TRUTH IN LAW
Early one spring morning long ago,--to be precise, on the 15th day of
April, 1837,--a solitary horseman might have been seen riding along the
wagon road that ran from New Salem to Springfield. He was obviously not
one of G. P. R. James’s jaunty heroes, nor yet a new-world variation on
the melancholy Don, but romance and allegory alike can furnish forth few
figures more striking than that which skirted the Illinois prairies on
this particular forenoon. The traveler, sad-eyed and gaunt, was our
friend Lincoln. His mount, a pony borrowed from Bowling Green, barely
stepped high enough to keep the rider’s lank extremities from touching
the ground. Nor did the picture that he presented gain in grace, as
one’s eye rested on the man’s ill-fitting garments. Yet they were the
best he had, for the bulging saddle-bags contained--as we now know--not
clothing, but a few articles of underwear, packed in with that
well-thumbed set of Blackstone’s Commentaries, several volumes of
statute law, and two other books. Add to this inventory a small amount
of money in pocket,--“about seven dollars,” according to one friend’s
estimate,--and the whole sum of Lincoln’s own portable assets at the
moment is told. To complete the balance-sheet, his liabilities, or, more
accurately speaking, the evidences thereof, might be traced, line for
line, in that pensive countenance. The shadow of “the national debt,”
still brooding over all, did in fact overlay his prospective earnings as
well as his actual means and leave him worse than penniless. It was in
the hope of mending these broken fortunes that he now turned his back on
the cherished associations of New Salem and rode with his scanty
belongings to Springfield.
The city had held out welcoming hands. Its leading citizens felt
grateful to Lincoln for effective aid rendered to them during the recent
session of the General Assembly, in which they had secured a vote
whereby the seat of government was transferred from Vandalia to
Springfield; and his faculty, withal, for engaging the affections of men
had already gained him several stanch friends in the new capital.
One of these admirers, William Butler, relates how after the victory at
Vandalia, as the Sangamon delegation were returning home, Lincoln had,
in a moment of depression, spoken to him of his gloomy prospects.
Without money, resources, or employment, he did not know, as he said,
“where to earn even a week’s board.”[ii-1] The listener’s ready sympathy
had inspired him to suggest that Lincoln would prosper in the practice
of his profession at Springfield; and before they parted company, Butler
had fortified the proposal with a tender of hospitality at his own
table, until the promised success should be attained. In response to
this generous offer, as well as to other invitations hardly less
cordial, the member from New Salem, a few weeks thereafter, came to make
his home in the bustling little town, just quickening with a sense of
its recently acquired dignity.
Having hitched his pony to a rack in the public square, Lincoln, with
the saddle-bags over his arm, entered the general store of Joshua F.
Speed. After an exchange of greetings,--for the two men knew each
other,--the newcomer said: “I just want to put my saddle-pockets down
here till I put up my beast at Bill Butler’s, then I want to see you.”
Returning in a short time, he continued: “Well, Speed, I’ve been to
Gorman’s and got a single bedstead; now you figure out what it will cost
for a tick, blankets, and the rest.”
After a brief interval with slate and pencil, the required furnishings
were found to reach, so the storekeeper announced, a total of seventeen
dollars.
Lincoln’s countenance fell, as he exclaimed: “I had no idea it would
cost half of that! It is probably cheap enough,” he went on, “but I want
to say that, cheap as it is, I have not the money to pay. But if you
will credit me until Christmas, and my experiment here as a lawyer is a
success, I will pay you then. If I fail in that I will probably never be
able to pay you at all.”
There was a note of dejection in the speaker’s voice and an air of gloom
in his manner that deeply affected the man behind the counter. Recalling
the scene, toward the latter end of his life, Mr. Speed declared, “As I
looked up at him I thought then, and think now, that I never saw a
sadder face.”
On the impulse of the moment, he said to his prospective customer:--
“You seem to be so much pained at contracting so small a debt, I think I
can suggest a plan by which you can avoid the debt and at the same time
attain your end. I have a very large room, and a very large double bed
in it, which you are perfectly welcome to share with me if you choose.”
“Where is your room?” asked Lincoln.
“Upstairs,” answered Speed, pointing to the winding steps which led from
the shop to the story above.
Without another word his questioner took up the saddle-bags, mounted the
stairs, and coming down again in a trice, announced with a happy,
smiling face: “Well, Speed, I’m moved.”[ii-2]
Thus dependent on the bounty of two friends,--on the one for food, on
the other for a bed,--Lincoln began his life in Springfield.
The anxious uncertainty which followed was of brief duration. Before a
fortnight had elapsed, Major Stuart invited his old comrade-in-arms to
become his partner. This offer, it is perhaps needless to say, was
eagerly accepted; and the modest office above the county court-room,
that had been occupied by the senior member of the firm, became the
headquarters of Stuart and Lincoln.
After they were well under way occurred a little incident which nicely
exemplified the junior partner’s elemental probity, in all its
quaintness. He had ceased to be postmaster at New Salem, upon the
discontinuance of that office about a year before his departure from
the place. But his accounts with the Government still remained
unsettled, and he had probably forgotten about them, when an agent of
the Post-Office Department arrived in Springfield, one day, with a draft
for the unpaid balance. How much this amounted to is not definitely
known. It has been variously reported at figures ranging all the way
from “seventeen dollars and sixty cents” to “over one hundred and fifty
dollars.” Nor do the official records at Washington throw any light on
the matter, for the books covering this period have been destroyed. The
claim, whether large or small, however, doubtless called for a greater
sum than Lincoln had seemingly brought with him to the city. His
profound poverty and distress at that time might well lead one who knew
these circumstances to wonder how the required funds could possibly be
forthcoming. So the affair impressed his friend, Dr. A. G. Henry, who
happened to be present when the collector came. “I did not believe he
had the money on hand to meet the draft,” said the doctor, relating what
took place; “and I was about to call him aside and loan him the money,
when he asked the agent to be seated a moment while he went over to his
trunk at his boarding-house, and returned with an old blue sock with a
quantity of silver and copper coin tied up in it. Untying the sock, he
poured the contents on the table and proceeded to count the coin, which
consisted of such silver and copper pieces as the country people were
then in the habit of using in paying postage. On counting it up there
was found the exact amount, to a cent, of the draft, and in the
identical coin which had been received. As the agent departed, Lincoln
remarked, in a matter-of-fact tone, that he never used any money but his
own.”[ii-3]
This excellent rule was carried to an extreme which became, at times,
almost childish. It seemed especially so in Lincoln’s dealings with the
three friends,--Kentuckians all,--Stuart, Logan, and Herndon, who
succeeded one another as his partners.[ii-4] Yet, if one may judge by
what has been told concerning them, they entered readily enough into the
spirit of his primitive honesty. Whenever he received a fee, an
immediate division followed. If his associate happened to be present,
that gentleman’s part was handed over at once. But if a payment took
place in the absence of the other from their office, or while Lincoln
was on circuit, he wrapped his partner’s share in a piece of paper
marked, “Doe _v._ Roe--Stuart’s half,” or “Logan’s half,” or “Herndon’s
half,” as the case might be; and at the first opportunity thereafter the
identical money, as originally divided, was delivered to its rightful
owner.
In the case of one uncommonly large fee, however, even this method
apparently failed to satisfy his eagerness for prompt settlements. When
he collected his bill of forty-eight hundred dollars, on a judgment
against the Illinois Central Railroad Company, Lincoln telegraphed to
Herndon that he wished him to remain at their office until the return
train reached Springfield. It was night when he arrived, and found his
partner awaiting him. Counting out Herndon’s portion of the receipts,
with a characteristic little jest, he had the gratification of placing
the money where it belonged before they slept.
To infer from all this that Lincoln had any aversion for the keeping of
accounts, or that there were no fee-books in which these transactions
were recorded, is wide of the facts. He did keep books and properly,
too.[ii-5] It was in the handling of payments that he differed from many
honorable men around him. He had simply set up a financial creed of his
own, as it were, according to which the money of another was sacred from
being used by him, even temporarily,--yes, sacred from any act which
might cause it to lose, for a moment, its distinctive character as the
property of that other.
A lawyer conscientious to such a degree toward his partners would hardly
be less so in the treatment of his clients. And they, for their part,
were quick to appreciate the fact. One old chronicler records with warm
approval how Lincoln, at the very outset, gained the confidence of the
business men.[ii-6] As traffic in the Mississippi Valley was generally
based on long-time credit, merchants often found it necessary to commit
the collection of their overdue notes to local attorneys. Some of these
gentlemen were so dilatory in making returns that their clients, not
infrequently, had as much difficulty getting the money from them as from
their customers. Lincoln set a different pace. As soon as such payments
reached him they were, in every instance, turned over, without delay, to
their rightful owners who, by the way, lost no opportunity of
proclaiming their satisfaction.[ii-7]
But it was in the handling of more important matters that Lincoln
evinced how scrupulous could be an attorney’s attention to the true
interests of those who sought legal aid. His office became, as should
every good lawyer’s, a court of conciliation; and when people came to
him with their troubles, he usually tried, in the beginning, to bring
about amicable adjustments. These endeavors went beyond a merely
perfunctory observance of the time-honored dictum that it is a lawyer’s
duty to prevent not to promote litigation.[ii-8] Addressing himself, in
the notes for a lecture, to beginners at the bar, he wrote, after
perhaps fifteen years of legal experience: “Discourage litigation.
Persuade your neighbors to compromise whenever you can. Point out to
them how the nominal winner is often a real loser--in fees, expenses,
and waste of time. As a peacemaker the lawyer has a superior opportunity
of being a good man. There will still be business enough.”[ii-9]
How earnestly Lincoln labored to reck his own rede, judges, attorneys,
and other officers of the law agreed in attesting. They declared,
according to one who canvassed their views, that “more disputes were
settled” by his advice “out of the courts than in them”; and, what is
perhaps of greater importance, it was added that “as a rule, these
settlements left the litigants friends.”[ii-10] Quarrels, ranging over
the whole field of human differences, from an altercation about a line
fence to the unhappy preliminaries of a divorce suit, were smoothed
out--if one may credit the current anecdotes--under his soothing
touch.[ii-11]
But were the mediations of this peacemaker satisfactory in every
instance? Did the contestants who had been brought to lay their claims
before him uniformly submit to his decisions with good grace? As though
to answer these questions one of his most brilliant contemporaries at
the bar, Leonard Swett, once said:--
“There is something remarkable about these Lincoln settlements and
arbitrations. The parties always submit. They seem to think they have to
submit, which is very little short of the power he exercises over a
jury, before which these arbitrated disputes would otherwise come. He is
so positive and final with them as to make his judgment equivalent to a
settlement in court. In all my observations of these cases, only one man
objected seriously and threatened to take his case into court. It
happened he was one of Lincoln’s clients; but when the man objected to
Lincoln’s arbitration, and said, ‘I will take the case into court,’
Lincoln gave him one of his deep-searching looks, and said, ‘Very well,
Jim, I will take the case against you for nothing.’ But that was
unnecessary, for the penetrating look had settled Jim and his
case.”[ii-12]
On other occasions, even when there were no arbitrations, Lincoln could
not wholly divest himself of the judicial spirit. He required those who
sought his aid to come--as to the judgment-seat--with clean hands. A
client, favored at the outset by some improper advantage, could hope for
his services only after the balance had been redeemed by some adequate
concession. Perhaps the best case in point is that of a widow who
retained Lincoln and Herndon for the purpose of looking into certain
alleged tax liens on a valuable piece of land to which she held title.
While making a search of the records the attorneys came upon a
description in one of the deeds that appeared to require verification.
Lincoln went to the place with the necessary instruments and surveyed
the ground himself. He found a material discrepancy. It was evident that
Charles Matheney, a former grantor, selling the tract at a certain price
per acre, had, by an error in the description, conveyed more land than
had been paid for. These facts were laid before the widow, with a
carefully made calculation showing how much, in the opinion of her
attorneys, was due to Matheney’s estate by reason of this erroneous
conveyance. Their suggestion, however, that she make this restitution
met with strenuous objection. Only after they had declined to continue
as her representatives, unless she did so, was the required sum
reluctantly placed in the firm’s hands. The senior member himself
divided it into a number of smaller sums, which he distributed, in due
form, among the Matheney heirs.[ii-13]
All refractory litigants were of course not amenable to reason. At times
when persuasion or threats failed, strategy came into play. One client
who insisted on bringing an unseemly action was circumvented by Lincoln
in an amusing manner. Here is the story as it was told by Gibson W.
Harris, a clerk at the time in that now famous law-office:--
“A crack-brained attorney who lived in Springfield, supported mainly, as
I understood, by the other lawyers of the place, became indebted, in the
sum of two dollars and fifty cents, to a wealthy citizen of the county,
a recent comer. The creditor failing, after repeated efforts, to collect
the amount due him, came to Mr. Lincoln and asked him to bring suit. Mr.
Lincoln explained the man’s condition and circumstances, and advised his
client to let the matter rest; but the creditor’s temper was up, and he
insisted on having suit brought. Again Mr. Lincoln urged him to let the
matter drop, adding, ‘You can make nothing out of him, and it will cost
you a good deal more than the debt to bring suit.’ The creditor was
still determined to have his way, and threatened to seek some other
attorney who would be more willing to take charge of the matter than Mr.
Lincoln appeared to be. Mr. Lincoln then said, ‘Well, if you are
determined that suit shall be brought, I will bring it; but my charge
will be ten dollars.’ The money was paid him, and peremptory orders were
given that the suit be brought that day. After the client’s departure,
Mr. Lincoln went out of the office, returning in about an hour with an
amused look on his face. I asked what pleased him, and he replied, ‘I
brought suit against Blank, and then hunted him up, told him what I had
done, handed him half of the ten dollars, and we went over to the
squire’s office. He confessed judgment and paid the bill.’ Mr. Lincoln
added that he didn’t see any other way to make things satisfactory for
his client as well as the rest of the parties.”[ii-14]
This aptitude for disposing of quarrels so as to satisfy all concerned
became generally recognized at the bar. Lincoln’s fellow attorneys,
conceding the disinterested skill with which he harmonized the
discordant elements of a matter in controversy, at times coöperated with
him by persuading their clients to accept his good offices. A few of
these colleagues even went further. When consulted concerning certain
cases in which Lincoln had been retained on the other side, they
emulated his self-denial, and before accepting any fees advised that the
settlement of these affairs be left wholly in his hands.
A typical instance was related, several years ago, by Henry Rice, a
prominent resident of New York. During his younger days, while in
business at Jacksonville, Illinois, he was requested by some Cincinnati
merchants to recommend a reputable lawyer, who might look after their
interests in the matter of a Decatur house that had made what they
regarded as a fraudulent failure. Mr. Rice promptly suggested Abraham
Lincoln, and meeting a committee of the creditors by appointment in
Springfield, he guided them to that attorney’s office. The ensuing
interview was brief. Hardly had the spokesman entered upon the purpose
of their visit, when Lincoln, raising his long arm high in the air,
interrupted him with the words:--
“Stop! Gentlemen, I am sorry to say that I cannot take your claims. Just
before you entered I received a message engaging me to act for the
Decatur concern.”
When asked whom the creditors had better retain, he suggested one of his
most active political opponents--that able lawyer and party leader, John
A. McClernand. To him the committee went. He heard them attentively, and
then said:--
“If that man has planned to go through bankruptcy without paying you any
part of his debts, he has chosen the poorest lawyer in Illinois to do
the job. I advise you to return to Mr. Lincoln, and state your whole
case as frankly as you have stated it to me. He is just the man to
settle this for you. Go back and put the whole matter into his hands.”
They did so. Mr. Lincoln, after hearing their statement, assured them
that no injustice would be done. More than that, he agreed to confer
with his client and arrange an equitable settlement. In an uncommonly
short time the creditors, to their joy, received seventy-five cents on
the dollar; the heavy expense, as well as the delays usually involved in
such failures, were averted, and the debtor was enabled to resume
business, with a name free from the stain of bankruptcy.[ii-15]
These compromises between opposing interests constituted--it is perhaps
unnecessary to say--only a part of Lincoln’s legal activities. Accepting
as a matter of course many cases that could not be arbitrated or settled
offhand, he conducted them, with varying fortunes, through their several
stages in the courts. But now and then came proposals for litigation
which, according to his code, admitted of neither suit nor compromise.
They belonged to that class of causes once wittily characterized by
Erskine, in the famous opinion,--“This action will not lie, unless the
witnesses do.” Such matters received short shrift at Lincoln’s hands.
When a prospective client was in the wrong he bluntly told him so. Nor
did he hesitate to treat old patrons and friends, painful as this must
at times have been, with the same embarrassing frankness. “You have no
case; better settle,” was heard in his office, over and over again.
Stripping a discreditable story of its sophistries, he pointed out the
sharp practice or worse in which those who concerned themselves with the
affair would inevitably become involved, refused the proffered retainer,
and urged the litigant to withdraw from an untenable position.[ii-16]
This was Lincoln’s course toward one of his early neighbors, Henry
McHenry, when that person desired him to bring an action of doubtful
propriety. Declining to touch the case on the ground that his client was
not strictly in the right, our attorney said: “You can give the other
party a great deal of trouble and perhaps beat him, but you had better
let the suit alone.”[ii-17]
So, too, Lincoln was careful--as he himself expressed it--not to “stir
up litigation,”[ii-18] or to do anything that might encourage the
vexatious and costly suits which often arise over the administration of
estates.
“Who was your guardian?” he asked a young man after weighing his
inconsistent complaint that a part of the property bequeathed to him had
been wrongfully withheld.
“Enoch Kingsbury,” was the answer.
“I know Mr. Kingsbury,” said Lincoln, “and he is not the man to have
cheated you out of a cent; I can’t take the case, and I advise you to
drop the subject.”[ii-19]
In the same conscientious spirit more important opportunities for
employment, holding forth prospects of generous fees, were turned away
from Lincoln’s door. His associates at the bar have recorded a few
instances. One of these is related by Judge Samuel C. Parks. He recalls
that in a matter entitled “Harris and Jones _versus_ Buckles,” the
plaintiffs, having employed him and Ward Hill Lamon as their attorneys,
desired them to secure Lincoln’s services also. His reply was
characteristic: “Tell Harris it’s no use to waste money on me in that
case; he’ll get beat.”[ii-20]
Among the retainers so declined, most notable, perhaps, was that of
Governor Joel A. Matteson, who, after his retirement from office, stood
accused of having defrauded the State of Illinois by reissuing redeemed
canal scrip and applying the proceeds to his own use. The alleged thefts
amounted, in the end, with interest, to about a quarter of a million
dollars. Matteson’s fortune, as well as his good repute, and perhaps his
very liberty, were at stake. He sought to gather around him a formidable
array of counsel. Having engaged the eminent lawyers Benjamin S. Edwards
and Major John T. Stuart for his defense, he tried likewise to retain
Abraham Lincoln and another of that gentleman’s former partners, Judge
Stephen T. Logan. Both these last-mentioned attorneys, however, after
carefully considering the facts submitted to them, reached the
conclusion that the distinguished defendant was guilty. They conceded
his right to such protection as one reputable advocate might properly
afford him, but neither of them was willing to join a powerful
combination of legal experts that should have for its object the
culprit’s escape from punishment. So, without conferring on the subject,
indeed without each other’s knowledge, they respectively declined to be
concerned in the matter. Their course, it should be added, was justified
before many months had elapsed by Matteson’s virtual confession and by a
heavy judgment rendered against him in the Circuit Court.[ii-21]
But Lincoln’s refusals to engage his services in actions of which he did
not approve went still further. A cause to enlist his interest had to be
intrinsically right as well as technically so. He ran no subtlety shop.
What has been termed “law honesty” fell far short, now and then, in his
opinion, of being genuine honesty. Indeed, it may be doubted whether any
leading practitioner of the Illinois bar felt more keenly than he, at
times, that “strictest law is oft the highest wrong.”
How far, on such occasions, the man in him got the better of the lawyer
was illustrated by the closing words of an interview overheard one
morning in his office. Mr. Lincoln, seated at the baize-covered table
near the center of the room, had been listening attentively, for some
time, to a person who addressed him earnestly and in a low tone of
voice. Suddenly the attorney interrupted the speaker with these words
that rang out through the place:--
“Yes, we can doubtless gain your case for you. We can set a whole
neighborhood at loggerheads. We can distress a widowed mother and her
six fatherless children, and thereby get for you six hundred dollars to
which you seem to have a legal claim; but which rightfully belongs, it
appears to me, as much to the woman and her children as it does to you.
You must remember that some things legally right are not morally right.
We shall not take your case, but will give you a little advice for which
we will charge you nothing. You seem to be a sprightly, energetic man;
we would advise you to try your hand at making six hundred dollars in
some other way.”[ii-22]
On another occasion, as a student in the office recalls, Lincoln sat
gazing at the ceiling while a client unfolded the shabby details of a
proposed suit. When the narrative was finished, the listener swung
around in his chair and exclaimed:--
“Well, you have a pretty good case in technical law, but a pretty bad
one in equity and justice. You’ll have to get some other fellow to win
this case for you. I couldn’t do it. All the time while standing talking
to that jury, I’d be thinking, ‘Lincoln, you’re a liar’; and I believe I
should forget myself and say it out loud.”[ii-23]
This last avowal discloses a striking justification--if justification is
needed--of “Honest Abe’s” course in rejecting clients whom he believed
to be in the wrong. Whatever claims they may, on general principles,
have had to his services were probably not pressed after such an
acknowledgment. Even our legal casuists, piling high the reasons why it
is an attorney’s duty to appear on either side of a cause, right or
wrong,--and some of the arguments are convincing enough,--would
doubtless hesitate to enforce their rule in the case of a lawyer who
thus frankly admits that, when his pleadings happen to be at variance
with his conscience, he finds himself unable to control his powers. The
greater those powers, the greater would seem the danger to the side that
had engaged them, if they should balk. For Pegasus unwillingly in the
traces might well be expected to make more trouble than a whole team of
refractory plough-horses. And Lincoln, keenly alive to his peculiar
limitations, realized that unless he himself believed in the justice of
a contention, his advocacy thereof--half-hearted, perhaps fatally
ingenuous--would do the case more harm than good.
In short, he was too “perversely honest,” as one old acquaintance
phrased it, to be of any use to a client who was not honest. The man’s
whole make-up harbored no trace of that mercenary, free-lance spirit
which can fight for hire under one banner, as valiantly as under
another--in a base cause as well as in a righteous one. Nor did pride of
intellect, exulting in uncommon forensic dexterity, betray him into that
habit of mind which derives its keenest gratification from making “the
worse appear the better reason.” And all his skill would have failed him
here had he tried to be otherwise. For if there was one quality more
than another that Abraham Lincoln lacked, it must have been the kind of
versatility of which Cardinal Duperron boasted, when he said, in
response to a compliment by King Henry III, on the convincing eloquence
with which the prelate had proved the existence of the Deity: “Sire, I
can now turn about, if it pleases Your Majesty, and prove to you, with
arguments equally irrefutable, that there is no God.”
Lincoln’s intellect was of a wholly different cast. It had been devoted
to the truth, with single-minded fealty, from boyhood. At a time when
children’s thoughts usually run on play, his had begun to puzzle out the
problems of life. Nothing but the facts would content him. And whether
he acquired them by observation, dug them out of books, or picked them
up from chance conversations, there was no rest until they had been
brought well within the circle of his comprehension. Referring, at a
maturer period, to this trait, he said:--
“Among my earliest recollections I remember how, when a mere child, I
used to get irritated when anybody talked to me in a way I could not
understand. I don’t think I ever got angry at anything else in my life.
But that always disturbed my temper, and has ever since. I can remember
going to my little bedroom, after hearing the neighbors talk of an
evening with my father, and spending no small part of the night walking
up and down, and trying to make out what was the exact meaning of some
of their, to me, dark sayings. I could not sleep, though I often tried
to, when I got on such a hunt after an idea, until I caught it; and when
I thought I had got it, I was not satisfied until I had repeated it
over and over,--until I had put it in language plain enough, as I
thought, for any boy I knew to comprehend. This was a kind of passion
with me, and it has stuck by me; for I am never easy now, when I am
handling a thought, till I have bounded it North, and bounded it South,
and bounded it East, and bounded it West.”[ii-24]
This eagerness to see every side of a subject made trouble, at times,
for the juvenile inquirer. His Cousin Dennis has illustrated this, in a
characteristic little thumb-nail sketch. Chatting about those early
days, in his old age, Mr. Hanks said:--
“Sometimes a preacher, ’r a circuit-ridin’ jedge, ’r lyyer, ’r a
stump-speakin’ polytician, ’r a school-teacher’d come along. When one o’
them rode up, Tom’d go out an’ say,--‘’Light, stranger,’ like it was
polite to do. Then Abe’d come lopin’ out on his long legs, throw one
over the top rail and begin firin’ questions. Tom’d tell him to quit,
but it didn’t do no good, so Tom’d have to bang him on the side o’ his
head with his hat. Abe’d go off a spell an’ fire sticks at the
snow-birds, an’ whistle like he didn’t keer. ‘Pap thinks it ain’t polite
to ask folks so many questions,’ he’d say. ‘I reckon I wasn’t born to be
polite, Denny. Thar’s so darned many things I want to know. An’ how else
am I goin’ to git to know ’em?’”[ii-25]
The habit of asking questions remained with Lincoln to the end of the
chapter. Frankly declaring himself ignorant concerning many things, on
many occasions, he laid his face low, as the Persians say, at the
threshold of truth. Indeed, no forceful character in recent history was
so free from pride of mentality, so willing to admit that he did not
understand some important matter, or that, perchance, a trivial one had
escaped his knowledge. Taking stock of himself, during middle-life, for
an inquiring biographer, he summed up his intellectual attainments in
two words,--“education defective.” To a young friend who, at a still
later period, pointed out an error of speech, he called himself
“deplorably ignorant.” When an opponent taunted him with having
“carefully written” an address, he replied before his next audience: “I
admit that it was. I am not a master of language. I have not a fine
education.”
And when he had composed a certain notable letter, he laid it before a
learned neighbor, with the words: “I think it is all right, but grammar,
you know, is not my stronghold; and as several persons will probably
read that little thing, I wish you would look it over carefully, and see
if it needs doctoring anywhere.”
Perhaps we should add that the missive did need a touch of “doctoring,”
and that the writer submitted to the treatment with good grace. Nor was
he less ingenuous on other occasions. One day in court a lawyer, quoting
a Latin maxim, bowed to him and said: “That is so, is it not, Mr.
Lincoln?”
To which he answered: “If that’s Latin, you had better call another
witness.”
So, during a visit by a distinguished company, when one gentleman turned
to another and repeated a quotation from the ancient classics, Lincoln
leaned forward in his chair, looked inquiringly at them, and remarked,
with a smile: “Which, I suppose you are both aware, _I_ do not
understand.”
Equally free from false pretense concerning his work at the bar, he
would turn the compliment of an admirer with some such phrase as, “Oh, I
am only a mast-fed lawyer.”
The same spirit of candid self-appraisal was strikingly manifested
during the McCormick reaper suit, in which Lincoln, with other lawyers,
had been retained for the defense. When the cause came to trial, he
found himself elbowed, so to say, out of a leading part by Edwin M.
Stanton. Yet while listening to the argument of the colleague who had
thus displaced him, he forgot his disappointment, keen though it was, in
his admiration of the great advocate’s masterly plea. Indeed, Lincoln is
said to have been so moved that he hardly repressed his enthusiasm in
open court; and upon the conclusion of the address, he remarked to one
of the clients who had retained him: “Emerson, it would have been a
great mistake if I had spoken in this case. I did not fully understand
it.”[ii-26]
These confessions, under all their varying circumstances, showed how
honest the man could be. The simple words, “I do not know,” are among
the hardest to pronounce in the language. Still he must use them freely
who would find the key to Pilate’s age-worn riddle, and behold the fair
vision of Truth, at last, face to face. So believed this conscientious
lawyer, who realized, however, that here his duty began rather than
ended. For it was not until all the questions in a legal tangle had been
answered and all the perplexities straightened out, not until he had
gone at the very heart of a problem,--to use his own expression,--“like
a dog at a root,” and laid the facts bare to the last fiber, that
Lincoln’s intellectual probity arose to its full stature. Then all
concessions were at an end. His logical mind, a marvel of close and
clear thinking, progressed through a subject, step for step, from
premise to conclusion, with unerring precision. There was no retreat, no
dodging, no attempt to evade or color the inevitable result. If that
result stood in the way of his desires, so much the worse for those
desires. He sought the truth for the truth’s sake. Having followed a
chain of reasoning from start to finish, with an utter disregard of
personal interests,--his own, no less than those of others,--he was as
loyal to the outcome as he had been to the mental process whereby it had
been reached. Lincoln never apparently resorted to the meanest of
pettifogging--that of a man at the bar of his own conscience. As he
could not tolerate a fallacious premise, he could not argue to a false
conclusion. Utterly unable to deceive himself, he was incapable of
deceiving others; and once an essential truth had entered into his
consciousness, there was not room enough in that whole gigantic frame,
if he spoke at all, for its concealment.
How marked were these characteristics may be inferred from the fact that
they evoked comment among lawyers and judges who are credited themselves
with a high standard of professional honor. David Davis, who presided
for nearly fourteen years over the Eighth Judicial Circuit of Illinois,
in which Lincoln tried most of his cases, said concerning this upright
advocate: “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.”[ii-27]
Similar comments have been made by the Judges of the Illinois Supreme
Court, in which, for a period of twenty years, he had an unusual number
of cases. What these experienced jurists thought concerning this aspect
of Lincoln’s nature was summed up, so to say, by Judge Caton, in the
single sentence: “He seemed entirely ignorant of the art of deception or
of dissimulation.”[ii-28]
To which should be added the observations made by Judge Thomas Drummond,
from the bench of the United States Circuit Court, at Chicago: “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.”[ii-29]
Lincoln’s commendable weakness in this respect was equally patent to his
associates at the bar. Few of them, if any, knew him so well as Leonard
Swett, who touches on his friend’s inability to be otherwise than
intellectually honest, in these words: “If his own mind failed to be
satisfied, he had little power to satisfy anybody else. He never made a
sophistical argument in his life, and never could make one. I think he
was of less real aid in trying a thoroughly bad case than any man I was
ever associated with. If he could not grasp the whole case and believe
in it, he was never inclined to touch it.”[ii-30]
In the same strain wrote Henry C. Whitney: “It was morally impossible
for Lincoln to argue dishonestly. He could no more do it than he could
steal. It was the same thing to him, in essence, to despoil a man of his
property by larceny or by illogical or flagitious reasoning; and even to
defeat a suitor by technicalities, or by merely arbitrary law, savored
strongly of dishonesty to him. He tolerated it sometimes, but always
with a grimace.”[ii-31]
A number of other fellow-attorneys have expressed similar opinions. To
quote them all might lead to a veritable paroxysm of citation; and
needlessly so, for enough has been said to show that in refusing
unworthy cases Lincoln did simple justice by the rejected litigants, as
well as by himself.
But it should not be inferred that he looked with misgivings on every
retainer which was offered to him, or that he peered unduly about in
search of reasons for turning patrons away. On the contrary, Lincoln
welcomed the general run of business as any lawyer might. Like most men
who are free from guile, he usually suspected none in others.
He certainly did not guard himself against deception, as did that fine,
old-fashioned practitioner of the Colonial school, George Wythe, who,
when there seemed reason to mistrust a client’s initial statement,
required it to be made under oath. On circuit, moreover, Lincoln
generally found but scant opportunity for probing into his suits before
they came to trial. Acting as counsel for local attorneys, he had to
rely upon them for the proper preparation of their cases; and so it
happened that he found himself at times in court supporting litigants
whose contentions the evidence wholly failed to sustain.
When a mishap of this nature occurred, trouble ensued. The recently
alert advocate--all enthusiasm, courage, and skill--lapsed into a
dispirited pleader whose movements seemed almost mechanical. In fact, if
we may credit the traditions of the circuit, his thoughts were engaged,
from that moment, not on how to win the case, but on how to get out of
it. Particularly was this so when, taken by surprise in the midst of a
criminal trial, he became convinced--as happened on several
occasions--of his client’s guilt.
An instance in point has been related by Judge Parks, a prominent
member, at the time, of the Illinois bar. He writes: “A man was indicted
for larceny. Lincoln, Young, and myself defended him. Lincoln was
satisfied by the evidence that he was guilty and ought to be convicted.
He called Young and myself aside, and said, ‘If you can say anything for
the man, do it,--I can’t. If I attempt, the jury will see that I think
he is guilty, and convict him, of course.’ The case was submitted by us
to the jury without a word. The jury failed to agree, and before the
next term the man died. Lincoln’s honesty undoubtedly saved him from
the penitentiary.”[ii-32]
A similar difficulty arose in the Patterson murder trial, a case of some
celebrity that held the center of the judicial stage for some days in
Champaign County. The prosecution was conducted by District Attorney
Lamon; the defense, by Leonard Swett and his friend Abraham Lincoln. As
the evidence against the prisoner developed, his counsel realized that
they were defending a guilty man. The discovery appears to have unnerved
Lincoln who, as the District Attorney expressed it, “felt himself
morally paralyzed.” Acknowledging this condition to his associate, he
said: “Swett, the man is guilty. You defend him,--I can’t.”
There is reason to think that Lincoln urged his colleague privately
before Judge Davis, the presiding magistrate, to join him in arranging
for a plea of manslaughter, with the understanding that their client
should receive the minimum sentence. This proposition Swett apparently
brushed aside. He conducted the defense to its formal conclusion, made
his argument to the jury, and--again quoting Lamon--“saved the guilty
man from justice.” A considerable fee was paid for that signal service,
but Lincoln is said to have declined any share of the money.[ii-33]
In civil actions, he disposed even more summarily of clients who had
deceived him, or who persisted in litigating over matters that were
found to lack merit. Recalling such instances, Mr. Herndon says: “His
retention by a man to defend a lawsuit did not prevent him from
throwing it up in its most critical stage if he believed he was
espousing an unjust cause. This extreme conscientiousness and disregard
of the alleged sacredness of the professional cloak robbed him of much
so-called success at the bar. He once wrote to one of our clients, ‘I do
not think there is the least use of doing anything more with your
lawsuit. I not only do not think you are sure to gain it, but I do think
you are sure to lose it. Therefore the sooner it ends the
better.’”[ii-34]
Another anecdote of similar bearing is furnished by J. Henry Shaw, a
lawyer in practice years ago at Beardstown, Illinois. This contributor
writes: “Lincoln came into my office one day with the remark, ‘I see
you’ve been suing some of my clients, and I’ve come down to see about
it.’ He had reference to a suit I had brought to enforce the specific
performance of a contract. I explained the case to him, and showed my
proofs. He seemed surprised that I should deal so frankly with him, and
said he would be as frank with me; that my client was justly entitled to
a decree, and he should so represent it to the court; and that it was
against his principles to contest a clear matter of right. So my client
got a deed for a farm which, had another lawyer been in Mr. Lincoln’s
place, would have been consumed by the costs of litigation for years,
with the result probably the same in the end.”[ii-35]
Still another civil suit was well under way before Lincoln discovered
the defendant, whom he represented, to be in the wrong. This man, a
live-stock breeder, had sold the plaintiff a number of sheep at a
stipulated average price. When the animals were delivered, many of them,
according to the purchaser’s claim, proved to be so young that they did
not fulfill the conditions of the contract, and he sued for damages. The
evidence produced at the trial sustained the complaint. Several
witnesses testified, moreover, that according to usage such of the
animals as were under a certain age should be regarded as lambs, and of
less value than full-grown sheep. No sooner had these facts been
established than Mr. Lincoln changed his line of action. Ceasing to
contest the case, he directed all his attention to the task of
ascertaining exactly how many lambs had been delivered. This done, he
briefly addressed the jury. They were obliged, he conceded, to bring in
a verdict against his client; but he asked them to make sure of the
exact damage sustained by the plaintiff, in order that both parties
might have simple justice. And this was done.[ii-36]
To these stories should be added the testimony of Judge Joseph
Gillespie, a leading Illinois attorney: “Mr. Lincoln’s love of justice
and fair play was his predominating trait. I have often listened to him
when I thought he would certainly state his case out of court. It was
not in his nature to assume, or attempt to bolster up, a false position.
He would abandon his case first. He did so in the case of Buckmaster for
the use of Dedham _versus_ Beems and Arthur, in our Supreme Court, in
which I happened to be opposed to him. Another gentleman, less
fastidious, took Mr. Lincoln’s place and gained the case.”[ii-37]
But perhaps his most notable desertion of a client occurred once at
Postville, before Circuit Judge Treat, in the midst of a Logan County
trial. The suit of Hoblit against Farmer had come up on appeal from a
decision given by some local justice of the peace. What the alleged
circumstances were Lincoln did not know until he was retained, in the
Circuit Court, to represent the plaintiff. That worthy went upon the
witness stand to prove his claim. After testifying about the items of
the account against Farmer, and after allowing all set-offs, he swore
positively that the balance had not been paid. Yet when the defendant’s
attorney, Asahel Gridley, produced a receipt in full, given prior to the
bringing of the action, the witness was obliged to admit that he had
signed the paper. Whether or not it had been introduced at the original
hearing is left in doubt, as the story goes; but there can be no
question about the plaintiff’s surprise. Taken off his guard, Hoblit
turned to his counsel and exclaimed that he “supposed the cuss had lost
it.” Whereupon Lincoln arose, and left the court-room. Taking notice of
his departure, Judge Treat sent the sheriff, Dr. John Deskins, in
pursuit. When that officer found the missing lawyer, he was seated in
the tavern across the court-house square, with his feet on the stove and
his head among the clouds.
“Mr. Lincoln,” said the sheriff, “the judge wants you.”
“Oh, does he?” was the reply. “Well, you go back and tell the judge that
I can’t come. My hands are dirty and I came over to clean them.”[ii-38]
The message was duly delivered to the honorable court, and Lincoln’s
unprincipled client suffered a nonsuit.[ii-39]
There is a pretty little sequel to this episode. Some time later, when
Gridley discontinued practice for more lucrative pursuits, he manifested
his confidence in Lincoln, as well as his esteem, by transferring his
entire law business to him without compensation. This was somewhat after
the manner in which Robert Carter Nicholas, a veteran member of the
profession during a former generation, had turned over his clientage to
Patrick Henry. But no such encounter appears to have taken place between
the Virginians as has just been related concerning the Illinois men. Nor
is it to be expected. That abandonment by Lincoln of a case in
mid-career, so to say, without regard for the judge’s wishes, is perhaps
unique. It certainly is characteristic. There are instances of honorable
counsel, who, finding themselves in the course of a trial grossly misled
by their clients, have declined to serve them further, and have obtained
leave from the court to withdraw. But if any other celebrated American
pleader, at any time during his career, rushed from a court-room in a
passion of righteous indignation over such a deception, and refused to
return upon the mandate of the presiding magistrate, that occurrence is
not commonly known. Moreover, from a professional point of view, the
propriety, generally speaking, of Lincoln’s course in these matters has
been gravely questioned. Some critics, conceding the misconduct of the
clients whom he deserted, still appear to think that his treatment of
them detracted somewhat from his character as a lawyer. And with reason,
if an advocate’s first duty, as has been repeatedly asserted, is
fidelity to the cause in which his services are enlisted. Yet how far
does that duty require him to go after he has lost confidence in the
rectitude of his cause? Some barristers--and the number includes men of
distinction--have frankly set no limits to their obligations. They hold
that a lawyer, once he has accepted a client’s retainer, is pledged to
stand by him through thick and thin. The blacker the evidence develops
against him, in a criminal action, or the less palpable become the
merits of his case in a civil one, the more firmly they consider his
counsel bound in honor to battle for a verdict. Should that verdict, if
it is finally won, seem contrary to morality or justice, the fault, in
their opinion, does not lie with the man to whose skill and eloquence it
may be due. His attention, they believe, was properly fixed, to the
exclusion of everything else, upon that part of the proceedings which
had been committed to his care. If the same singleness of purpose,
perhaps the same ability with which he discharged this function, had
been exercised by the attorney on the other side, as well as by the
judge and the jury, to say nothing of witnesses and lawmakers, the
administration of justice would, according to their code, have been
secure. It is as though they were priests in the temple of the
blindfolded goddess, interceding for sinners no less persuasively than
for saints; as though, serving every comer however unclean, they thought
it no shame on their sacred office if they seized a chance, when the
divinity should relax her vigilance, or the high-priest should nod, to
jog the delicately poised balance in their suppliant’s favor.
Such a theory of advocacy revolted Lincoln. Indeed, his whole career at
the bar was a protest against the conception of a lawyer’s duty that
imposes upon him any fancied requirement to procure a judgment of which
his conscience disapproves. He had little or no sympathy, therefore,
with the loyalty-at-any-cost practitioners; and he would not join them,
it goes without saying, on those slippery paths of sophistry, which wind
too often through the ivory gates of falsehood. What criticism, if any,
he made of their conduct is not definitely known. Yet we almost seem to
hear him exclaim, as Carlyle did, “Can there be a more horrible object
in existence than an eloquent man not speaking the truth?”
These reflections, be it said, apply all in all to some only of the
counselors who stand by their colors, after they discover them to be
tarnished; for many faithful members of the profession regard the
advocate’s mission in a different light. He is bound, they admit, to
remain in a case after a trial has begun, especially if retained for the
defense; and this, however distasteful or even reprehensible his
client’s side may prove to be. That client, according to their theory,
must be represented, to the close of the action, by his legal adviser,
or the whole judicial machinery, of which an attorney on each side is an
essential part, breaks down. In this nicely adjusted mechanism, they
claim, the functions of the advocate, and those of the judge as well as
the jury, are exercised on widely different planes, so that under normal
conditions their operations can never coalesce. Should counsel,
therefore, in the midst of a trial, assume the judicial rôle, condemn
his own cause before the hour of judgment, and deny his own client the
protection which had impliedly been pledged, he would, in their eyes,
commit a gross breach of professional propriety. Nay, more, his course
would involve, they contend, a betrayal of both court and client,--a
Quixotic freak, in which private and public interests would alike be
sacrificed. So far, both classes of practitioners who will not abandon a
cause, after they find it tainted, appear to move abreast; but at this
point their ways part. While the one advocate leaves not a stone
unturned, as the expression goes, to extricate his man--right or
wrong--with a sweeping victory, the other, deeming himself under no
obligation to strive for an obviously unjust verdict, remains to
safeguard his client’s legal rights, presents his case fairly on the
evidence, and does in his behalf all that an honorable officer of the
court may do, without lending himself to an evasion of the law or a
perversion of justice.
This latter conception of what a lawyer owes at once to conscience and
to society had doubtless impressed itself on Lincoln’s good sense. For
he tried hard enough, in several instances, to conduct forlorn hopes to
their bitter conclusions. But here again the compelling honesty of the
man’s nature thwarted his efforts, until it would almost seem as if, by
a singular paradox, he really evinced more loyalty when he deserted,
than when he stood his ground to make a half-hearted fight.
Lincoln’s ineptitude on the latter occasions vexed his colleagues not a
little. They appear to have been embarrassed more by his halting
coöperation than by an out-and-out withdrawal from a case. One of his
local associates on the circuit, Henry C. Whitney, has related several
unpleasant experiences of this nature; and from the warmth with which he
writes, many years after the event, one may infer how acute must have
been the narrator’s irritation at the time. Perhaps one of these
anecdotes, in Mr. Whitney’s own language, will best illustrate the whole
peculiar matter. He is telling about the trial of a man for a homicide
committed at Sadorus, Illinois:--
“When the facts were brought out before the petit jury, it was very
clearly developed that the indictment should have been for murder,
instead of--what it was--for manslaughter, and Lincoln was evidently of
that opinion. Mr. Lincoln, Leonard Swett, and myself were associated for
the defense. The wife of the accused had wealthy and influential
relations in Vermillion County, and no pains were spared to make a good
defense. Swett and myself took the lawyer’s view, and were anxious to
acquit entirely. Lincoln sat in our counsels, but took little part in
them. His opinion was fixed and could not be changed. He joined in the
trial, but with no enthusiasm. His logically honest mind chilled his
efforts.
“Lincoln was to make the last speech to the jury on our side, and Swett
the speech preceding. Swett was then, as he was long afterward, the most
effective jury advocate in the State, except Lincoln. He occupied one
evening on this occasion, and when he closed, I was full of faith that
our client would be acquitted entirely. Lincoln followed on our side,
the next morning, and while he made some good points, the honesty of his
mental processes forced him into a line of argument and admission that
was very damaging. We all felt that he had hurt our case.
“I recollect one incident that we regarded as especially atrocious.
Swett had dwelt with deep pathos upon the condition of the family--there
being several small children, and his wife then on the verge of
confinement with another. Lincoln himself adverted to this, but only to
disparage it as an argument, saying that the proper place for such
appeals was to a legislature who framed laws, rather than to a jury who
must decide upon evidence. Nor was this done on account of any dislike
to Swett, for he was especially fond of Swett as an advocate and
associate. In point of fact, our client was found guilty, and sent to
the penitentiary for three years; and Lincoln, whose merciless logic
drove him into the belief that the culprit was guilty of murder, had his
humanity so wrought upon, that he induced the Governor to pardon him out
after he had served one year.”[ii-40]
If Mr. Lincoln’s course during that trial struck his
fellow-practitioners as “atrocious,” it might be interesting to know
what epithet would have sufficed to express their feelings had they
been concerned with him in his first matter before the Supreme Court of
Illinois. Appearing on that occasion for the appellant,--according to
Judge Treat, the commonly accepted authority for an extraordinary
tale,--he said: “This is the first case I have ever had in this court,
and I have therefore examined it with great care. As the court will
perceive by looking at the abstract of the record, the only question in
the case is one of authority. I have not been able to find any authority
to sustain my side of the case, but I have found several cases directly
in point, on the other side. I will now give these authorities to the
court, and then submit the case.”[ii-41]
That speech is probably without parallel in the history of appeals from
judicial decisions. An approach to the spirit which actuated it may be
found in the career of William Pinkney, the renowned Maryland advocate.
Having gained a verdict for a client from the Court of Chancery, he
became convinced of its injustice when the claim was made, on appeal,
that not all the parties in interest were before the court. The point
impressed itself on his mind as well taken. He promptly so declared, and
without any attempt at sustaining the decree, allowed it to be reversed.
Lawyers, whose fealty to the truth exercised such an overmastering
influence upon their conduct, would have graced the bench. Yet neither
of these illustrious men, it should be added, attained judicial honors;
unless indeed we count Lincoln’s irregular elevation to the
judgment-seat by David Davis, who appointed him, from time to
time,--without legal sanction, however, for so doing,--to preside over
his court. The substitution appears to have been made for the
convenience of all concerned, when the judge could not be present; and
both sides are said, as a rule, to have consented gladly thereto.[ii-42]
Once a whole term for Champaign County was held, it is asserted, in this
unauthorized way. But how successfully the pseudo-magistrate dispensed
justice must, by reason of the meager details that have been preserved,
be left largely to conjecture. Did Lincoln, some may ask, really possess
the attributes of a great judge? The query will, perhaps, suggest itself
to those who are fond of reconstructing history around events that
failed to happen. If they take account of his faculty for seeing both
sides of a question with crystal clearness, his mellow wisdom, his
inflexible love of truth, and, above all, his militant sympathy with the
right against the wrong, their fancy may well picture him, under altered
circumstances, mounting to a place beside the leading jurists of
Illinois. Breese, Caton, and their compeers, developing that admirable
system of jurisprudence which distinguished the Prairie State, might,
indeed, have profited by his collaboration.