CHAPTER III

PROFESSIONAL ETHICS

If the judicial rather than the forensic temperament swayed Lincoln’s

conduct as a lawyer, it should be remembered that this was a drawback

only when he found himself on the wrong side of a suit. When he stood on

the right side, with time enough to exert all the faculties of his

slow-moving mind, no advocate in the State was more skillful and

effective. Indeed, those very qualities which impaired his usefulness

for the winning of a bad cause made him especially strong in a good one.

After he himself was convinced that his client ought to prevail, he

rarely failed to imbue judge and jury with the same belief.[iii-1] This

should be attributed somewhat to Lincoln’s reputation for avoiding

unworthy cases. The commonly accepted idea that he would appear only in

matters of which his conscience approved, gave him, from the very

beginning of a trial, an advantage not to be despised. But what he did,

or omitted to do, as the proceedings advanced, contributed still more,

it may be needless to add, toward the gaining of a verdict. His methods

make one wonder whether there may not be more than a stale gibe at the

legal profession tucked away somewhere in the query of the lad who

asked,--“Father, do lawyers tell the truth?” and the jesting

answer,--“Yes, my son; lawyers will do anything to win a case.” For

Lincoln in court was truth in action. His simple adherence to facts made

as vivid an impression on those who heard him as did his intellectual

powers, which were, by the way, of no mean order. The man’s

interpretation of the law, his logic, his eloquence, his humor, his

homely, common-sense view of things--all shone in the light of a

never-failing candor. While he was trying a cause, strangers who

happened to enter the court-room usually found themselves, after a few

moments,--if contemporary accounts may be accepted,--on his side and

wishing him success. Yet success, in the ordinary meaning of that term,

did not, to all appearances, alone concern him. What engaged most of his

attention, apparently, was how to present the affair in hand as it had

actually happened, without regard to his client’s interests. In fact,

every step that he took, as the trial moved along, seemed intended, not

so much to secure a victory as to sift out the truth and establish

justice at any cost.

Reverting, unconsciously perhaps, to the time-honored though quite

obsolete idea of a counselor’s duties, he conducted himself more like

the helpful friend or adviser of the court than like a modern advocate

striving for a decision. As one of his most intimate colleagues, Leonard

Swett, relates: “Where most lawyers would object he would say he

‘reckoned’ it would be fair to let this in, or that; and sometimes, when

his adversary could not quite prove what Lincoln knew to be the truth,

he ‘reckoned’ it would be fair to admit the truth to be so-and-so. When

he did object to the court, and when he heard his objections answered,

he would often say, ‘Well, I reckon I must be wrong.’”[iii-2]

This equable disposition extended in a marked degree to Lincoln’s manner

of conducting an examination. His own witnesses usually told their story

in response to a few straightforward, kindly questions, and those who

took the stand on the other side were treated by him with the same frank

courtesy. He had a good-natured way of making these people feel at home

amidst unaccustomed surroundings, while draining them adroitly of what

they knew about the case on trial. It was so clearly his aim, moreover,

to arrive at the facts, rather than to score winning points, that time

after time hostile witnesses mellowed under the charm of his sincerity

and, contrary to their original intentions, told the truth. Candor

begets candor. The light which shines through an upright man’s eyes

often kindles a responsive gleam in the heart of a shuffler. And when,

as in Lincoln’s case, that upright man was a shrewd lawyer, controlling

an unwilling witness with all the masterful tact of a seer to whom human

nature must have read like an open book, we begin to understand how one

usually self-restrained biographer--himself a member of the bar--came to

believe the cross-examiner “endowed,” at such moments, “with psychic

qualities of extraordinary power.”

Less occult gifts, however, suffice to explain some of these

achievements. For here, as elsewhere in Lincoln’s practice, notable

results were reached by simple, open methods. How easily he extracted

the facts, for instance, from one unfriendly witness has been told in a

characteristic anecdote by the man himself. This was the Honorable James

T. Hoblit, of Lincoln, Illinois. Recalling his discomfiture and the

attorney who caused it, he once said:--

“I shall never forget my experience with him. I was subpœnaed in a

case brought by one Paullin against my uncle, and I knew too much about

the matter in dispute for my uncle’s good. The case was not of vital

importance, but it seemed very serious to me, for I was a mere boy at

the time. Mr. Paullin had owned a bull which was continually raiding his

neighbor’s corn, and one day my uncle ordered his boys to drive the

animal out of his fields, and not to use it too gently either. Well, the

boys obeyed the orders only too literally, for one of them harpooned the

bull with a pitchfork, injuring it permanently, and I saw enough of the

occurrence to make me a dangerous witness. The result was that Paullin

sued my uncle, the boys were indicted for malicious mischief, Mr.

Lincoln was retained by the plaintiff, who was determined to make an

example of somebody, and I was subpœnaed as a witness.

“My testimony was, of course, of the highest possible importance,

because the plaintiff couldn’t make my cousins testify, and I had every

reason to want to forget what I had seen, and though pretty frightened,

I determined, when I took the stand, to say as little as possible. Well,

as soon as I told Mr. Lincoln my full name he became very much

interested, asking me if I wasn’t some relative of his old friend John

Hoblit who kept the halfway house between Springfield and Bloomington;

and when I answered that he was my grandfather, Mr. Lincoln grew very

friendly, plying me with all sorts of questions about family matters;

which put me completely at my ease, and before I knew what was

happening, I had forgotten to be hostile and he had the whole story.

After the trial he met me outside the court-room and stopped to tell me

that he knew I hadn’t wanted to say anything against my people, but that

though he sympathized with me, I had acted rightly and no one could

criticize me for what I had done. The whole matter was afterward

adjusted, but I never forgot his friendly and encouraging words at a

time when I needed sympathy and consolation.”[iii-3]

Of course, all opposing witnesses were not so pliant. They failed

frequently to give Lincoln the answers that he sought; yet his patience

and courtesy lost nothing of their fine flavor, as long as the man on

the stand appeared to be telling the truth. There were no efforts made

to confuse him by artfully framed questions, or to entrap him into

seeming contradictions. Above all, he was safe from brow-beating,

because this level-headed advocate apparently never committed the fault

of harassing an honest witness. Lincoln’s spirit of fair play forbade

any such behavior, even if the spirit of wisdom had not taught him, from

the very beginning, what so many learned gentlemen at the bar fail,

throughout their entire careers, to grasp, that the art of

cross-examination rarely consists in examining crossly.

But there came a time, now and then, when this even-tempered giant, with

his homely, magnetic smile, did become cross--how cross, only those who

caught the direct impact of his anger fully realized. Let some scamp try

to tell him a lie from the witness-chair, and the fellow’s troubles

began. He could hardly have brought his spurious wares to a less

profitable market. For, slow as Lincoln generally was to doubt another’s

probity, so quick was he to detect false values when that probity fell

under suspicion. And cunningly woven, indeed, must have been the web of

perjury which his logical mind--once it set about the task--could not

unravel. He had a disconcerting way of stripping unsound testimony, with

one searching question after another, until the futile cheat lay exposed

in all its nakedness. Then his contempt for the discredited witness knew

no bounds. Kindness gave way to severity. Words that scorched came hot

and fast. It was as if some sacred thing had been violated. And what

happens after one arouses the fury of a patient man, received uncommonly

vivid illustration.

He was once trying a railway case for the defense, when the plaintiff,

testifying in his own behalf, flagrantly misstated certain facts. The

perjurer’s attorney, on addressing the jury, tried to excite prejudice

against the defendant company by making the trite charge that on one

side was “a flesh-and-blood man,” with a soul such as the jurymen had,

while on the other was a soulless corporation. To which Lincoln

indignantly replied: “Counsel avers that his client has a soul. This is

possible, of course, but from the way he has testified under oath in

this case, to gain, or hoping to gain, a few paltry dollars, he would

sell, nay, has already sold, his little soul very low. But our client is

but a conventional name for thousands of widows and orphans whose

husbands’ and parents’ hard earnings are represented by this defendant,

and who possess souls which they would not swear away as the plaintiff

has done for ten million times as much as is at stake here.”[iii-4]

It would be wrong to infer that Lincoln’s scorn for untruthfulness on

the stand was visited upon the heads of opposing witnesses only. His own

witnesses, when they sulked under cross-examination or tried to mislead

counsel on the other side, had a taste of his quality in this respect.

He even went so far, at times, as to rebuke them in open court for their

misbehavior.

An occurrence of this character--there are said to have been several--is

related by a colleague of Lincoln, Anthony Thornton, who says: “On one

occasion he and I were associate counsel in an important lawsuit, when

he exhibited his love of right and fairness in a remarkable manner. John

T. Stuart, of Springfield, was counsel for the opposite party. It was a

trial by jury. I examined the witnesses and Mr. Lincoln attended to the

legal questions involved. I had examined an intelligent witness whose

testimony was clear and satisfactory, and readily given. When the

cross-examination commenced, this witness hesitated, manifested

reluctance to answer, and was evasive in his replies. Mr. Lincoln arose

and addressed the court, and publicly and severely reprimanded the

witness. It was a dangerous experiment which might have brought

discredit on our most important witness. His object, however, was

accomplished, and the witness answered promptly all questions on

cross-examination.”[iii-5]

This act is perhaps unique in the annals of the American bar. At all

events, its fellow--if there ever was one--has not become known to

general literature. Nor is this surprising, for there have not been many

Lincolns, and reputable lawyers of to-day hardly see fit to follow such

an example. A pleader who would do so--in fact, one who generally

speaking would employ that remarkable man’s methods with success--must

not only have faith in the merits of his cases, but he must be

efficiently honest, too, to the backbone. For Lincoln’s plan of conduct

rested upon the single virtue which, in the nature of things, is least

easily simulated. Had he failed at crucial points to be straightforward,

without shuffling or reserve, had the delicate image of truth, which he

sought to rear, leaned ever so little out of true, to the north or the

south or the east or the west, that entire fair fabric would, at the

first jolt, inevitably have fallen to the ground in ruins before the

very eyes of the jury.

How well this advocate stood the test in doubtless many trying

situations, judges and lawyers have admiringly recounted. Justice Breese

spoke, as it were, for the bench when he said that Lincoln practiced

“none of the chicanery of the profession to which he was devoted, nor

any of those mean, and little, and shuffling, and dishonorable arts all

do not avoid.”[iii-6] The judgment of the bar was as comprehensively

summed up in these words of Mr. Whitney: “Unlike the average lawyer, he

would not do anything mean, or which savored of dishonesty or sharp

practice, or which required absolute sophistry or chicanery in order to

succeed.”

Turning up a leaf in his own early experiences, that same associate

says: “When I was new to the bar, I was trying to keep some evidence

out, and was getting along very well with the court, when Lincoln sung

out, ‘I reckon it would be fair to let that in.’ It sounded treasonable,

but I had to get used to this eccentricity.”[iii-7]

Perhaps the clearest conception of Lincoln’s fidelity to his own high

standards of practice, even when beset by almost compelling temptations,

is derived from Mr. Herndon’s account of an incident which occurred

during their partnership. To do the story justice it should be told,

without abridgment, in the narrator’s own language.

“Messrs. Stuart and Edwards,” he relates, “once brought a suit against a

client of ours, which involved the title to considerable property. At

that time we had only two or three terms of court, and the docket was

somewhat crowded. The plaintiff’s attorneys were pressing us for a

trial, and we were equally as anxious to ward it off. What we wanted

were time and a continuance to the next term. We dared not make an

affidavit for continuance, founded on facts, because no such pertinent

and material facts as the law contemplated existed. Our case for the

time seemed hopeless. One morning, however, I accidentally overheard a

remark from Stuart indicating his fear lest a certain fact should

happen to come into our possession. I felt some relief, and at once drew

up a fictitious plea, averring as best I could the substance of the

doubts I knew existed in Stuart’s mind. The plea was as skillfully drawn

as I knew how, and was framed as if we had the evidence to sustain it.

The whole thing was a sham, but so constructed as to work the desired

continuance, because I knew that Stuart and Edwards believed the facts

were as I pleaded them. This was done in the absence and without the

knowledge of Lincoln. The plea could not be demurred to, and the

opposing counsel dared not take the issue on it. It perplexed them

sorely.

“At length, before further steps were taken, Lincoln came into court. He

looked carefully over all the papers in the case, as was his custom, and

seeing my ingenious subterfuge, asked, ‘Is this seventh plea a good

one?’ Proud of the exhibition of my skill, I answered that it was.

‘But,’ he inquired incredulously, ‘is it founded on fact?’ I was obliged

to respond in the negative, at the same time following up my answer with

an explanation of what I had overheard Stuart intimate, and of how these

alleged facts could be called facts if a certain construction were put

upon them. I insisted that our position was justifiable, and that our

client must have time or be ruined. I could see at once it failed to

strike Lincoln as just right. He scratched his head thoughtfully and

asked, ‘Hadn’t we better withdraw that plea? You know it’s a sham, and a

sham is very often but another name for a lie. Don’t let it go on

record. The cursed thing may come staring us in the face long after this

suit has been forgotten.’ The plea was withdrawn. By some agency--not

our own--the case was continued and our client’s interests were saved.”

To which Mr. Herndon adds the significant comment: “I venture the

assertion that he was the only member of the bar in Springfield who

would have taken such a conscientious view of the matter.”[iii-8]

Apparently Lincoln differed from his brother lawyers in being equipped

with a vizualizing sense of what has well been called “the moment

after.” Taking a firm stand, moreover, on the old moral dictum that

nothing can need a lie, he avoided the quirks and quillets which have so

often brought reproach upon the administration of the law. For Cicero’s

theory of a pleader’s occasional duty “to maintain the plausible, though

it may not be the truth,” evidently found no favor in his eyes. Nor did

he look more kindly upon false pleas to impede justice when they were

made by his friends and colleagues. Some of them, hard-pressed for a

valid defense, did so in the Chase case--an action brought before

Lincoln as deputy judge, during one of those irregular sittings on the

Circuit Court bench that he owed, as we have seen, to Davis’s

appointment. This particular trial, if such it may be called, is the

only instance among his judicial experiences of which a detailed report

has come down to us. The suit was instituted to collect a promissory

note given by some citizens of Champaign County to one Chase, with the

understanding that he would establish a newspaper. Failing to keep his

agreement he had, nevertheless, transferred the note before maturity to

an innocent holder, who now sued for the money. There was no good

defense, yet several young lawyers had been retained by the makers of

the note to do what they could toward warding off a decision. Whenever

the plaintiff pressed for judgment, this whole array of budding legal

talent ranged itself before the bench and, by resorting to every

conceivable shift, succeeded in securing postponement after

postponement. Seemingly the old legal maxim, “justice delayed is justice

denied,” would soon have one more literal illustration. So matters stood

on the last day of the term. Court was about to close, and the plaintiff

again demanded judgment, to which counsel for the defendants, as before,

strenuously objected. Finally Lincoln announced that he would return at

candlelight to dispose of that case. He came accordingly, took his seat

at the clerk’s desk, and called for the papers. Finding no proper

defense on file, he began to write an order, when one of the young

attorneys, his friend and associate in several matters, interposed

saying that a demurrer had been entered. But Lincoln continued to write,

merely changing the form and reading aloud, as he wrote:--

L. D. Chaddon } April term, 1856.

_vs._ }

J. D. Beasley _et al._ } _In Assumpsit._

Ordered by the Court: Plea in abatement by B. Z. Greene, a defendant not

served, filed Saturday, April 24, (?) 1856, at 11 o’clock A.M., be

stricken from the files by order of Court. Demurrer to declaration, if

ever there was one, overruled. Defendants, who are served now, at 8

o’clock P.M. of the last day of the term, ask to plead to the merits,

which is denied by the Court, on the ground that the offer comes too

late, and therefore, as by _nil dicit_, judgment is rendered for

plaintiff. Clerk assess damages.”

* * * * *

“How can we get this up to the Supreme Court?” inquired the somewhat

dazed young man who had spoken last.

In Lincoln’s ready reply may be discerned the pent-up scorn of a whole

session. “You all have been so smart about this case,” said he, “that

you can find out for yourselves how to carry it up.” And court stood

adjourned.[iii-9]

A more serious affair was that of the youthful practitioner who

disgraced himself at the Bloomington bar. While serving as a law

student, he had improved the opportunity to make himself acquainted with

certain important facts concerning a suit in which his preceptor

represented the plaintiff. Disclosing this information some time

thereafter to the defendant, whose counsel he became, the young man used

it in behalf of the one client against the other. Proceedings for his

disbarment were about to ensue when the offender threw himself upon the

clemency of the court, with a promise to leave the country and sin no

more. This impressed Judge Davis as the simplest way out of an

unpleasant duty. He stipulated, however, that the culprit, before

departing, should submit to a rebuke in open court, and selected

Lincoln to administer the lesson.

There must have been more of sorrow than of anger in the little speech

whereby this delicate office was discharged. The speaker, it is said,

sketched in a few well-chosen words an attorney’s obligations to his

client, and pointed out how the man at the bar, by betraying those who

trusted him, had forfeited public confidence. But most impressive of all

was the sympathy of this highly esteemed lawyer for the young colleague

in disgrace. “We bid you God-speed,” he concluded, with a clasp of the

hand, “in a work that will make you a better man.” And a better man the

other did indeed become. Seeking out a new field beyond the borders of

the State, he eventually made a place for himself there as an honored

member of the profession.[iii-10]

To infer from either of these two episodes that Lincoln was disposed to

lord it over his less experienced fellow barristers would be far from

the fact. How fairly he treated them many a timid beginner at the bar,

facing him as opposing counsel, had reason to remember. Not only did his

unaffected kindness set the young men at their ease and encourage their

efforts, but his frank concessions met them, as we have seen, more than

halfway in establishing points which otherwise might have been hard to

make. Nor were these generous little acts confined to our attorney’s

dealings with juniors. Any of the lawyers pitted against him might have

had similar experiences. They certainly were favored, at times, beyond

their legal rights, and that, too, on occasions remote from the

publicity of the court-room. A typical instance may be seen in the

letter from Lincoln to an associate that has recently come to light. It

read, in part: “Herewith I return the notices which I will thank you to

serve and return as before requested. This notice is not required by

_law_; and I am giving it merely because I think _fairness_ requires

it.”[iii-11]

Concerning the writer’s deportment in court, the judge before whom he

tried probably more causes than before all other judges combined, tells

us: “Mr. Lincoln was the fairest and most accommodating of

practitioners, granting all favors which he could do consistently with

his duty to his client, and rarely availing himself of an unwary

oversight of his adversary.”[iii-12]

To what lengths he carried this equitable procedure evinced itself

during the trial of a railroad suit, at which counsel on the other side

were, so to say, caught napping. The case having gone in Lincoln’s

favor, a decision was about to be given for the amount claimed by his

client, deducting a proved and allowed counter-claim, when the

successful attorney became convinced that his opponents had not proved

all the items justly due them as offsets. He promptly called attention

to this omission. The judge, agreeing with him, noted an additional

allowance against his client, and pronounced judgment accordingly.[iii-13]

Even-handed Justice herself could not have trimmed the balance truer.

Here was “the square deal” incarnate. And its spirit, interesting to

observe, animated Abraham Lincoln’s work-a-day conduct, in this most

trying of all professions, half a century or so before another

distinguished American, holding an ideal aloft for the admiration of a

nation, raised the expression itself to the dignity of a political

watchword.

Lincoln’s tendency to concede all that might reasonably be demanded of

him during a trial manifested itself chiefly when he came to the closing

argument. Here, neither the law nor the evidence could be noticed to

suffer the slightest perversion at his hands. In fact, as has been

frequently remarked, the statement with which he customarily began a

summing-up covered the case for the other side more fully and more

forcibly than did anything offered by his opponent. For this man’s

conscience ruled his intellect. In his make-up were happily blended that

rare faculty which can see, with comprehending eyes, the reverse of a

shield, and that still rarer courage which can expose the unfavorable

aspect to view, without flinching. So every point scored against him was

frankly acknowledged. Giving up advantage after advantage,--even

volunteering admissions which seemed well-nigh fatal to his cause,--he

moved steadily forward through the opening portion of such an argument,

like a seasoned philosopher conducting some abstract inquiry. There was

a savor, too, of passionless logic about what he said, that still more

suggests the ancient scholar. Indeed, his whole bearing, at this stage,

reminds one of the serene candor and the equally placid confidence in

the ultimate triumph of truth, whereby Thomas Aquinas, greatest among

schoolmen, has endeared himself, for all time, to those who love honest

reasoning.

Nor was Lincoln’s sincerity lost, in his day, upon those who were best

qualified to appreciate it. The judges of the Illinois Supreme Court

rated these habitual acts of fair play at their true value; and one of

them, Justice Koerner, speaking for the whole bench, once said: “We

always admired his extreme fairness in stating his adversary’s case as

well as his own.”[iii-14]

But how did the practice impress others? As if to answer this query, a

well-known newspaper man has left some good copy, made many years after

the event, concerning a certain trial that he reported at Chicago, in

the autumn of 1857.

“It was a railroad case,” says Colonel Hinton who tells the story; “and

as I was reading law at the time, I soon became interested in the points

involved. I remember thinking as I made my notes that the counsel

opposing the corporation had a sure thing of it. But my attention was

soon closely attracted to the counsel who rose to reply. ‘The homeliest

man I ever saw,’ was the thought I had. When I heard a judge speak to

him as ‘Mr. Lincoln,’ I recalled having heard the name before. A

reporter present told me that he was from Springfield, and at once I

remembered the Boston mention of him, and my interest became alert. The

one impression I retain apart from the striking and quaint appearance he

presented, was the fact that in his opening remarks he seemed to me to

be ‘giving his case away’ by the remarkably lucid and vigorous manner

in which by recapitulating the summary of the previous argument he

presented the argument and law of his opponent. With the ‘freshness’ of

a cock-sure student, I at once concluded he was a beaten man.”[iii-15]

The colonel goes on to relate how “the homeliest man” was not “beaten,”

but that is another story. Sticking to our text, we find ourselves

wondering what Lincoln’s clients, generally speaking, thought of him, at

about this stage in the proceedings. And it is not surprising to learn

that sometimes they “trembled with apprehension” for the verdicts which

his tactics seemingly endangered.[iii-16] Nor was this feeling of alarm

confined to clients. Some of his colleagues at the bar, when concerned

with him in the trying of causes, could never quite accustom themselves

to sit tranquilly by, while he bestowed important admissions on counsel

for the other side. His liberality toward adverse evidence, that so

disturbed Mr. Whitney, as the reader will remember, must have seemed

even more reprehensible to such associates when it cropped out in the

final argument.

A striking instance of this occurred during the famous Rock Island

Bridge litigation which, despite certain differences in the telling, may

have been the case that Colonel Hinton reported. The action was tried at

Chicago, in September, 1857, before the United States Circuit Court, the

honorable John McLean presiding. It had grown out of the clash between

the boatmen on the Mississippi River and the railroad people who

maintained a recently erected bridge across that stream, from Rock

Island, Illinois, to Davenport, Iowa. When the structure was planned,

several years previous, efforts to place legal obstacles in the way of

the project had been made without success. And upon the completion of

the undertaking, this quarrel appears to have raged more fiercely than

ever, until it had culminated in the destruction of a steamboat, the

Effie Afton, which came to grief on piers of the bridge. Her owners had

promptly brought suit for damages. The case was entitled, “Hurd _et al.

vs._ The Railroad and Bridge Company,” but these words meant more than

met the eye. Behind the litigants themselves were arrayed powerful

antagonists. The action might not incorrectly have been called, “River

Traffic _versus_ Railroads,” or “The Mississippi Valley _versus_ The Far

West,” or “St. Louis _versus_ Chicago”; for it involved vital points, on

which turned the future welfare of all these conflicting interests.

Their struggle naturally focussed the attention of a vast region on the

trial, and when proceedings began, men from all over the West crowded

the Federal court-room.

The Chicago and Rock Island Railroad Company, through its attorney,

Norman B. Judd, had retained Lincoln, among others, as counsel for the

defense. There was some favorable comment on the skill with which he

brought out the evidence; but when he discussed this evidence, in the

closing argument, one of his associates, Joseph Knox, was not so

pleased. In fact, that gentleman became alarmed to such a degree over

what Lincoln conceded that when court adjourned for the day, before the

speech was finished, he despaired of success. His indignation found

vent in a talk with Judd.

“Lincoln has lost the case for us,” he said. “The admissions he made in

regard to the currents in the Mississippi at Rock Island and Moline will

convince the court that a bridge at that point will always be a serious

and constant detriment to navigation on the river.”

“Wait until you hear the conclusion of his speech,” replied Mr. Judd.

“You will find his admission is a strong point instead of a weak one,

and on it he will found a strong argument that will satisfy

you.”[iii-17]

So indeed it proved to be. Before he closed, Lincoln did his own side

ample justice, and demonstrated to a victorious conclusion that,

currents or no currents, one man has as good a right to cross over a

river as another has to sail up and down.[iii-18]

Judd was not the only colleague who appraised this method at its full

value. Leonard Swett, sharing with our straightforward advocate the

leadership, as some thought, of the Eighth Circuit, and conducting many

causes, now with him now against him, had learned, when on the opposing

side, to be wary of gifts from Lincoln’s hands.

“If his adversary,” said Swett, “didn’t understand him, he would wake up

in a few moments, finding he had feared the Greeks too late, and wake up

to find himself beaten. He was ‘wise as a serpent’ in the trial of a

case, but I have got too many scars from his blows to certify that he

was ‘harmless as a dove.’ When the whole thing is unraveled the

adversary begins to see that what he was so blandly giving away, was

simply what he couldn’t get and keep. By giving away six points and

carrying the seventh, he carried his case; and, the whole case hanging

on the seventh, he traded away everything which would give him the least

aid in carrying that. Any one who took Lincoln for a simple-minded man

would very soon wake up on his back, in a ditch.”[iii-19]

This rather cynical analysis of the situation is significant. It

discloses the controlling factor upon which almost every case at bar

turns as on a hinge. To discern with precision where that pivotal point

lies may perhaps be deemed the prime requisite for a successful pleader.

The converse is of almost equal importance. “Never plead what you need

not,” said Lincoln, “lest you oblige yourself to prove what you

cannot.”[iii-20] And when, as in his practice, the vital issue is

pressed home, only after all vulnerable positions have been squarely

surrendered, the effect must seem at times well-nigh irresistible. Even

courts cannot help yielding something to one who yields so much. And

what he holds on to naturally prevails, with double force, by reason of

what he has given away. Addressing himself, then, to hearers thus

favorably disposed, Lincoln’s final statement of his own side left

little need for argument. In fact, they said of him,--as has from time

to time been said of Lord Mansfield, Chief Justice Marshall, Daniel

Webster, and less distinguished lawyers endowed with equal power,--his

statement of a case was worth the argument of another man. For here

again, the precision, clearness, and veracity of his mental operations

came into play. He would disentangle a complicated matter step for

step, until the truth, the whole truth, and nothing but the truth, stood

revealed to all. It was as if each successive word were set in place,

after the manner of Hugh Miller’s master, the Cromarty mason, who “made

conscience of every stone he laid.”

Lincoln’s conscience withal did double duty. His fealty to the cause of

justice was not allowed to crowd out an ever-present sense of what he

owed his client. In only rare instances and then, it is true, to that

client’s detriment, as we have seen, did these obligations clash. When

they harmonized, the advocate did not spare himself. Nor did his theory

concerning the essentials of a case betray him into omissions. Making an

argument once before one of the higher courts, he gave an elaborate

history of the law governing the matter in question. It was a masterly

discourse, prepared with much care, but as his partner thought, wholly

unnecessary. On their way home, Mr. Herndon, who tells the story, asked

Mr. Lincoln why he “went so far back in the history of the law,” adding

a surmise that the court knew it all.

“That’s where you’re mistaken,” was the instant reply. “I dared not

trust the case on the presumption that the court knows everything. In

fact, I argued it on the presumption that the court didn’t know

anything.”[iii-21]

There are, sooth to say, judicial decisions which almost seem to justify

such precautions. And we find ourselves wondering whether the speaker

knew that venerable anecdote of the counsel who, when interrupted by a

wearied Supreme Court Justice with the remark, “You must give this court

credit for knowing something,” replied, “That’s exactly the mistake I

made in the court below.”

Lincoln was himself, according to certain colleagues, occasionally

stopped from the bench, but for quite a different reason. His mere

statement of a matter sounded so clear and convincing that judges would,

at times, interpose before he could go on to his argument, with some

such words as: “If that is the case, Brother Lincoln, we will hear the

other side.”[iii-22]

Nor was he less felicitous in putting a winning touch to the confidence

of juries. When he faced them, at last, his lucid, even-handed methods

produced their strongest effects. “If I can free this case,” he was wont

to say, “from technicalities and get it properly swung to the jury, I’ll

win it.”[iii-23] To that end, the essential facts were so cogently

presented that they became almost self-evident. And the jurymen,

following a train of thought which reduced simplicity to its lowest

terms, easily fancied themselves in the speaker’s place, as though they,

not he, were making the statement. His anxiety to be right quickened

their anxiety to do right. It was seemingly their trial, not his; and he

conducted himself as if he were only assisting them to do their duty.

Every one of the twelve “free and lawful men,” even those who were least

intelligent, appear to have felt this. Indeed, throughout what Lincoln

said in addressing them, may be discerned a purpose, above all things,

to impress the truth upon that most important of all the personages in a

court, the dullest occupant of the jury-box. And how well he succeeded,

on the whole, is a matter of common repute. Some contemporaries went to

the extreme of saying--if we may credit one of them--that they could not

“expect a favorable verdict in any case where Lincoln was opposing

counsel, as his simple statements of the facts had more weight with the

jury than those of the witnesses.”[iii-24]

Such a result did, it is true, come about in at least one instance--the

trial of a tramp accused of murder. No one had seen the deed, but the

evidence, which proved to be purely circumstantial, pointed strongly

toward the prisoner. As the crime was of a brutal nature, feeling ran

high against him. A friendless stranger, in the midst of popular clamor,

his conviction appeared to be a foregone conclusion; and Lincoln, who

was appointed to defend, seemingly made but little headway. He contented

himself with eliciting from the witnesses full statements of what they

saw or knew. Evading nothing, suppressing nothing, making no attempt to

confuse those who testified or to present matters other than they were,

he helped the prosecuting attorney to bring out all the facts. When his

time came for addressing the jury, he called attention to the absence of

direct evidence. Frankly reviewing all the circumstances, and weighing

what seemed to prove the defendant’s guilt with what made for his

innocence, he concluded in about the following language: “I have looked

this matter over fully, candidly; and while I concede that the testimony

bears against my client, I am not sure that he is guilty. Are you?”

The prisoner was acquitted, and properly so, for some time thereafter

the real criminal was brought to justice.

“How different would have been the conduct of many lawyers!” exclaimed

the late Justice Brewer, of the United States Supreme Court, as he told

his story. “Some would have striven to lead the judge into technical

errors, with a view to an appeal to a higher court. Others would have

become hoarse in denunciation of witnesses, decrying the lack of

positive testimony and dwelling on the marvelous virtue of a reasonable

doubt. The simple, straightforward way of Lincoln, backed by the

confidence of the jury, won.”[iii-25]

That combination was hard to beat. Frequent repetitions of it gave

Lincoln, in time, a reputation which seems almost unique. There have

been advocates with more notable gifts of learning and eloquence, than

he could command; but few among them, if any, moved through our courts

with so large a measure of esteem. Yet it is going too far to say, as

Judge Caton did, that “no one ever accused him of taking an underhanded

or unfair advantage, in the whole course of his professional

career.”[iii-26] True, he was a general favorite on the circuit. His

fair, not to say generous, tactics made for good feeling; and to him,

perhaps, least of all that eager company, could have been applied the

ancient aspersion of the lawyer as a brawler for hire. Moreover, the “I

am holier than thou” pose, whereby the honored counselor sometimes seeks

to place less reputable opponents at a disadvantage, was wholly absent

from his demeanor. No practitioners, however low or discredited, met

here with discourtesy. Indeed, unless an adversary misbehaved in the

particular case on trial, Lincoln never uttered a word of personal

reproach which might unduly prejudice the jury. “Hence,” we are told,

“the meanest man at the bar always paid great deference and respect to

him.”[iii-27] But he did not wholly escape the penalty of his successes.

Some colleagues--and they should have known better--gave way to

jealousy. Those who sit in the shadow of the prophet’s mantle do not

always see the prophet. A few opponents were even known to question

Lincoln’s sincerity. His candor was in their eyes a cloak for trickery,

his unconventional manner a means of springing surprises on the unwary,

and his apparent fair dealing a bait for luring unsuspecting adversaries

to defeat. That an attorney smarting under a sense of failure might now

and then have felt this way is not surprising. Fresh from the reading of

Mr. Swett’s graphic little sketch, which left the vanquished one

floundering “on his back in a ditch,” we can appreciate the full force

of a statement made within recent years by Ezra Morton Prince, a

Bloomington attorney. Referring to these scattering charges of

unfairness, Mr. Prince, who attended many trials in the old circuit

days, says: “The truth is that Mr. Lincoln had a genius for seeing the

real point in a case at once, and aiming steadily at it from the

beginning of a trial to the end. The issue in most cases lies in very

narrow compass, and the really great lawyer disregards everything not

directly tending to that issue. The mediocre advocate is apt to miss

the crucial point in his case and is easily diverted with minor matters,

and when his eyes are opened he is usually angry and always surprised.

Mr. Lincoln instinctively saw the kernel of every case at the outset,

never lost sight of it, and never let it escape the jury. That was the

only trick I ever saw him play.”[iii-28]

If anybody knew Abraham Lincoln to do a dishonorable act, during all

these busy years in the courts, evidence to prove it has not been

forthcoming. And there have been iconoclasts enough at work on his

record to insure the telling of the story, had such an incident taken

place.

One opponent did, it must be said, in the heat of a certain famous

trial, accuse him of duplicity. The case was that of young Quinn

Harrison, sometimes called “Peachy,” arraigned for the murder of Greek

Crafton, a student in Lincoln’s office. While quarreling over some

political question, they had come to blows, and Crafton, sustaining a

knife-wound, had died within a few days. The young men, besides being

close friends, had been connected by marriage. Their families were

highly regarded. The prisoner’s people especially enjoyed good repute,

and that his grandfather was Dr. Peter Cartwright, the noted Methodist

circuit-rider, added not a little to popular sympathy in his behalf.

Notwithstanding all this, strenuous efforts were made to secure a

conviction. The regular prosecuting attorney, Amzi McWilliams, was

assisted by John M. Palmer and John A. McClernand. The defense had been

entrusted to Abraham Lincoln, Stephen T. Logan, William H. Herndon, and

Shelby M. Cullom. Able as the defendant’s counsel were, they achieved

but slight progress, for a time, in overcoming the strong case made out

against their client. It was only when Lincoln put Harrison’s

grandfather on the stand that the tide seemed to turn. Under his

examiner’s sympathetic guidance, the venerable preacher evinced how

fondly he loved the unfortunate young man, and told the story of his own

final interview with Crafton--a touching scene, in which the dying youth

charged Cartwright to tell “Peachy” that he forgave him. This formed the

basis of an appeal for mercy, in Lincoln’s closing argument. So wrought

up was the speaker by the pathos of the whole affair that he put aside

his dislike of such attempts to play on the sympathies of juries, and

made an eloquent plea for a verdict which should not set at naught the

slain man’s act of forgiveness. This speech made a profound impression.

It had moved those who listened, in fact, to a degree which disquieted

the prosecuting attorneys. One of them, as he arose to reply, was

determined that the effect must be counteracted, at all hazards.

“Well, gentlemen,” said he, “you have heard Mr. Lincoln--‘Honest Abe

Lincoln,’ they call him, I believe. And I suppose you think you have

heard the honest truth--or at least that Mr. Lincoln honestly believes

what he has told you to be the truth. I tell you, he believes no such

thing. That frank, ingenuous face of his, as you are weak enough to

suppose, those looks and tones of such unsophisticated simplicity, those

appeals to your minds and consciences as sworn jurors, are all assumed

for the occasion, gentlemen,--all a mask, gentlemen. You have been

listening for the last hour to an actor, who knows well how to play the

rôle of honest seeming, for effect.”

At this moment, amidst breathless stillness, Lincoln stood up. He was

deeply moved. It seemed as if every line of his gaunt features twitched

with pain. Facing the speaker he said: “You have known me for years, and

_you know_ that not a word of that language can be truthfully applied to

me.”

The prosecutor changed color, hesitated a moment, and then, his better

nature gaining the mastery, responded with much feeling: “Yes, Mr.

Lincoln, I do know it, and I take it all back.”

Many of those who were present could not resist the impulse to applaud,

as the two men approached each other and shook hands. The trial then

went on to its anticipated conclusion--Harrison’s acquittal.[iii-29]

On another occasion Lincoln took quite a different method of meeting an

unfair attack. His opponent in a case, while selecting the jury,

challenged a man because he was acquainted with counsel on the other

side. Such an objection appears to have been regarded, in those days, as

a reflection upon a lawyer’s honor. So Judge Davis, who was presiding at

the time, sharply overruled the challenge. Yet when Lincoln’s turn came

to examine the panel, he gravely followed the other’s lead and asked

them, one by one, whether they were acquainted with his adversary. After

several had answered in the affirmative, however, the judge interrupted

him.

“Now, Mr. Lincoln,” he said severely, “you are wasting time. The mere

fact that a juror knows your opponent does not disqualify him.”

“No, Your Honor,” retorted the advocate; “but I am afraid some of the

gentlemen may _not_ know him, which would place me at a

disadvantage.”[iii-30]

In only one other notable instance, so far as the writer’s knowledge

goes, has Lincoln’s integrity at the bar been directly questioned.

Charges of fabricating certain important evidence to save his client

grew out of a sensational episode in the camp-meeting murder trial. The

case was that of William (Duffy) Armstrong indicted for the killing of

James Preston Metzker, during a brawl near the Salt Creek camp-grounds,

a few miles from Mason City, on the night of Saturday, August 29, 1857.

“Duff” and “Pres,” as the two young men were called, after drinking

heavily with other wild companions of their kind, quarreled. In the

fracas which ensued late that same night, Armstrong and a friend named

James Henry Norris, who came to his assistance, had, it was alleged,

inflicted injuries on Metzker that, several days later, proved to be

fatal. A true bill for murder had been found against both men. And

Norris, brought first to trial, at Havana in Mason County, had, upon a

verdict of manslaughter, gone to prison for eight years. His comrade’s

case looked darker still. Public sentiment condemned “Duff” out of hand;

and from all sides came demands that the law should be enforced against

him in its utmost rigor. Then, as if to make matters worse, his father

died. The widowed mother, struggling alone for her boy’s life, managed

to secure the services of Walker and Lacey, local lawyers at Havana; but

they could hold forth only slender prospects of success. At this

juncture news of the trouble reached Lincoln. Occupied though he was, by

that time, over the affairs of an extensive practice and the demands of

a growing political leadership, this tragedy claimed his attention. He

appears to have been deeply moved by the father’s death, as well as by

the son’s peril. For that father was the Jack Armstrong of Clary’s Grove

fame, with whom he had wrestled and chummed during the by-gone New Salem

days; that mother was the Aunt Hannah, in whose kitchen he had many a

time been made welcome; and her baby, which he had rocked to sleep while

she cooked him a meal, was the prisoner who, now arrived at manhood’s

estate, lay in jail awaiting trial for a capital crime. In this, her

hour of dire need, the poor woman had naturally turned to their old

friend. Going to his office at Springfield, she told the whole

distressing story, and received instant promise of help.

“Abe,” said Hannah, as one of her sons relates, “I can’t pay you much

money or money of any account, but I can pay you a little.”

To which he replied: “You do not need to pay me a cent, for my services

are free to the family as long as I live.”[iii-31]

So it happened that when the trial, by a change of venue, opened the

following spring before Justice James Harriott, at Beardstown, in the

less prejudiced atmosphere of Cass County, Lincoln led for the defense.

He came into court with faith in his client. According to “Duff’s”

version of the affair, Metzker had been the aggressor, and the fight, as

far as these two were concerned, had been with their bare fists only.

Yet how could the jury be convinced of this? Such evidence, indeed, as

was presented against Armstrong at the outset did not appear to be very

damaging; but when the prosecution called its principal witness, Charles

Allen, a painter from Petersburg, matters became serious. He testified

that he saw the defendant strike Metzker on the head with a slung-shot.

Under cross-examination, Allen averred that the assault occurred at

about eleven o’clock in the night. When asked to explain how, despite

the lateness of the hour, he could so distinctly have seen what took

place, the witness stated that there was a bright moon, nearly full, and

“about in the same place that the sun would be at ten o’clock in the

morning.” This answer, to use the language of the day, apparently put

the hangman’s noose around Armstrong’s neck. In the opinion of his alert

counsel however, it was just what undid that ghastly cravat. For,

profiting by the testimony given at previous hearings, Lincoln had

prepared to meet that very situation. On the morning of the trial he had

placed in the keeping of Sheriff James A. Dick an almanac--probably

Goudy’s--for the year of the homicide. This document was now produced by

that officer, at the request of the defense, and put in evidence. It

proved, as Lincoln pointed out, that on the night in question the moon

had but slightly passed the first quarter, that it gave practically no

light at eleven o’clock, and that its computed time for setting was at

about midnight.[iii-32] The effect of this announcement seemed almost

magical. At one stroke of the master hand, Allen’s spurious moonshine

had turned into a lightning flash, by which the weakness of the

prosecution stood revealed. There was an immediate revulsion of feeling

in the prisoner’s favor. His counsel were as quick to seize upon the

lucky turn. Closing for the defense, Mr. Lincoln addressed the jury in

words of which his associate, Mr. Walker, afterwards said, “A more

powerful and eloquent speech never, in my opinion, fell from the lips of

man.” The perjured testimony, as well as the discrepancies in the

evidence, were dwelt upon by the speaker with telling effect. So moved

was he, moreover, by his ancient gratitude to “Duff’s” parents, and by

his own manifest belief in the young man’s innocence of willful murder,

that the tears which blurred his eyes as he spoke, no less than the

sympathetic earnestness of his appeal, touched responsive chords among

the wrought-up jurymen. They did not deliberate long. When they came in

with their verdict, the foreman said “not guilty,” and this remarkable

case was at an end.

The case, indeed, was at an end, but the talk about it was not.

Lincoln’s dramatic introduction of that almanac appears especially to

have stimulated the gossip, which took many forms, until out of it all

in some unaccountable way emerged a strange canard. According to this

tale he had tricked prosecutors, court, and jury by palming off on them,

as of the year when the homicide took place, a calendar of some

previous year. The obvious reply to this charge is that there would have

been no reason whatever for such a piece of rascality. An almanac dated

1857 bears out--as any one may satisfy himself at his leisure--Lincoln’s

contention to the letter, and he could not have bettered his case by

fraudulently using one for another year. Of course, those who repeated

the story did not take the trouble to consult calendars, but a moment’s

reflection might have warned them of its absurdity. They should have

known that an experienced lawyer, whose adherence to the highest ideals

of his profession had by this time passed into a by-word, would hardly

have jeopardized a cherished reputation, to say nothing of his standing

as a public man, by stooping to any device at once so dishonorable and

so futile. For it is not to be credited that an exhibit of such

importance could pass through the hands of shrewd opponents, as well as

those of judge and jurymen, without the closest scrutiny. This scrutiny

did, in fact, take place.

How thorough it was may be gathered from the recollections of Judge

Abram Bergen, who happened to be present. Attending the trial shortly

after his admission to practice, he sat within the bar behind both

groups of counsel engaged in the case, and watched what took place with

the acute attention of a young lawyer studying the tactics of

distinguished elders. This apparently credible witness, touching on the

accusation of fraud, said:--

“When Lincoln finally called for the almanac he exhibited it to the

opposing lawyers, read from it, and then caused it to be handed to

members of the jury for their inspection. I heard two of the attorneys

for the State, in whispered consultation, raise the question as to the

correctness of the almanac, and they ended the conference by sending to

the office of the clerk of the court for another. The messenger soon

returned with the statement that there was no almanac of 1857 in the

office. It will be remembered that the trial occurred in 1858 for a

transaction in 1857. In the Presidential campaign soon following, it was

even charged that Lincoln must have gone around and purloined all the

almanacs in the court-house. However, I well remember that another

almanac was procured from the office of Probate Judge Arenz, in the same

building. It was brought to the prosecuting attorneys, who examined it,

and compared it with the one introduced by Mr. Lincoln, and found that

they substantially agreed, although it was at first intimated by the

State’s attorneys that they had found some slight difference.

“All this I personally saw and heard, and it is as distinct in my memory

as if it had occurred but yesterday. No intimation was made, so far as I

knew, that there was any fraud in the use of the almanac until two years

afterwards, when Lincoln was the nominee of the Republican Party for the

Presidency. In that year, 1860, while in the mountains of southern

Oregon, I saw in a Democratic newspaper, published at St. Louis, an

article personally abusive of Mr. Lincoln, stating that he was no

statesman and only a third-rate lawyer; and to prove the deceptive and

dishonest nature of the candidate, the same paper printed an indefinite

affidavit of one of the jurors who had helped to acquit Armstrong, to

the effect that Mr. Lincoln had made fraudulent use of the almanac on

the trial. For some inexplicable reason he failed to call this pretended

knowledge to the attention of the other jurors at the time of the trial;

but very promptly joined in the verdict of acquittal, and waited two

years before giving publicity to what would at the proper time have been

a very important piece of information.

“Soon after this, I saw an affidavit made by Milton Logan, the foreman

of the jury, that he personally examined the almanac when it was

delivered to the jury, and particularly noticed that it was for the year

1857, the year of the homicide. I had a better opportunity than any of

the jurors to see and hear all that was publicly and privately done and

said by the attorneys on both sides, and know that the almanacs of 1857,

now preserved in the historical and other public libraries, sustain and

prove to the minute all that was claimed by Mr. Lincoln on that trial,

as to the rising and setting of the moon; although my best recollection

is that the hour of the crime was claimed to be about midnight, instead

of eleven o’clock, as stated in many of the books. I do not know that

this calumny was ever called to Mr. Lincoln’s attention, or if it was

that he ever took the trouble to contradict it. He might well have

pursued his regular habit of ignoring such things. If his public and

private conduct and his reputation as a citizen and lawyer were not

sufficient to refute the charges, his personal denial would have been of

little more avail.”[iii-33]

Judge Bergen may be right. Perhaps, in fact, no proofs--not even His

Honor’s own lucid statements, sustained by the almanac itself--have

vigor enough to overtake all the current versions of this absurd tale

and retire them from circulation. In the region of the old Eighth

Judicial Circuit, they are still passed around with variations to suit

each teller’s fancy; the press of the country helps them along with a

fresh start now and then; while at least one law book--a treatise,

strange to say, on “Facts”--throws an air of seeming authenticity over

the whole foolish business, in an indexed note which relates how Lincoln

once “procured an acquittal by a fraud.”[iii-34] Slander they say can

travel around the world before Denial has had time to draw on his boots.

This particular offender has been overtaken, again and again; but the

story, in some guise, goes merrily on. It evidently belongs among those

popular myths that thrive on refutation. To disprove them is easy

enough; to destroy them, as experience abundantly shows, is quite

another matter. Yet “hope springs eternal in the human breast”; and one

more lover of historic justice here tries what may be achieved by

turning the searchlight of truth full upon the discrepant features of

this hoary falsehood.[iii-35]

So much for the few specific instances in which doubts have been

publicly cast on Lincoln’s high ideals of practice. As to the rest,

those ideals apparently suffered but little let-down under all the

press and stress of his busy years at the Illinois bar. Yet he was not

immaculate. A thoroughly human man, loyal to his clients and fond of his

friends, he may have swerved ever so slightly to the right or the left

in their behalf, when no breach of truth or law was involved. As often

happens, moreover, with men of this type he appears to have been in such

cases his own severest censor. And when a student once asked him whether

the legal profession could stand the test, all in all, of the golden

rule, he winced. It happened while they were walking together one

afternoon after a trying day in court. The young man, Ralph Emerson by

name, was the son of a reverend instructor in Andover Theological

Seminary, and some things that he had seen Western lawyers do disturbed

the poise of his New England conscience. If such acts were necessary at

the bar, this would, he feared, be no career for him. In his perplexity

the youth determined to consult the eminent lawyer who walked by his

side. Turning suddenly to him, Emerson said:--

“Mr. Lincoln, I want to ask you a question. Is it possible for a man to

practice law and always do by others as he would be done by?”

Lincoln’s head dropped upon his breast. He walked on in silence for a

long time. Then came a heavy sigh, and when he did finally speak, it was

about another matter.

“I had my answer,” adds Mr. Emerson, recalling the incident. “That walk

turned the course of my life.”[iii-36]

Precisely what this little scene signified is not easy to determine; but

that it was of weighty import those who have progressed thus far with us

in the study of Lincoln’s character will hardly believe. Still, the

episode, however vague and inconclusive, must not be omitted from any

appraisement of the man’s honesty. Perhaps one explanation of that

profound sigh is to be sought among occasional victories, won by him on

technicalities, rather than on their merits. And then, again, a too

sensitive memory may, at the moment, have put Lincoln in mind of certain

acts which, while they hardly measured up to the standard set by the

Golden Rule, were not by any means dishonorable. They had their origin,

to some extent, in his distaste for trivial litigation, but still more,

in his disapproval of those “contentious suits which,” a great Lord

Chancellor long ago declared, “ought to be spewed out, as the surfeit of

courts.” How Lincoln dissuaded his own clients from bringing actions of

this kind has already been set forth. It may be needless to add that

when situations were reversed, and they were the objects of such

prosecutions by others, he willingly appeared in their behalf. Then woe

to the plaintiffs if the facts afforded but the slightest scope for the

play of his peculiar humor! Under his droll treatment, a petty cause,

though not without merit, might become so ridiculous as to leave the

claimant in a plight, from which nothing but an appeal to that same

beneficent rule of ethical conduct could have saved him. Indeed, by

these very tactics, Lincoln is said to have laughed more jury cases out

of court than any other attorney on the circuit. How he went about it

was well illustrated in a trial recalled by Judge Scott, who tells this

story concerning the affair:

“A young lawyer had brought an action in trespass to recover damages

done to his client’s growing crops by defendant’s hogs. The right of

action, under the law of Illinois, as it was then, depended on the fact

whether plaintiff’s fence was sufficient to turn ordinary stock. There

was some little conflict in the evidence on that question, but the

weight of the testimony was decidedly in favor of plaintiff and

sustained beyond all doubt his cause of action. Mr. Lincoln appeared for

defendant. There was no controversy as to the damage done by defendant’s

stock. The only thing in the case that could possibly admit of any

discussion was the condition of plaintiff’s fence; and as the testimony

on that question seemed to be in favor of plaintiff, and as the sum

involved was little in amount, Mr. Lincoln did not deem it necessary to

argue the case seriously. But by way of saying something in behalf of

his client, he told a little story about a fence that was so crooked

that when a hog went through an opening in it, invariably it came out on

the same side from whence it started. His description of the confused

look of the hog after several times going through the fence and still

finding itself on the side from which it had started, was a humorous

specimen of the best story-telling. The effect was to make plaintiff’s

case appear ridiculous. And while Mr. Lincoln did not attempt to apply

the story to the case, the jury seemed to think it had some kind of

application to the fence in controversy,--otherwise he would not have

told it,--and shortly returned a verdict for the defendant.”[iii-37]

There are other accounts of similar achievements. Perhaps the most

commonly known instance was that which Lincoln himself took pleasure in

relating. According to one version,--for there are several,--this is how

he told it:--

“I was retained in the defense of a man charged before a justice of the

peace with assault and battery. It was in the country, and when I got to

the place of trial I found the whole neighborhood excited, and the

feeling was strong against my client. I saw the only way was to get up a

laugh and get the people in a good humor. It turned out that the

prosecuting witness was talkative. He described the fight at great

length,--how they fought over a field, now by the barn, again down to

the creek, and over it, and so on. I asked him, on cross-examination,

how large that field was. He said it was ten acres. He knew it was, for

he and some one else had stepped it off with a pole. ‘Well, then,’ I

inquired, ‘was not that the smallest _crap_ of a fight you have ever

seen raised off of ten acres?’ The hit took. The laughter was

uproarious, and in half an hour the prosecuting witness was retreating

amid the jeers of the crowd.”[iii-38]

There is no more effectual way to dispose of a trifling suit, and

Lincoln’s ready wit was apparently equal to all such demands. Yet his

sallies, telling as they were, left no stings rankling in the memory of

unfortunate victims. Those who emerged beaten from these encounters

were conscious of a certain quaint good humor in the man’s demeanor that

disarmed resentment.

He was, however, not so genial when it came to another type of

litigants--the dishonest ones. They met, in fact, with a very different

kind of treatment. For Lincoln saw nothing amusing in their devices, and

as they could not be laughed out of court, his efforts were directed

toward shaming them out. An occurrence of this nature took place at

Tremont, in 1847, during the spring term of the Tazewell County Court.

It appears that an old farmer named Case had sold what was called a

“prairie team,” comprising several yoke of oxen and a plough, to two

young men known as the Snow boys. They had given their joint note in

settlement, but when it became due they had refused to pay. The account

was placed in Lincoln’s hands for collection, and he promptly brought

suit. When the case came to trial, this note, as well as the purchase of

a team, was not denied by the lawyer who appeared for the defendants. He

set up the plea of infancy, however, and offered to prove that both

brothers were under twenty-one years of age at the time they signed the

note. This fact, it was furthermore claimed, the plaintiff knew when the

transaction took place. To all of which Lincoln quietly said: “Yes, I

guess that is true, and we will admit it.”

Things looked bad for farmer Case. “What!” thought a by-stander,--the

teller of the story,--“is this good old man, who confided in these boys,

to be wronged in this way, and even his counsel, Mr. Lincoln, to submit

in silence!”

After the principle of law that a minor may avoid his contracts had been

duly cited, Judge Treat who presided, inquired:--

“Is there a count in the declaration for oxen and plow, sold and

delivered?”

“Yes,” answered Lincoln, “and I have only two or three questions to ask

the witness.”

Addressing the men who had been called to prove the ages of the

defendants, he asked:--

“Where is that prairie team now?”

“On the farm of the Snow boys,” was his answer.

“Have you seen any one breaking prairie with it, lately?”

“Yes, the Snow boys were breaking up with it, last week.”

“How old are the boys now?”

“One is a little over twenty-one, and the other near twenty-three.”

“That is all,” said Lincoln.

Arising slowly, when the time came for his closing argument, and

standing in an awkward, half-erect attitude, he began:--

“Gentlemen of the jury, are you willing to allow these boys to begin

life with this shame and disgrace attached to their character? If you

are, I am not. The best judge of human character that ever wrote, has

left these immortal words for all of us to ponder:

“‘Good name in man and woman, dear my lord,

Is the immediate jewel of their souls.

Who steals my purse steals trash; ’tis something, nothing;

’Twas mine, ’tis his, and has been slave to thousands;

But he that filches from me my good name,

Robs me of that which not enriches him,

And makes me poor indeed.’”

Then drawing himself up to his full height, and looking down upon the

defendants as if with the compassion of an older brother, while his long

right arm was extended toward their attorney, he continued:--

“Gentlemen, these boys never would have tried to cheat old farmer Case

out of these oxen and that plow, but for the advice of counsel. It was

bad advice--bad in morals and bad in law. The law never sanctions

cheating, and a lawyer must be very smart indeed to twist it so that it

will seem to do so. The judge will tell you, what your own sense of

justice has already told you, that these Snow boys, if they were mean

enough to plead the baby act, when they came to be men should have taken

the oxen and plow back. They cannot go back on their contract, and also

keep what the note was given for.”

When Lincoln concluded with the words, “And now, gentlemen, you have it

in your power to set these boys right before the world,”--he almost

seemed to be pleading for the misguided young men rather than for his

own client. So it impressed the Snows themselves. Whatever their

technical rights may have been, they agreed with his view, as well as

with the reputed opinion of the jury, that the account ought to be paid.

And paid it was.[iii-39]

Whether all the circumstances attending this affair warranted Mr.

Lincoln’s severe arraignment of the defendants’ counsel raises a nice

point in professional ethics. Debts, as we know, may sometimes be barred

by the law of infancy, still oftener by statutes of limitation. The

debtors in such cases have been provided with legal defenses behind

which honorable men, however, disdain, as a rule, to seek refuge. They

realize that though these barriers shut creditors off from recovering on

certain kinds of claims, the debts themselves remain unpaid; and that

acts which are intrinsically wrong cannot be made right, however they

may be sanctioned by law or custom. Still, if clients insist on availing

themselves of such advantages, their attorneys are bound, in the

judgment of not a few high-minded lawyers, to interpose the required

pleas. So punctilious a practitioner as Horace Binney, the distinguished

Philadelphian, whose conceptions of duty have already served us with

some exalted standards, took this view. He once conducted the defense,

it is said, in the trial of a certain action on a promissory note. His

attempt to prove a set-off having failed, he arose and said, with an

expression of intense scorn: “My client commands me to plead the statute

of limitations.”

This implied rebuke was not lost on the defendant. He quickly withdrew

his plea, and paid, as did those abashed brothers, the contested

note.[iii-40] It is interesting to observe that here again the Western

lawyer measured up to the lofty principles of his refined Eastern

brother, and might, if confronted by a similar demand, have gone even a

step beyond him.[iii-41]

Where injustice was to be headed off, Lincoln never stopped halfway. His

honesty became militant. “He hated wrong and oppression everywhere,” as

Judge Davis declared; “and many a man whose fraudulent conduct was

undergoing review in a court of justice has writhed under his terrific

indignation and rebukes.”[iii-42] These onslaughts appear to have been

especially severe when the strong had robbed the weak or taken advantage

of the unfortunate. One typical instance was that of a pension agent

named Wright, against whom Lincoln brought suit to recover money

wrongfully withheld from the widow of a Revolutionary soldier. The claim

as collected amounted to about four hundred dollars, of which the

go-between had retained one half. This was, of course, an exorbitant

fee; but the friendless pensioner, bent and crippled with age, seemed to

be at the fellow’s mercy. He certainly expected no resistance from the

old lady. Finding her way, however, one day into the office of Lincoln

and Herndon, she told the whole sordid story. It aroused the instant

sympathy of the senior partner. He called, without loss of time, on the

agent to demand a fair settlement; and when this was refused, he as

promptly began an action. What ensued is best told in his associate’s

own words.

“The day before the trial,” writes Mr. Herndon, “I hunted up for

Lincoln, at his request, a history of the Revolutionary War, of which he

read a good portion. He told me to remain during the trial until I had

heard his address to the jury. ‘For,’ said he, ‘I am going to skin

Wright, and get that money back.’ The only witness we introduced was the

old lady, who through her tears told her story. In his speech to the

jury, Lincoln recounted the causes leading to the outbreak of the

Revolutionary struggle, and then drew a vivid picture of the hardships

of Valley Forge, describing with minuteness the men, barefooted and

with bleeding feet, creeping over the ice.[iii-43] As he reached that

point in his speech wherein he narrated the hardened action of the

defendant in fleecing the old woman of her pension, his eyes flashed,

and throwing aside his handkerchief, which he held in his right hand, he

fairly launched into him. His speech for the next five or ten minutes

justified the declaration of Davis, that he was ‘hurtful in denunciation

and merciless in castigation.’

“There was no rule of court to restrain him in his argument, and I

never, either on the stump or on other occasions in court, saw him so

wrought. Before he closed, he drew an ideal picture of the plaintiff’s

husband, the deceased soldier, parting with his wife at the threshold of

their home, and kissing their little babe in the cradle, as he started

for the war. ‘Time rolls by,’ he said, in conclusion. ‘The heroes of ’76

have passed away, and are encamped on the other shore. The soldier has

gone to rest, and now, crippled, blinded, and broken, his widow comes to

you and to me, gentlemen of the jury, to right her wrongs. She was not

always thus. She was once a beautiful young woman. Her step was as

elastic, her face as fair, and her voice as sweet as any that rang in

the mountains of old Virginia. But now she is poor and defenseless. Out

here on the prairies of Illinois, many hundreds of miles away from the

scenes of her childhood, she appeals to us, who enjoy the privileges

achieved for us by the patriots of the Revolution, for our sympathetic

aid and manly protection. All I ask is, shall we befriend her?’

“The speech made the desired impression on the jury. Half of them were

in tears, while the defendant sat in the court-room, drawn up and

writhing under the fire of Lincoln’s fierce invective. The jury returned

a verdict in our favor for every cent we demanded. Lincoln was so much

interested in the old lady that he became her surety for costs, paid her

way home, and her hotel bill while she was in Springfield. When the

judgment was paid we remitted the proceeds to her and made no charge for

our services.”[iii-44]

Some of the finest traditions known to the legal profession had been

observed in this case. St. Ives himself, “Advocate of the Poor” and

patron of lawyers, might have held such a brief. We can fancy him,

standing at the bar of the Springfield court, scroll in hand as he is

sometimes pictured, speaking for the poor widow; but whether that scroll

would have contained notes like those that Lincoln jotted down for the

argument may perhaps be questioned. They read: “No contract.--Not

professional services.--Unreasonable charge.--Money retained by Def’t

not given by Pl’ff.--Revolutionary War.--Describe Valley Forge

privations.--Ice.--Soldiers’ bleeding feet.--Pl’ff’s husband.--Soldier

leaving home for army.--_Skin Def’t._--Close.”

And yet how could any true champion--inspired saint or just plain

lawyer--have kept his hands off that defendant! Nothing but a flaying

appears to meet the needs of the occasion. Even your gentle, courteous,

sympathetic soul like Lincoln’s, alert to the conflict between right and

wrong, is stirred by such meanness to its very depths. Love of justice

then flames into hatred of injustice. The patient pleader becomes the

masterful prosecutor. In fact, the better the man, the fiercer grows his

rage. Wielding a scourge of whipcord and striking home, he drives the

object of his contempt in hot anger before him. Nor is he at that moment

a respecter of persons. Certainly Lincoln was not. The wrath with which

he bore down from time to time, as we have seen, on unprincipled

litigants, witnesses, and attorneys did not stop there. Misconduct on

the bench incensed him still more. If the judge before whom he was

trying a cause persistently attempted to be unfair, serious friction

ensued; and the deference with which even adverse rulings were

customarily received, gave way at last to an outburst of indignation.

“In such cases,” writes Mr. Herndon of his associate, “he was the most

fearless man I ever knew.”

Describing a remarkable encounter which occurred during the Harrison

murder trial, between Mr. Lincoln and Judge E. J. Rice, our junior

partner relates how the presiding magistrate repeatedly ruled against

counsel for the defense in such a way as to convince them that he was

prejudiced.

“Finally,” the narrator goes on to say, “a very material question--in

fact, one around which the entire case seemed to revolve--came up, and

again the court ruled adversely. The prosecution was jubilant, and

Lincoln, seeing defeat certain unless he recovered his ground, grew very

despondent. The notion crept into his head that the court’s rulings,

which were absurd and almost spiteful, were aimed at him, and this

angered him beyond reason. He told me of his feelings at dinner, and

said, ‘I have determined to crowd the court to the wall and regain my

position before night.’ From that time forward it was interesting to

watch him. At the reassembling of court he arose to read a few

authorities in support of his position. In his comments he kept within

the bounds of propriety just far enough to avoid a reprimand for

contempt of court. He characterized the continued rulings against him as

not only unjust but foolish; and, figuratively speaking, he peeled the

court from head to foot. I shall never forget the scene. Lincoln had the

crowd, a portion of the bar, and the jury with him. He knew that fact,

and it, together with the belief that injustice had been done him,

nerved him to a feeling of desperation. He was wrought up to the point

of madness. When a man of large heart and head is wrought up and mad, as

the old adage runs, ‘he’s mad all over.’ Lincoln had studied up the

points involved, but knowing full well the calibre of the judge, relied

mostly on the moral effect of his personal bearing and influence. He was

alternately furious and eloquent, pursuing the court with broad facts

and pointed inquiries, in marked and rapid succession.... The

prosecution endeavored to break him down or even ‘head him off,’ but all

to no purpose. His masterly arraignment of law and facts had so

effectually badgered the judge that, strange as it may seem, he

pretended to see the error in his former position, and finally reversed

his decision in Lincoln’s favor. The latter saw his triumph, and

surveyed a situation of which he was the master. His client was

acquitted, and he had swept the field.”[iii-45]

This appears to have been one of the great advocate’s last important

victories at the bar. It forms, in certain respects, a fitting climax to

his legal career. For the admirable honesty of word and act with which

he started out would hardly have carried him far, had they not been

reinforced betimes by the wisdom that comes to the sincere truth-seeker

alone, and by the courage that is born of truth’s fairest offspring--an

abiding love of justice. Looking back over the scenes of his labors, we

become aware, despite their commonplace settings, of something akin to

chivalry. They recall, as it were, those epic days when disinterested

zeal inspired, or was thought to inspire, chevalier and barrister alike.

No counselor of old, who took on himself a knightly obligation to plead

the cause of the defenseless, could have acquitted himself, all in all,

more nobly. Faithful to his ideals through many temptations, yet free

from self-complacency; chivalrous to his adversaries, yet striking hard

blows for the cause in which he was enlisted; afraid to make a false

plea, yet not afraid of a false judge,--homely, unassuming Abraham

Lincoln rode over the circuit in much the same spirit as quickened the

knight errant on his ancient journeyings. No paladin of the law, at

least in his day, bore himself more gallantly. None seemed to do more

toward conferring a practical, latter-day meaning on Bayard’s motto,

“Without fear and without reproach.”