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.”