought as
much about the chances of swimming over swollen fords as of their
cases, who had passed their nights--a half-dozen together--on the
floors of wayside hostelries, could never be precisely the same sort
of practitioners as the smug barristers of a more conventional age and
place. But they were not deficient in ability, in learning, or in that
most valuable faculty which enables really intelligent men to get
their bearings and sustain themselves in every sphere of life to which
they may be called. Some of these very colleagues of Lincoln at the
Springfield bar have sat in Cabinets, have held their own on the floor
of the Senate, have led armies in the field, have governed States, and
all with a quiet self-reliance which was as far as possible removed
from either undue arrogance or undue modesty. [Footnote: A few of the
lawyers who practiced with Lincoln, and have held the highest official
positions, are Douglas, Shields, Logan, Stuart, Baker, Samuel H.
Treat, Bledsoe, O. H. Browning, Hardin, Lyman Trumbull, and Stephen T.
McClernand.]
Among these able and energetic men Lincoln assumed and held the first
rank. This is a statement which ought not to be made without authority,
and rather than give the common repute of the circuit, we prefer to
cite the opinion of those lawyers of Illinois who are entitled to speak
as to this matter, both by the weight of their personal and
professional character and by their eminent official standing among the
jurists of our time. We shall quote rather fully from addresses
delivered by Justice David Davis, of the Supreme Court of the United
States, and by Judge Drummond, the United States District Judge for
Illinois. Judge Davis says:
I enjoyed for over twenty years the personal friendship of Mr.
Lincoln. We were admitted to the bar about the same time and traveled
for many years what is known in Illinois as the Eighth Judicial Court.
In 1848, when I first went on the bench, the circuit embraced fourteen
counties, and Mr. Lincoln went with the Court to every county.
Railroads were not then in use, and our mode of travel was either on
horseback or in buggies.
This simple life he loved, preferring it to the practice of the law in
a city, where, although the remuneration would be greater, the
opportunity would be less for mixing with the great body of the
people, who loved him, and whom he loved. Mr. Lincoln was transferred
from the bar of that circuit to the office of the President of the
United States, having been without official position since he left
Congress in 1849. In all the elements that constitute the great lawyer
he had few equals. He was great both at _nisi prius_ and before an
appellate tribunal. He seized the strong points of a cause, and
presented them with clearness and great compactness. His mind was
logical and direct, and he did not indulge in extraneous discussion.
Generalities and platitudes had no charms for him. An unfailing vein
of humor never deserted him; and he was able to claim the attention of
court and jury, when the cause was the most uninteresting, by the
appropriateness of his anecdotes. [Footnote: C. P. Linder once said to
an Eastern lawyer who expressed the opinion that Lincoln was wasting
his time in telling stories to the jury, "Don't lay that flattering
unction to your soul. Lincoln is like Tansey's horse, he 'breaks to
win.'"--T. W. S. Kidd, in the Lincoln Memorial Album.]
His power of comparison was large, and he rarely failed in a legal
discussion to use that mode of reasoning. The framework of his mental
and moral being was honesty, and a wrong cause was poorly defended by
him. The ability which some eminent lawyers possess, of explaining
away the bad points of a cause by ingenious sophistry, was denied him.
In order to bring into full activity his great powers, it was
necessary that he should be convinced of the right and justice of the
matter which he advocated. When so convinced, whether the cause was
great or small, he was usually successful. He read law-books but
little, except when the cause in hand made it necessary; yet he was
usually self-reliant, depending on his own resources, and rarely
consulting his brother lawyers, either on the management of his case
or on the legal questions involved.
Mr. Lincoln was the fairest and most accommodating of practitioners,
granting all favors which were consistent with his duty to his client,
and rarely availing himself of an unwary oversight of his adversary.
He hated wrong and oppression everywhere, and many a man whose
fraudulent conduct was undergoing review in a court of justice has
writhed under his terrific indignation and rebukes. He was the most
simple and unostentatious of men in his habits, having few wants, and
those easily supplied. To his honor be it said that he never took from
a client, even when his cause was gained, more than he thought the
services were worth and the client could reasonably afford to pay. The
people where he practiced law were not rich, and his charges were
always small. When he was elected President, I question whether there
was a lawyer in the circuit, who had been at the bar so long a time,
whose means were not larger. It did not seem to be one of the purposes
of his life to accumulate a fortune. In fact, outside of his
profession, he had no knowledge of the way to make money, and he never
even attempted it.
Mr. Lincoln was loved by his brethren of the bar, and no body of men
will grieve more at his death, or pay more sincere tributes to his
memory. His presence on the circuit was watched for with interest and
never failed to produce joy or hilarity. When casually absent, the
spirits of both bar and people were depressed. He was not fond of
litigation, and would compromise a lawsuit whenever practicable.
No clearer or more authoritative statement of Lincoln's rank as a
lawyer can ever be made than is found in these brief sentences, in
which the warmth of personal affection is not permitted to disturb the
measured appreciation, the habitual reserve of the eminent jurist.
But, as it may be objected that the friendship which united Davis and
Lincoln rendered the one incapable of a just judgment upon the merits
of the other, we will also give an extract from the address delivered
in Chicago by one of the ablest and most impartial lawyers who have
ever honored the bar and the bench in the West. Judge Drummond says:
With a probity of character known to all, with an intuitive insight
into the human heart, with a clearness of statement which was in
itself an argument, with uncommon power and felicity of illustration,
--often, it is true, of a plain and homely kind,--and with that
sincerity and earnestness of manner which carried conviction, he was
perhaps one of the most successful jury lawyers we ever had in the
State. He always tried a case fairly and honestly. He never
intentionally misrepresented the evidence of a witness nor the
argument of an opponent. He met both squarely, and if he could not
explain the one or answer the other, substantially admitted it. He
never misstated the law, according to his own intelligent view of it.
Such was the transparent candor and integrity of his nature, that he
could not well or strongly argue a side or a cause that he thought
wrong. Of course he felt it his duty to say what could be said, and to
leave the decision to others; but there could be seen in such cases
the inward struggle of his own mind. In trying a case he might
occasionally dwell too long upon, or give too much importance to, an
inconsiderable point; but this was the exception, and generally he
went straight to the citadel of the cause or question, and struck home
there, knowing if that were won the outworks would necessarily fall.
He could hardly be called very learned in his profession, and yet he
rarely tried a cause without fully understanding the law applicable to
it; and I have no hesitation in saying he was one of the ablest
lawyers I have ever known. If he was forcible before a jury, he was
equally so with the Court. He detected with unerring sagacity the weak
points of an opponent's argument, and pressed his own views with
overwhelming strength. His efforts were quite unequal, and it might
happen that he would not, on some occasions, strike one as at all
remarkable. But let him be thoroughly roused, let him feel that he was
right, and some principle was involved in his cause, and he would come
out with an earnestness of conviction, a power of argument, a wealth
of illustration, that I have never seen surpassed.
[Illustration: DAVID DAVIS.]
[Sidenote: Lamon, p. 317.]
This is nothing less than the portrait of a great lawyer, drawn by
competent hands, with the lifelong habit of conscientious accuracy. If
we chose to continue we could fill this volume with the tributes of
his professional associates, ranging all the way from the commonplaces
of condolence to the most extravagant eulogy. But enough has been
quoted to justify the tradition which Lincoln left behind him at the
bar of Illinois. His weak as well as his strong qualities have been
indicated. He never learned the technicalities, what some would call
the tricks, of the profession. The sleight of plea and demurrer, the
legerdemain by which justice is balked and a weak case is made to gain
an unfair advantage, was too subtle and shifty for his strong and
straightforward intelligence. He met these manoeuvres sufficiently
well, when practiced by others, but he never could get in the way of
handling them for himself. On the wrong side he was always weak. He
knew this himself, and avoided such cases when he could consistently
with the rules of his profession. He would often persuade a fair-
minded litigant of the injustice of his case and induce him to give it
up. His partner, Mr. Herndon, relates a speech in point which Lincoln
once made to a man who offered him an objectionable case: "Yes, there
is no reasonable doubt but that I can gain your case for you. I can
set a whole neighborhood at loggerheads; I can distress a widowed
mother and her six fatherless children, and thereby get for you six
hundred dollars, which rightfully belongs, it appears to me, as much
to them as it does to you. I shall not take your case, but I will give
a little advice for nothing. You seem a sprightly, energetic man. I
would advise you to try your hand at making six hundred dollars in
some other way." Sometimes, after he had entered upon a criminal case,
the conviction that his client was guilty would affect him with a sort
of panic. On one occasion he turned suddenly to his associate and
said: "Swett, the man is guilty; you defend him, I can't," and so gave
up his share of a large fee. The same thing happened at another time
when he was engaged with Judge S. C. Parks in defending a man accused
of larceny. He said: "If you can say anything for the man, do it, I
can't; if I attempt it, the jury will see I think he is guilty, and
convict him." Once he was prosecuting a civil suit, in the course of
which evidence was introduced showing that his client was attempting a
fraud. Lincoln rose and went to his hotel in deep disgust. The judge
sent for him; he refused to come. "Tell the judge," he said, "my hands
are dirty; I came over to wash them." We are aware that these stories
detract something from the character of the lawyer; but this
inflexible, inconvenient, and fastidious morality was to be of vast
service afterwards to his country and the world.
The Nemesis which waits upon men of extraordinary wit or humor has not
neglected Mr. Lincoln, and the young lawyers of Illinois, who never
knew him, have an endless store of jokes and pleasantries in his name;
some of them as old as Howleglass or Rabelais. [Footnote: As a
specimen of these stories we give the following, well vouched for, as
apocrypha generally are: Lincoln met one day on the courthouse steps a
young lawyer who had lost a case--his only one--and looked very
disconsolate. "What has become of your case?" Lincoln asked. "Gone to
h---," was the gloomy response. "Well, don't give it up," Lincoln
rejoined cheerfully; "you can try it again there"--a quip which has
been attributed to many wits in many ages, and will doubtless make the
reputation of jesters yet to be.] But the fact is that with all his
stories and jests, his frank companionable humor, his gift of easy
accessibility and welcome, he was, even while he traveled the Eighth
Circuit, a man of grave and serious temper and of an unusual innate
dignity and reserve. He had few or no special intimates, and there was
a line beyond which no one ever thought of passing. Besides, he was
too strong a man in the court-room to be regarded with anything but
respect in a community in which legal ability was the only especial
mark of distinction.
Few of his forensic speeches have been preserved, but his
contemporaries all agree as to their singular ability and power. He
seemed absolutely at home in a court-room; his great stature did not
encumber him there; it seemed like a natural symbol of superiority.
His bearing and gesticulation had no awkwardness about them; they were
simply striking and original. He assumed at the start a frank and
friendly relation with the jury which was extremely effective. He
usually began, as the phrase ran, by "giving away his case"; by
allowing to the opposite side every possible advantage that they could
honestly and justly claim. Then he would present his own side of the
case, with a clearness, a candor, an adroitness of statement which at
once flattered and convinced the jury, and made even the bystanders
his partisans. Sometimes he disturbed the court with laughter by his
humorous or apt illustrations; sometimes he excited the audience by
that florid and exuberant rhetoric which he knew well enough how and
when to indulge in; but his more usual and more successful manner was
to rely upon a clear, strong, lucid statement, keeping details in
proper subordination and bringing forward, in a way which fastened the
attention of court and jury alike, the essential point on which he
claimed a decision. "Indeed," says one of his colleagues, "his
statement often rendered argument unnecessary, and often the court
would stop him and say, 'If that is the case, we will hear the other
side.'"
[Sidenote: Raymond "Life of Lincoln." p. 32.]
[Sidenote: I.N. Arnold, speech before the State Bar Association, Jan.
7, 1881.]
Whatever doubts might be entertained as to whether he was the ablest
lawyer on the circuit, there was never any dissent from the opinion
that he was the one most cordially and universally liked. If he did
not himself enjoy his full share of the happiness of life, he
certainly diffused more of it among his fellows than is in the power
of most men. His arrival was a little festival in the county-seats
where his pursuits led him to pass so much of his time. Several eye-
witnesses have described these scenes in terms which would seem
exaggerated if they were not so fully confirmed. The bench and bar
would gather at the tavern where he was expected, to give him a
cordial welcome; says one writer, "He brought light with him." This is
not hard to understand. Whatever his cares, he never inflicted them
upon others. He talked singularly well, but never about himself. He
was full of wit which never wounded, of humor which mellowed the
harshness of that new and raw life of the prairies. He never asked for
help, but was always ready to give it. He received everybody's
confidence, and rarely gave his own in return. He took no mean
advantages in court or in conversation, and, satisfied with the
respect and kindliness which he everywhere met, he sought no quarrels
and seldom had to decline them. He did not accumulate wealth; as Judge
Davis said, "He seemed never to care for it." He had a good income
from his profession, though the fees he received would bring a smile
to the well-paid lips of the great attorneys of to-day. The largest
fee he ever got was one of five thousand dollars from the Illinois
Central Railway, and he had to bring suit to compel them to pay it. He
spent what he received in the education of his children, in the care
of his family, and in a plain and generous way of living. One who
often visited him writes, referring to "the old-fashioned hospitality
of Springfield," "Among others I recall with a sad pleasure, the
dinners and evening parties given by Mrs. Lincoln. In her modest and
simple home, where everything was so orderly and refined, there was
always on the part of both host and hostess a cordial and hearty
Western welcome which put every guest perfectly at ease. Their table
was famed for the excellence of many rare Kentucky dishes, and for the
venison, wild turkeys, and other game, then so abundant. Yet it was
her genial manner and ever-kind welcome, and Mr. Lincoln's wit and
humor, anecdote and unrivaled conversation, which formed the chief
attraction."
Here we leave him for a while, in this peaceful and laborious period
of his life; engaged in useful and congenial toil; surrounded by the
love and respect of the entire community; in the fullness of his years
and strength; the struggles of his youth, which were so easy to his
active brain and his mighty muscles, all behind him, and the titanic
labors of his manhood yet to come. We shall now try to sketch the
beginnings of that tremendous controversy which he was in a few years
to take up, to guide and direct to its wonderful and tragical close.