CHAPTER III

[iii-1] It would not be correct, however, to say, as is sometimes said, that Lincoln won every case which he should have won. Contemporary lawyers testify to the contrary.

[iii-2] Herndon, ii, 3; Whitney, 251.

[iii-3] Hill, 225-26.

[iii-4] Whitney, 259; Whitney’s _Life_, i, 177.

[iii-5] Anthony Thornton, in the Chicago _Tribune_, February 12, 1900, p. 14.

[iii-6] Illinois Reports, xxxvii, 15.

[iii-7] Whitney, 262-63; Whitney’s _Life_, i, 196.

These tributes to Lincoln’s honorable methods again recall the principles that contributed not a little toward Horace Binney’s preëminence. In the review of his career he wrote: “I at all times disdained to practise any stratagem, trick or artifice for the purpose of gaining an advantage over my adversary; and unless I thought him unfair, I was generally willing that he should see all my cards while I played them. I can truly say that I am not conscious of having lost anything by this candor; but, on the contrary, have repeatedly gained by it. If my client was at any time suspected, I had no reason to think that I was, by either the Court or the bar; and how many balancing cases, in the course of thirty-five years’ practice, this sort of reputation assisted, I need not say.” (Binney, 443.)

[iii-8] Herndon, i, 326-28; _Atlantic Monthly_, April, 1867, p. 412.

Whatever the practice at the Springfield bar may have been, Lincoln’s objection to the making of a fictitious plea was of course not finical. No less an authority than Chief Justice Holt had said: “The attorney, if he puts in a false plea to delay justice, breaks his oath, and may be fined for putting a deceit on the Court.” (Pierce _vs._ Blake, Salkeld’s Reports, ii, 515. See, also, Johnson _vs._ Alston, Campbell’s Reports, i, 176.)

[iii-9] Whitney, 263-64; Herndon, ii, 17-18. It should be noted that April 24, 1856, fell on a Thursday, not a Saturday. Whether the 4 is a misprint for 6, or whether this term of court extended to Saturday, May 24, or whether the error lies elsewhere, cannot now be determined.

[iii-10] Browne’s _Lincoln and Men_, i, 360-62.

[iii-11] Lincoln to Trumbull, December 18, 1857, in the _Century Magazine_, February, 1909, p. 620.

[iii-12] Justice David Davis from the bench of the Federal Circuit Court, at Indianapolis, May 19, 1865.

[iii-13] Holland, 130; Lamon’s _Recollections_, 19-20; Stowe, 22; Browne, 162.

[iii-14] Koerner, ii, 110.

[iii-15] Recollections of Colonel Richard J. Hinton, in the Chicago _Times-Herald_, November 17, 1895.

[iii-16] Holland, 80. See, also, Nicolay and Hay, i, 307; Ward, 205, 270; Browne, 238.

[iii-17] Mrs. Norman B. Judd, in Oldroyd, 523; also, in Tarbell, i, 277-78. A report of Lincoln’s argument, rather full, though far from complete, has been reprinted from the Chicago _Daily Press_, in _Works_, ii, 340-54, and Tarbell, ii, 324-30.

[iii-18] Admissions that seemed to be of a more damaging nature than those which were made in this case have at times been known to assist, rather than interfere with, the winning of a verdict. How far counsel may go, along such lines, was illustrated in the practice of Daniel Webster. A more brilliant, though less scrupulous, advocate than Lincoln, he went the limit.

Once in Boston, defending a man who had been indicted for forgery, his first act--at the very beginning of the trial, before a witness had been called--was to arise and say: “May it please the Court, we admit the forgery, so that evidence on this point will be unnecessary. We deny that the note was uttered in this county.”

The astonishment of those present gave way to comprehension, when it became evident that the prosecution could easily have made out a case of forgery against the prisoner; but that it could not so readily have proven, what was of equal importance, the issuing of the forged instrument in Suffolk County. For want of sufficient proof, on this very point, the defendant was acquitted. He might have fared differently if both the questions of forgery and utterance had been presented to the jury. It is not unlikely that had they listened to evidence on the crime itself, those facts would have so overshadowed other considerations in their minds as to bring about a conviction. Webster’s avowal prevented this, and saved his unworthy client.

[iii-19] Herndon, ii, 3; Whitney, 251.

[iii-20] Lincoln to Linder, February 20, 1848, _Works_, ii, 3.

[iii-21] Herndon, ii, 7.

[iii-22] Arnold, 84. See, also, Whitney’s _Life_, i, 173; Oldroyd, 37; Nicolay and Hay, i, 307.

[iii-23] Herndon, ii, 7.

[iii-24] Gibson W. Harris, quoted in Browne, 220.

[iii-25] Letter of Justice David J. Brewer to the author; and an article by him in the _Atlantic Monthly_, November, 1906, p. 591.

[iii-26] Caton, 13; Illinois Reports, xxxvii, 13.

[iii-27] A statement made by Judge David Davis.

[iii-28] Hill, 211-12.

[iii-29] Letter of Hon. Shelby M. Cullom to the author; Bateman, 13-15. See, also, Hill, 236-37; and T. W. S. Kidd, the crier of the court, in Tarbell, i, 273-75.

[iii-30] Judge Lawrence Weldon, quoted in Hill, 212-15.

[iii-31] A letter said to have been written by Lincoln to Mrs. Armstrong, offering her his services, is published in Selby (254), and Hobson (41-42); yet neither of these writers, responding to inquiries by the author, has been able to throw any light on the question of its authenticity. According to other biographers, a communication of such a nature was received by Mrs. Armstrong, who stated, as they allege, that it had been lost. On the other hand, “Duff” himself, in his detailed narrative, makes no reference to a letter from Mr. Lincoln; and John, his younger brother, in an equally full account of the affair, taken down for the author by Thomas D. Masters of Springfield, Illinois, expresses the opinion that no written message on the subject was ever received. The Masters notes concerning this topic read:--

“Mr. Armstrong has no recollection of hearing of any letter being written by Mr. Lincoln to his mother, at the time his brother got into the trouble in question; and he requests me to say to you that he is quite sure that had such a letter been written he would have known of it. He points out to me that his mother was unable to read, and in that early day, had she received a letter from a man such as Lincoln then was,--a much-talked-about lawyer in Springfield,--that by reason of the exigencies of the occasion, and the interest such a letter would have excited in the household, he certainly would have known of it. His recollection is that his mother, probably after the cause was venued to Cass County, made a trip to Springfield, of course, knowing Mr. Lincoln, and feeling friendly to him, and having confidence in him, for the purpose of employing him to assist in the defense of her son at Beardstown.”

[iii-32] A singular parallel presents itself in ancient Athenian history, where Alcibiades and his friends were charged, as Plutarch relates, with mutilating the images of Mercury, on a certain night. When one of the informers was asked how he managed to recognize the features of the accused in the darkness, he answered,--“I saw them by the light of the moon,”--a palpable misstatement, as the affair happened at the time of a new moon which gave practically no light. This anecdote, however, could hardly have prompted Lincoln to consult an almanac in the Armstrong case, because he had not read Plutarch’s _Lives_ at the time of that trial, and only did so two years later.

[iii-33] Judge Abram Bergen, quoted by James L. King, in the _North American Review_, February, 1898, pp. 193-94. Bergen’s testimony should be supplemented by a statement which “Duff” Armstrong himself made, in his respectable old age, to J. McCan Davis. It was published in the New York _Sun_ of June 7, 1896. According to this report Armstrong then declared: “The almanac used by Lincoln was one which my cousin, Jake Jones, furnished him. On the morning of the trial I was taken outside the court-room to talk to Lincoln. Jake Jones was with us. Lincoln said he wanted an almanac for 1857. Jake went right off and got one, and brought it to ‘Uncle Abe.’ It was an almanac for the proper year, and there was no fraud about it.”

[iii-34] Ram, 269-70, note, 505. It is interesting to note that a somewhat similar tale is frequently met with among the anecdotes of the English bar. A barrister at the “Old Bailey,” according to this version, secured the acquittal of a client charged with highway robbery by introducing an almanac to prove that there was darkness on a certain night, instead of the bright moonlight, in which the prosecuting witness claimed to have distinguished the prisoner’s features. The almanac, however, as afterwards transpired, had been fraudulently so printed for that occasion.

[iii-35] Those who wish to collate what has been published about the Armstrong affair may find these references of service: Gridley’s _Defense_, 3-23; Hill, 229-34; Hobson, 40-50; Tarbell, i, 270-73; Lamon, 327-31; Arnold, 87-89; Onstot, 98-100; Irelan, xvi, 142-44; Oldroyd, 213-15; Herndon, ii, 26-28; Barrett, 63-66; Barrett (New), i, 152-54; Holland, 128-29; Browne, 224-27; Brockett, 82-85; Selby, 94-97, 254; Phillips’s _Men Who Knew_, 62-63; Stoddard, 157-60; Raymond, 29-31; Brooks, 127-29; French, 75-76; Whipple, 261-65; Bartlett, 111-15; Curtis’s _Lincoln_, 75; Coffin, 162-63; Stowe, 23-25; Morgan, 102-03; Nicolay’s _Boy’s Life_, 94-97; Hanaford, 44-48; Pratt, 78-82; Thayer, 285-93; McClure’s _Stories_, 97-99; Williams, 68-73; _Lincolnics_, 64-66; Jones, 15; Master, 20-22; New York _Sun_, June 7, 1896; _North American Review_, February, 1898, pp. 191-95; Kankakee (Ill.) _Republican_, February 12, 1909, Bloomington (Ill.) _Pantagraph_, January 20, 1912; also Eggleston’s _The Graysons_, in which the trial and the almanac incident are used by the novelist with good effect.

[iii-36] Tarbell, i, 265; Emerson, 5.

[iii-37] From an unpublished manuscript entitled “Lincoln on the Stump and at the Bar,” by Judge Scott, quoted in Tarbell, i, 253-54.

[iii-38] Judge William M. Dickson, in _Harper’s Magazine_, June, 1884, p. 63; Barrett (New), i, 121-22. See, also, Alban J. Conant, in _Liber Scriptorum_, 175-76, and in _McClure’s Magazine_, March, 1909, p. 516; Chauncey M. Depew, in Rice, 432; Browne, 229-30; Curtis’s _Lincoln_, 85; McClure’s _Yarns_, 457; McClure’s _Stories_, 92; Pratt, 59-60.

[iii-39] Collated from accounts by George W. Minier, in Oldroyd, 187-89, and in Herndon, ii, 327-28; also: Arnold, 85-87; Brooks, 122-24; Coffin, 108; Pratt, 68-69.

[iii-40] Binney, 444.

[iii-41] Lincoln would doubtless have approved of David Hoffman’s rule on this subject. It read: “I will never plead or otherwise avail of the bar of infancy against an honest demand. If my client possesses the ability to pay, and has no other legal or moral defense than that it was contracted by him when under the age of twenty-one years, he must seek for other counsel to sustain him in such a defense. And although in this, as well as in that of limitation, the law has given the defense, and contemplates in the one case to induce claimants to a timely prosecution of their rights, and in the other designs to protect a class of persons who by reason of tender age are peculiarly liable to be imposed on, yet in both cases I shall claim to be the sole judge (the pleas not being compulsory) of the occasions proper for their use.”

[iii-42] Remarks of Justice David Davis in the Federal Circuit Court at Indianapolis, May 19, 1865.

[iii-43] It may be of interest to note that these same revolutionary properties, and the same stage-setting of frozen ground flecked with the blood of patriots’ unshod feet, had served Patrick Henry, many years before, in the defense of John Venable, Commissary of the Continental Army, sued by John Hook, a Tory, for the value of some steers seized to feed the hungry troops. But Henry’s eloquence had not prevailed as fully as Lincoln’s did; for the jury found a verdict, though in a nominal sum, against the great Virginian’s client.

[iii-44] Herndon, ii, 9-11; see, also, Holland, 127. For brief accounts and comments based on Herndon’s and on Holland’s narratives the reader is referred to: Hapgood, 108; Browne, 162-63; Hill, 215-16; Coffin, 104-05; Tarbell, i, 250; Pratt, 74-76; Selby, 97-98; McClure’s _Stories_, 101.

[iii-45] Herndon, i, 328-30.

A brief and less picturesque account of the incident was furnished to the author, about half a century after the event, by the Honorable Shelby M. Cullom, one of the counsel for the defense. He wrote: “During the trial, a question was raised as to the admissibility of certain testimony, which was very important to the defense. The Judge took an hour to come to a conclusion as to what he ought to do; and when he began to decide the question, he seemed to be leaning against the admissibility of the testimony. Lincoln saw that he was inclined that way, and sprang upon his feet, and manifested such intense earnestness that it appeared to change the Judge’s disposition, and he decided in favor of the admissibility of the testimony.”

Still, Herndon probably did not overstate the case. For the official crier, Captain Thomas W. S. Kidd, referring to that same episode, said: “Mr. Lincoln made a display of anger, the like of which I never saw exhibited by him before or after. He roared in the excess of his denunciation of the action of the Court.” (Rochester _Herald_, January 17, 1904. See Kidd, also, in Tarbell, i, 251-52.)