CHAPTER II

[ii-1] Nicolay, 53. See, also, Browne, 150-51; Coffin, 94.

[ii-2] This narrative of the interview has been collated from the several accounts of it given by Mr. Speed at various times. See Oldroyd, 145-46; Whitney, 16-17; Browne, 152-53; Clarke, 341-42; Herndon, i, 175-76. See, also, Arnold, 53-54; Brooks, 80; Coffin, 95; Hapgood, 61-62.

[ii-3] There are a number of variations in the different accounts of this episode, but the essential facts appear to be as here related. Comprehensive versions are given by Arnold, 39-40; Stowe, 19-20; Holland, 55-56; Browne, 119-20; Onstot, 89-90; Brockett, 710; Jayne, 10; Noah Brooks, in _Harper’s Magazine_, July, 1865, p. 226.

[ii-4] According to Major Stuart, Lincoln was his partner from April 27, 1837, to April 14, 1841; Judge Stephen T. Logan’s, from April 14, 1841, to about September 20, 1843; and William H. Herndon’s, from about September 20, 1843, until the death of Mr. Lincoln. There appears to be some ground for the belief that the last partnership was formed some months later than is here stated.

[ii-5] The oft-repeated statement that Lincoln disdained to keep accounts has, in his case as in that of another eminent lawyer, Patrick Henry, been confuted by the evidence of the fee-books themselves.

[ii-6] Onstot, 58.

[ii-7] The parallel between Lincoln and his running mate in the successful canvass of 1860 might be drawn at this point also. Referring to Hamlin’s early days in the practice of law, his biographer says: “He handled a good deal of money belonging to his clients, and it often happened that they did not call for it until some time after it had been collected. Mr. Hamlin, therefore, had at times considerable sums of money in his possession, and on one occasion he told a friend what disposition he made of such money and his reasons. He said, ‘When I collect money for a client, I inclose it in an addressed package, and lock the package up in my trunk until it is called for. I will not touch or use that money for my purposes under any circumstances, unless, of course, the owner should authorize it. The money belongs to the owner. I have no more right to use it, even if I could replace it in five minutes, than I would have to take money that he might happen to have in his pocket-book.’” (Hamlin, 45.)

[ii-8] This principle was recognized as early as Cicero’s time. In his _Ninth Philippic_, eulogizing Servius Sulpicius, that most profound of Roman advocates, the orator said, according to Forsyth’s version: “He did not consider himself a lawyer rather than a servant of justice, and his constant endeavor was to temper the severity of law, by reference to principles of equity. He had less pleasure in advising that actions should be brought, than in removing all cause for litigation.”

[ii-9] _Works_, ii, 142. Lincoln’s comment--“the nominal winner is often a real loser”--suggests the similarity between his advice and that of Professor Porson, as expressed in that learned humorist’s mock examination questions for students:--

“What happens if you win your cause?”

“You are nearly ruined.”

“What happens if you lose your cause?”

“You are quite ruined.”

[ii-10] Browne’s _Lincoln and Men_, i, 338; Browne, 220.

[ii-11] For a few of these stories the reader is referred to Onstot, 20; Stringer, i, 218; McClure’s _Yarns_, 380; Gallaher, 46-47; _Lincolnics_, 30-31; MacChesney, 299-300; Depew’s _Speech_, February 12, 1909, pp. 6-7; Dr. George M. Angell, in Bloomington (Ill.) _Pantagraph_, February 12, 1909.

Lincoln was not the only great lawyer concerning whom such anecdotes might be told. The eminent New England advocate, Jeremiah Mason, is said to have been equally successful in bringing about compromises. “Mr. Mason,” writes one who knew him well, “magnified his position by exerting all his influence to prevent litigation, or the commencement of suits upon mere quibbles, or for the purpose of procrastination, or to gratify personal vindictiveness, or retaliation. He was eminently a peacemaker, and was instrumental in healing many a wound, and in preventing the useless expenditure of money, by a set of litigants, who were in the habit of annoying (employing?) lawyers to aid them in schemes of malice or revenge.” (John P. Lord, quoted in Hillard’s _Memoir and Correspondence of Jeremiah Mason_, 46.)

[ii-12] Browne’s _Lincoln and Men_, i, 339.

[ii-13] Herndon, ii, 14.

[ii-14] Browne, 218-19. Lincoln’s expedient for preventing trivial litigation was similar in its essence to that of the New York attorney concerning whom Edwards, in his _Pleasantries about Courts and Lawyers_, tells this anecdote:--

“In a certain part of our State, two Dutchmen, who built and used in common, a small bridge over a little stream which ran through their farms, had a dispute concerning certain repairs which it required. One of them declined to bear any portion of the expense necessary to the purchase of two or three planks. The aggrieved party went to a neighboring attorney and placing ten dollars, in two notes of five dollars each, in his hand, said--

“‘I’ll give you all dish monies if you’ll make Hans do justice mit de pridge.’

“‘How much will it cost to repair this bridge?’ asked the attorney.

“‘Well, den, not more ash five tollars.’

“‘Very well,’ said the legal gentleman, pocketing one of the notes and giving the Dutchman the other, ‘take this and go and get the bridge repaired. It’s the best course you can take.’

“‘Yaas,’ responded the client slowly, ‘y-a-a-s, dat ish more better as to quarrel mit Hans.’

“But as he went home, he shook his head frequently, as if unable, after all, quite clearly to see how he had gained anything by going to the lawyer.”

[ii-15] This narrative is based on two interviews, secured for the author from Henry Rice, in the autumn of 1907 and in the spring of 1908, respectively. See, also, Markens, 24.

[ii-16] Lincoln’s refusal to take what he considered a bad case is in harmony, as far as civil actions go, with the practice of every high-minded lawyer. David Hoffman, of the Baltimore bar, drawing up, early in the nineteenth century, a code of ethics for the guidance of his students throughout their professional careers, prescribed as the eleventh of fifty resolutions: “If, after duly examining a case, I am persuaded that my client’s claim or defense (as the case may be) cannot, or rather ought not to be sustained, I will promptly advise him to abandon it. To press it further in such a case, with the hope of gleaning some advantage by an extorted compromise, would be lending myself to a dishonorable use of legal means in order to gain a portion of that, the whole of which I have reason to believe would be denied to him both by law and justice.”

[ii-17] Holland, 126; Browne, 162. But see Lamon, 317, for McHenry’s account of a somewhat similar interview that had a different termination.

[ii-18] “Never stir up litigation. A worse man can scarcely be found than one who does this.” (Notes for Law Lecture, in _Works_, ii, 142.)

[ii-19] Tarbell, i, 248; McClure’s _Yarns_, 359-60.

[ii-20] Lamon, 325.

[ii-21] It should, perhaps, be noted that in refusing Matteson’s case Lincoln turned his back on one of his own influential clients, whom he had represented in the Supreme Court but a short time before this happened. See the appeal of Constant vs. Matteson _et al._, argued at the January term of 1859, in the Second Grand Division. (Illinois Reports, xxii, 546-62.)

[ii-22] James Judson Lord to William H. Herndon, in Herndon, ii, 14-15, note; Letter of Mrs. Katherine Lord Driscoll to the author.

[ii-23] General John H. Littlefield, in _Success_, February, 1901, p. 600; _Lincolnics_, 31. An interview, somewhat like these two, culled from the practice of the eminent Southern lawyer and statesman, Robert Toombs, is thus related by his biographer: “On one occasion he said to a client who had stated his case to him, ‘Yes, you can recover in this suit, but you ought not to do so. This is a case in which law and justice are on opposite sides.’ The client told him he would push the case, anyhow. ‘Then,’ replied Mr. Toombs, ‘you must hire some one else to assist you in your damned rascality.’” (Stovall, 18-19.) Another distinguished Southerner, Alexander H. Stephens, held equally conscientious opinions as to what constitutes a lawyer’s duty. These views, based on a long and honorable career, occupy a notable place in his _Recollections_. (See Stephens, 383-89.)

[ii-24] Rev. John Putnam Gulliver, in the New York _Independent_, September 1, 1864. The article is reprinted in Carpenter, 309-17.

[ii-25] Atkinson, 28-29; Lamon, 40, note.

[ii-26] For details concerning these and other similar incidents the reader is referred to: Curtis’s _Lincoln_, 77; Browne, 646-47; Brooks, 426; Carpenter, 78, 114-15; Hill, 131, 198; Tarbell, i, 254; Bateman, 30-32; Flower, 63; Emerson, 5-9; _Works_, ii, 70, 368; _ibid._, iii, 32; _ibid._, ix, 26, 84-85; _Debates_, 13, 26; _Scribner’s Magazine_, February, 1878, p. 565. See, also, Speed, 18.

[ii-27] From the response by Justice David Davis, of the United States Supreme Court, to resolutions presented upon the death of Lincoln, at a session of the Federal Circuit Court held in Indianapolis, May 19, 1865.

[ii-28] Ex-Chief Justice Caton’s address to the Supreme Court of Illinois, May 3, 1865, in Caton, 12; Illinois Reports, xxxvii, 13.

[ii-29] Barrett, 818; Browne, 235-36; Nicolay and Hay, i, 303-04.

[ii-30] Swett to Herndon, in Herndon, ii, 246-47.

[ii-31] Whitney, 261.

[ii-32] Lamon, 324.

[ii-33] This account of the incident is based chiefly on statements made by District Attorney Ward Hill Lamon, himself (Lamon, 322), and by Judge David Davis, who probably referred to the affair in a story which he recalled, with unimportant variations, many years later, for the entertainment of Ratcliffe Hicks, a contributor to the _Century Magazine_ of February, 1894, p. 638. Henry C. Whitney, it should be added, writing after Lamon but before Hicks, contradicted the former’s narrative in almost every important particular. A careful reading, however, of Whitney’s book (at pages 130-32 and 534), leads to the conclusion that the error lies with him rather than with Lamon and Davis; for he obviously confused the Patterson trial, in his memory, with another Champaign County case.

[ii-34] Letter from Abraham Lincoln to H. Keeling, dated March 3, 1858, and quoted from manuscript in Herndon, i, 326.

[ii-35] Shaw’s letter of June 13, 1866, quoted from manuscript in Herndon, i, 323.

[ii-36] Holland, 130; Stowe, 22.

[ii-37] Joseph Gillespie’s manuscript letter of October 8, 1886, quoted in Herndon, ii, 13-14; Lamon, 321-22. Gillespie was, to a precise degree, Lincoln’s contemporary at the bar. Their enrollment dates from the same year--1837.

[ii-38] The same figure of speech was used, to describe a similar attitude of mind, by that other eminent lawyer, Horace Binney, leader for many years of the Philadelphia bar. In his private record, written for the eyes of his children, we find: “I never prosecuted a cause that I thought a dishonest one, and I have washed my hands of more than one that I discovered to be such after I had undertaken it.” (Binney, 443.)

[ii-39] For the details of this anecdote the author collated the accounts in Browne, 228; Lamon, 324; and Stringer, i, 217. According to the last-mentioned authority, however, Lincoln was found, not at the tavern, but in the Postville Park, playing townball with the boys.

[ii-40] Whitney, 130-32, 262; see, also, 136. It was probably concerning this incident that the same colleague wrote in another work; “On one occasion, Swett and I sat on a bench in the extreme rear of the court-room while Lincoln closed to the jury on our side, and we were utterly astonished at the cruel mode in which he applied the knife to all the finespun theories we had crammed the jury with.” (Whitney’s _Life_, i, 175.)

[ii-41] The authenticity of this story has been questioned. It certainly calls for confirmation, as the first case in which Lincoln appeared before the State Supreme Court, according to the printed records (Illinois Reports, iii, 456-57), was that of Scammon vs. Cline. Here he was associated with another attorney, James L. Loop, of Belvidere, and represented, not the appellant, but the defendant in error. The discrepancies are striking rather than vital. From the peculiar nature of that case Lincoln may well, at the time, have made the brief oral statement attributed to him; and, as we know, the decision which followed was, in fact, against his client. On the other hand, perhaps the scene did not take place during the argument on Scammon _vs._ Cline. If Judge Treat’s narrative is correct in every particular, Lincoln must have made his first bow before the Supreme Court sometime during the three and a half years of practice that preceded this hearing. And he might have done so, too, without that fact appearing in the records. For the reporter, finding the early material incomplete, and seeking to limit the size of the published volumes, did not include all the cases. It may be added that an account of this incident has, in some form, been accepted by Herndon, i, 322-23; Lamon, 321; Schurz, 16; Leland, 61; and Stoddard, 119. All these men knew Lincoln--some of them throughout almost his entire legal career. That they believed him capable of the course described in the anecdote is, perhaps, as significant as the story itself.

An essay, giving the results of careful researches into the case of Scammon _vs._ Cline, by Richard V. Carpenter, was printed in the _Journal of the Illinois State Historical Society_ for October, 1911, pp. 317-23.

[ii-42] “Judge Davis often delegated his judicial functions to others. I have known of his getting Moon of Clinton to hold court for him in Bloomington for whole days; Lincoln to hold an entire term, and frequently to sit for short times; and I even knew of Colonel Bryant of Indiana to hold court for him in Danville. All judgments rendered by these lawyers were voidable. Time has probably now cured them. It was a hazardous business for them and the sheriff and suitors in their cases.” (Whitney’s _Life_, i, 192.)

One of these irregular judges, it may be said in passing, more than returned the compliment, some years later, by elevating Davis to the bench of the United States Supreme Court; and the legality of that appointment has not been questioned.