CHAPTER II

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.

"Honest Abe": A Study in Integrity Based on the Early Life of Abraham Lincoln · 第 2 / 7 章