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FROM THE

BENNO LOEWY LIBRARY

COLLECTED BY

BENNO LOEWY

1854-1919

BEQUEATHED TO CORNELL UNIVERSITY
‘ornell University Libra

braham Lincoin
ABRAHAM LINCOLN
THE LAWYER-STATESMAN
 
ABRAHAM LINCOLN
THE LAWYER-STATESMAN

BY

JOHN T. RICHARDS

FORMER PRESIDENT OF THE
CHICAGO BAR ASSOCIATION

 

BOSTON AND NEW YORK
HOUGHTON MIFFLIN COMPANY
MDCCCCXVI

fh,
\
‘
COPYRIGHT, 1916, BY JOHN T, RICHARDS

ALL RIGHTS RESERVED

Published April 1916
PREFACE

HIS volume is not a biography, but is intended

only as a presentation of the results of an inves-
tigation into the record of Abraham Lincoln‘as a law-
yer, his views upon the subjects of universal suffrage
and the reconstruction of the Confederate State Gov-
ernments at the close of the Civil War, and his atti-
tude toward the judiciary, upon which there has been
considerable misunderstanding in recent years. To
these has been added a chapter devoted to some
consideration of his standing as an orator.

Many biographies of Lincoln have been written,
but no adequate review of the subjects before men-
tioned has appeared. It has been frequently said
that Lincoln was not a great lawyer. Much mis-
information is current in relation to Mr. Lincoln’s
career at the bar. Indeed, statesmen and lawyers
of renown, relying upon the erroneous statements of
some of Lincoln’s contemporaries, have been led to
underestimate greatly his standing as a member of
the legal profession. The facts presented in this
volume, it is believed, will remove the erroneous im-
pression which has been thus created, and convince
vi PREFACE

even the most skeptical that Mr. Lincoln was one
of the truly great lawyers of his generation.

The attitude of the great President toward the
Southern States throughout the Civil War, and in
relation to the reconstruction of state governments
in them, was always friendly. He sought to aid and
encourage those States to reéstablish themselves as
members of the Union. He was never inclined to
force negro suffrage upon them, but believed that
the States should be left free to grant or withhold
the right of suffrage as each State might determine
for itself. The facts clearly prove that Mr. Lincoln
was opposed to the system which has become known
as ‘‘ Carpet-Bag Government,” but believed that the
loyal white citizens of every State should be allowed
to control its political affairs. It has been said that
he favored woman’s suffrage also, but there is not
sufficient evidence to warrant this conclusion, as will
be seen from a perusal of these pages. Lincoln’s
criticism of the decision of the Supreme Court of
the United States, in the case of Dred Scott vs.
Sanford, has been often referred to in recent years
as a justification for assaults upon the courts, but
a careful review of all that he said upon that subject
shows that he was a firm believer in and champion
of the independence of the judiciary.

This volume is submitted in the hope that it will
PREFACE vii

lead to a better understanding of the subjects of
which it treats. The accomplishment of this purpose
is all that the author has attempted, and the attain-
ment of that end will furnish ample justification for
an undertaking which has been inspired by a desire
to aid in doing complete justice to the memory of the
great President.
JOHN T. RICHARDS

Cuicaco, February, 1916.
II.

III.

IV.

CONTENTS

LAYING THE FOUNDATION
IN THE COURTS
THE LAWYER-PRESIDENT

CRITICISM OF THE JUDICIARY

. THE ORATOR

GEMS OF THOUGHT FROM LINCOLN

APPENDIX

A. LINCOLN’S CASES IN THE ILLINOIS SUPREME COURT
AND THE UNITED STATES SUPREME COURT

INDEX

16

88

161

181

197

205

253
 

ILLUSTRATIONS

ABRAHAM LINCOLN Photogravure Frontispiece

From a photograph taken by S. M. Fassett of Chicago in October, 1859.
LEONARD SWETT
Hon. Isaac G. WILSON
T. D. Lrncotn

FACSIMILE OF INSTRUCTIONS, IN LINCOLN’S HANDWRITING, GIVEN ON
BEHALF OF DEFENDANT IN PEOPLE US. ARMSTRONG

TABLET ON THE FRONT OF THE CITY HALL AT BEARDSTOWN, ILLINOIS

THE OLD COURTHOUSE, BEARDSTOWN, ILLINOIS, IN WHICH THE CASE
OF THE PEOPLE vs. ARMSTRONG WAS TRIED, NOW USED AS THE
CITY HALL

FACSIMILE OF TITLE PAGE OF ALMANAC FOR 1857

FACSIMILE OF CALENDAR FOR AUGUST, 1857, AS IT APPEARS IN THE
FARMER’S ALMANAC

GrEorGE HARDING

BURNET HOUSE, CINCINNATI, WHERE LINCOLN MET STANTON IN 1855
(Facsimile of announcement of opening)

FACSIMILE OF AFFIDAVIT, IN LINCOLN’S HANDWRITING, FILED IN
THE CASE OF THE UNITED STATES US. REINBACH IN THE UNITED
STATES DISTRICT COURT AT SPRINGFIELD

Hon. Jesse B. THomas
BENJAMIN S. EDWARDS

Hon. CHarLes H. CONSTABLE

22

26

30

40
46

46
50

52
80

84

204
208
218

224
ABRAHAM LINCOLN
THE LAWYER-STATESMAN

CHAPTER I
LAYING THE FOUNDATION

HAT Abraham Lincoln was endowed with a

mentality which has been equaled by few men
must be admitted by all who are familiar with his
remarkable career; for in no other way can the in-
tellectual force which he displayed throughout his
mature years be explained or accounted for. As he
himself said, when he came of age he ‘‘could read,
write, and cipher by the Rule of Three, but that was
all.”’? He had, as he stated in an autobiography

‘

which he wrote in 1860, attended school in all less
than one year, and the teachers were required to
teach only the three subjects before mentioned.
Therefore, if the term education is confined to its
primary meaning, as generally accepted, which may
be defined as a training which results from the pur-
suit of a complete course in an institution of learning,
it must be conceded that Mr. Lincoln was not an

1 See Letters, vol. 11 (Centenary Edition), p. 212.
2 LINCOLN, THE LAWYER-STATESMAN

educated man; but if by education is meant a
“systematic development and cultivation of the
normal powers of intellect, feeling, and conduct so
as to render them efficient in some particular form
of living, or for life in general,” then, indeed, Lincoln
was an educated man in the truest and best sense of
the term.

The chief purpose of the pursuit of an orderly
curriculum in schools and colleges is not so much to
store the mind with knowledge as to train and dis-
cipline the intellect to grasp readily the subject pre-
sented, to reason correctly and think deeply, so to
control the mind as to enable one to concentrate all
one’s energies upon the subject under consideration;
and while such a systematic training enables its
possessor to acquire knowledge more rapidly and
with less arduous labor, it is by no means essential
to success in any field of human activity.

That Lincoln’s deprivation of that systematic
mental training, considered so important in the
twentieth century, added greatly to the task which
confronted him when he attained the age of twenty-
one years, is beyond dispute. The great thirst for
knowledge which possessed him as boy and man
made him a constant student throughout his entire
career. Such of his early speeches and writings as
have come down to us, though few in number, dis-
LAYING THE FOUNDATION 3

play a familiarity with history and a knowledge of
the English language which, in such an environment
as that which surrounded him, could not have been
acquired except by deep study.

It is unfortunate that, beyond the general state-
ment that, while a youth in Indiana, Lincoln read,
besides the Bible, Shakespeare, ‘‘ Pilgrim’s Progress,”
and Weems’s ‘Life of Washington,’’ such other
books as he could borrow, there is no evidence avail-
able as to the books which aided in the develop-
ment of his mind up to the time when he removed to
Illinois. After he was twenty-three years of age he
studied English grammar, and he practically mas-
tered the six books of Euclid after he had passed
forty years of age, as stated in the autobiography
before mentioned.

Lincoln arrived in Illinois in the early springtime
of the year 1830. Two years later he was a candidate
for the legislature. Although he was then but one
month past twenty-three years of age, the address
which he delivered on the Ist of March of that year,
and which was printed and circulated as a campaign
document, is remarkable for the lucid presentation
of his views upon the questions then before the
public. The language employed, as well as the
method of statement, is in harmony with that con-
tained in his great speeches delivered in the later
4 LINCOLN, THE LAWYER-STATESMAN

years of his life, and affords abundant evidence of a:
knowledge of pure English and the ability to think
deeply and present forcefully the conclusions reached
by his mental processes.

That Lincoln was well esteemed by the people is
evidenced by the fact that he received liberal sup-
port for the office to which he sought to be elected.
At that time the legislature was a much more im-
portant body than at present; its powers were far
greater in 1832 than in 1914. It had power to grant
corporate charters and other special privileges, and
it also elected judicial and other officers. Lincoln
failed of election, which, considering his youth, is not
strange. It is worthy of remark, however, that one
so young should have been even considered for that
office, and the fact that he was so considered shows
that there was something remarkable about him.
Two years later he was elected as one of four
members of the legislature from Sangamon County
(among whom was John T. Stuart, afterwards Lin-
coln’s law partner). Only one of the four received
more votes than did Lincoln. He was reélected to
the legislature at the next three biennial elections
and became a very influential member of that body.
His speeches were of a high order. That on the State
Bank, delivered in January, 1837, when he was
but twenty-eight years of age, is an able argument,
LAYING THE FOUNDATION 5

logical, convincing, and expressed in the best of
English.

A study of the record of his career while in the
legislature will convince any one that Lincoln was
even then a master of the English language and a
student of events, and that he was always well in-
formed upon all subjects which he undertook to dis-
cuss. His was not a superficial knowledge. He mas-
tered everything which he considered of sufficient
interest to demand his attention. His motto seems
to have been, ‘‘ Whatever is worth doing is worth
doing well.”

The address before referred to, delivered March 1,
1832, bears evidence of thoughtful consideration of
the subjects of which it treats. In that address he
enunciated also a rule of conduct which seems to
have been his guide through life. In speaking of am-
bition he said, ‘‘I have no other so great as that of
being truly esteemed of my fellow men by rendering
myself worthy of their esteem.’’ Again, his speech
on the State Bank, before mentioned, published in
the Vandalia Free Press in January, 1837, and
copied by the Springfield Journal, January 28,
1837, reveals not only complete familiarity with the
financial questions involved, but also a thorough ap-
preciation of the consequences which would follow
the action which he opposed. His mind grasped
6 LINCOLN, THE LAWYER-STATESMAN

readily the most complex questions, and his state-
ment of any proposition, even at that early age, al-
ways exhibited a clearness of mental vision which is
lacking in many men who have had every educa-
tional advantage.

Just when Mr. Lincoln decided to become a lawyer
is a matter of uncertainty. It is quite evident, how-
ever, that he did not enter upon a systematic study
of the law until after his election to the legislature in
1834. During the campaign which resulted in his
first election, John T. Stuart had suggested that he
ought to study law, and his experience in the legis-
lature and his contact with lawyers who were his
fellow members in all probability inspired him with
ambition to become a member of the legal profession.
He has stated that he had studied law during his
legislative period, but he makes no other mention of
his law studies, except to say that, after his election,
he borrowed some law books from John T. Stuart,
took them to his home, and studied them until the
legislature met, then took them up again after the
session ended.

Mr. Lincoln was admitted to the bar of Illinois
March 1, 1837, and on April 15 of that year he re-
moved to Springfield and began practice as a partner
of Stuart, being at that time twenty-eight years of
age. Some of his biographers have stated that he
LAYING THE FOUNDATION 7

is admitted to the bar on September 9, 1836.
1is is an error. Admission to the bar in Illinois was
that time controlled by a statute which went into
ect March 1, 1833. The first rule of court relating
admission to the bar was adopted by the Supreme
yurt March 1, 1841, and that rule required all
iplicants for admission to the bar to present them-
lves in person for examination in open court,
cepting only those who had been regularly ad-
itted to the bar in some court of record within the
nited States. But under the statute of 1833, which
mained in force until 1841, the applicant was not
quired to pass an examination of any kind.

The error into which Mr. Isaac N. Arnold and
me others among Lincoln’s biographers have
llen in relation to the date of Mr. Lincoln’s ad-
ission to the bar is doubtless due to the fact that,
ace the adoption of rules upon the subject by the
ipreme Court, all licenses to practice law have
‘en issued by the clerk of that court and the enroll-
ent has been concurrent with the issuance of the
rense. In consequence of this it has doubtless been
sumed by these writers that the issuance of a li-
nse to Mr. Lincoln by the judges on September 9,
336 authorized him to practice law regardless of
e time of his enrollment, while the statute of 1833
‘ovided that before one could be ‘‘admitted to
8 LINCOLN, THE LAWYER-STATESMAN

practice as an attorney and counselor at law’’ he
must have performed the following acts: (1) He
must have obtained a license for that purpose from
some two of the judges of the Supreme Court. (2)
In order to obtain such license, he was required to
procure a certificate of his good moral character from
the court of some county in the State. (3) Having
obtained the license from the two judges, he was
required to take an oath to support the Constitution
of the United States and of the State. (4) The officer
who administered the oath was required to certify
the same on the license. (5) On the presentation of
the license, with the oath endorsed thereon, to the
clerk of the Supreme Court, the latter was required
to enroll the name of the applicant as an attorney
and counselor at law, and the same statute provided
that ‘‘no person whose name is not subscribed to or
written on said roll with the day and year when the
same was subscribed thereto, or written thereon,
shall be suffered or admitted to practice as an
attorney or counselor at law within this State.”

If anything further is needed to settle the question
of the date of Mr. Lincoln’s admission to the bar, ref-
erence is here made to the decision by the Supreme
Court of Illinois in the case of E. C. Fellows ex parte,
3 Ill. 369, which was an application made by Fellows
at the December term, 1840, of the Supreme Court
LAYING THE FOUNDATION 9

for an order authorizing the clerk of that court to
enter the name of the applicant upon the roll of
attorneys as of the 20th of March, 1837. Fellows had
obtained from the judges the necessary license to
practice law in September, 1835, and had taken the
required oath on March 20, 1837. Thus far he had
fully complied with the provisions of the statute of
1833, but he had omitted to have his name enrolled
until October 6, 1840. The application of Fellows
was denied, and in its opinion the court said, “If he
has incurred any liability by practicing as an attor-
ney and receiving fees before his name was enrolled,
or if he seeks to recover for services performed before
his name was entered on the roll, this court cannot
aid him by permitting the clerk to make the entry
nunc pro tunc.”

From the foregoing it conclusively appears that
the date of Mr. Lincoln’s admission to the bar was
the date of his enrollment, which was March 1, 1837,
and not September 9, 1836, the date of the issuance
of the license by the judges. The Supreme Court at
the time of Lincoln’s admission to the bar was com-
posed of four judges and the court sat only as a court
of review, but by an act passed by the legislature
February 10, 1841, the judiciary of the State was re-
organized; the Circuit Court judges — namely, the
judges of the nisi prius courts, of whom there were
‘to LINCOLN, THE LAWYER-STATESMAN

four in the State — were legislated out of office and
the number of Supreme Court judges was increased
to nine.

Under the Constitution of 1818 all of the Circuit
and Supreme Court judges were elected by the legis-
lature on joint vote of both houses. The judges of
the Supreme Court, before the passage of the act
referred to, were William Wilson, chief justice; and
Samuel D. Lockwood, Theophilus W. Smith, and
Thomas C. Browne, associate justices. Three of
them belonged to the Whig party, Judge Smith
alone being a Democrat. The legislature of 1841
had a Democratic majority. In 1839-40, two political
questions were awaiting decision in cases pending in
the Supreme Court, one of which involved the power
of the governor to remove from office the secretary
of state, and the other involved the right of aliens to
vote. As the Whigs contended that the governor did
not possess the power to remove the secretary of
state without cause and that aliens were not entitled
to vote, and the Democrats held the contrary view
on both questions, and as the Whig majority of the
Supreme Court had at the December term, 1839,
held against the Democratic contention as to the
power of the governor to remove the secretary of
state, it was assumed that the same judges would
sustain the Whig contention in deciding the other
LAYING THE FOUNDATION II

case, and the legislature by the act referred to added
five judges to the Supreme Court, abolished the office
of Circuit Court judge, and immediately proceeded
to elect five additional judges, all Democrats, to fill
the offices then created.

It was also provided by the act referred to that
the Supreme Court judges should perform Circuit
Court duty. The five additional judges of the Su-
preme Court, all of whom were elected by joint vote
of the two houses of the legislature on the 15th day
of February, 1841, were Thomas Ford, afterwards
governor of Illinois; Sidney Breese, who afterwards
became United States Senator from Illinois and at
a later date was elected a judge of the Supreme Court
of Illinois and served in that office until his death
in 1878; Walter B. Scates; Samuel H. Treat, after-
wards, by appointment of President Pierce, the
first judge of the District Court of the United
States for the Southern District of Illinois, when
that court was created; and Stephen A. Douglas,
who was destined to become the opponent of Lin-
coln in the great debate and also his rival for the
United States senatorship and the presidency.

Douglas made a speech in the rotunda of the Capi-
tol at Springfield advocating the passage of the act
which created the office to which he was later elected
by the joint vote of both branches of the legislature
12 LINCOLN, THE LAWYER-STATESMAN

during the same month, and was therefore a direct
beneficiary of the act. Lincoln and the other Whig
members of the legislature vigorously opposed the
act. Three Democrats in the Senate and five in the
House also voted against it. By the election of the
additional judges, the Democratic majority hoped
to secure a decision which would overrule the case
decided in 1839 and obtain a decision in favor of
the Democratic contention in the other case, even
though the three Whig judges should support the
Whig contention. This remarkable piece of legis-
lation and the advocacy of its passage by Douglas
were repeatedly referred to by Mr. Lincoln in the
great debate.

The case first mentioned is entitled Field vs. The
People, ex rel. John A. McClernand, 3 Ill. 79. The
Supreme Court held the constitution to be a limi-
tation upon the legislative department of the govern-
ment, but a grant of powers to the other depart-
ments; that therefore neither the executive nor the
judiciary could exercise any authority or power not
clearly granted by that instrument; and that when
the power of appointment had been exercised by the
appointing power, it remained suspended until a
vacancy occurred; that where an office is created
by the constitution, the tenure of which is left un-
defined and unlimited, the officer so appointed is
LAYING THE FOUNDATION 13

ititled to hold during good behavior or until the
zislature by law limits the tenure to a term of
‘ars or confers upon some government functionary
ywer to remove the officer; that as the office of
cretary of state was created by the constitution
id the power of his appointment vested in the
»vernor, with the advice and consent of the Senate,
id, as the tenure of his office had not been fixed
y law, the governor possessed no power to remove
iat officer at his will and pleasure. A majority of
1e court held that the attempt of the governor to
‘move the appellant Field and appoint McCler-
and was ineffective. Judge Smith, who was the
nly Democratic member of the court, wrote a long
issenting opinion in support of the Democratic
yntention. Stephen A. Douglas was one of the
yunsel for McClernand and made the principal
rgument for the relator. The Democrats pro-
ssed to believe that the Whig majority of the
yurt had been influenced by party considerations
1 rendering the decision.

The case involving the right of aliens to vote was
1at of Spragins vs. Houghton, 3 Ill. 377, decided
t the December term, 1840. Mr. Douglas also
ppeared in this case on behalf of the Democratic
yntention, which was sustained by the court. As
efore stated, the case of Field vs. The People was
14 LINCOLN, THE LAWYER-STATESMAN

decided at the December term, 1839, and although
sound in principle, it displeased the Democrats
greatly. Having a majority in both houses of the
legislature of 1840-41, they determined upon a
reorganization of the courts and proceeded with
such reorganization even after the Democratic con-
tention had been sustained by the three Whig mem-
bers of the court, and the act of February 10, 1841,
was passed, as already stated.

From an examination of these two cases there is
no doubt but that the majority of the court, in each
case, reached a correct conclusion upon the ques-
tions at issue. These decisions have frequently
been cited with approval, not only in Illinois, but
also by the courts of last resort in other states. Mr.
Lincoln was not an attorney in either of these cases
and reference is made to them here only for the pur-
pose of showing their historical bearing upon the
attitude of Senator Douglas toward the courts, to
which Mr. Lincoln referred in the great debate.
While sitting Supreme Court judges were not ‘‘re-
called,” the legislature in this instance has given
us an illustration of what can be done to defeat a
decision of the court in the absence of proper con-
stitutional limitations.

In recognition of the great work accomplished
by Mr. Lincoln in the State and Nation, the honor-
LAYING THE FOUNDATION 15

ary degree of Doctor of Laws was conferred upon
him by Knox College at Galesburg, Illinois, on July
3, 1860, and in 1864 the same honorary degree was
conferred upon him by the College of New Jersey
(now Princeton University).
CHAPTER II
IN THE COURTS

T the time of Mr. Lincoln’s admission to the
bar of Illinois he had just entered upon the
twenty-ninth year of his age. He had been a resi-
dent of the State seven years and at that time was
serving his second term as a member of the lower
house of the state legislature. The proceedings in
all the courts of Illinois were then much less digni-
fied and formal than they have since become in all
courts of record. Judges and lawyers held more
intimate social relations than can well prevail be-
tween members of the bar and the busy members
of the judiciary at the present day.

The opening of the Circuit Court in any county
of the State at that time brought together many of
the people from the surrounding country, and as
there were few places of amusement where the
evenings could be whiled away, all gathered about
or within the country tavern and there regaled each
other with songs and anecdotes. When evening
came it was not thought improper for the judge
who had presided as the minister of justice during
the day to cast aside judicial dignity and join with
IN THE COURTS 17

lis professional brethren in unrestrained efforts to
ontribute his share toward the impromptu enter-
ainment of those assembled.

Life on the circuit in those days, as in every new
community, had its sunshine and its shadow; but
‘very hardship had its compensation in the good-
ellowship which always prevailed among those
iturdy pioneers. The judge was usually a man of
renial personality and entered heartily into every
mterprise which promised to afford relief from the
lay’s monotony. That they did so detracted not
n the least from the respectful deference due them,
is the representatives of the judiciary; for when the
noment arrived for the opening of court, they re-
sumed their seats on the bench with due solemnity;
ior were they less impartial in hearing and deter-
nining the cases before them for having mingled
with their professional brethren and their clients
1pon a common level during the time which inter-
vened between the sessions of the court.

The experiences of Mr. Lincoln on the circuit
vere not unlike those of other lawyers of that day.
\t the time he began the practice of his profession
there was little business which required great skill
or much learning in the law. The interests involved
n civil cases were chiefly trivial, if measured by a
nonetary standard, but they involved many of the
18 LINCOLN, THE LAWYER-STATESMAN

same principles of law and equity that invite the
attention of the courts and demand the professional
consideration of the lawyers of to-day. The cata-
logue of statutory crimes has been greatly enlarged
in both state and nation since those primitive times,
and many acts then thought to be morally sound
are now condemned by the moral sense of the peo-
ple and denounced by statute as crimes against the
state. By reason of this there has been a vast in-
crease in the business of the criminal courts, and
the great development of higher ideals, which an
enlightened public opinion demands shall control
the methods of conducting commerce and business
of all kinds, has created means for affording more
effective protection to property rights, such as were
unknown in those early days. As a result, the labors
of the legal profession, and the jurisdiction of the
courts in civil and criminal cases, have been much
enlarged.

There were in those days no large manufactur-
ing corporations. Transportation of both passen-
gers and freight was chiefly accomplished by steam-
boats and flatboats on the navigable streams, or
overland by animal power. Luxuries were almost
unknown, and the wants of the people were easily
satisfied. No lawyer, however prominent in his pro-
fession, deemed the most insignificant case un-
IN THE COURTS 19

worthy of his professional attention, and each at-
tended to whatever business came to him, whether
his services were required before a justice of the
peace or before the Supreme Court — then as now
the highest tribunal of the State; and Mr. Lincoln
was no exception to this rule.

In the nist prius courts Mr. Lincoln was called
upon to try a great variety of cases. There were in
those days no ‘specialists’? among the members
of the bar of Illinois. Railroads and other vast cor-
porate interests, as commonly understood to-day,
were almost unknown in the western country; but
whatever the class of litigation might chance to be,
whether civil or criminal, the lawyer of that period
prepared himself as best he could to render efficient
service to his client.

When Mr. Lincoln was admitted to the bar of
Illinois, he was in the midst of his second term of
service in the legislature of Illinois and had already
acquired a considerable reputation as a member of
that body. He was known as a fluent speaker and
effective debater and was accustomed to address
popular assemblages. The newspapers of those days
were few in number and made little pretense of con-
tributing much toward the education of the people
asa whole. The people assembled at public meetings
to listen to a discussion of the questions of the day
20 LINCOLN, THE LAWYER-STATESMAN

by the most gifted orators of the time, and it was in
these discussions that the friendly rivalry between
Abraham Lincoln and Stephen A. Douglas began.

The same people listened to the speeches on both
sides of every proposition which was of general in-
terest, and thereby became better able to decide for
or against the policy which was advocated by one
and opposed by the other. As a consequence of
this there existed among the people a more compre-
hensive appreciation of the importance of all public
questions than prevails in this generation, when
each obtains his information from his favorite news-
paper, whose editorial opinions he accepts without
reserve and generally adopts as his own, without tak-
ing the time or trouble to investigate the arguments
of those who hold opposite or divergent views.

It was shortly before Mr. Lincoln’s admission to
the bar that De Tocqueville wrote his ‘‘ Democracy
in America.” At that time the lawyers of respec-
tability throughout the United States were, in their
respective communities, leaders of public opinion,
and the great Frenchman, recognizing this fact,
declared that ‘‘As lawyers constitute the only en-
lightened class which the people do not distrust,
they are naturally called upon to occupy most of
the public stations.’ Lincoln, Douglas, and many
other lawyers of that day were of that type, and
IN THE COURTS 21

when they spoke the people listened to the argu-
nents of each and were in a position to form their
ywn opinions by the exercise of independent judg-
nent. The art of public speaking was therefore a
nost important, if not an almost indispensable,
jualification in a lawyer who hoped for success in
uis profession. Mr. Lincoln early cultivated that
irt and soon acquired a wide reputation as an advo-
vate at the bar and as an orator and political leader.
Ae was frequently associated with or opposed to
nany of the ablest and best-known members of the
gar of Illinois on the platform in political cam-
gaigns, in the trial courts, and in the highest court
of the State. His reputation as an advocate before
4 jury was recognized by his professional brethren
ais of a very high order.

Stephen A. Douglas declared that Mr. Lincoln
aad no equal as an advocate before a jury. Leonard
Swett, himself one of the greatest advocates and a
trial lawyer seldom equaled by any man of his gen-
ration, — to many of whose arguments the writer
aas listened with rapt attention, — has said that
f Lincoln ever had a superior before a jury, — and
che more intelligent the jury the better he was
sleased, — he, Swett, never knew him. Mr. Swett
went further and declared that in his younger days
ie had listened to Tom Corwin, Rufus Choate, and
22 LINCOLN, THE LAWYER-STATESMAN

many others of equal standing at the bar, in the
trial of cases, but that Mr. Lincoln at his best was
more sincere and impressive than any of them, and
that what Mr. Lincoln could not accomplish with a
jury no other man need try.

Judge David Davis, the circuit judge for the old
Eighth Judicial Circuit of Illinois during the greater
part of the time that Mr. Lincoln traveled that
circuit, continually trying cases in the several coun-
ties of which it was composed, and who was ap-
pointed a justice of the Supreme Court of the United
States by President Lincoln, said, ‘‘In all the ele-
ments that constitute the great lawyer he [Lincoln]
had few equals. He was great both at nzsz prius
and before an appellate tribunal.”

Thomas Drummond, for many years judge of
the Circuit and District courts of the United States
in Illinois, than whom no greater trial judge ever
sat upon the bench, and before whom Mr. Lincoln
tried many cases, affirmed that he was one of the
ablest lawyers he had ever known.

Mr. Lincoln often appeared in the argument of
cases before the Supreme Court of Illinois while
Judges Sidney Breese and John D. Caton were mem-
bers of that court. Both had unusual opportunities
to judge of his standing as a lawyer, for in those
days cases were argued orally in that court much
 

LEONARD SWETT
IN THE COURTS 23

tore frequently than in later years, and the esti-
iate of these two distinguished men as to his stand-
ig and ability as a lawyer is of great value.

In speaking of the professional standing of Mr.
incoln, Judge Caton said: —

The most punctilious honor ever marked his profes-
onal life. His frankness and candor were two great
ements in his character which contributed to his pro-
‘ssional success. If he discovered a weak point in his
ause, he frankly admitted it, and thereby prepared
1e mind to accept more readily his mode of avoiding
. He was equally potent before the jury as with the
ourt.

Judge Breese declared: —

Mr. Lincoln was never found deficient in all the
nowledge requisite to present the strong points of his
ase to the best advantage, and by his searching analy-
s make clear the most intricate controversy. There
‘as that within him glowing in his mind, which en-
bled him to impress with the force of his logic, his own
lear perception upon the minds of those he sought to
ifluence.

Mr. Lincoln was not what is termed a “‘case law-
er,” which is defined by the Standard Dictionary
s a lawyer ‘‘better versed in reported cases.’”’ He
id not, as some lawyers do, rely wholly or chiefly
pon decided cases or precedents. But the state-
1ent made by some of his biographers that he was
ot a well-read lawyer and not well grounded in
1e principles of the law, is an error, for no careful
24 LINCOLN, THE LAWYER-STATESMAN

student of Mr. Lincoln’s career at the bar can ar-
rive at any other conclusion than that he was thor-
oughly familiar with the standard works of his day
on the various branches of the law. He had read
them all to good purpose and understood the legal
and equitable principles which they laid down.

A distinguished United States Senator declared,
in an address at Springfield, Illinois, February 12,
1909, that he did not believe Lincoln was a great
lawyer, giving as a reason for that belief that “he
practiced law without a library,” etc.’ It is true
that he owned few law books, but he had access
to the library of the Supreme Court of Illinois at
Springfield, and whenever he had any matter in
hand which required special research, he availed
himself of the use of that ample library; so that,
whenever he appeared in court, he was fully pre-
pared to present his side of the case to the very best
advantage.

All of Lincoln’s biographers admit that he pos-
sessed a wonderfully logical mind, an equipment
not infrequently lacking in lawyers who have met
with unusual success in that profession, if success
be measured by the amount of business passing
through their hands. To him the common law was,
in fact as well as in name, ‘‘the perfection of reason,”

1 Senator Dolliver before the Lincoln Centennial Association.
IN THE COURTS 25

nd a court of equity was in reality ‘‘a court of con-
rience.” He was not in the habit of citing a great
umber of authorities on any proposition, but de-
ended chiefly upon the statement of the principles
nd the presentation of the reasons for the rule for
hich he contended, as well as for its application
> the case before the court. His strong common
anse and clear understanding of the principles of
ne common law enabled him to see clearly what
he law ought to be, and with all the force of his
reat mind he endeavored with invincible logic to
onvince the court of the correctness of his conten-
ion. Or, if the case were one involving the prin-
iples of equity, his appeal was to the conscience
f the court to right a wrong which had been com-
1itted, or to prevent an impending injury.

Like other high-class lawyers of his time, Mr.
incoln tried on the circuit cases of every kind, both
ivil and criminal. His success in the defense of
ersons charged with crime seems to have been
xtraordinary, for while his contemporaries inform
s that he defended many such cases, the records of
he Supreme Court of Illinois reveal the astonish-
ag fact that he never appeared in that court on
half of any person charged with a felony. Had he
een defeated in such cases in the trial court, in
any instances, it is scarcely conceivable that some
26 LINCOLN, THE LAWYER-STATESMAN

of them would not have been taken by appeal or
writ of error to the Supreme Court and that he would
not have appeared as counsel in that court on be-
half of the accused.

It has been said that Mr. Lincoln never know-
ingly defended a person charged with crime unless
he believed the accused to be innocent. This may
be true, and if so, it will account in some measure
at least for the fact before stated. The only other
explanation must lie in his great ability as an advo-
cate, in that power to win before a jury, mentioned
by Mr. Swett and others.

In his career at the bar Mr. Lincoln crossed
swords in the arena of his profession with the great-
est lawyers of his time. Among them were Orville
H. Browning, who succeeded Stephen A. Douglas
as United States Senator from Illinois; James A.
McDougall, United States Senator from California
during the Civil War; Edward D. Baker, a United
States Senator from Oregon, who was subsequently
killed at the battle of Ball’s Bluff while a colonel of
volunteers in the war between the states; Stephen
T. Logan, at one time a circuit judge and for many
years the leader of the bar of Central Illinois; Leon-
ard Swett, who, through many years, ending only
with his death, was one of the acknowledged leaders
of the bar of the Northwest, if not of the nation;
 

- WILSON

SAAC G

1
IN THE COURTS 27

Lyman Trumbull, at one time a justice of the Su-
preme Court of Illinois and who served as United
States Senator from Illinois during the whole period
of the Civil War and was recognized as one of
the ablest constitutional lawyers in that assembly,
which, during that period, numbered among its
members probably the greatest aggregation of pro-
found lawyers ever gathered together in one legis-
lative body; J. T. Stuart, at one time a member of
Congress, who was acknowledged by all who knew
him to be a worthy opponent in any legal battle;
Burton C. Cook, afterwards general counsel for the
Chicago and Northwestern Railway Company;
Isaac G. Wilson, a profound lawyer, who, upon the
organization of the Illinois Appellate Court in 1877,
became one of the judges of that intermediate court
of appeal in civil and quasi-criminal cases, and who
was for many years a judge of the Circuit Court;
and many others whose names are impressed upon
the jurisprudence of the State of Illinois, and with
all of whom Mr. Lincoln held the most cordial rela-
tions.

Mr. Lincoln was also at one time one of the coun-
sel for the Illinois Central Railroad Company, and
in that capacity was recognized as a lawyer of no
ordinary learning and ability. In a little volume
issued by that company it is stated that Mr. Lin-
28 LINCOLN, THE LAWYER-STATESMAN

coln’s opinion was sought by the officers of the com-
pany upon important questions involving the con-
struction of the company’s charter. Among other
matters of interest which the volume contains is a
photographic copy of an opinion given by Mr. Lin-
coln on the rights of settlers under the national pre-
emption laws and the relative rights of the railroad
company growing out of grants made to the latter.
The questions were complicated, but the opinion
was short and concise. It reveals abundant evi-
dence of careful research and a thorough familiarity
with the legal questions involved, and is in entire
harmony with an opinion afterwards rendered by
the Supreme Court of Illinois in the case of Walker
vs. Hedrick,! which involved a decision of the same
questions.

Mr. Lincoln was employed in many cases in the
United States Circuit and District courts at Chi-
cago, but in consequence of the destruction of the
records of those courts by the great fire of October
9, 1871, it is impossible to obtain an extended record
of his activities there.

It is probable, however, that the most important
case with which Mr. Lincoln was connected in either
of the Federal courts was the case of Hurd vs. Rock
Island Bridge Company, the trial of which began

118 Ill. 570.
IN THE COURTS 29

September 8, 1857, before Mr. Justice McLean,
who was then a justice of the Supreme Court of the
United States and was one of those who dissented
from the conclusions reached by the majority of
the judges of the latter court in the case of Dred
Scott vs. Sanford.

The counsel on behalf of the plaintiff were Hon.
H. M. Wead of Peoria, Illinois; T. D. Lincoln of
Cincinnati, Ohio, familiarly known as ‘“‘Tim”’ Lin-
coln, one of the ablest and best-known admiralty
lawyers of that day; and Corydon Beckwith of
Chicago, afterwards a judge of the Supreme Court
of Illinois, and at a later date general counsel for
the Chicago, Alton and St. Louis Railroad Com-
pany. The counsel for the defendant were Norman
B. Judd, of Chicago, afterward one of the chief
promoters of Mr. Lincoln’s campaign for the presi-
dency; Joseph Knox of Rock Island; and Abraham
Lincoln.

The case attracted unusual interest, not only be-
cause of the importance of the questions involved
and the rivalry between the city of Chicago and the
river towns, especially St. Louis, but on account
of the eminence of the counsel employed on both
sides. In the issue of the Chicago Daily Press of

September 8, 1857, there appeared the following
editorial: —
30 LINCOLN, THE LAWYER-STATESMAN

The important suit brought by the owners of the
Effie Afton against the Rock Island Bridge Company
opens before the United States District [Circuit]
Court to-day. It will excite much attention among all
in railroad and river interests of the West and North-
west. We have made such arrangements as will secure
for our readers a full synopsis of each day’s proceed-
ings. The evidence is very voluminous and mostly by
depositions. A share, however, will be oral. Messrs.
Wead of Peoria and Lincoln of Cincinnati are the
prominent counsel for the plaintiffs. Messrs. Judd
and ‘‘Abram”’ Lincoln of this city and state appear on
behalf of the bridge company.

It is a singular fact that until after Mr. Lincoln
was nominated for the presidency there were com-
paratively few who knew that his Christian name
was Abraham. Up to that time he habitually signed,
“A, Lincoln,” and it was not uncommon to see his
name in print as “‘Abram Lincoln.” After his nomi-
nation to the presidency he undertook to correct
this very common error. In a letter to Hon. George
Ashmun, chairman of the convention which nomi-
nated him, dated June 4, 1860, he stated: —

It seems as if the question whether my first name is
“Abraham” or ‘‘Abram”’ will never be settled. It is
“Abraham” and if the letter of acceptance is not yet
in print, you may, if you think fit, have my signature
thereto printed ‘Abraham Lincoln.”

It appears from the files of the Chicago Daily
Press that the time of the court was occupied from
 

T. D. LINCOLN
IN THE COURTS 31

day to day until September 20 in the presentation of
the evidence, and that on the morning of Septem-
ber 21, 1857, the arguments were begun. During
the introduction of the evidence questions of law
which arose from time to time were argued by
Messrs. Knox and Abraham Lincoln on behalf of
the defendant and on behalf of the plaintiff by
Messrs. Wead and T. D. Lincoln. Some of these
questions were important and were argued at con-
siderable length by the gentlemen who participated
from time to time in these discussions.

This case was of absorbing interest to the river
towns as well as to those centers of population whose
future prosperity was dependent upon the develop-
ment of railroad transportation. The people of the
country were divided in accordance with local self-
interest. The people of St. Louis, Cincinnati, and
other cities and towns similarly situated believed
that, if the railroad companies were permitted to
build bridges across the navigable rivers of the
country, they would lose the commercial advan-
tages which they had enjoyed from traffic upon the
Mississippi and the Ohio rivers; and the owners of
the steamboats, who, for many years had enjoyed
a monopoly of the transportation of freight from
points west of the Mississippi, foresaw that, if the
railroads were to be allowed to transport freight
32 LINCOLN, THE LAWYER-STATESMAN

from the vast territory west of that great artery
of commerce, across that river and through to the
eastern seaboard, without the expense of reloading
on the banks of the streams over which it must
pass to reach itsdestination, that monopoly would
be destroyed. Hence the interests referred to com-
bined in the case against the bridge company for
the purpose of preventing the building of other
bridges which would further interfere with river
traffic.

The contention of the plaintiff was that the build-
ing of piers in the river constituted an obstruction
to navigation; and while the particular case here
mentioned was a suit to recover damages which
were sustained by the owners of the steamboat
Effie Afton, in consequence of that steamboat hav-
ing been driven by the current, as was claimed,
against a pier of the bridge at Rock Island, it was
hoped by the plaintiff and those in sympathy with
him that such an amount of damages would be
recovered as to make the maintenance of that and
other bridges across the navigable streams unprofit-
able to the railroad companies, thereby compelling
them to unload their freight on the banks of the riv-
ers, transport it across by ferry-boats, and reload
it for shipment to the points of destination. If this
could have been accomplished, the cost of trans-
IN THE COURTS 33

portation by railroad would have been made pro-
hibitive and the steamboat monopoly would have
continued.

For these and similar reasons the war between
the respective interests was relentless, and it is safe
to say that those in control of both sides of the con-
troversy employed the best legal talent obtainable;
so that the case, which was familiarly known as
the ‘“‘Effie Afton Case,” attracted general atten-
tion. The Cincinnati Enquirer called attention to it,
under the headline EFFIE AFTON CASE, as
follows: —

This important case, to which the attention of the
whole country has been directed, will be tried Tuesday
at Chicago. Judge McLean leaves Cincinnati to-day

for the purpose of opening court. The decision will
appear in this paper as soon as ascertained by us.

The same newspaper in its issue of September 17,
1857, contained the following news item: —

The Effie Afton case. This famous case is exciting
much interest in Chicago. The trial is slowly progress-
ing in the United States Circuit Court at that place.
On Friday last the depositions of George Neare and
David Brickell, Pittsburg captains, were read. They
united in saying that the Rock Island bridge was the
greatest obstruction on the western waters, — worse
than the Rapids. The testimony thus far goes to show
that the bridge is a serious obstruction — that the Effie
Afton was worth $50,000 — that she was a. first-class
34 LINCOLN, THE LAWYER-STATESMAN

boat, and that at the time the accident occurred, she
was as well managed as could be.

The trial of this case was not concluded until
September 24. The charge to the jury by Mr. Jus-
tice McLean was published in full in the issue of
the Chicago Daily Press of September 25, and
occupied nearly four columns of that paper. The
same issue contained also the announcement that
the jury_had disagreed, and the following editorial
comment with reference to the case: —

The trial, lasting as it did for weeks, seemed to be
occupying an unnecessary amount of time; but it must
be remembered that grave interests were at stake, not
to be treated in a hasty manner, and worthy of the
most patient and searching investigation. It was fitting
that a case of such magnitude should be heard before
such a court — John McLean, a man of whom not only
the Supreme Court, but the nation, may be proud.
The counsel employed on both sides were among the
most distinguished members of the bar in the country,
and in conducting the case and arguing it before the
jury they fully sustained themselves. Mr. Judd, who
managed the case on the part of the defense, and Mr.
Lincoln of Cincinnati, on the part of the plaintiff, dis-
played untiring industry and great ingenuity. Mr. A.
Lincoln, in his address to the jury, was very successful,
so far as clear statement and close logic was concerned.

The Cincinnati Gazette also contained reports,
from time to time, of the progress of the case,
and finally, on September 29, published copious ex-
IN THE COURTS 35

tracts from the charge of Judge McLean and the
announcement of the disagreement and discharge
of the jury, while the Cincinnati Enquirer of Sep-
tember 30, after giving the important points in the
judge’s charge, stated editorially: ‘‘The charge is
clear and explicit, and how an intelligent jury could
have failed to agree is a matter of mystery.’’ The
Cincinnati newspapers mentioned gave a summary
of the testimony favorable to the river-men, and
their opposition to the railroads was quite as appar-
ent as the fact that the Chicago press was opposed
to the contentions of the river-men.

The intense feeling which had been excited be-
tween the contending interests is revealed by the
Chicago Daily Press of September 26, 1857, which
contained an extended editorial comment upon the
case, in the course of which it said: —

The combination initiated by the St. Louis Chamber
of Commerce at its meeting on the 16th of December
last, one object of which was the rigorous prosecution
of the Effie Afton suit, was represented by three of the
committee at this trial, who carefully supervised the
proceeding during its progress and gave to the looker-
on the impression that Captain Hurd and other plain-
tiffs were mere spectators of the fight. The declaration
on our streets by two members of the committee that
half a million of dollars had been subscribed under

lead of the St. Louis Chamber of Commerce by the
river interests between Pittsburgh and St. Paul to
36 LINCOLN, THE LAWYER-STATESMAN

prosecute this suit to the bitter end, to institute another
proceeding against the bridge company in the name of
one of the company, and to resist the attempt to con-
struct any more bridges across the Mississippi River,
shows such a fanatical intent to accomplish an object
regardless of right or justice that we deem it our duty
thus specifically to direct public attention to it. The
iron bands that connect the East with the West are to
be severed at the Mississippi— every ton of freight that
passes in either direction must have an additional dol-
lar added to its cost to be paid by the consumer, and
all at the dictation of the St. Louis Chamber of Com-
merce. That additional dollar added to its cost might
send the ton of freight to St. Louis instead of Chicago.
Shall it be added? Will the great east and west lines
of transportation and commerce stand idly by and see
that result produced? Shall Iowa, Minnesota, and
Northern Missouri be taxed for all time to come for
the benefit of a’single town on the banks of the Missis-
sippi? The first grapple with that monopolizing spirit
had taken place, and nine men upon the jury stood for
the great principle that rail transportation and traffic
are to be as much protected as in the past up and down
the river and that the rights of commerce must be care-
fully guarded in each instance.

The Missouri Republican, then the leading news-
paper of St. Louis, published daily reports of the
testimony and other proceedings in the case, and
on September 26, 1857, published, in full, Judge
McLean’s charge to the jury.

As stated in the editorial already quoted from
the Chicago Daily Press, the St. Louis Chamber of
IN THE COURTS 37

Commerce was active in the prosecution of the Effie
Afton case. That body had called meetings of the
citizens of St. Louis, which were held at the Mer-
chants’ Exchange in that city, the purpose of which,
as shown in the local newspapers, was to take ac-
tion ‘‘in relation to the bridge at Rock Island and
the obstruction formed by it to the navigation of
the upper Mississippi.’”’ ‘‘ Merchants, river-men and
all others interested in its removal” were requested
to attend. The first meeting was held December 15,
1856, and on the following day resolutions were
adopted at an adjourned meeting, declaring in favor
of the removal of the bridge as an obstruction to
navigation, and appointing a committee to raise
funds, etc. These resolutions were published in the
St. Louis newspapers on the 18th of the same month.

The address of Abraham Lincoln to the jury, the
principal parts of which were published in the Chi-
cago Daily Press, also shows how intense was the
opposition of the river-men. They foresaw in the
bridging of the Mississippi River the death-knell
of the steamboat transportation monopoly which
they had so long enjoyed.

The city of St. Louis was jealous of the young
giant which was destined to become the greatest
railroad center in the world. That city — Chicago
—had then a population of about 100,000, while
38 LINCOLN, THE LAWYER-STATESMAN

St. Louis contained a population of approximately
150,000. The rivalry for position as ‘‘the metropolis
of the West”’ had excited the people of the respec-
tive communities, and continued until Chicago had
so far outstripped the Missouri city that the rivalry
ceased, and each has since been content within its
sphere. But at the time of the pendency of the
“Effie Afton case”’ feeling ran so high that it is not
conceivable that the Rock Island Bridge Company
would have been so unwise as to employ any but
the best legal talent to defend that case.

The record of that trial shows that Abraham Lin-
coln was accorded the most important position
among counsel for the defendant. He made the
closing argument to the jury on behalf of the de-
fendant, and was otherwise active during the trial.
Had he been other than a high-class lawyer, he
would not have been employed as the leading coun-
sel for the defendant, or employed in connection
with that case. His address to the jury was a force-
ful presentation of the contentions of the defendant.
His careful analysis of the plaintiff's claims and of
the evidence introduced at the trial shows also a
thorough familiarity with the questions involved.

At the time of this trial Mr. Lincoln had not the
wide reputation which he afterwards acquired, for
it was not until the following year that he met
IN THE COURTS 39

Senator Douglas in the great debate, and it is
therefore evident that only his standing as a lawyer
led to his employment in this important case.

Prior to October, 1855, the Circuit and District
courts of the United States for Illinois embraced
within their jurisdiction the entire State, which
constituted but a single judicial district, and all the
sessions of those courts for the district were held
at the state capital, the capital being first estab-
lished at Kaskaskia, then at Vandalia, and finally
at Springfield. All the records of the courts were
therefore kept at the capital until October, 1855.
Mr. Lincoln was admitted to the bar of these courts
‘December 3, 1839. Nathaniel Pope was the first
judge of the District Court for the District of Illinois,
and served as such until his death in November, 1850,
when he was succeeded by Thomas Drummond.

In February, 1855, Congress divided the State
into two judicial districts, one of which was desig-
nated as the Northern District of Illinois, to which
Judge Drummond was assigned, to preside at Chi-
cago, while Samuel H. Treat, then a judge of the
Supreme Court of Illinois, was appointed by Presi-
dent Franklin Pierce to preside at Springfield in the
other district, which was designated as the Southern
District of Illinois.

Upon the division of the State by act of Congress,
40 LINCOLN, THE LAWYER-STATESMAN

as above mentioned, all the files and records of cases
which had been instituted in the Circuit and Dis-
trict courts for the District of Illinois prior to Oc-
tober, 1855, were transferred to Chicago, and were,
as before stated, destroyed by the great fire of 1871,
so that the only records of cases in which Mr. Lin-
coln appeared in these courts are those to be found
in the Southern District, the records of which begin
with the date of its organization, October, 1855. But,
unfortunately the dockets do not contain the names
of counsel for defendants, and the files in many cases
have been lost, so that it is impossible to ascertain
who appeared for the defendant in many of the early
cases.

An examination of the files of the Circuit and Dis-
trict courts at Springfield shows, however, that Mr.
Lincoln frequently appeared for the defendant in
those courts. The great number of cases in which he
appeared on behalf of the plaintiff or complainant
warrants the conclusion that his appearance on be-
half of the defense was quite as common.

The docket of the Circuit Court of the United
States for the Southern District of Illinois contains
sixty cases in which he appeared for plaintiff or com-
plainant during the five years preceding his election
to the presidency; and during the same period he
frequently appeared in the District Court for the de-
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ON BEHALF OF DEFENDANT IN PEOPLE ws. ARMSTRONG
‘IN THE COURTS 41

fense in criminal prosecutions brought by the gov-
ernment. He also appeared in that court in a num-
ber of admiralty cases. The cases in which he was an
attorney or solicitor in the United States Circuit
Court consist of a great variety of actions, including
suits involving questions of infringement of patents,
bills in equity, and the common law actions of debt,
covenant, ejectment, assumpsit, etc. The pleadings
in these cases on the part of those for whom he ap-
peared are generally signed with the firm name of
Lincoln and Herndon, but are, with scarcely an ex-
ception, in the handwriting of Lincoln, which fur-
nishes a refutation of Herndon’s statement in his life
of Lincoln,’ that Mr. Lincoln did little of the techni-
cal work of the firm, and paid little attention to de-
tails; for these records clearly indicate that he was
familiar with every detail of such work in every case.
Even the precipe, or direction to the clerk of the
court to issue process, as a rule, will be found to be
in the handwriting of Mr. Lincoln. He must have
been a tireless worker to be able, with all his other
duties, to perform the labor which these records
show was accomplished by him.

Judging from the number of cases in which Mr.
Lincoln appeared as counsel in the Federal courts
for the Southern District of Illinois after the organ-

1 Herndon’s Life of Lincoln, vol. 11, pp. 312, 337.
42 LINCOLN, THE LAWYER-STATESMAN

ization of the court, he must have had a much larger
experience in the court presided over by Judge
Drummond both before and after the division of the
State of Illinois into two districts; but with the ex-
ception of the Effie Afton case and the case of John-
son vs. Jones, frequently referred to as the ‘‘sand-
bar case,” there is no record of any of them, the
court records having been destroyed by fire, as al-
ready stated. Indeed, all that is known about the
case of Johnson vs. Jones is the meager account
which has been given by those more or less familiar
with the incidents of the trial, as the court record is
not in existence.

It is not the purpose to review in this volume the
record of the cases which engaged the professional
attention of Mr. Lincoln in the state courts of origi-
nal jurisdiction. During his career at the bar of
Illinois these courts consisted of county courts, the
jurisdiction of which was limited, and circuit courts
whose jurisdiction was, and still is, general in suits at
law and in chancery as well as in criminal cases,
excepting in the County of Cook, for which, by the
Constitution of 1870, a criminal court, known as the
Criminal Court of Cook County, was created. This
court holds its sessions in the city of Chicago and is
vested with general jurisdiction of all criminal cases
within that county.
IN THE COURTS 43

As a result of the diversified jurisdiction of the
circuit courts, lawyers traveling the circuit tried all
manner of cases in which their services were sought,
and Mr. Lincoln, like other lawyers of his time, was
employed in a great variety of professional work.
The records of the trial courts of Illinois show that in
the number and importance of the cases which he
tried, he stood second to no lawyer of that period.

It has been a matter of surprise to the writer to
hear members of the legal profession, themselves men
of high standing and generally well informed, declare
that Lincoln was not a great lawyer. The opinions
thus expressed have been found to be based chiefly
upon the assumption that he devoted too much time
to political affairs to allow sufficient time for a proper
pursuit of the work of a lawyer, by which alone a
man can become proficient as a member of that
profession which Judge Sharswood declared to be ‘‘a
jealous mistress,’’ who would not permit attention
to other affairs. The opinion above mentioned has
been very general, but it is nevertheless erroneous;
this is doubtless due to the fact that, while much has
been written in relation to Lincoln’s life, his biogra-
phers have said very little upon the subject of his
career at the bar, and that little, with some excep-
tions, has greatly distorted, if not entirely misrepre-
sented the facts.
44 LINCOLN, THE LAWYER-STATESMAN

That Lincoln found time to become the leading
champion of a great cause which concerned the
whole people is indeed surprising when his vast ac-
complishments at the bar are understood; and it
can be explained only on the hypothesis of his un-
ceasing industry, for by that alone could he have be-
come a great political leader and also a recognized
leader of the bar of his State.

It is unnecessary to review his record in the trial
courts in order to establish the fact that Mr. Lincoln
was a great lawyer. The record which he has left in
the Supreme Court of Illinois, as found in the pub-
lished reports of decided cases, affords abundant
proof of this, and that record is honorable in every
respect. It reveals no resort to reprehensible con-
duct of any kind, or conduct in the least degree
calculated to deceive either the court, the jury, or
opposing counsel.

No lawyer could possess higher ideals as to the
ethics of his profession than did Mr. Lincoln. His
superb honesty and fairness in his dealings with all
men are sufficient to refute any charge of chicanery
or resort to subterfuge. Candor was one of the chief
elements of his character, and his contemporaries at
the bar have given abundant testimony in support of
his unyielding devotion to truth and his abhorrence
of fraud or deception. In view of his exalted charac-
IN THE COURTS 45

ter it is remarkable that stories which have attrib-
uted to him conduct unworthy of any honorable
member of the bar should be given currency; and
stranger still is the fact that such stories have been
told by some who have professed great admiration
for Lincoln, and who have recited these fictions as an
evidence of the resourcefulness of their hero at some
crisis which had arisen in the course of the trial of
some case in which he was engaged. The most re-
markable fiction of the class mentioned is that which
purports to recite the facts in relation to the dra-
matic use of an almanac by Mr. Lincoln, during
his defense of William Armstrong, in 1858, in Cass
County, Illinois.

Armstrong (known among his intimates as
“‘Duff’’) was a son of Jack and Hannah Armstrong.
His father, who was the leader of the ‘‘Clary Grove
Boys” and the man with whom Lincoln engaged in
the wrestling match at New Salem, is mentioned in
nearly all biographies of Lincoln. As a result of this
intimacy Jack Armstrong and his family became
stanch supporters of Lincoln and held him in great
respect.

On the evening of August 29, 1857, Duff Arm-
strong had become embroiled with one of his com-
panions named Metzker, on the outskirts of a grove
where a camp-meeting was being held in Mason
46 LINCOLN, THE LAWYER-STATESMAN

County. On the same evening Metzker was struck
on the back of the head with some hard instrument
by a man named Norris, who had been drinking
heavily. Within three days thereafter Metzker died,
and Duff Armstrong and Norris were jointly indicted
on the charge of murder. Armstrong claimed that he
had struck Metzker only with his fist, while the marks
found upon the body showed plainly that at least
two blows, either of which might have caused death,
had been struck with some heavy instrument, and it
was charged that one of them had been struck by
Armstrong with a slung-shot.

Popular excitement ran high in Mason County
and a change of venue was asked on behalf of Arm-
strong. The case was transferred to Cass County,
where it was called for trial in Beardstown, then the
county seat, at the May term of the Circuit Court,
1858, James Herriott, Circuit Judge, presiding. Mr.
Lincoln, learning of the predicament of young Arm-
strong, wrote to his mother, offering his services in
defense of her son, without charge. Jack Armstrong,
father of the young man, died shortly after the ar-
rest. The widow had already retained William
Walker of Havana, Illinois, to defend her son; but
Mr. Walker willingly consented that Mr. Lincoln
should participate in the defense; and Mr. Lincoln’s
offer was gratefully accepted.
 

 

 

 

THE OLD COURTHOUSE, BEARDSTOWN, ILLINOIS, IN WHICH THE
CASE OF THE PEOPLE ws. ARMSTRONG WAS TRIED, NOW USED AS
THE CITY HALL

 

TABLET ON THE FRONT OF THE CITY HALL
AT BEARDSTOWN, ILLINOIS
IN THE COURTS 47

Norris, who was tried separately in Mason County,
had been convicted of manslaughter and sent to
the penitentiary, so that the trial in Cass County
involved the guilt or innocence of Armstrong only,
and the principal witness against him was one Allen,
who testified that at about eleven o’clock on the
evening of August 29, 1857, he saw the accused
strike Metzker with a slung-shot. Lincoln con-
ducted the cross-examination of the witness, Allen,
and in the course of it he asked him how near he was
to Metzker at the time the blow was struck, and
other questions, the answers to which indicated that
Allen was a considerable distance away at the time
— tradition fixes the distance at about 150 feet.

Lincoln then inquired of the witness how at that
distance he was able to see the blow struck at that
hour of the night. Allen replied that he saw it by the
light of the moon. Lincoln caused the witness to
repeat this answer several times, so that there could
be no doubt in the mind of any one as to the state-
ment of the witness. Allen also testified very posi-
tively that the moon was shining brightly at the hour
named.

Among other evidence on behalf of the accused,
Mr. Lincoln introduced an almanac, by means of
which he showed that on the night in question the
moon had just completed its first quarter, that it set
48 LINCOLN, THE LAWYER-STATESMAN

before midnight, and that at the hour named by Al-
len it was so dim, because so near the western hori-
zon, as to render it impossible that Allen could have
seen, by its light, a blow struck by Armstrong. The
result was that the jury disregarded the testimony
of Allen and returned a verdict of not guilty. The
foregoing is a substantially correct version of the
almanac incident.

The apocryphal account of it, however, pictures
Mr. Lincoln as stooping to a piece of chicanery to
deceive the court and jury, which, if true, would
render his conduct worthy of the contempt of all
men, in that it charges him with imposing upon court
and jury, as well as opposing counsel, an almanac of
an earlier year,' which showed that on the night of
August 29, at the hour named by the witness, there
was no moonlight. Thislatter version of the incident
is so absurd and so inconsistent with the character
of Mr. Lincoln that it is surprising that it should
have been believed by any one, and yet there have
been, and doubtless still are, those who profess to
believe it. That it is false is easily proved.

Such an imposition could not have escaped the
notice of the presiding judge and the counsel for the
prosecution, for it is inconceivable that they would
not have carefully examined the almanac before per-

1 Lamon’s Life of Lincoln.
IN THE COURTS 49

mitting it to be presented to the jury, and such ex-
amination would have revealed the attempted fraud.
That such an examination was in fact made is shown
by an account of the incident written by James L.
King, librarian of the State Library of Kansas, which
was published in the North American Review for the
month of February, 1898. Mr. King there states
that Abram Bergen, a lawyer of high standing at the
Topeka bar, was present at the trial of Armstrong.
He was at that time a young man but recently ad-
mitted to the bar. As Lincoln was then well known
as one of the leaders of the bar of Illinois, it was but
natural that young Mr. Bergen should pay close at-
tention to everything which he said or did, and that
the same should be deeply impressed upon his mind;
for two years later, while the incidents of the trial
must have been fresh in Bergen’s mind, Lincoln was
the most-talked-of man in the country by reason of
his nomination to the presidency.

Mr. King, in the account mentioned, states that
Mr. Bergen told him that after the production of the
almanac by Mr. Lincoln, the counsel for the prose-
cution produced another almanac for the year 1857,
for comparison with the one introduced by Lincoln,
and that both agreed as to the position of the moon
on the night of August 29 of that year.

The most complete answer, however, to the dis-
50 LINCOLN, THE LAWYER-STATESMAN

torted version of the incident mentioned will be
found in an examination of any almanac for the year
1857. ‘‘The Old Farmer’s Almanac”’ for that year,
which has been examined by the writer, and a copy
of which is before him while writing these lines, gives
the phases of the moon for the period in question.
From this it appears that the moon completed its
first quarter on August 27, 1857, and that on the
evening of August 29 of that year, the moon set
at twenty-one minutes before twelve o’clock, or at
eleven o’clock and thirty-nine minutes.

The time of the rising and the setting of the sun
and moon is the same in the same latitude every-
where if measured by the time of the day or night in
any particular locality. To illustrate: if the moon
rises at seven o’clock in New York, measured by
New York time, it will rise on the same evening in
Chicago at seven o’clock measured by Chicago time,
but at eight o’clock measured by New York time;
for although the time of its rising in Chicago is ac-
tually one hour later than in New York, there being
one hour’s difference in the time as measured by the
clock, the hour of its rising is identical. That this is
true is shown by the ‘‘ Chicago Daily News Almanac”’
for 1914, by which it appears that on August 29, 1914,
the moon set in New York and throughout northern
Illinois at eleven o’clock and forty-three minutes.
 
 

 

 

    
   

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a CALCULATED ON A NEW AND IMPROVED. PLAN,
“FOR THE YEAR OF OUR LORD

— dT 8563

pendence.
Firrep FOR Boston, BUT WILL ANSWER FOR ALL THE New Esciaxp Srarns.

Containing, besides the lar,

as great a variety as any other Almanack of

NEW, USEFUL, AND ENTERTAINING MATTER.

God of the sunshine ! God of the storm!
Thou makest the seasons Thy will to perform ;
The Summer, the Autuzn, the Winter, the Spring,
Thy goodness proclaim, Thy praises do sing.
. Ever calmly resigned, let us bow to Thy will,
‘And Thine arm shall sustain us, Thy care guard us pat
J NON.

  

BOSTON:

  

Sold by the Booksellers and Traders throughout New England. — 7

Bi d, rding to act of Congresa, in the year 1856, by Hickling, Swan & Broww,
: ee the Clerk's Office of the District Court of the District of ‘Muatachusetta,

  

 

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FACSIMILE OF TITLE PAGE OF ALMANAC FOR 1857

FARMER’S ALMANACK,

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ge number of Astronomical Calculations
and the Farmer’s Calendar for every month in’the year,

 
 
   

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IN THE COURTS 51

From this it will be seen that Mr. Lincoln was
correct in his argument that because the moon had
set before midnight on the evening of August 29,
1857, it was so near the western horizon at eleven
o’clock on that evening, that it could not have fur-
nished sufficient light to have enabled the witness,
Allen, to see the striking of a blow by Armstrong
at the distance at which he claimed to have seen it
struck.

Some doubt has been expressed as to whether an
almanac was in fact introduced in evidence during
the trial. There is abundant evidence, however,
that Mr. Lincoln did introduce the almanac.

The indictment in the case was returned to the
October term, 1857, of the Circuit Court of Mason
County and is still on file in the office of the clerk
of the Circuit Court of Cass County. This indict-
ment charges that Norris struck “ with a certain piece
of wood about three feet long James Preston Metz-
ker on the back of the head,” and that ‘William
Armstrong, with a certain hard metallic substance
called a slung-shot,”’ struck Metzker “‘in and upon
the right eye.” On file in Cass County there are
also the written instructions given on behalf of Nor-
ris at his trial in Mason County, which refer to the
time of night and the distance of the witness Allen
from Metzker when the blow was struck by Norris;
52 LINCOLN, THE LAWYER-STATESMAN

but neither the time nor the distance is stated in the
instructions. This indicates that there was evidence
introduced on both these questions at the trial of
Norris, and as Walker and Lacey of Havana were
attorneys for Norris and as Mr. Walker was associ-
ated with Lincoln in the defense of Armstrong, there
is no doubt that these same questions arose in the
defense of the latter.

Anaccount of this famous trial, written by the late
J. M. Gridley of Virginia, Illinois, and published by
the Illinois State Historical Society in 1910, contains
an extract from a letter received by Mr. Gridley
from John T. Brady, who served on the jury in the
trial of Armstrong. In this letter Mr.Brady said: —

The almanac that was introduced was examined
closely by the court and the attorneys for the state,
and the almanac showed that the moon at that time
was going out of sight; was setting; and the almanac
was allowed to be used as evidence by Judge Herriott.

It will be noted that this statement by Mr. Brady
is in harmony with the account given by Mr. King
in the North American Review before mentioned.

That Mr. Lincoln did not rely wholly upon his
ability to discredit Allen by the introduction of the
almanac and thereby acquit his client is evident
from an examination of two instructions which were
given on behalf of Armstrong, both of which, now
 

 

 

 

 

 

 

 

 

 

     

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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FACSIMILE OF CALENDAR FOR AUGUST, 1857, AS IT APPEARS
IN THE FARMER'S ALMANAC
IN THE COURTS 53

among the files in the case, are in the handwriting of
Mr. Lincoln, and on the margin of each of which the
word ‘‘Given”’ is written in the handwriting of Judge
Herriott, in conformity with the statute of Illinois.
These instructions are as follows: —

The court instructs the jury, —

That if they have any reasonable doubt as to whether
Metzker came to his death by the blow on the eye, or
by the blow on the back of the head, they are to find
the defendant ‘‘Not guilty” unless they also believe
from the evidence, beyond a reasonable doubt, that
Armstrong and Norris acted by concert, against Metzker,
and that Norris struck the blow on the back of the
head.

That if they believe from the evidence that Norris
killed Metzker, they are to acquit Armstrong, unless
they also believe beyond a reasonable doubt that Arm-
strong acted in concert with Norris in the killing, or
purpose to kill or hurt Metzker.

The purpose of these instructions was evidently
to direct the attention of the jury to the reasonable
doubt which existed as to which of the two blows
inflicted upon Metzker caused his death, in the ab-
sence of proof which would satisfy the jury ‘‘ beyond
a reasonable doubt that Armstrong and Norris acted
by concert,’’ and also to direct the attention of the
jury to evidence that Norris struck the blow which
caused the death of Metzker; because, if the jury
believed from the evidence that Norris killed Metz-
54 LINCOLN, THE LAWYER-STATESMAN

ker, that fact would entirely exonerate Armstrong
unless the latter acted in concert with Norris. The
facts here stated are sufficient to refute any charge
of trickery on the part of Mr. Lincoln in connection
with the Armstrong case.

The fact is that so little is known of Mr. Lincoln’s
career as a lawyer that there has existed among
many men in the legal profession a tendency to be-
little his standing at the bar and to attribute to him
acts and motives of which he never dreamed, and
even to make it appear that he had not a very high
appreciation of ethics or professional honor.

The writer has heard the charge made that Mr.
Lincoln had, in one case, after having been employed
as an attorney by one party to a law-suit, asked to be
relieved from rendering the service for which he had
been employed in order that he might accept a re-
tainer from the other party in the same case. This
charge is based entirely upon a letter written by Mr.
Lincoln November 25, 1858, to Joel F. Matteson, a
former governor of Illinois, in which he said:!—

Last summer, when a movement was made in court
against your road, you engaged us to be on your side.
It has so happened that so far we have performed no
service in the case, but we lost a cash fee offered us on
the other side. Now, being hard run, we propose a little

1 Life and Works of Abraham Lincoln, Centenary Edition. “Let-
ters,”’ vol. II.
IN THE COURTS 55

compromise. We will claim nothing for the matter just
mentioned if you will relieve us at once from the old
matter at the Marine and Fire Insurance Company,
and be greatly obliged to boot. Can you not do it?

It will be noted that Mr. Lincoln did not ask to
be relieved from rendering service in the case first
mentioned in which his firm (Lincoln & Herndon)
had “‘lost a cash fee offered... by the other side”’;
but he expressed a wish to be relieved from another
matter, namely: “the Marine and Fire Insurance
Company” matter. The letter contains nothing
which justifies the conclusion that he wished to ac-
cept employment against Matteson. He said, ‘‘ Now,
being hard run,” etc., but whether from too much
work or from lack of funds or some other cause does
not appear. The letter to Matteson was written soon
after the close of the debate with Douglas, and it is
probable that the accumulation of other matters
during his absence from Springfield while touring the
State with Douglas had caused him to be “hard
run”’ for time to attend to the ‘Marine and Fire
Insurance Company” matter referred to, and hence
his desire to be relieved from giving it attention. By
way of inducement he stated that, by accepting em-
ployment in the case first mentioned he had lost a
cash fee while he had rendered no service to Matte-
son in that case, thereby giving a reason why Matte-
156 LINCOLN, THE LAWYER-STATESMAN

son should be willing to relieve him from the duty of
continuing in charge of the other matter mentioned.
If Lincoln was ‘hard run”’ for money, why should
he be desirous of relinquishing the opportunity to
earn fees in the Marine and Fire Insurance Company
matter? It should also be noted that Mr. Lincoln
declared that he had ‘‘Jost a cash fee offered”’ by the
other side. If he had expected to accept a retainer
on the other side of the case, he would not have said
that the fee had been lost, for it would not have been
lost as he would have received it as soon as he was
able to accept the employment. It should be further
noted that the letter contains nothing from which it
can be inferred that the other party to the case was
ready to employ him at that time, nor is there any-
thing in it to justify the conclusion that he would
have accepted such employment if offered.
Herndon, in his life of Lincoln, relates an account
of Mr. Lincoln’s first appearance in the Supreme
Court of Illinois, as given to him by Justice Samuel
H. Treat of that court, as follows: Mr. Lincoln
stated that he appeared for the appellant and was

ready to proceed with the argument. He then
said: —

This is the first case I have ever had in this court,
and I have therefore examined it with great care. As
the court will perceive by looking at the abstract of
IN THE COURTS 57

the record, the only question in the case is one of au-
thority. I have not been able to find any authority to
sustain my side of the case, but I have found several
cases directly in point on the other side. I will now give
these authorities to the court and then submit the case.

This same story has been related in substance by
others of Lincoln’s biographers, but nevertheless it
is unworthy of belief. Herndon, however, is the only
writer who gives any definite authority for it and
that authority no other than a distinguished judge
of the court in which the incident is said to have
taken place. The inference is that the occurrence
took place in the presence of Judge Treat, who was
not elected a justice of the Supreme Court until
February 15, 1841. Mr. Lincoln had argued the case
of Scammon vs. Cline before that court at the De-
cember term, 1840. That, apparently, was his first
case in the Supreme Court of Illinois, but in that
case he did not appear on behalf of the appellant,
but for the appellee, and with him was associated
another lawyer, so the incident could not have hap-
pened in that case.

The first case which Lincoln had in the Supreme
Court, after Justice Treat became a member of that
court, was the case of Cannon vs. Kinney, which he
argued at the July term, 1841, soon after Justice
Treat took his seat on the bench. In this he appeared
alone for the plaintiff in error, and presented a very
58 LINCOLN, THE LAWYER-STATESMAN

elaborate brief and argument and cited numerous
authorities in support of his contentions, as appears
from the published report of the decision of the case.
These contentions of Mr. Lincoln on behalf of the
plaintiff in error were sustained and the judgment of
the Circuit Court was reversed, from which it is evi-
dent that the alleged incident could not have taken
place in this case.

The truth is that this so-called incident never oc-
curred, for Mr. Lincoln would not have taken an
appeal to the Supreme Court in any case in which the
authorities were all against him unless he believed
that those authorities were not sound or did not cor-
rectly state the principles of law involved; and under
such circumstances he would have argued the case
from first principles and used his best endeavors
to convince the court that the adverse authorities
should be disregarded. It seems apparent that the
memory of Mr. Herndon or that of Judge Treat was
at fault, in that they connected Mr. Lincoln with an
experience which might have happened in relation
to some other lawyer, but which certainly did not
happen in any case with which Mr. Lincoln was
connected.

Many of the stories relating to cases supposed to
have been tried by Mr. Lincoln, which have been
told by his biographers and others, cannot now be
IN THE COURTS 59

verified or disproved. Some of them may be true,
but many bear evidence that they are pure fiction.
It is impossible, with certainty, to separate the true
stories from the false in every instance, for the rec-
ords and files cf cases, other than such as found their
way into the Supreme Court, contain nothing more
than the formal documents. There were in those
days no stenographic reports of the proceedings, and
accounts given after the lapse of years and solely
from memory are not always reliable, however hon-
est the narrator may be. Sufficient has been said
here, however, to prove that, like many other great
men, the reputation of Mr. Lincoln has suffered for
the sins of his biographers.

Mr. Lincoln’s high standing as a lawyer will suffi-
ciently appear from a review of his work in the courts
of last resort of the State of Illinois and the nation.
The first volume of the reports of decisions of the
Supreme Court of Illinois was compiled by Sidney
Breese, afterward one of the judges of that court, and
was published less than six years before Mr. Lin-
coln’s admission to the bar. It contains all the de-
cisions of the court prior to and including those ren-
dered at the December term, 1831, with the exception
of those rendered at the December term, 1821, which
were destroyed with the burning of the building in
which the records of the court were kept. In the
60 LINCOLN, THE LAWYER-STATESMAN

second volume of the reports, the reporter, Mr.
Scammon, declares that ‘‘In many cases, from the
neglect of counsel to sign their names to their ab-
stracts [a summary of the record of the proceedings
in the trial court], and from the manner in which the
docket is kept, it has been difficult to ascertain with
precision who appeared as counsel; mistakes have
doubtless occurred in this particular.” This volume
contains all of the opinions rendered after the date of
the previous volume to and including the December
term, 1839, a little more than two and one half years
after Mr. Lincoln’s admission to the bar. While the
case of Scammon vs. Cline, the particulars of which
will be hereafter stated, is the first case in which his
name appears in the Illinois Supreme Court Re-
ports, it is possible that he may have appeared as
counsel in one or more cases prior to that time.
Some of Mr. Lincoln’s biographers have sought to
make it appear that he refused to take advantage of
a so-called technicality in order to win a case. This
view, however, is not borne out by the record, for
while he possessed many attributes which all admit
are above and beyond those possessed by ordinary
mortals, as a lawyer he seems to have been no less
human than other honorable members of the pro-
fession; and while truth requires that it be said that
he took no mean advantage of his professional breth-
IN THE COURTS 61

ren, he did not hesitate to press upon the attention
of the court any legitimate advantage which the
record of the case might furnish.

The point upon which the plaintiff was defeated
in the Circuit Court of Boone County in the case of
Scammon vs. Cline, already mentioned, was of this
character, as the merits of the case were not disposed
of in either the Circuit Court or the Supreme Court,
but the decision of the former was reversed on ap-
peal. The case was remanded to the Circuit Court
for trial on the merits, notwithstanding the conten-
tion of Mr. Lincoln that the plaintiff, by taking his
appeal from the Justice of the Peace to the Circuit
Court of Boone County, instead of to the Circuit
Court of Jo Daviess County, had lost his right toa
trial of the case in the Circuit Court, and that there-
fore the decision and judgment of the Justice of the
Peace should stand as final.

Another case which was decided in Mr. Lincoln’s
favor on a technical point raised by him was the case
of Maus vs. Worthing, 4 Ill. 26, which was an ap-
peal to the Supreme Court from the Circuit Court
of Tazewell County. Mr. Lincoln represented the
appellee and presented a motion in the Supreme
Court to dismiss the appeal on the purely technical
ground that the appeal bond filed in the case was
signed on behalf of the surety by his agent whose
62 LINCOLN, THE LAWYER-STATESMAN

authority, though in writing, was not under seal, the
contention of Mr. Lincoln being that as the bond it-
self was required to be under seal, the authority of
the agent to sign it on behalf of his principal must
also be under seal. This motion made by Mr. Lincoln
was sustained by all of the judges with the exception
of Justice Breese, who rendered a very vigorous opin-
ion in which he took occasion to say that he could not
yield up his judgment in any case because others had
decided a point in a particular manner unless he
could see the reason of the decision; that he could
see none in that case, and believing, as he did, that
the purposes of justice ‘‘are not at all subserved by
an adherence to such antiquated rules and unmean-
ing technicalities,’ he refused to concur with the
majority of the court. He then proceeded to say
that several of his brother judges coincided in the
views which he expressed, but believing the rule laid
down in the majority opinion to be the law, they con-
sidered themselves bound by it, notwithstanding its
unreasonableness; but he was of the opinion that if
the alleged reason is absurd, it should not bind the
court.

The files and records in many of the cases in which
Mr. Lincoln appeared in the courts of first instance
prove that he was no less inclined to take advantage
of a technical defense than any other member of the
IN THE COURTS 63

bar whenever the interests of his client seemed to
justify that course. That he did so is no reflection
upon his desire that justice be done in every instance,
for the very purpose of the establishment of techni-
cal rules of procedure is the proper administration of
justice, and without such rules the instances of in-
justice under the forms of law would be multiplied.

Abraham Lincoln appeared as counsel in the Su-
preme Court of Illinois (the highest court of the
State) in one hundred and seventy-five cases, a rec-
ord rarely equaled by any lawyer, even at the present
time. The ninth and tenth volumes of the reports
contain decisions in cases submitted during the period
beginning with the December term, 1847, and ending
with the June term, 1849. In November, 1846, Mr.
Lincoln was elected a member of Congress and he
entered upon his duties in December, 1847. That his
name does not appear as counsel in either of these
volumes is doubtless due to that fact, because he
appeared in seventeen cases reported in volume 8,
in six cases reported in volume 11, and in thirteen
cases reported in volume 12 of the reports. Again,
volume 20 contains no cases in which his name ap-
pears as counsel. The last mentioned volume con-
tains the opinions in cases submitted in 1858, which
was the year of the great debate with Douglas. The
64 LINCOLN, THE LAWYER-STATESMAN

absence of Mr. Lincoln’s name from cases submitted
to the Supreme Court during the terms of the court
mentioned reveals the singleness of purpose which
possessed him in every undertaking, and indicates
that he gave to whatever task he entered upon his
undivided attention.

If we subtract the three years referred to from the
period between the date of his admission to the bar
of Illinois and his inauguration as President, the en-
tire period of his work at the bar covers but twenty-
one years, and the average annual number of his
cases in the Supreme Court of Illinois is eight and
one-third. In addition to his record in the State
Supreme Court he appeared as counsel in two cases
in the Supreme Court of the United States." He was
admitted to the bar of that great tribunal on March
7, 1849.

Mr. Lincoln appeared alone as counsel in the Su-
preme Court of Illinois in fifty-one cases. Of these the
decision was in his favor in thirty-one. He appeared
as associate counsel in one hundred and twenty-
four cases, in which the parties in whose behalf he
appeared were successful in sixty-five. Another fact
shown by this same record furnishes additional evi-
dence that he was a sound lawyer. Of twenty-three
cases in which he alone appeared for the appellant

1 See Nos. 176, 177; Appendix A.
IN THE COURTS 65

or plaintiff in error, he was successful in fourteen,
while in seventy-one cases taken to that court by
parties represented by him, in which other counsel
were associated, his clients were successful in thirty-
seven, and of nineteen cases taken to the same court
on appeal by Lincoln and his partner, Herndon, rever-
sals of the decisions of the trial court were secured
in ten cases. It is proper to assume that the litiga-
tion in the cases where he was associated with others
than Herndon was not under his control, as he was
never a senior partner in any other firm of law-
yers.

From this record it would seem to be self-evident
that he did not advise an appeal to the Supreme
Court in any case unless there was strong ground for
believing that error had been committed by the trial
court. The record proves that he possessed a thor-
ough knowledge of the law and the ability to impress
the court with his view of the application of legal
principles. In his study of the law, like everything
else which he undertook, he was thorough, and al-
though he was self-taught, his comprehensive mind
had grasped and retained a knowledge of the prin-
ciples of the law as completely as if he had sat at the
feet of the most learned men of the profession. He
read thoroughly the standard works of his time upon
every branch of jurisprudence, and while in attend-
66 LINCOLN, THE LAWYER-STATESMAN

ance upon the courts during the early years of his
professional career, he listened to the arguments of
others learned in the law, and the crumbs of knowl-
edge gleaned in this way found lodgment in his fer-
tile mind and doubtless instilled in him early in his
professional career a determination to press forward
until he should attain such high professional stand-
ing as would receive general recognition. He knew
that only by arduous labor could he hope to suc-
ceed in his profession, and his remarkable success at
the bar affords ample evidence that he never abated
his efforts to acquire by unremitting toil the mastery
of every branch of jurisprudence.

In a letter written by him to J. M. Brockman, Mr.
Lincoln said, in reply to an inquiry as to the best
mode of obtaining a thorough knowledge of the
law, ‘‘The mode is very simple, though laborious
and tedious. It is only to get the books and read
and study them carefully. Begin with Blackstone’s
‘Commentaries,’ and after reading it through, say
twice, take up Chitty’s ‘Pleadings,’ Greenleaf’s
‘Evidence,’ and Story’s ‘Equity,’ etc. Work, work,
work is the main thing.” It was by this method that
Mr. Lincoln himself became one of the leaders of the
Illinois bar, for such indeed he was at the time of his
election to the presidency, as the record which he has
left, together with the testimony of the distinguished
IN THE COURTS 67

men who were his intimate associates during his pro-
fessional career, clearly proves. In all-which consti-
tutes the really great lawyer, he stood in the front
rank of the profession at a time when many men of
renown battled for supremacy at the bar of Illinois;
and he, who, by common consent, was classed as the
equal of the other distinguished lawyers named in
these pages, must be given high place among the
lawyers of his generation.

A review of Mr. Lincoln’s cases in the Supreme
Court of Illinois alone will convince any one that he
was one of the ablest lawyers of his time, and at the
time of the repeal of the Missouri Compromise he
had made such progress in his professional career
that had he not then laid aside his professional labors
there is no reason to doubt that he would have be-
come known throughout the country as a profound
lawyer as well as a great advocate. But when his
country demanded his services in that trying hour;
when he saw the determination of the supporters of
slavery to spread that institution over the free soil of
the nation, he left to others the pursuit of the calling
of his choice, at a time when that calling seemed
more than ever inviting, and when greater profes-
sional renown was easily within his grasp, to become
more than ever before the champion of human free-
dom. Before the end of his life this lawyer of Illinois
68 LINCOLN, THE LAWYER-STATESMAN

became the emancipator of a race and the great
restorer of the union of the states.

The work of Abraham Lincoln, the lawyer, and
the record which he made by years of devotion to his
profession were, in consequence of his unselfish de-
votion to the cause of the Republic which he loved,
soon forgotten because overshadowed by the greater
labors and accomplishments of Abraham Lincoln, the
profound statesman and the savior of his country.

Had he lived to witness the realization of that
vision which he saw and so beautifully expressed in
his first inaugural address when ‘‘ The mystic chords
of memory stretching from every battlefield and
patriot grave, to every living heart and hearthstone
all over this broad land” should ‘swell the chorus of
the Union,” it is believed that he would have proved
himself the greatest constitutional lawyer of the
nineteenth century, and many of the mistakes and
horrors of the Reconstruction period would have
been unknown to our country’s history. He would
have proceeded “with malice toward none, with
charity for all’”’ to ‘bind up the nation’s wounds,”
and by constitutional government many of the con-
flicts which have left a blot upon the escutcheon of
our national honor would have been avoided, and as
a result jewels of still greater brilliancy would have
decked the brow of this greatest ruler of modern
IN THE COURTS 69

times, if not the wisest ruler of any age, for no one
ever wielded the scepter of arbitrary power with
greater moderation than did he. No chief executive
of any nation ever manifested a greater reverence for
the constitution and laws of his country or revealed
so completely by every official word and act a firm
belief in the great political truth that the Republic
over whose destinies he was called upon to preside
was intended to be and should be in fact, so far as he
could make it such, ‘‘a government of laws and not
of men”’ and dedicated to that exalted ideal, ‘‘Lib-
erty regulated by law.”

A list of all the cases with which Mr. Lincoln was
connected in the Supreme Court of IIlinois and the
Supreme Court of the United States, including a
short summary of each case, will be found in Ap-
pendix A. The last case in which he appeared in the
state court was the State of Illinois vs. The Illinois
Central Railroad Company, in which the State
sought to recover certain taxes claimed to be due
from the company. The amount involved was in ex-
cess of one hundred and thirty-two thousand dollars.
The docket of the Supreme Court shows that this
case was argued orally by Stephen T. Logan on be-
half of the State and by J. M. Douglas and Mr. Lin-
coln on behalf of the railroad company on January
12, 1860, and that at the conclusion of the arguments
70 LINCOLN, THE LAWYER-STATESMAN

the court took the case under advisement. The
court was then composed of a chief justice (John D.
Caton) and two associates judges (Sidney Breese
and Pinkney H. Walker). The decision was not ren-
dered until the November term, 1861.

Mr. Lincoln was engaged in some cases in the
courts of first instance after the argument of the case
above mentioned. He tried at least one case of
importance in the United States Circuit Court at
Chicago shortly before his nomination to the presi-
dency. His career at the bar practically closed when
he received that nomination, but the skill in diplo-
macy and habits of thought and action acquired by
him in the study and practice of his profession were
continually manifest as he was called upon to decide
the greater issues which involved the life of the Re-
public.

Much has been written about Mr. Lincoln’s con-
nection with the Illinois Central Railroad Company
and the suit which he brought against that company
to recover his fees for services in the case of McLean
County against it. The contention of the officers of
that company has always been that the suit by Mr.
Lincoln was in every respect friendly and that there
was no real contest over the matter, while others
have sought to make it appear that these same offi-
cers sought to belittle the services rendered by Mr.
IN THE COURTS 71

Lincoln. The version of the officers of the company,
including James F. Joy, its general counsel at that
time, is probably correct, for had there been any
serious disagreement between Mr. Lincoln and the
officers or general counsel as to the matter in ques-
tion, it is not probable that the company would have
employed him in the suit of the State of Illinois,
which, as we have seen, he argued before the Su-
preme Court, in January, 1860, nearly five years after
the opinion of the court was rendered in the case of
the Illinois Central Railroad Co. vs. McLean County.
Between the time of the decision of this case at the
December term, 1855, and January, 1860, he had
appeared for that railroad company in the Supreme
Court in the Morrison case and also in the Hays
case, both of which were decided at the December
term, 1857. These facts indicate that there had been
no rupture between Mr. Lincoln and the company.

One writer has solemnly stated that Mr. Lincoln’s
declaration or complaint filed in this case “goes far
to demonstrate that the defendant (Illinois Central
Railroad Company) did refuse to pay his charges”
for the reason that ‘‘this document, which is in his
own handwriting, after setting forth his claim for
$5000,”’ further states that ‘‘the said defendant
(although often requested so to do) has not as yet
paid said sum of money or any part thereof, but so to
72 LINCOLN, THE LAWYER-STATESMAN

do has hitherto wholly neglected and refused and still
does refuse’’; while every lawyer familiar with the
forms of common-law pleadings knows that this lan-
guage is nothing more than the form of words re-
quired to be used in every declaration in an action of
assumpsit, such as the suit in question, even when it
is intended that judgment shall be entered on the
confession of the defendant.

Herndon’s ‘‘Life of Lincoln” has done much to
create an impression that Mr. Lincoln was lacking
in many of the elements of a great lawyer; but the
record made by Mr. Lincoln in cases with which
Herndon had no connection conclusively proves
that the criticisms of the latter are entirely unwar-
ranted. In the face of those great achievements
which the evidence reveals, it is rather surprising
that such a mixture of contradictory statements
should have emanated from the pen of one whose re-
lations with Mr. Lincoln must have been very inti-
mate. That Herndon did not comprehend his great
law partner and that he underestimated his great-
ness as a lawyer must be apparent to any one who
will take the trouble to examine the available records
of his career at the bar. That much of the actual
preliminary labor of preparing cases for trial was
done by Mr. Herndon and others in Mr. Lincoln’s
office may be true, for such is the case with most of
. IN THE COURTS 73

the great lawyers everywhere. The best evidence of
greatness in any lawyer is the ability to take up the
matter thus prepared, on short notice to grasp the
points in the case and, by a speedy analysis, to com-
prehend all that is important in the prepared case,
to present the points at issue forcibly and sustain
them by argument upon the trial. In other words,
great lawyers generally prefer to leave the drudgery
of the office to the junior counsel and confine their
labors to reflection upon the questions at issue and
the method to be followed upon the trial. Mr. Hern-
don seems to have concluded that, because Mr. Lin-
coln left some, perhaps many, of the details of the
office work to himself and others, he sometimes en-
tered upon the trial of cases without due prepara-
tion; but his record both in the trial courts and in
the Supreme Court reveals no lack of preparation in
any case.

That the clients of the office of Lincoln & Herndon
placed their dependence upon Mr. Lincoln and not
upon his partner is evident from the fact that during
the two years of the former’s service in Congress,
Mr. Herndon had but two cases in the Supreme
Court, one of which will be found in the 9th volume
of the state reports and the other in the 1oth vol-
ume. The case first mentioned was a writ of error
sued out by him on a judgment against his client for
74 LINCOLN, THE LAWYER-STATESMAN

less than twenty-one dollars and costs, and the other
a similar writ of error sued out on a judgment in
favor of his client in the Circuit Court for four dol-
lars and ten cents and costs, which was reversed by
the Supreme Court.

In view of these facts, it should occasion no sur-
prise that Mr. Herndon, as he himself said,1 expressed
to Mr. Lincoln his wish that the partnership between
them should continue after his return from Washing-
ton on the completion of his term of service in Con-
gress. Mr. Lincoln’s name does not appear in con-
nection with either of the cases of which mention is
here made, but the name of W.H. Herndon appears
as counsel in both cases. In the 20th volume of the
reports, which contains the cases submitted during
the year of the Lincoln-Douglas debates, the name
of Mr. Herndon does not appear as an attorney in
any case. In view of the misleading statements con-
tained in his work, justice to the memory of Mr.
Lincoln demands that these facts and others set
forth in this volume should be presented. If any-
thing further is required to show that Mr. Lincoln
was entirely familiar with the technical work of his
profession, the reader will find sufficient evidence in
the fac-simile copies of documents in his handwriting
which appear in Appendix B.

1 Herndon’s Life of Lincoln, vol. 11, p. 307.
IN THE COURTS 75

Some of the cases in which Mr. Lincoln appeared
as an attorney in the Supreme Court are of more
than passing interest. The case of Bailey against
Cromwell is of this character. This was a suit
brought in the Circuit Court of Tazewell County on
a promissory note given by Bailey to one Cromwell
for the purchase price of a negro girl sold by Crom-
well to Bailey. The attorney for Bailey in the Cir-
cuit Court was William H. Holmes, who filed several
defenses on behalf of his client, among which were
special pleas, in which it was set forth that the note
sued on was given for the purchase price of a negro
girl who had been, at the time the note was given,
represented by Cromwell to Bailey to be a slave and
servant when, in fact, she was free; that Cromwell
had agreed with Bailey at that time that he would
furnish Bailey with proof that the girl was in fact a
slave, and that as such Cromwell had the right to
make the sale, or, in other words, that Cromwell
agreed to furnish Bailey with proper evidence of his
title to the property sold to Bailey, but that he had
failed to show such title and that the presumption of
law in Illinois was that the girl was free and not a
slave; that in the absence of proof that she was a
slave, there was no consideration for the promise to
pay contained in the note, and that for want of such
consideration the note was void. Judgment was
76 LINCOLN, THE LAWYER-STATESMAN

rendered on the note against Bailey in the Circuit
Court for $431.97 and costs, from which an appeal
was taken by Bailey to the Supreme Court, where he
was represented by Mr. Lincoln who secured a re-
versal of the judgment of the Circuit Court.

The Supreme Court found that the evidence
showed that the consideration for the note was the
sale of the negro girl, and that the presumption of
law in [llinois was that all persons were free, regard-
less of color; that the sale of a free person was illegal,
and that there being no proof to rebut the legal pre-
sumption that the girl was free, there was no valid
consideration shown for the note.

It has been often stated by biographers of Lincoln
that the court held in this case that slavery could
not be allowed to exist in Illinois. This is an error,
as the court held only that there was no proof that
the girl was the slave of Cromwell at the time of the
attempted sale to Bailey, and that in the absence of
such proof the presumption that she was free must
prevail.

The appearance of Mr. Lincoln in this case was his
fourth appearance before the Supreme Court within
a little more than four years. While there is no
means of determining just what authorities he cited
or what line of argument he followed, the issues
formed by the pleadings in the case indicate that the
IN THE COURTS 77

question as to whether under the Ordinance of 1787
slavery could exist in Illinois was not involved in the
case, and no mention of that ordinance is made in
the opinion of the court. Many of Lincoln’s biogra-
phers declare that in the argument of the case Mr.
Lincoln called the attention of the court to the ordi-
nance and to the constitution adopted by the State
of Illinois in 1818, both of which contained prohibi-
tions against slavery; but as the court in the opinion
rendered made no reference to the ordinance or the
constitution, it seems unlikely that either entered
into the decision.

The case of Turley vs. Logan County, in which
Mr. Lincoln represented the defendant county, was
very important at the time it was decided, as it in-
volved the right to test the validity of an act of the
legislature by showing by reference to the journal of
the legislative body that the act was not passed by a
constitutional vote. The case also involved the ques-
tion of the method of changing the location of a
county seat. These were new questions in IIlinois at
that time, and Mr. Lincoln’s contentions were sus-
tained on both questions involved, and the decree
which he obtained in the Circuit Court upholding
the act in question was affirmed.

The case of the Illinois Central Railroad Com-
pany vs. McLean County has been frequently re-
78 LINCOLN, THE LAWYER-STATESMAN

ferred to as the most important case with which Mr.
Lincoln was ever connected. That this was a very
important case is not denied. It involved conse-
quences which were far-reaching, namely, the con-
stitutionality of the act of the legislature exempting
property of the railroad company from taxation in
consideration of the payment of a fixed proportion
of its earnings to the State. The contentions of Mr.
Lincoln and those associated with him on behalf of
the company were sustained by the Supreme Court
and the decision has been of great value to it, but
in the principles involved the case was of no greater
importance than the case of The State of Illinois
vs. Illinois Central Railroad Company, the case of
Illinois Central Railroad Company vs. Morrison,
and Hurd vs. Rock Island Bridge Company, and
many others which might be mentioned.

Another interesting case in which Mr. Lincoln
appeared in the Supreme Court was that of Isaac
Smith vs. John H. Smith (shown as No. 161 in Ap-
pendix A), as it involved the recovery of an election
bet growing out of the defeat of Millard Fillmore as
a presidential candidate in 1856.

While many, perhaps a majority, of the cases
listed in Appendix A involve controversies which in
this day would be deemed of little consequence, it
must not be forgotten that many of the principles
IN THE COURTS 79

involved were then unsettled in Illinois, and these
cases, though apparently insignificant, served to
settle the law of the State and create precedents for
the guidance of the people when similar questions
should arise.

It must also be borne in mind that the lawyers of
those days traveled the circuit, that their presence
was necessary at the various terms of court, and that
they tried many trivial cases for which they received
little or no compensation, as it was no doubt quite as
much to their liking to be engaged in actual trial
work as to spend their time in any other way.

Another matter worthy of consideration is the
fact that during the greater part of the period prior
to 1860 the expense incident to a writ of error, or an
appeal from the Circuit to the Supreme Court in
Illinois was very slight. The rules of that court did
not require the printing of briefs and abstracts of the
record, such as are required at the present time.
Lawyers usually argued their cases orally before the
Supreme Court and contented themselves with cit-
ing their authorities during such argument, and per-
haps handed to the court a list of the authorities
relied upon. Therefore the labor of the lawyer was
much less arduous and his remuneration small.

Nearly all of Lincoln’s biographers have under-
taken to give an account of his connection with the
80 LINCOLN, THE LAWYER-STATESMAN

case of McCormick vs. Manny, which was heard at
Cincinnati in September, 1855. One writer, at least,
has given an account of the matter as furnished by
Mr. George Harding! of Philadelphia who, with
Edwin M. Stanton, argued the case on behalf of the
defendants, Manny and others. This account was
so prepared as to relieve these distinguished lawyers,
as far as possible, from criticism. The late John
Bigelow, of New York, appointed by President Lin-
coln as United States consul at Paris, France, and
afterwards United States minister at the court of
France, knew Mr. Harding well, and Mr. Bigelow
related to the writer the story as given to him by
Mr. Harding. This account, it is believed, is well
worth repeating here.

In September, 1911, the writer, while visiting Mr.
Bigelow at Highland Falls, New York, discussed the
career of Mr. Lincoln. Mr. Bigelow stated to the
writer that, many years before, Mr. Harding had
informed him that Mr. Stanton, Mr. Lincoln, and
himself had each been retained as counsel for the
defendants in the case mentioned, which was pend-
ing in the United States Circuit Court at Chicago;
that the complainant, McCormick, was represented
by Reverdy Johnson, the famous Baltimore lawyer,
and E. N. Dickerson of Philadelphia.

1 Tarbell’s Life of Lincoln, vol. 1, p. 54.,
 

 

W Wn =

 

 

 

GEORGE HARDING
IN THE COURTS 81

The report of the decision, in 6 McLean, 539,
shows that the suit was brought by McCormick to
enjoin an alleged infringement of patent. It is a
fact well known among lawyers that Mr. Dickerson
and Mr. Harding were both patent lawyers of high
standing, and they were doubtless employed by the
respective parties for that reason. Mr. Ralph Emer-
son, of Rockford, Illinois, one of the defendants in
the case, who knew Mr. Lincoln well, has stated that
Mr. Lincoln was retained by the defendants at his
suggestion. There seems to be no doubt that Mr.
Lincoln made careful preparation for the argument
of the case and regarded the prospect of meeting the
distinguished counsel who represented the opposi-
tion as worthy of his best efforts. The opportunity
was one rarely granted to any western lawyer at that
time, and Mr. Lincoln went to Cincinnati eager for
the contest, arriving the day before that on which
the hearing was to begin before Mr. Justice McLean,
of the United States Supreme Court, and District
Judge Drummond, of Chicago, sitting as circuit
judge. It was agreed between the parties that the
case should be heard at Cincinnati, as that was the
place of residence of Justice McLean. The account
of the occurrence at Cincinnati, as related to the
writer by Mr. Bigelow, is in substance as follows:—

Messrs. Harding and Stanton were already in Cin-
82 LINCOLN, THE LAWYER-STATESMAN

cinnati when Mr. Lincoln arrived, and had taken
rooms at the Burnett House, then a leading hotel of
that city. When Mr. Lincoln reached the hotel,
Messrs. Stanton and Harding were absent and Mr.
Lincoln awaited their return. He stood at the en-
trance to the hotel as they approached and was
greeted indifferently as they passed by him and went
to the room of Mr. Harding. How they knew Mr.
Lincoln Mr. Harding did not say, but on arriving at
his room, a conference was had between the two
lawyers, and Mr. Stanton insisted that it would
never do to allow a man of Mr. Lincoln’s type to
make an argument in the case. Mr. Harding de-
scribed Mr. Lincoln as awkward and ungainly in
appearance, his clothing utterly devoid of the tailor’s
art, ill-fitting and in no wise suited to his angular
frame. He wore heavy boots and his appearance was
that of the average western farmer of that period.
Having determined that Mr. Lincoln should not
be allowed to participate in the hearing of the case,
Harding and Stanton sought a method to bring
about the desired result, and it was finally deter-
mined to send for Mr. Lincoln and inform him that
as there were but two counsel on the opposite side of
the case, they had decided that it would be unwise
that more than two_arguments should be made on
behalf of the defendants. It was agreed that Mr.
IN THE COURTS 83

Harding should be the spokesman when Mr. Lincoln
came, and upon his arrival at the room of Mr. Hard-
ing, the latter informed him of the conclusion which
had been reached and told him that he (Harding)
would make the argument on the technical questions
regarding the infringement and that the other argu-
ment would be made by Mr. Stanton. Mr. Lincoln
replied, ‘‘Very well, gentlemen, I have here some
suggestions which I had intended to use in my argu-
ment which you are at liberty to use if you see fit”’;
at the same time taking a manuscript from the inside
pocket of his coat and handing it to Mr. Harding.
Shortly thereafter Mr. Lincoln left the room and
Mr. Harding threw the manuscript into the waste-
basket without opening it.

That same evening a dinner was given by Messrs.
Harding and Stanton to the judges and the other
counsel in the case, with the exception of Mr. Lin-
coln, who was not invited. Mr. Emerson, who was
present at the trial, has said that Mr. Lincoln re-
mained in Cincinnati throughout the trial of the
case, but took no part in it. That he was entirely
ignored by his associates seems to have been ad-
mitted by all who have professed to know anything
about the matter.

Mr. Emerson published a pamphlet in the latter
years of his life in which he gives his recollections of
84 LINCOLN, THE LAWYER-STATESMAN  .

Mr. Lincoln, and in it he says that in the trial of the
reaper case the parties were limited “‘to two lawyers
on a side”’; but he fails to state who fixed this limit,
and there is considerable evidence that his memory
of the incidents of that distant day was defective
when his pamphlet was written. He states that Mr.
Lincoln informed him at the conclusion of the trial
that he (Lincoln) was ‘‘going home to study law,”
and that when he replied that Mr. Lincoln then stood
at the head of the Illinois bar, the latter answered,
“Yes, yes, I do occupy a good position there, and I
think I can get along with the way things are going
there now. But these college-trained men who have
devoted their whole lives to study are coming west,
don’t you see?”’ In the face of the fact that many of
the lawyers who were then practicing law in central
Illinois were college-bred men, it does not seem pos-
sible that Mr. Emerson’s recollection is correct as to
what Mr. Lincoln said to him.

Among the college-bred men with whom Mr. Lin-
coln came in contact at that time in IIlinois may
be mentioned Orville H. Browning, who received a
classical education at Augusta College; Charles H.
Constable, a graduate of the University of Virginia;
Benjamin S. Edwards, a graduate of Yale; Jesse B.
Thomas, a graduate of Transylvania University;
Isaac G. Wilson, a graduate of Brown University;
gM,

eee Te aL MOTI}
rs I F

lagged 1 THE 01H a

a rrr

 

BURNET HOUSE, CINCINNATI, WHERE LINCOLN MET
STANTON IN 1855

(FACSIMILE OF ANNOUNCEMENT OF OPENING)
86 LINCOLN, THE LAWYER-STATESMAN

substantially the same as that which Mr. Harding
gave to Robert H. Parkinson, a leading patent
attorney and member of the Chicago bar. Mr. Par-
kinson knew Mr. Harding during many years, and
while the account given to him varies from that of
Mr. Bigelow in some minor details, it does not differ
greatly as to the material facts. According to the
version given to Mr. Parkinson, the dinner men-
tioned was given by Justice McLean at his home,
and Mr. Lincoln was not informed of the decision
as to the arguments in advance of the hearing. All
accounts agree that Mr. Lincoln submitted grace-
fully to the plan agreed upon between Messrs. Stan-
ton and Harding and delivered his manuscript to
Mr. Harding, who did not open it because he deemed
it unworthy of examination. The evidence that Mr.
Lincoln was badly treated by Mr. Stanton is abun-
dant, and that he was named by President Lincoln
as Secretary of War is but another evidence of the
latter’s unselfish patriotism.

There is no evidence that the Cincinnati incident
was ever discussed between President Lincoln and
his great Secretary of War, but that the latter be-
came the stanch friend, admirer, and earnest sup-
porter of the President is beyond question. He
learned by personal contact with the great President
to admire his great intellect, kindly disposition, his
IN THE COURTS 87

almost superhuman wisdom, patience and courage
so often displayed under the most trying circum-
stances. Whatever of discourtesy may be chargeable
to the great Secretary of War in his treatment of Mr.
Lincoln at Cincinnati was atoned for abundantly
by the subsequent cordiality and earnest devotion
which he manifested toward his chief throughout his
great and disinterested service as Secretary of War.
And it remained for him to immortalize the closing
scene in the life of President Lincoln as he stood
beside his prostrate form and bowed his head in
grief as he uttered those memorable words, ‘‘ Now he
belongs to the ages.” Mr. Harding also became a
great admirer of Mr. Lincoln, and in relating the
account of the Cincinnati incident he did so for the
purpose of showing how both Stanton and himself
had been led by Mr. Lincoln’s external appearance
to underestimate the man so greatly.
CHAPTER III
THE LAWYER-PRESIDENT

HE record of Mr. Lincoln while a practicing

lawyer, as shown in the preceding chapter,
reveals the sources of the greatness that was so mani-
fest when he was called upon to deal with the affairs
of the nation. In his work as a lawyer he had ac-
quired a thorough knowledge of the common law
and an understanding of its history and purposes.
He had learned the important lesson that there are
at least two sides to every controversy, that there is
usually some merit on each side of every dispute.
He had learned to take a comprehensive view of
every question requiring his attention, to analyze
every problem, to separate the true from the false,
to detect and expose sophistry and present the real
issue stripped of every immaterial consideration.
He had acquired a knowledge of men by means of
which he understood the motives which prompt and
the impulses which control human action. He was
familiar with the history of Anglo-Saxon liberty and
the chronicles of that great struggle which gave to
the English people the Great Charter and that sys-
tem of jurisprudence which has been a shield against
THE LAWYER-PRESIDENT 89

oppression wherever the language of the common
law is spoken.

His knowledge of the principles upon which the
national government was founded, and of the scope
and limitations of the Federal Constitution made
him an expounder of that instrument no less worthy
of confidence than Webster. The knowledge of men
and principles which Mr. Lincoln acquired in the
practice of his profession were of infinite value to him
after he became President, and that knowledge was
constantly applied by him in the administration of
the affairs of government and contributed greatly to
his fame as a statesman. The lawyer was not super-
seded by the executive, but both were combined in
the person of the President. He was confronted with
many difficult situations, but he trusted the final
decision of none of them to others, but himself de-
cided every question, whether of law or fact. His
legal training enabled him to grasp the intricacies of
international law and to decide correctly the most
important questions arising thereunder. His modi-
fication of the answer of his great Secretary of State
to the British Government in the Trent affair affords
evidence of this; and throughout his state papers
will be found abundant proof that every executive
act had received the careful consideration of the
lawyer-statesman. He carefully weighed and exam-
go LINCOLN, THE LAWYER-STATESMAN

ined all the angles of every contention which arose,
whether with men or nations; and after mature re-
flection he never failed to arrive at conclusions which
his trained judgment approved. He was not of that
class of men who have won the plaudits of that great
mass of citizens who concern themselves only with
immediate results.

The public men who have been the recipients of
the applause of this class of citizens have not been
unwilling to belittle the framers of the Constitution
or to disregard the limitations of that instrument,
whenever, in their judgment, the immediate good
has seemed to them to demand that they do so.
While occupying the executive office, they have not
hesitated to take upon themselves the exercise of
powers granted by the Constitution to codrdinate
branches of the government whenever they have
believed that the general welfare required it. Mr.
Lincoln belonged to that other class of men who, by
reason of their thorough knowledge and understand-
ing of the limitations placed upon the executive by
the Constitution, have regarded such limitations as
sacred and essential to the preservation of the liber-
ties of the people.

The greatest among the Presidents of the United
States have been men of the latter class, among
them Madison, John Adams, and Jefferson, each of
THE LAWYER-PRESIDENT gI

whom displayed distinguished ability as well as a
profound knowledge of the science of government.
That they were so well fitted to perform with justice
and moderation the duties which devolved upon
them was due, in no small degree, to their knowledge
of legal principles and their experience at the bar.
Each had engaged actively in the practice of law
before entering public life. Washington, while not
himself a member of the bar, availed himself con-
tinuously of the services of that great lawyer, Alex-
ander Hamilton, who was always his friend and
counselor, and without whose valuable assistance it
is probable that the administration of the first Presi-
dent would not have held its present place in history.

Adams, Jefferson, and Madison were noted law-
yers before the Revolution, and when called to the
office of chief executive of the nation, their experi-
ence and training as lawyers were of inestimable
value. So it was with Lincoln. When he became
President, he carried with him into that office a ripe
experience at the bar. By contact with men in all
the relations of life, he had acquired skill in those
elements of diplomacy which must be possessed by
every successful lawyer. His knowledge of the Con-
stitution and laws enabled him to test from the
viewpoint of the trained lawyer all important meas-
ures, and made him ever cautious in the exercise
92 LINCOLN, THE LAWYER-STATESMAN

of executive authority and careful to commit no
act which was not warranted by the Constitution.
Many found it difficult to understand how any man
could acquire the nobility of character and high
attainments, moral, intellectual, and political, which
were reached by Mr. Lincoln, without the system-
atic training of a university or college.

There are those, not a few, who to this day under-
estimate the extent of the learning of the great Presi-
dent. A distinguished American lawyer,} not long
since, addressing a British audience, declared, in
substance, that Lincoln, although a great President,
was not an accomplished lawyer, although he ad-
mitted that his training and experience in the courts
aided in the development of his intellect and charac-
ter; whereas in truth his greatness as a lawyer made
him a great President.

As a great lawyer never loses sight of the issue on
trial before court or jury and never permits that
issue to become obscured by passion or prejudice, so
President Lincoln kept ever in the foreground, as the
single issue involved in the Civil War, the preser-
vation of the Union, and never under any pretext
did he lose sight of that paramount issue. His great-
ness as a lawyer appears in all his state papers, in his

1 Joseph H. Choate; address before the Edinburgh Philosophical
Institute, Nov. 13, 1900.
THE LAWYER-PRESIDENT 93

examination of the race question, the subject of re-
construction, and his discriminating review of every
other question of governmental policy. His training
in the school of adversity made him kind-hearted
and generous. His education as a lawyer made him
cautious, and imbued him with the spirit of justice,
and instilled in him a higher regard for the rights of
all men before the law. His every act as President
was prompted by a desire to deal justly with both
friend and foe. He understood thoroughly the point
of view of those who fought in the cause of secession,
and while unswerving in his devotion to the cause of
the Union and in his determination to preserve it, he
realized that the right of a State to secede had been
proclaimed by eminent statesmen north and south
for many decades, and although denying that such
right existed, he never questioned the good faith of
those who professed a belief in it.

It cannot be doubted that the ability to view with
candor both sides of the issue which caused the war
between the states was chiefly due to his experience
at the bar. After he became President he was sur-
rounded by many able men who entertained views
greatly at variance with his own on the subject of
slavery and as to the method of carrying on the war;
but amidst all the criticisms of friends and denunci-
ation of enemies he never swerved from a determi-
94 LINCOLN, THE LAWYER-STATESMAN

nation to accomplish his supreme mission of saving
the Union by the exercise of those powers only which
were granted to the executive by the Constitution,
or which, by implication, were conferred upon him.
His calm self-possession under the most trying cir-
cumstances, and his profound wisdom in the solu-
tion of all important questions excited the wonder
and admiration of mankind. His greatness was
everywhere proclaimed, but how this eminence had
been attained was a riddle which seemed incapable
of solution by any method understood by the cul-
tured statesmen of his time.

Count de Montalembert, who was one of the most
distinguished among the French statesmen and writ-
ers of his generation, in an article which appeared
in the Revue Correspondante, May, 1865, on ‘‘The
Triumph of the Union,” referring to President Lin-
coln said: —

A man who was first a wood-cutter, then a husband-
man, then a boatman, then a lawyer, becomes President
of the United States and directs, in this character, a war
more formidable, and above all more legitimate, than
the wars of Napoleon. ... He has presented to us in
the ripeness of the nineteenth century a fresh example,
which is not either a copy or counterfeit, of the calm
and worthy from which Washington issued. His glory
will not be eclipsed in history even by that of Washing-
ton. He honors human nature, not less than the coun-
THE LAWYER-PRESIDENT 95

try whose destinies he directed, and whose pacification
he brought about with such intelligent moderation.

That the achievements of President Lincoln
called forth such an expression of admiration and
surprise from the distinguished Frenchman is not
strange, for when he was elected President little was
known about him outside of the State of Illinois.
At that time he was without experience in the ad-
ministration of governmental affairs. He was known
as a skillful advocate of the principles for which he
had contended. His single term of service in the
lower house of Congress had not contributed greatly
to his reputation as a statesman. It was generally
believed that he would use his utmost endeavors to
preserve the Union; but many, realizing the gravity
of the task with which he was confronted, and his
lack of experience in statecraft, awaited with anx-
iety the proofs of his wisdom in its performance.

It is not strange then that men of other lands
should express wonder at his great achievements;
but Abraham Lincoln had been, through many
years, a student of the science of government, and
especially of the subjects of slavery and the relations
of the states to the Federal Government. The mid-
dle ground which he took in the great debate was
not new to him, for as early as 1837 he had declared
that Congress possessed no power under the Con-
1.0 4g

96 LINCOLN, THE LAWYER-STATESMAN

stitution to interfere with slavery in the states, but
insisted that territory which belonged to the na-
tional government was entirely under its control and
therefore that Congress did possess the power to
abolish slavery in the District of Columbia. His
love of country was deep-seated and sincere. He be-
lieved that no government had ever before existed
which was so well calculated to ‘‘ promote the gen-
eral welfare and secure the blessings of liberty,” as
that which the fathers of the Federal Constitution
had framed, and thus early in his career he had be-
come a profound student of its history and purposes.

His unselfish devotion to the cause of human
liberty led him to become its advocate before the
people at a time when such advocacy was unpop-
ular, and when selfish considerations would have
prompted him to remain silent. He was from early
manhood a teacher of the people, instructing them
in the principles which lie back of the formation of
the union of the states under the Constitution. His
opinions seem to have been always formed after
deep study and mature reflection and were adhered
to with unusual consistency throughout his life.
He believed the object of government to be ‘‘to do
for the people what needs to be done but which they
cannot by individual effort do at all, or do so well
for themselves.’’ He declared that ‘In all that the
THE LAWYER-PRESIDENT 97

people can individually do as well for themselves,
government ought not to interfere”; but he also
believed that the government should do whatever
the ‘‘general welfare’’ of the people required.

It was this belief which prompted him, while a
member of the national House of Representatives,
to become an advocate of a system of internal im-
provements. He delivered a strong argument in
that body in favor of such improvements by the
national government, although many of the leading
men of the country denied the power of Congress to
appropriate money from the national treasury for
that purpose.

President Polk had, on August 3, 1846, vetoed
“‘ An act making appropriations for the improvement
of certain harbors and rivers’’ and on December 15,
1847, he had vetoed another act of Congress in which
appropriations had been made for a similar purpose.
The President supported both these veto messages
by lengthy arguments. At that time opinion was
greatly divided on the subject. On June 20, 1848,
Mr. Lincoln addressed the House in criticism of the
President’s message. His argument, able and con-
vincing, showed a familiarity with the arguments for
and against the exercise of the power by Congress
to make appropriations for such improvements. He

1 Early Speeches, p. 215, Centenary Edition.
98 LINCOLN, THE LAWYER-STATESMAN

quoted from Thomas Jefferson, Chancellor Kent,
and Justice Story to show that the power had been
declared to exist by these distinguished men. He
uncovered the fallacies contained in some of the
arguments of the President, especially that in sup-
port of the building of harbors, canals, and roads
from tonnage duties laid by the states within whose
borders they were to be constructed; and showed
that they must be ready to receive the tonnage be-
fore tonnage duties could be collected. He declared
by way of homely illustration that the President’s
argument involved the same absurdity as the re-
mark of the man about his new boots. ‘I shall never
* get them on,” he said, “‘till I wear ’em a little.”
Mr. Lincoln, while in Congress, made other
speeches which show that he was well informed upon
the questions which came before that body, and that
he was a ready and effective debater. His defense
of General Taylor in the House, on July 27, 1848,
was a masterpiece of wit, argument, and sarcasm
and reveals a thorough knowledge of the history of
the Whig and Democratic parties in their relation
to governmental affairs. In 1847, after he had been
elected to Congress, but before he took his seat, he
wrote down his views on the “‘Home Market” and
other matters pertaining to the advantages of a pro-
tective tariff. This document discloses a thorough
THE LAWYER-PRESIDENT 99

knowledge of the subject and contains some very
forceful illustrations well calculated to show the
benefits of the protective tariff system; and it affords
abundant evidence of a careful consideration of the
subject. It deals with the relation of labor to capi-
tal, and discusses the difference between useful labor,
useless labor, and idleness. The entire argument is
both interesting and instructive, abounding in close
reasoning and sound logic; and from the point of
view of the advocates of a protective tariff, it would
be difficult to find one more satisfactory or so simple
and concise as that which is there presented.

In a speech delivered at Springfield in 1839,
against the sub-treasury and other policies of the
administration of President Van Buren, Mr. Lincoln
exhibited also a thorough acquaintance with the
history of the finances of the government and other
kindred subjects during every administration begin-
ning with that of Washington. His public addresses,
delivered prior to his nomination for President,
evinced a remarkable familiarity with the constitu-
tional and political history of the nation whose chief
magistrate he was destined to become. A large part
of that knowledge was acquired by reading the great
speeches of the public men of that day and by a
study of documents issued from time to time by the

1 Early Speeches, p. 101, Centenary Edition. |
100 LINCOLN, THE LAWYER-STATESMAN

Government. His speeches prove that he had studied
the available records of the framing of the Constitu-
tion, as well as the Constitution itself, until few men
possessed a wider knowledge of the purpose and limi-
tations of the Federal Government than he.

While a member of the national House of Rep-
resentatives, he delivered not less than six speeches
of considerable length in that body, all of which
seem to have been attentively listened to by the
members of the House. Few members in recent
years have ventured to address Congress on any
question during a first term of service, but all the
speeches of Mr. Lincoln bear evidence of careful
preparation, and his skill in debate, as revealed in
these discussions, indicates a thorough familiarity
with the subjects under consideration. He possessed
a wide range of vision and was endowed with a pene-
trating mind. He thought deeply upon many ques-
tions and seems never to have hesitated to express
his thought upon any question of public concern.

In the year 1836, while a candidate for reélection
to the legislature, one of the questions agitating the
public mind was that involving the right of all resi-
dents to vote. The Democrats held that alien resi-
dents were entitled to vote, while the Whigs con-
tended that none but citizens were entitled to that
privilege. In the course of the campaign Mr. Lin-
THE LAWYER-PRESIDENT IOI

coln issued a statement of his position in which he
took ground opposed to both these views, although
he was himself affiliated with the Whig party. He
said: ‘‘I go for all sharing the privileges of the gov-
ernment who assist in bearing the burdens. Conse-
quently, I go for admitting all whites to the right
of suffrage who pay taxes or bear arms (by no means
excluding females).””. This constitutes the only
mention of ‘‘votes for women” by Mr. Lincoln, and
on this alone is based the claim of Woman Suffrage
advocates that Lincoln favored it. Had he in fact
favored woman suffrage, it is not likely that he
would have failed to give expression later in life to
a desire to bring it about. At the time he wrote
the declaration mentioned he was but twenty-
seven years of age, and probably had given little if
any serious thought to that subject. The Woman
Suffrage movement, under the able leadership of
Lucretia Mott and Elizabeth Cady Stanton, was
inaugurated in 1848, and the first Woman’s Rights
convention was held at Seneca Falls, New York, in
July of that year. Mrs. Stanton addressed the New
York legislature on the subject of Woman Suffrage
in 1854. In 1852 Susan B. Anthony — who was
also a strong and aggressive anti-slavery advocate
— became the active ally of Mrs. Stanton in the
suffrage movement. But, although the movement for
1oz2 LINCOLN, THE LAWYER-STATESMAN

Woman Suffrage had reached considerable propor-
tions as early as 1850, there is no evidence that Mr.
Lincoln gave it his support in any manner.

At the time of his obiter dictum on the question,
quoted above, the constitution of I]linois contained
no provision restricting the right of suffrage either
to males or to citizens, and as a result the con-
troversy before referred to between the Whigs and
Democrats had arisen, and at the time of Mr. Lin-
coln’s declaration public opinion was much con-
cerned with it. There were then no party organiza-
tions in Illinois, but each candidate for the legisla-
ture was expected to present his own declaration of
principles, and Mr. Lincoln, in obedience to the pop-
ular demand, presented the document referred to.
As the constitution of 1818, then in force, was silent
on the question of sex as well as on that of citizen-
ship as qualifications for suffrage, it seems probable
that Mr. Lincoln believed that under that consti-
tution all residents of the State were entitled to vote
after they had resided in the State for the period
of six months (that being the period of residence
fixed by the constitution), and that as the question
of suffrage was likely to come before the legislative
body to which he sought to be elected, he thought
it proper to declare himself on that subject. That
declaration was not, however, in favor of universal
THE LAWYER-PRESIDENT 103

it

“4 Ve

white suffrage, but was a declaration in favor of a‘ be

property and a military-service qualification, for it
favored its limitation to those ‘‘who pay taxes or
bear arms.’”’ By the constitution of 1848 the right
of suffrage in Illinois was limited to “white male
citizens,’’ and the controversy which called forth
Mr. Lincoln’s declaration ended. While there is not
sufficient evidence to justify the conclusion that Mr.
Lincoln did not favor woman suffrage, it is equally
true that proof that he was a believer in such an ex-
tension of the elective franchise is also lacking.

Mr. Lincoln never supported and never called
upon the people to support any policy in which he
did not sincerely believe, and never attempted to
impose upon their credulity or make use of that cre-
dulity for his own advancement. When he became
President he carried with him into that great office
the honesty of purpose which characterized him
while in private life, and applied to the adminis-
tration of public affairs the same determination to
evade no responsibility which duty demanded that
he assume.

He believed it to be the duty of the Executive to
enforce the law as it was, without regard to the de-
mands of any class. He believed in no governmental
policy which would grant immunity to any group or
organization of people; and while he declared that
104 LINCOLN, THE LAWYER-STATESMAN

“Gold is good in its place, but living, brave, patriotic
men are better than gold,” he believed that each
individual was entitled to the protection of the laws.
This view was elaborated by him in his annual
message of December 3, 1861. In that document he
said: —

Labor is prior to, and independent of, capital. Capi-
tal is only the fruit of labor, and could never have existed
if labor had not first existed. Labor is the superior of
capital and deserves much higher consideration. Cap-
ital has its rights, which are as worthy of protection
as any other rights. Nor is it denied that there is and
probably always will be, a relation between labor and
capital producing mutual benefits. The error is in as-

suming that the whole labor of the community exists
within that relation.

He called attention in the same message to those
classes of the people which are independent of both
capital and hired labor, consisting of the farmers and
small manufacturers who retain the entire product
of their labor and demand ‘“‘no favors of capital on
the one hand nor of hired laborers or slaves on the
other,” until by industry and frugality they become
the employers of the labor of others. His attitude
on the relations of capital and labor is shown also in
an address to a committee from an association of
workingmen of New York, March 21, 1864, when,
referring to the then recent labor disturbance in New
THE LAWYER-PRESIDENT 105

York City he deplored the conflicts between working
people. Said he: —

It should never be so. The strongest bond of human
sympathy, outside of the family relation, should be one
uniting all working people of all nations, and tongues,
and kindreds, nor should this lead to a war upon prop-
erty or the owners of property. Property is the fruit of
labor; property is desirable; is a positive good in the
world. That some should be rich shows that others
may become rich; and hence is just encouragement to
industry and enterprise. Let not him who is houseless
pull down the house of another, but let him work dili-
gently and build one for himself, thus by example assur-
ing that his own shall be safe from violence when built.

Thus, while encouraging working people to be-
come united for their common good, he did not hesi-
tate to condemn violence.

Mr. Lincoln’s reverence for the laws of his country
affords an example worthy of the thoughtful consid-
eration of people of every age and condition every-
where. In an address delivered January 27, 1837,
at Springfield, he said: —

Let every man remember that to violate the law is to
trample on the blood of his father and to tear the char-
ter of his own and his children’s liberty. Let reverence
for the laws be breathed by every American mother to
the lisping babe that prattles on her lap. Let it be taught
in the schools, in seminaries, in colleges. Let it be writ-
ten in primers, spelling-books and in almanacs. Let it

be preached from the pulpit; proclaimed in legislative
halls, and enforced in courts of justice. And, in short,
106 LINCOLN, THE LAWYER-STATESMAN

let it become the political religion of the nation; and let
the old and the young, the rich and the poor, the grave
and the gay of all sexes and tongues and colors and con-
ditions sacrifice unceasingly upon its altar.

Admitting that there were some bad laws, never-
theless he called upon all to obey them, for said he,
‘“‘There is no grievance that is a fit object of redress
by mob law.”’ He urged obedience to all laws, how-
ever obnoxious. “Bad laws,” said he, “‘if they exist,
should be repealed as soon as possible; still, while
they continue in force, for the sake of example, they
should be religiously observed.”’ To these principles
he strictly adhered through life. Respect for the
law and veneration for the Constitution are stamped
indelibly upon his whole career. His knowledge of
the principles of the Constitution has never been
surpassed by any American statesman, if, in fact,
it has ever been equaled.

Webster, ‘‘the expounder of the Constitution,”
has left nothing on record which reveals greater fa-
miliarity with that instrument than is disclosed in
the state papers and speeches of Lincoln. While
President he was careful, always, to guard the line
of demarcation between the legislative and execu-

1 tive departments. He never, in a single instance,
sought to control Congress by executive influence,
and he as jealously guarded the executive depart-
THE LAWYER-PRESIDENT 107

ment against the encroachments of Congress. There
are many instances of this to be found in his state
papers, but that in which his attitude is most clearly
shown is his message of February 8, 1865, returning
to Congress with his approval the “Joint resolu-
tion declaring certain states not entitled to repre-
. sentation in the Electoral College.’’ As the sole pur-
pose of that message was to advise Congress of his
opinion that the two houses of Congress, under the
twelfth article of the Constitution, have complete
power to exclude from counting all electoral votes
deemed by them to be illegal, in it he declared: “‘It is
not competent for the executive to defeat or obstruct
that power by a veto, as would be the case if his ac-
tion were at all essential in the matter.” Referring
to the power of the President in that matter, he pro-
ceeded: ‘‘He disclaims all right of the executive to
interfere in any way in the matter of canvassing or
counting electoral votes; and he also disclaims that
by signing said resolution, he has expressed any opin-
ion on the recitals of the preamble, or any judgment
of his own upon the subject of the resolution.”

If Congress, by the preamble and resolution in
question, sought to commit the President to the view
that the state governments which had been organ-
ized in the States of Louisiana and Arkansas were
not entitled to the support of the national govern-
108 LINCOLN, THE LAWYER-STATESMAN

ment, as subsequent events would seem to indicate,
that purpose was defeated by the very courteous,
but none the less effective, language used in the mes-
sage; and this statement applies with equal force to
the proclamation of July 8, 1864, in which he made
reference to the governments already established in
those states with his approval. He carefully guarded
against any inference that by issuing that proclama-
tion he conceded the constitutionality of the pro-
visions of the act of Congress to which it related.
Declaring that the act mentioned ‘expresses the
sense of Congress”’ as to the restoration of the Con-
federate states to “their proper practical relation
in the Union,”’ he went no further than to say: “It
is now thought fit” to lay the congressional plan
“before the people for their consideration as one
very proper plan for the loyal people of any state
choosing to adopt it.”

It is quite apparent from his refusal to approve
the act of Congress and his treatment of the same in
the proclamation that he did not concede that Con-
gress possessed under the Constitution the power to
demand that the executive enforce the legislation in
question, or that the legislative branch could do
more than ‘‘express the sense of Congress upon that
subject.’’ He saw no objection to the application of
its provisions in any state where the loyal people
THE LAWYER-PRESIDENT 109

might choose to adopt it; for if the people of any
state should voluntarily do so, the question of its
constitutionality would be of no practical impor-
tance, as that question could only become a practical
one in the event that the national government should
attempt to impose the provisions of the act upon
“the loyal people of any state” against their will.

Mr. Lincoln never devoted his time to the presen-
tation of arguments in support of his views upon
subjects other than those of practical importance,
and in this instance he, in effect, said that, while he
was unwilling to admit the power of Congress to
impose conditions upon the states, yet, if the loyal
people of those states saw fit to adopt the recom-
mendation of Congress, he would not oppose them.
His chief purpose was to have free state govern-
ments established in the Southern states; and while
he had outlined a plan which he suggested might be
adopted by those states, he was not disposed to op-
pose any plan which the loyal people in them might
choose to follow and under which a free state govern-
ment, republican in form, should be founded.

When he took upon himself the obligation to
“faithfully execute the office of President of the
United States’’ and to ‘‘ protect and defend the Con-
stitution of the United States,” he fully realized its
import and recognized its great solemnity in the
110 LINCOLN, THE LAWYER-STATESMAN

crisis then impending. Witness his appeal to the
Southern people in his first inaugural address: “ You
have no oath registered in heaven to destroy the
government, while I shall have the most solemn one
to ‘preserve, protect and defend it.’ How well it
reveals the earnestness of his purpose to make the
Constitution the chart by which he would seek to
guide the Republic through what he believed would
be the most trying period of its history. Those
words were a true index to his purpose to be guided
always by the Constitution, a purpose from which
no demand of the people, of Congress, or of the mili-
tary arm of the government, ever swerved him in the
least degree, and even his hatred of slavery did not
lead him to exercise a power which he believed was
not conferred upon the executive by the Constitution.

An examination of his state papers will convince
any one of his sacred regard for the limitations placed
upon the President by the Constitution; for, while
recognizing that these limitations prevented him
from undertaking many things in themselves de-
sirable, he was never known to express the wish that
the limitations of the Constitution should be re-
moved or the power of the executive be enlarged.
On the contrary, he was opposed to the amend-
ment of that instrument, except in cases where such
amendment became necessary to carry out his war
THE LAWYER-PRESIDENT Ill

policies. He believed that the restraints placed upon
the exercise of official power, as well as upon the peo-
ple, against the adoption of any course which might
result from the prejudice or ill-advised and hasty
action of a multitude of citizens, stirred into sud-
den' manifestations of passion by some individual
instance, were wise and beneficent safeguards of
the liberties of the people. On December 28, 1860,
when many were demanding an amendment to the
Constitution, providing a means by which slavery
could be abolished, he wrote to General Duff Green:

I do not desire any amendment to the Constitution.
Recognizing, however, that questions of such amend-
ment rightfully belong to the American people, I should
not feel justified nor inclined to withhold from them, if I
could, a fair opportunity of expressing their will thereon
through either of the methods prescribed in the instrument.

He was always opposed to hasty action upon any
public question, but believed in the soundness of the
deliberate judgment of the people after they had
been given ample time for investigation and discus-
sion. In his first inaugural address he said to the
people of the states then threatening war upon the
Union, ‘‘ Nothing valuable can be lost by taking time.
If there be an object to hurry any of you in hot
haste to a step which you would never take deliber-
ately, that object will be frustrated by taking time;
112 LINCOLN, THE LAWYER-STATESMAN

but no good object can be frustrated by it.”” The
wisdom of this advice of the great President should
be apparent to all. The Civil War amendments to
the Constitution, which have given rise to a vast
volume of litigation, thereby imposing heavy bur-
dens upon the courts and upon the people, furnish
ample illustration of the wisdom of Mr. Lincoln’s
advice here mentioned.

Much controversy has arisen as a result of the
adoption of the Fourteenth Amendment, relating
chiefly to the construction of the provision that

No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty or property without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.

Growing out of the restraint upon the power of
the states contained in this amendment there has
developed an amount of legal controversy which has
been a burden upon the courts and the people, and
yet it has not been found possible to formulate a
general definition of its application.! The question
of the application of this clause of the Fourteenth
Amendment must be determined according to the
circumstances of each case presented, and out of

1 See Davidson vs. New Orleans, 96 U.S. 97.
THE LAWYER-PRESIDENT 113

this amendment has grown a feeling of distrust of
the courts which must be deplored by all.

Had the advice of Mr. Lincoln been followed, it is
at least doubtful whether the Fourteenth Amend-
ment in its present form would ever have been
adopted. Its real purpose was the protection of the
colored race, then but recently emancipated, from
injustice and oppression, but its effect has been far-
reaching and far from satisfactory to the people of
the nation. Mr. Lincoln believed that the Constitu-
tion as framed by the founders of the Republic was
sufficient for its government. While a member of
the national House of Representatives, speaking on
the subject of constitutional amendment, he said: —

No slight occasion should tempt us to touch it. Bet-
ter not take the first step, which may lead to a habit
of altering it. Better, rather, to habituate ourselves
to think of it as unalterable. It can scarcely be made
better than it is. New provisions would introduce new
difficulties, and thus create and increase appetite for
further change. No, sir; let it stand as it is. New hands
have never touched it. The men who made it have done
their work and have passed away. Who shall improve
on what they did ?

The controversies before mentioned and other
events of recent years have proved the wisdom of
this advice of Mr. Lincoln and the truth of his dec-
laration that ‘‘ New provisions would introduce new
difficulties and thus create and increase appetite for
114 LINCOLN, THE LAWYER-STATESMAN

further change.” For, since its adoption, a greater
number of decisions involving the construction of
the Fourteenth Amendment have been rendered by
the Supreme Court of the United States than of de-
cisions involving any other section of the Constitu-
tion since the organization of the government; and
out of the construction of this amendment has arisen
more dissatisfaction among the people with refer-
ence to the courts than from any other single cause.
Thus have new difficulties been introduced as a re-
sult of hasty and ill-considered amendment.

It is not intended that it should be understood
that Mr. Lincoln was opposed to all amendment of
the Constitution. On the contrary, he favored the
Thirteenth Amendment, which prohibits slavery,
and he also favored an amendment providing for
compensated emancipation; but there is no evi-
dence that he favored the Fourteenth and Fifteenth
Amendments, which have proved to be so ineffect-
ive, particularly in the Southern states. He has left
abundant evidence that he deemed it unwise to con-
fer the elective franchise upon the great mass of
former slaves who had, at the close of the Civil War,
no proper conception of the duties of citizenship.
He apparently believed that it would be safe to con-
fer the franchise on those of that race who had suffi-
cient capacity to appreciate the obligations which
THE LAWYER-PRESIDENT 115

that relation would impose upon them, but he went
no further than this.

In his last public address, delivered April 11, 1865,
on the subject of the reconstruction of the Southern
states, referring to the dissatisfaction expressed by
some because the new constitution of Louisiana
failed to grant the elective franchise to colored men,
he said: ‘I myself prefer that it [the franchise] were
now conferred on the very intelligent, and on those
who serve our cause as soldiers.’’ Prior to this, in
his proclamation of December 8, 1863, he said: —

Any provision which may be adopted by such state
government in relation to the freed people of such state,
which shall recognize and declare their permanent free-
dom, provide for their education, and which may yet
be consistent, as a temporary arrangement, with their
present condition as a laboring, landless, and homeless
class, will not be objected to by the national executive.

That message contained no reference whatever
to the elective franchise.

The utterances of Mr. Lincoln, both before and
after his election to the presidency, indicate clearly
that he was a believer in the colonization of the col-

ored people. He sincerely believed that their happi- _

ness and the peace of the Republic could be best se-
cured by the separation of the white and the colored
races. The passage above quoted from the speech of
April 11, 1865, seems to be his only public utterance

Ce
116 LINCOLN, THE LAWYER-STATESMAN

in relation to the granting of the elective franchise
to negroes, from which it can be inferred that he fa-
vored negro suffrage at all; and from that we must
conclude that he favored giving them the franchise
only as they became fitted by education to compre-
hend the duties and responsibilities flowing from it.
Had such a course been pursued, it is not probable
that negro suffrage would have resulted in the devel-
opment of the intense prejudice against it now exist-
ing in the South.

On August 14, 1862, addressing a deputation of
colored men, President Lincoln expressed clearly his
belief that the colonization of that race would be the
wisest solution of the difficulties which he foresaw
would grow out of the emancipation of the race. In
the course of that address he said: —

We have between us a broader difference than exists
between almost any other two races. Whether it is
right or wrong I need not discuss, but this physical dif-
ference is a great disadvantage to us both, as I think.
Your race suffer very greatly, many of them, by living
among us, while ours suffer from your presence. In a
word, we suffer on each side. If this is admitted, it

affords a reason, at least, why we should be separated.
... It is better for us, therefore, to be separated.

Speaking at Peoria, October 16, 1854, he said: —

My first impulse would be to free all the slaves and
send them to Liberia, to theirown native land. But
THE LAWYER-PRESIDENT 117

amoment’s reflection would convince me that whatever
of high hope (as I think there is) there may be in this
in the long run its sudden execution is impossible... .
Free them, and make them politically and socially our
equals, my own feelings will not admit of this. ...
We cannot make them equals.

In a letter to General Banks, dated August 9,
1864, President Lincoln said: —

I have just seen the new constitution adopted by the
convention of Louisiana; and I am anxious that it shall
be ratified by the people.

That constitution did not confer the franchise
upon the colored man. In the debate with Douglas,
at Ottawa, August 21, 1858, he said: —

I have no purpose to introduce political and social
equality between the white and the black races. There
is a physical difference between the two which in my
judgment will probably forever forbid their living to-
gether upon a footing of perfect equality; and inasmuch
as it becomes a necessity that there must be a difference,
I, as well as Judge Douglas, am in favor of the race
to which I belong having the superior position. I have
never said anything to the contrary, but I hold that,
notwithstanding all this, there is no reason in the

_world why the negro is not entitled to all the natural
rights enumerated in the Declaration of Independence,
the right to life, liberty, and the pursuit of happiness.
I hold that he is as much entitled to these as the white
man. I agree with Judge Douglas that he is not my
equal in many respects — certainly not in color, per-
haps not in moral or intellectual endowment. But in the
right to eat the bread, without leave of anybody else,
118 LINCOLN, THE LAWYER-STATESMAN
which his own hand earns, he is my equal and the equal
of Judge Douglas and the equal of every living man.

Again, at Charleston, Illinois, September 18, 1858,
replying to Douglas, he said: —

I will say then that Iam not nor ever have been in
favor of bringing about in any way the social and politi-
cal equality of the white and black races — that I am
not, nor ever have been in favor of making voters or

jurors of negroes, nor of qualifying them to hold office,
nor to intermarry with white people.

The evidence is conclusive that Lincoln believed
that the welfare of the two races required their sep-
aration. It can hardly be supposed that the mem-
bers of the colored race would have continued to
make their homes in the United States to the extent
that they do now if their right to the elective fran-
chise had been left entirely with the several states.
As a result of the inducement held out to them
by the Fourteenth and Fifteenth Amendments to
the Federal Constitution they have been led to be-
lieve themselves in all things the equal of the white
race while they have been in all matters of practical
importance treated as an inferior people. Whether
they, or some among them, are now, or ever will
become, the social, moral, or intellectual equals, or
even the superiors, of the average among the white
race is of little consequence, for it is apparent that
the day is far distant, if indeed it will ever come,
THE LAWYER-PRESIDENT 119

when they will be received by that race on terms
of equality. Mr. Lincoln, with that prophetic wis-
dom which he so often displayed, foresaw all this
and advocated the colonization of the negroes, with
governmental aid, as the best method of promoting
their general welfare as well as the tranquillity of the
Republic.

Had that course been followed, it is not improb-
able that the advancement of the colored people
would have been much greater at the end of half a
century than we find it to be in the year 1915; and
instead of state constitutions adopted for the express
purpose of depriving them of the rights guaranteed
to them by the Federal Constitution, the few who
remained with us would be distributed between the
several political parties, all exercising freely the right
to vote; and there would be no solid South as a re-
sult of “the irrepressible conflict’’ between the two
races. Instead of the deplorable condition which
now exists in the Southern states, where the two
great political parties are divided by the race ques-
tion, it is within the realm of reasonable probability
that a republic nearly, if not entirely, under the con-
trol of former slaves and their descendants would
ere this have become a substantial member of the
family of nations.

President Lincoln favored Central America as the
120 LINCOLN, THE LAWYER-STATESMAN

place of colonization. In the address to the depu-
tation of colored men, already mentioned, his pur-
pose to aid in the colonization of that race in that
region is made plain. Said he: —

The place I am thinking about for a colony is in Cen-
tral America. It is nearer to us than Liberia — not
much more than one fourth as far as Liberia, and
within seven days’ run by steamers. Unlike Liberia, it
is a great line of travel —it is a highway. The coun-
try is a very excellent one for any people, and with great
natural resources and advantages, and especially be-
cause of the similarity of climate with your native soil,
thus being suited to your physical condition. The par-
ticular place I have in view is to be a great highway
from the Atlantic or Caribbean Sea to the Pacific
Ocean, and this particular place has all the advantages
for a colony. On both sides there are harbors — among
the finest in the world. Again, there is evidence of very
rich coal mines. A certain amount of coal is valuable in
any country. Why I attach so much importance to coal
is, it will afford an opportunity to the inhabitants for
immediate employment till they get ready to settle
permanently in their homes. If you take colonists
where there is no good landing, there is a bad show; and
so where there is nothing to cultivate and of which to
make a farm. But if something is started so that you
can get your daily bread as soon as you get there, it is
a great advantage. Coal land is the best thing I know
of with which to commence an enterprise. To return—
you have been talked to upon this subject, and told that
a speculation is intended by gentlemen who have an
interest in the country, including the coal mines. We
have been mistaken all our lives if we do not know that
THE LAWYER-PRESIDENT 121

Whites, as well as Blacks, look to their self-interest.
Unless among those deficient in intellect, everybody you
trade with makes something. We meet with these things
everywhere. If such persons have what will be an ad-
vantage to them, the question is whether it cannot be
made an advantage to you? You are intelligent and
know that success does not so much depend on external
help as on self-reliance. Much therefore depends upon
yourselves. As to the coal mines, I think I see the means
available for your self-reliance. I shall, if I get a suff-
cient number of you engaged, have provision made that
you shall not be wronged. If you will engage in the
enterprise, I will spend some of the money intrusted to
me. I am not sure you will succeed. The government
may lose the money; but we cannot succeed unless we
try; and, we think, with care we can succeed. The polit-
ical affairs in Central America are not in quite as satis-
factory condition as I wish. There are contending fac-
tions in that quarter; but, it is true, all the factions are
agreed alike on the subject of colonization, and want it,
and are more generous than we are here. To your col-
ored race they have no objection. I would endeavor to
have you made the equals, and have the best assurance
that you should be the equals of the best.

In bringing this very interesting address to an
end, he urged the free colored men to aid in bringing
about the result which he so much desired; and he
concluded with language indicating a belief that in
following the plan which he had outlined, the future
happiness and prosperity of the race would be se-
cured, and the world at large benefited by the ex-
periment.
122 LINCOLN, THE LAWYER-STATESMAN

I ask you, then, to consider seriously, not pertaining
to yourselves merely, nor for your race and ours for the
present time, but_as one of the things, if successfully
managed, for the good of mankind — not confined to
the present generation, but as

““¢ From age to age descends the lay
To millions yet to be;
Till far its echoes roll away
Into eternity.’ ”’

That the experiment made by the government in
establishing a colored colony at the Island of Vache
on the coast of San Domingo proved a failure does
not justify the conclusion that colonization at some
point on the continent south of Mexico would have
been unsuccessful. The Vache colony labored under
many disadvantages which would not have been met
with if they had been adequately cared for until they
had become able to care for themselves; and the lack
of competent leadership among the colonists also
contributed greatly to the failure of the enterprise.

Mr. Lincoln believed that the question of suffrage
. should be left to the respective states; for while, in

- the speech of April 11, 1865, already referred to, he
expressed a wish that the ‘very intelligent’’ colored
men and those of them who had served as soldiers
should be permitted to vote, it nowhere appears that
he favored any action by the Federal Government
THE LAWYER-PRESIDENT 123

which would deprive the respective states of the
right to control the entire subject. His attitude in
relation to the reconstruction of the state govern-
ments of Louisiana and Arkansas seems to make it
clear that he had no intention of making the question
a national issue, for he desired that the new consti-
tution proposed for Louisiana should be adopted. He
also favored the reconstruction of the state govern-
ment of Arkansas under the constitution in force
before that state attempted to secede, the same to
be amended, however, so as to prohibit slavery.?
The situation of the states which had been in
rebellion against the Government was anomalous.
The question presented was, what was their rela-
tion to the Federal Government? They had at-
tempted to withdraw from the Union, but were
defeated in that attempt, and therefore, according
to the view which President Lincoln seems to have
entertained, they were still members of the Union.
Their governmental relations with the nation had
been suspended, and as no properly constituted
state governments existed in them, he held the view
that as the national government, under the Constitu-
tion, was required to ‘“‘guarantee to every state in
this Union a Republican form of government,’ it
devolved upon the national government to see that
1 See letter to General Steele, Jan. 20, 1864.
124 LINCOLN, THE LAWYER-STATESMAN

the rebellious states should reéstablish loyal state
governments, republican in form, so that their rela-
tion to the nation might be properly restored.

That this view was entertained by him is appar-
ent from his proclamation of December 8, 1863,
wherein, after providing for the full pardon of certain
classes who had participated in the rebellion, upon
subscribing to the oath of allegiance prescribed by
the same proclamation, he said: —

Whenever in any of the states [named] a number of
persons, not less than one-tenth in number of the votes
cast in such state at the presidential election of the
year 1860, each having taken the oath aforesaid, and
not having since violated it and being a qualified voter
by the election law of the state existing immediately
before the so-called act of secession, and excluding all
others, shall reéstablish a state government which shall
be republican and in no wise contravening said oath, such
shall be recognized as the true government of the state
and the state shall receive thereunder the benefits of the
constitutional provision which declares that ‘‘the United
States shall guarantee to every state in this Union a re-
publican form of government and shall protect each of
them against invasion and on application of the legisla-
ture or executive (when the legislature cannot be con-
vened) against domestic violence.”

A further confirmation of the view here expressed
is found in his proclamation of July 8, 1864, issued
in pursuance of the act passed at the first session of
the Thirty-eighth Congress.
THE LAWYER-PRESIDENT 125

It would seem that President Lincoln’s plan for
the reconstruction of the governments of the so-
called Confederate States was in substantial accord
with that for which his successor, President Andrew
Johnson, contended. The student of the history of
the Reconstruction period is led to wonder what
would have been the plan finally adopted to restore
the rebellious states to their proper relation to the
general government under the guidance of the great
President if he had lived to pilot the Republic
through that trying period. Evidence is not lacking
that the radical views of many of the public men of
that day, and their efforts to carry out the repres-
sive measures which were finally applied to those who
had lately been in rebellion, would have met with
his strong opposition.

Abraham Lincoln entertained no thought of re-
venge. Uppermost in his mind throughout his pub-
lic life was a fixed determination to preserve the
union of the states. He did not claim that the people
of the Northern states were wholly free from blame
for the existence of slavery. In his second inaugural
address he said: —

If we shall suppose that American slavery is one of
those offenses which, in the providence of God, must
needs come, but which, having continued through His
appointed time, He now wills to remove, and that He
126 LINCOLN, THE LAWYER-STATESMAN .

gives to both North and South this terrible war, as the
woe due to those by whom the offense came, shall we
discern therein any departure from those divine attri-
butes which the believers in a living God ascribe to
Him?

His kindly attitude toward the rebellious states is
shown by the concluding paragraph of this same ad-
dress in the words, ‘‘ With malice toward none; with
charity for all; with firmness in the right as God gives
us to see the right, let us strive on to finish the work
we are in; to bind up the Nation’s wounds,’ —not
the wounds of the Northern states alone, but the
wounds of the Nation, for the preservation of which
the war had been waged.

That President Lincoln would not have approved
a system such as that which subsequently became
known as a “carpet-bag government” cannot be
denied. In a letter addressed to G. F. Shepley, mili-
tary governor of Louisiana, under date of November
21, 1862, he said: —

What we do want is conclusive evidence that respect-
able citizens of Louisiana are willing to be members of
Congress and to swear support to the Constitution, and
that other respectable citizens there are willing to vote
for them and send them. To send a parcel of Northern
men here as representatives, elected, as would be under-
stood (and perhaps really so) at the point of the bayo-
net, would be disgusting and outrageous; and were la
THE LAWYER-PRESIDENT 127

member of Congress here I would vote against admitting
any such man to a seat.

And in another letter to Mr. Shepley, bearing the
same date: —

I wish elections for Congressmen to take place in
Louisiana, but I wish it to be a movement of the people
of the districts, and not a movement of our military or
quasi-military authorities there.

In a letter to General Steele, then in command of
the federal army at Little Rock, Arkansas, under
date of January 20, 1864, referring to the reéstab-
lishment of a state government in Arkansas, he
directed that it be assumed that

the constitution and laws of the state as before the re-
bellion, are in full force, except that the constitution is
so modified as to declare that ‘‘there shall be neither
slavery nor involuntary servitude, except in the punish-
ment of crime whereof the party shall have been duly
convicted; but the General Assembly may make such
provision for the freed people as shall recognize and de-
clare their permanent freedom, provide for their educa-
tion, and which may yet be consistent, as a temporary
arrangement, with their present condition as a laboring,
landless, and homeless class; and also except that all
now existing laws in relation to slaves are inoperative
and void.”

In another letter to General Steele under date of
June 29, 1864, he said: —

I understand that Congress declines to admit to seats
the persons sent as senators and representatives from
128 LINCOLN, THE LAWYER-STATESMAN

Arkansas. These persons apprehend that, in conse-
quence, you may not support the new state government
there as you otherwise would. My wish is that you give
that government and the people there the same support
and protection that you would if the members had been
admitted, because in no event nor in any view of the
case, can this do any harm, while it will be the best you
can do toward suppressing the rebellion.

President Lincoln never at any time undertook to
control the question of the admission by Congress
of senators or representatives, but adhered to both
the letter and the spirit of Section 5 of Article I of
the Constitution, which provides that ‘‘each house
shall be the judge of the elections, returns and qual-
ifications of its own members”’; but as commander-
in-chief of the military and naval forces, and under
his oath of office which required him to ‘‘preserve,
protect and defend the Constitution of the United
States,’’ he considered himself bound to the best of
his ability to carry out the provision of Section 4 of
Article IV of that instrument, which requires that
“The United States shall guarantee to every state
in this Union a republican form of government’”’; and
it was in pursuance of this constitutional provision
that he undertook to substitute civil government,
republican in form, for military rule as rapidly as,
in his judgment, circumstances would justify the
change.
THE LAWYER-PRESIDENT 129

The attitude of President Lincoln toward the
states which had attempted to secede seems to have
been ever consistent with the views which he ex-
pressed in his special message of July 4, 1861: —

Lest there be some uneasiness in the minds of candid
men as to what is to be the course of the Government
toward the Southern states after the rebellion shall have
been suppressed, the executive deems it proper to say
that it will be his purpose then, as ever, to be guided by
the Constitution and laws; and that he probably will
have no different understanding of the powers and duties
of the Federal Government relative to the rights of the
states and the people under the Constitution than that
expressed in the inaugural address. ...He desires to
preserve the government, that it may be administered
for all as it was administered by the men who made it.
Loyal citizens everywhere have a right to claim this of
their government, and the government has no right to
withhold or neglect it. It is not perceived that in giving
it there is any coercion, any conquest, or any subjuga-
tion in any just sense of those terms.

The Constitution provides and all the states have
accepted the provision that “the United States shall
guarantee to every state in this Union a republican
form of government.” But if a state may lawfully go
out of the Union, having done so, it may also discard
the republican form of government; so that to prevent
its going out is an indispensable means to the end of
maintaining the guarantee mentioned.

In his first inaugural address he said: —

I hold that, in contemplation of universal law and of
the Constitution, the union of these states is perpetual.
130 LINCOLN, THE LAWYER-STATESMAN

Perpetuity is implied if not expressed in the fundamen-
tal law of all national governments. It is safe to assert
that no government proper ever had a provision in its
organic law for its own termination. Continue to exe-
cute all the express provisions of our national Constitu-
tion and the Union will endure forever.

He might have added, what he probably had in
mind, that the Constitution provides that ‘‘ New
states may be admitted by the Congress, into this
Union,” but that that instrument contains no pro-
vision for either the voluntary retirement or the
exclusion of any state from the Union after it has
been admitted. President Lincoln fully understood
this and held fast to what must be conceded to be
the only reasonable view, namely, that the rebel-
lious states were still a part of the Union, and that
upon the suppression of the insurrection in any state,
it became the duty of Congress and the executive
under the Constitution to execute fully and enforce
“‘the constitutional obligation of the United States
to guarantee to every state in the Union a republi-
can form of government.” !

An examination of the message of December 8,
1863, and the bill passed by the Thirty-eighth Con-
gress entitled ‘‘An act to guarantee to certain states
whose governments have been usurped or over-
thrown, a republican form of government,” reveals

1 Message of December 8, 1863.
THE LAWYER-PRESIDENT 131

a divergence of view between the President and Con-
gress upon some important details of reconstruction.
In the message referred to, attention is called to the
President’s proclamation of the same date already
mentioned. This proclamation, as before stated,
gave to a number of persons, being qualified voters
under the law of such state, but not less than one
tenth in number of the votes cast in such state at the
presidential election of the year 1860, ‘‘each having
taken the oath of allegiance, etc. the right to re-
establish a state government’; while the Act of
Congress required an enrollment of all white male
citizens of the United States within the state, and
further provided that if those taking the oath of
allegiance prescribed by the act ‘‘shall amount to a
majority of the persons enrolled in the state” the
loyal people of the state ‘‘shall be invited to elect
delegates to a convention charged to declare the will
of the people of the state relative to the reéstablish-
ment of a state government, subject to and in con-
formity with the Constitution of the United States.”
The act further required that the convention should
consist of as many members as composed the last
constitutional legislature of the state.

President Lincoln believed that the United States
was bound to fulfill the constitutional guarantee
of a republican form of government to every state
132 LINCOLN, THE LAWYER-STATESMAN

even though “‘the element within a state favorable
to a republican form of government in the Union
may be too feeble for an opposite and hostile element,
external to or even within the state.”” 1! Congress, on
the other hand, by the act mentioned entirely ig-
nored the requirement of the Federal Constitution
and left it to the loyal people of the state ‘‘to declare
the will of the people of the state relative to the
reéstablishment of a state government,”’ thus shirk-
ing the responsibility imposed upon the national
government by the constitutional guarantee.

The act mentioned also placed vast power in the
enrolling officers of the government, and in the mili-
tary governors, which might easily be used, and
which was in fact used, for purposes of oppression.
Under this act the election machinery was entirely
under the control of officials of the national govern-
ment which made it easy for them ‘‘to send a parcel
of Northern men here” (to Washington) as represen-
tatives, elected as would be understood (and perhaps
really so) at the point of the bayonet, a proceeding
which President Lincoln declared, in the letter to
General G. F. Shepley, before mentioned, ‘‘ would be
disgusting and outrageous,” and of which he said in
the same letter, ‘'Were I a member of Congress I
would vote against admitting any such man to a

1 Message of December 8, 1863.
THE LAWYER-PRESIDENT 133,

seat.”’ And as if to emphasize his position on this
point, he declared also, in the other letter to General
Shepley, already referred to, bearing the same date,
that he wished the election to be a movement of the
people themselves and not a movement of the mili-
tary or quasi-military authorities of the government.

The work of reéstablishment of state governments
in the states which had resisted the authority of the
national government had barely been entered upon
when President Lincoln was assassinated; and al-
though he declared that he was not wedded to any
specific plan as a means of bringing those states into
their proper relation to the Union, a careful reading
of all that he said, and an investigation of all that he
did, in relation to the subject can lead to no other
conclusion than that he would not have given his
sanction to measures such as were subsequently
passed by Congress and which met with such strong
opposition from his successor, President Andrew
Johnson. The quarrel between Congress and Presi-
dent Johnson was the result of the divergent views
entertained by the executive and legislative branches
of the Government on the subject of Reconstruc-
tion; and while the position of President Johnson
seems to have been substantially the same as that
of his predecessor, it is not probable that any se-
rious rupture would have occurred between Congress
134 LINCOLN, THE LAWYER-STATESMAN

and President Lincoln on that subject, had he lived
through the Reconstruction period; for whatever
his personal view might have been as to the merits
of any measure enacted by the legislative branch of
the Government, his views upon the use of the veto
power were such that, unless he believed an act to be
a clear violation of the Constitution, it is probable
the same would not have been vetoed by him. He
never believed in a very free use of the veto power.

As early as July 27, 1848, speaking in defense of
General Taylor, then a candidate for president, in
the House of Representatives, Mr. Lincoln quoted
with approval from a letter written by General
Taylor as follows: —

The power given by the veto is a high conservative
power; but, in my opinion, should never be exercised
except in cases of clear violation of the Constitution or
manifest haste and want of consideration by Congress;
and in a speech delivered at Worcester, Massa-
chusetts, September 12, 1848, he declared that ‘the
will of the people should produce its own results
without executive influence’’; and also in his speech
of July 27, 1848, he quoted with approval from Jef-
ferson as follows: —

It must be admitted, however, that unless the Presi-
dent’s mind, on aview of everything which is urged for

and against this bill, is tolerably clear that it is unauthor-
ized by the Constitution, — if the pro and con hang so
THE LAWYER-PRESIDENT 135

even as to balance his judgment, — a just respect for
the wisdom of the legislature would naturally decide the
balance in favor of their opinion. It is chiefly for cases
where they are misled by error, ambition or interest that
the Constitution has placed a check in the negative of
the President.

In that same speech he said: —

My friend from Indiana (C. B. Smith) has aptly
asked, ‘‘ Are you willing to trust the people?’’ Some of
you answered substantially, ‘‘ We are willing to trust the
people; but the President is as much the representative
of the people as Congress.’’ In a certain sense, and to a
certain extent, he is the representative of the people.

He is elected by them aswell as Congress is. But can _

he, in the nature of things, know the wants of the people
as well as three hundred other men coming from all the
various localities of the nation? If so, where is the
propriety of having a congress? That the Constitution
gives the President a negative on legislation all know;
but that the negative should be so combined with plat-
forms and other appliances as to enable him and in fact
almost compel him to take the whole of legislation into
his own hands is what we object to. . . . To thus trans-
fer legislation is clearly to take it from those who under-
stand with minuteness the interests of the people and
give it to one who does not and cannot so well under-
stand it.

The views expressed in the speech referred to are
in harmony with the utterances of Mr. Lincoln at
various times both before and after that speech was

1 The language quoted is from an opinion given by Jefferson while
a member of the cabinet of President Washington, February 15, 1791.
136 LINCOLN, THE LAWYER-STATESMAN

delivered. In a memorandum made by him about
July 1, 1848, entitled ‘‘Were I President,”’ he said,
with reference to the establishment of a national
bank: —

Should Congress see fit to establish such an institu-
tion I should not arrest it by veto, unless I should con-
sider it subject to some constitutional objection from
which I believe the two former banks to have been free;

and in this same memorandum he declared: —

Were I president I should desire the legislation of the
country to rest with Congress undisturbed by the veto
unless in very special and clear cases.

Again, in a speech delivered at Pittsburg, Pennsyl-
vania, February 15, 1861, he said: —

By the Constitution the executive may recommend
measures which he may think proper and he may veto
those he thinks improper, and it is supposed that he
may add to these certain indirect influences to affect the
action of Congress. My political education strongly in-
clines me against a very free use of any of these means
by the executive to control the legislation of the country.
As atule, I think it better that Congress should origi-
nate as well as perfect its measures without external
bias.

He recognized the responsibility resting upon Con-
gress and never failed to treat the legislative branch
of the government with proper respect. In his an-
nual message of 1862 he said: —

I do not forget the gravity which should characterize
THE LAWYER-PRESIDENT 137

a paper addressed to the Congress of the nation by the
Chief Magistrate of the nation. ... Yet, I trust that, in
view of the great responsibility resting upon me, you
will perceive no want of respect to yourselves in any
undue earnestness I may seem to display.

It is also a matter worthy of notice that during
his occupancy of the office of chief executive, Presi-
dent Lincoln exercised the veto power only twice. In
one instance the veto was based upon his opinion
that the act was unconstitutional, while in the other
it was due to a desire that the provisions of the act
should be made more definite. It is therefore im-
probable that President Lincoln would have exer-
cised that power as freely as the same was exercised
by his successor. He would have taken pains to let
it become known to congressmen and senators that
such drastic legislation as that which was subse-
quently enacted would meet with opposition from
him; and with the assurance already manifested by
the people that they would support the President,
the members of the legislative branch of the govern-
ment would have yielded to his wishes rather than
risk condemnation at the polls. His views as to the
rights of the states to control their internal and
domestic affairs were well understood. His record
proves that he was a profound constitutional lawyer,
always confident of the soundness of his own inter-
pretation of that instrument. He neither sought nor
138 LINCOLN, THE LAWYER-STATESMAN

accepted the opinions of others as to the meaning of
any of its provisions; but with a reverence for its
limitations seldom equaled and never surpassed, and
that strong belief in the wisdom of “‘the men who
made it,’ so often expressed by him, it cannot be
doubted that he would have found its provisions
ample for the settlement of every problem growing
out of the Civil War.

While President Lincoln never believed that the
states which had attempted secession should be
treated as conquered territories, he did not regard
the question whether they were within or out of the
Union as a practical question, and never gave any
public expression of his opinion on the subject; but,
as before stated, there is abundant reason for believ-
ing that he regarded them as members of the Federal
Union whose proper relations thereto had been sus-
pended by the Civil War. He would have withheld
his approval of repressive measures which he be-
lieved to be in conflict with the Constitution, and
the strong hold which he had upon the people of the
loyal states would probably have compelled Con-
gress to refrain from taking any position which was
radically opposed to his own.

This difference between Congress and the people is
shown by the defeat of Henry Winter Davis for re-
nomination to Congress after the attack on President
THE LAWYER-PRESIDENT 139

Lincoln by him and Senator Wade in the “‘ Protest”
issued by them, an account of which is given in
Blaine’s ‘‘Twenty Years of Congress.” At the time
of his death he had guided the nation through four
years of civil war and was at the zenith of his popu-
larity. The people had learned to trust in his wis-
dom and profound statesmanship. His pure, unselfish
patriotism was everywhere recognized, and it is prob-
able that the policies advocated by President John-
son, if they had been recommended by Mr. Lincoln,
would have received the hearty support of the
nation. Johnson failed where Lincoln would have
succeeded. Providence decreed that the work of the
great President should be taken up by another who
was almost unknown to the people of the loyal
states. Distrust took the place of confidence; con-
flict between the executive and Congress took the
place of respectful consideration of the policies of
each by the other. The fact that President Johnson
was himself a Southern man caused many to doubt
his patriotism; and the history of Reconstruction,
‘in consequence, is little more than a chronicle of
strife, oppression, and bloodshed, presenting the
darkest page in the annals of the Republic.

It has often been said that when Abraham Lin-
coln passed away, the people of the South lost their
truest and best friend, and there seems to be no
140 LINCOLN, THE LAWYER-STATESMAN

reason to doubt the truth of this statement; for he
longed to see the states reunited, striving toward
a common destiny as a proof that a ‘“‘government
of the people, by the people, for the people” held
within itself not only the power of self-preservation,
but also sufficient patriotism to bring about, after
the struggle for its preservation had ended, a lasting
peace within its borders. His one purpose, often ex-
pressed, was a restoration of the national authority
throughout the country. He cherished no thought
of vengeance, no desire to place upon the people of
the rebellious states the hand of repression. He
sought only to unite in one harmonious whole
the scattered fragments of his disrupted country,
and to heal the wounds inflicted during four long
years of fraternal strife. Abraham Lincoln was a
living embodiment of the qualities of the true states-
man, philanthropist, and patriot. No better descrip-
tion of this marvelous character has been written
than that by Count de Montalembert in the paper
already referred to in which he referred to Mr.
Lincoln as a

combination of rectitude and of kindness, of sagacity
and simplicity, of modesty and firm courage, which make
of him a type so attaching and so rare, a type that no
prince, no public man of our age, has equalled. . . . Since
his accession to supreme rank no one can cite of him
THE LAWYER-PRESIDENT 141
a single expression of menace or bravado, a single ex-
pression vindictive or extravagant.

In a letter to Governor Fletcher of Missouri, Feb-
ruary 20, 1865, with reference to the destruction
of life and property in that State, notwithstanding
that there was then no organized Confederate Army
- in the State, he urged the people to reach an un-
derstanding among themselves by the simplest of
methods.

Each leaving all others alone solves the problem [he
wrote], and surely each would do this but for his appre-
hension that others will not leave him alone. Cannot
this mischievous distrust be removed? Let neighbor-
hood meetings be everywhere called and held, of all
entertaining a sincere desire for mutual security in the
future, whatever they may heretofore have thought,
said, or done about the war or about anything else. Let
all such meet and, waiving all else, pledge each to cease
harassing others and to make common cause against
whoever persists in making, aiding or encouraging fur-
ther disturbance. .. . At such meetings old friendships
will cross the memory, and honor and Christian charity
will come in to help.

How simple the method suggested, and how well
calculated to bring about a ‘‘lasting peace’! No
threat of repression by the use of the military arm
of the government, but a request that in a spirit of
fraternity all former differences be swept aside and
that the people, by the exercise of plain common
sense, unite for the common weal. He sought to en-
142 LINCOLN, THE LAWYER-STATESMAN

force the injunction of the Jewish prophet, ‘Come
now and let us reason together’’; and by encourag-
ing a spirit of mutual forbearance he hoped to allay
the bitterness engendered by the war and to rebuild
just and stable governments in the so-called Confed-
erate States. He believed that the continuance of
military governments was opposed to the best inter-
ests of the people, and that they should not be al-
lowed to continue beyond a time when the people
of any state should be prepared to assume control
of their domestic affairs. His chief desire was that
those lately in rebellion (excepting certain specified
classes) should take up again the duties of loyal
citizens; that every cause for friction between those
who had remained true to the Federal Government
and those who had fought for its overthrow, should
be removed; that their differences should be forgot-
ten; that, as stated in his letter to Governor Fletcher,
already mentioned, ‘‘Whatever they may have
thought, said or done about the war,” the people
should themselves take steps to ‘reach an under-
standing” which would restore harmony. In the
light of such sentiments it is inconceivable that he
would have sanctioned the control of the question
of negro suffrage by the National Government, for
he foresaw that such action would, as it in fact did,
cause greater friction among the people of those
THE LAWYER-PRESIDENT 143

states than any other — a course which the history
of the last fifty years has shown has greatly retarded
the material development of the southern section of
the country.

What Mr. Lincoln evidently believed to be tne
proper course to be pursued as to such members of
the colored race as should refuse the offered coloniza-
tion was that, as they became fitted by education
and training to assume the duties of citizenship, the
several states should confer the elective franchise
upon them, and that until that right should be
granted to them by the states they should be pro-
tected by the National Government in their natural
right to “‘life, liberty and the pursuit of happiness.”

In his last public address Mr. Lincoln spoke in the
most solemn manner of the difficulties confronting
the Government in relation to the subject of Recon-
struction. In that address he seems to have favored
the adoption of free state constitutions, giving the
benefit of public schools equally to black and white,
and leaving to the legislature the power to confer the
elective franchise upon the colored man, whenever
the state should deem it proper to do so. In conclud-
ing that address he said: —

In the present situation, as the phrase goes, it may be
my duty to make some new announcement to the peo-
ple of the South; I am considering, and shall not fail to
act when satisfied that action will be proper.
144 LINCOLN, THE LAWYER-STATESMAN

Four days later he passed into history, and as
nothing is known as to what Mr. Lincoln had in
mind when he uttered the words quoted, conjecture
would be superfluous. Some things, however, are
supported by abundant evidence: first, that he was
not satisfied with the method provided by Congress
in the act which he permitted to become a law with-
out his approval; second, that he was satisfied with
the government established in Louisiana; third, that
the question of negro suffrage should be left to the
people of the respective states; fourth, that equal
opportunities should be provided by the states for
the education of both whites and negroes; fifth, that
he did not favor granting the elective franchise to
the great mass of colored men, but preferred that it
should be granted to the “‘very intelligent’? negroes
and to those of them who had served in the Federal
army. He doubtless foresaw the evil which would
follow the bestowal of a right upon former slaves, in
disregard of their fitness to exercise it, which might
be wielded as an instrument of oppression through
the influence which political adventurers, whether
from the North or South, might exert over them.

President Lincoln would doubtless have favored a
policy which would have protected the former slaves
in their new-found freedom; but he believed that the
right of the colored man to vote should be left un-
THE LAWYER-PRESIDENT 145

settled until the two races had become accustomed
to the changed conditions resulting from the Civil
War. The negroes and their former masters were not
enemies, but each had a friendly interest in the other,
each was accustomed to the other and in many ways
dependent upon the other. There was little, if any,
lack of harmony between them at the close of the
war. The vast majority of the colored people were
little more than young children in intellectual de-
velopment, devoid of self-reliance, incapable of in-
dependent action, and easily influenced by design-
ing men of the white race. Had the two races been
allowed to live side by side, without any attempt to
invest the colored men with political influence until
they became familiar with the new conditions, those
things which necessarily caused some friction in the
reconstructed states would have been gradually re-
moved, and doubtless in due time the colored man
would have received at the hands of the white race
every political privilege which he became fitted to
exercise. Had President Lincoln advocated this
course, there is little room for doubting that it would
have been very generally approved by the people
North and South, for, as Mr. Blaine declares in his
‘“‘Twenty Years of Congress,’ —

He [Lincoln] had acquired so complete an ascendancy
over the public mind in the loyal states that any policy
146 LINCOLN, THE LAWYER-STATESMAN

matured and announced by him would have been ac-
cepted by a vast majority of his countrymen.

But President Johnson did not possess the confi-
dence of the people either North or South and con-
sequently his efforts toward reconstruction met with
intense opposition. To add to his embarrassment,
the leaders among those who undertook the reorgan-
ization of state governments in some of the Southern
states made the very serious mistake of treating the
spirit of kindness and toleration shown by the na-
tional administration as an evidence of weakness.
Instead of accepting the generous terms offered in a
spirit of patriotic submission to the national author-
ity, they proceeded to bring about the enactment, in
some instances, of legislation which disregarded some
of the most important requirements of the procla-
mation issued by Mr. Lincoln December 8, 1863,
and manifested a spirit of resistance to the national
authority. Instead of making suitable provision for
the freed people, they passed laws the effect of which
was to render the condition of the freedmen more
intolerable than their former condition of slavery.
These men treated white men who had remained
loyal to the Union with contempt, and were guilty
of many other acts of folly well calculated to inflame
the radical people of the North and disappoint the
hopes of those who had sought by the most generous
THE LAWYER-PRESIDENT 147

means to restore the spirit of fraternity between the
sections. The result was what should have been
foreseen by any one not wholly blinded by passion
or prejudice. Congress resented the failure of some
of the new state governments to recognize the
changed conditions which had resulted from the
late war, and adopted measures of repression, not
only against those governments which were con-
trolled by men who had failed to realize that a new
order of things existed, but also against some others
which were endeavoring to carry out in good faith
the will of Congress; and negro suffrage was forced
upon them as the most powerful weapon for the sup-
pression of those who had failed to accept the gener-
ous offer of the victorious North.

The people of the Northern states did not then
seem to realize fully the extent of the poverty which
prevailed among the people of the Southern states
at the close of the Civil War. This condition of
poverty existed among all the people of those states.
Their means of subsistence had been destroyed.
Fortunes had been swept away, and all or nearly all
of them were in need of the common necessaries of
life. The vast army of former slaves living in their
midst had no proper conception of the responsi-
bilities imposed upon them by their emancipation.
Many of them believed that freedom meant freedom
148 LINCOLN, THE LAWYER-STATESMAN

from labor as well as from slavery, and exhibited
no disposition to assume the burdens imposed upon
them as freemen. They had always been fed and
clothed by their white masters and still looked to the
white people to supply them with food and raiment,
while the white people were scarcely able to provide
sustenance for themselves. Under these circum-
stances what could be more natural than that the
legislature should attempt to put an end to such
conditions by the enactment of stringent vagrancy
laws to compel the idlers to resume some useful la-
bor, that those communities might be relieved from
the peril which threatened them as a result of the
presence among them of an unproductive and con-
sequently dangerous class. That the vagrancy laws
passed in some states were unjust is not surprising.
The white people of the Southern states were deal-
ing with new problems. No similar situation had
ever before existed anywhere. They had no prece-
dent to guide them in the solution of the problem,
but time, patience, and perseverance would have
solved it and such injustice as existed would have
been revealed by time and experience without resort
to the methods devised by Congress, which failed
utterly to better the condition of either the white
people or the negroes. It is a lamentable fact that
many of the former slaves never became reconciled
THE LAWYER-PRESIDENT 149

to the duties and responsibilities which their freedom
imposed upon them.

The writer remembers well a conversation which
he had a few years ago with a former slave of more
than average intelligence. The man referred to had
served his master before the war as a man of all
work in the city of New Orleans, his wife being at
the same time a cook in the same household, and
both were owned by the same master. In order to
obtain the point of view of this former slave the
writer said to him: ‘‘ George (for that was his name),
you have had long experience as a slave and also asa
free man; tell me which you like the best, freedom
or slavery.”” He answered quickly: ‘It’s mighty nice
to be yo own boss, but I tell you tha’s a mighty sight
of ’sponsibility "bout it.’’ And so it was with many.
They enjoyed the freedom, but disliked the respon-
sibility, and no doubt sought to evade that respon-
sibility as far as possible.

It is not the purpose of the writer, however, to
enter into a discusion of the subject of reconstruc-
tion here, further than seems necessary to suggest
that the mere fact that the method attempted by
President Johnson led to such deplorable conse-
quences to both the white and the colored people,
affords no sufficient reason for believing that Mr.
Lincoln would have failed to carry out successfully
150 LINCOLN, THE LAWYER-STATESMAN

and without serious conflict, either with Congress or
the Southern people, the reconstruction of the South-
ern state governments. Mr. Blaine confirms this
view, for he says: “‘It is scarcely conceivable that,
had Mr. Lincoln lived, any serious differences could
have arisen between himself and Congress respecting
the policy of reconstruction.’’ 1 He would doubtless
have moved more slowly than his successor, and no
step would have been taken by him in any state with-
out mature reflection and a reasonable assurance of
the support of the people of such state, for he was
never known to act with unnecessary haste. He was
ever sagacious, tactful, and firm. The people of the
North would not have condemned any plan which
he might have proposed, and it is reasonably certain
that he would have found a method of reconciling
the people of the rebellious states to the new con-
ditions without resorting to the extreme measures
which were imposed upon them by the passage, at
the Second Session of the Thirty-ninth Congress,
of the bill placing ten of the so-called Confederate
States under military rule.

State governments had been established in these
states, and as a condition of representation in Con-
gress they were required to ratify the Fourteenth
Amendment to the Constitution. Ten of the eleven

1 Twenty Years of Congress, vol. 11, p. 123.
THE LAWYER-PRESIDENT 151

rebellious states voted against the amendment.
Tennessee alone ratified it. That the other ten states
committed a serious blunder in this is beyond ques-
tion. Had they ratified the amendment the ques-
tion of suffrage would probably have remained en-
tirely within the control of the states, and the only
effect would have been, that so long as the right
of suffrage was denied to the negro he would not
have been included in the enumeration upon which
representation in Congress is based. In other words,
the enumeration for the purpose of representation
would have been limited to whites until such time as
colored men should be granted the right to vote.

The defeat of the amendment in the states re-
ferred to seems to have excited in Congress a spirit
of resentment which brought about hasty action and
resulted in the adoption of those extreme measures
from the evil effects of which those states have not,
after the lapse of almost fifty years, fully recovered.
The people of the South were not at the close of the
war in a position to impose conditions on the National
Government, and whatever of injustice the Four-
teenth Amendment imposed upon them should have
been endured until time had healed the bitterness
which grew out of the Civil War, when a better
understanding would have been reached, and sub-
stantial justice done to all of both races.
152. LINCOLN, THE LAWYER-STATESMAN

In his annual message of December I, 1862, Presi-
dent Lincoln recommended the amendment of the
Constitution so that means could be furnished to the
several states in which slavery existed with which to
compensate the owners of slave property who would
voluntarily emancipate their slaves on the receipt
of fair compensation; and so as to authorize Congress
to appropriate money for the colonization of colored
persons outside of the United States. He presented
strong arguments in favor of the plan. He believed
it to be ‘‘both just and economical.’”’ He declared
that ‘‘the liberation of slaves is the destruction of
property’’; and in support of his contention that
justice required that the cost of compensated eman-
cipation should be made a common charge upon the
nation, he affirmed that ‘‘It is no less true from
having been often said, that the people of the South
are not more responsible for the original intro-
duction of this property than are the people of the
North.”

He advocated the plan also on the ground of
economy. In his message of March 2, 1862, referring
to the same subject, he said: —

In the mere financial or pecuniary view, any member
of Congress with the census tables and treasury reports
before him can readily see for himself how very soon the
current expenditures of this war would purchase at a
fair valuation all the slaves in any named state.
THE LAWYER-PRESIDENT 153

He had given the subject of compensation for
emancipation careful study and understood what its
cost would be to the nation. In a letter to Senator
McDougall of California, he declared that less than
one-half day’s cost of the war would pay for all the
slaves in Delaware at an average price of four hun-
dred dollars per head; and that eighty-seven days’
cost of the war would more than pay for all the
slaves in Delaware, Maryland, the District of Colum-
bia, Kentucky, and Missouri.

That the plan outlined by President Lincoln for
compensated emancipation would have proved at
the time he proposed it to be the wisest possible
solution of the slavery question seems, in the light of
subsequent events, to be so self-evident as to require
no argument to support it. Viewed as a purely
economic question, it would have saved many mil-
lions of dollars in the subsequent expenditure neces-
sary to carry on the war. It would have brought
many, if not all, of the Confederate States back into
harmony with the Union and thus the lives of thou-
sands of brave men would have been saved whose
economic worth to the nation can scarcely be com-
puted, but whose brain and brawn would have been
of inestimable value in the production of wealth. It
would have prevented the vast increase in the pen-
sion rolls of the Government which resulted from the
154 LINCOLN, THE LAWYER-STATESMAN

continuance of the war, and the addition to the
national debt created by it, distributed as it would
have been over so many years, would scarcely have
been felt by the people. Add to all this the good feel-
ing which it is probable that it would have engen-
dered between the warring sections, and we can but
agree with Mr. Lincoln that it would have secured
peace ‘‘more speedily and maintained it more per-
manently ”’ than could have been done by force alone.

The opposition of members of Congress from the
Border States brought about the defeat of a bill
which was introduced in the House of Representa-
tives, soon after the plan had been suggested by
President Lincoln, appropriating ten millions of dol-
lars to the State of Missouri to provide compensa-
tion to the loyal slaveholders of that State. The bill
passed the House and was amended in the Senate by
increasing the amount to fifteen millions of dollars;
but when thus amended it was returned to the House
and an attempt made to secure its passage under a
suspension of the rules, it met with the opposition
of three members from the State which would have
been its chief beneficiary; and on February 26, 1863,
by means of their use of parliamentary tactics, which
prevented the further consideration of the bill by
the Thirty-seventh Congress, they brought about its
defeat.
THE LAWYER-PRESIDENT 155

Thus they deprived their constituents of the gener-
ous aid tendered them and prevented a trial of the ex-
periment which might have put an end to hostilities
by convincing the secessionists that they could never
again hope for aid from the Border States, or be sure
that the extension of the plan as outlined in the mes-
sage of December 1, 1862,would not result in a com-
plete loss of the support which the so-called Con-
federate Government had hitherto received from the
slave states.

The constitutional amendment proposed by Presi-
dent Lincoln in the message last mentioned was
never acted upon by Congress, doubtless because
of the defeat of the Missouri measure; but of the
wisdom of the plan there can be no doubt, and its
adoption by the requisite two thirds of the states
and its acceptance by the states which it was in-
tended should be benefited by it would have ended
the war without impoverishing the people of the in-
surrectionary states. Instead of years of turmoil,
poverty, and oppression, an era of peace, good-will,
and prosperity would have dawned upon the South-
land; in place of bitterness, strife, and resentment,
sectional lines would rapidly have disappeared, and
long before the end of the time fixed in the proposed
amendment for the final end of compensated eman-
cipation it is not improbable that there would not
156 LINCOLN, THE LAWYER-STATESMAN

have been a slave to be found anywhere in the Re-
public.

The gradual emancipation provided for would
have prevented any serious disturbance of labor con-
ditions in the South or elsewhere, and many of the
problems which have disturbed and distracted the
nation since the Civil War would never have ap-
peared upon the political horizon. The people of the
Southern states, as well as the entire country, will
obtain a better understanding of President Lincoln’s
attitude toward the slavery question by reading his
message of December 1, 1862, than from any other
single document written by him. That he has been
greatly misunderstood by some among the people of
those states which formed the Southern Confeder-
acy is beyond question. Such people view him as a
tyrant and the oppressor of their ancestors. Those
who hold that opinion are, however, few in number.
The vast majority of the Southern people agree that
no thought which warrants such an estimate of his
character was ever uttered by him. It cannot be
denied that he was a lover of his whole country,
South as well as North, and ever sought by word and
deed, in a spirit of fraternity, to restore and preserve
the union of her states under the Constitution as he
understood it.

The people of those states owe it to themselves and
THE LAWYER-PRESIDENT 157

their posterity, as well as to their country, to present
in its true light the life-history and achievements of
that true friend of all the people, Abraham Lincoln,
whose kindly nature never permitted him to do
aught in a spirit of revenge, but who, throughout
four long years of civil war, pleaded with the Con-
federate States to return to their allegiance to the
Union under the Constitution which he had taken
a solemn oath to “preserve, protect, and defend.”
The preservation of that Union was his sole purpose
in all that he did and in all that he said. He made
this known so often and in so many ways that the
Southern statesmen were fully advised that to end
the war and bring about ‘domestic tranquillity”
the Confederates had but to renew their allegiance
to the Constitution and the Union. The war was not
fought to liberate the slaves. Their liberation was a
mere incident of that war. It was resorted to only
after nearly two years had been devoted to an effort
to end the war by other means.

Mr. Lincoln recognized the fact that millions of
dollars were invested in slave property, and gave the
slaveholders every opportunity to save that property
from confiscation. No man saw better than he the
poverty which such confiscation would bring upon
the people whose fortunes were represented by such
property. He sought to assist them to avert that
158 LINCOLN, THE LAWYER-STATESMAN

misfortune by providing a method for gradual com-
pensated emancipation, a plan both just and eco-
nomically sound, and which would have proved ad-
vantageous to the freed people as well as to their
masters. That his efforts proved unavailing detracts
nothing from the statesmanship of him who en-
deavored to bring it about. He entertained no feeling
of enmity toward the people of the Confederate
States. He never relaxed his efforts to win them by
appeals to their reason and by showing them that
they were better off in the Union than out of it.
“Can aliens make treaties easier than friends can
make laws?”’ ‘‘Can treaties be more faithfully en-
forced between aliens than laws can among friends?”
he asked in his first inaugural address. In the same
address he said: —

A majority held in restraint by constitutional checks
and limitations and always changing easily with delib-
erate changes of popular opinions and sentiments is the
only true sovereign of a free people. Whoever rejects
it does, of necessity, fly to anarchy or to despotism.
Unanimity is impossible; the rule of a minority, as a
permanent arrangement, is wholly inadmissible; so
that, rejecting the majority principle, anarchy or des-
potism in some form is all that is left... . Why should
there not be a patient confidence in the ultimate justice
of the people? Is there any better hope in the world?

Throughout the entire address there breathed that
spirit of kindness and justice which was character-
THE LAWYER-PRESIDENT 159

istic of Mr. Lincoln in both his public and private
life. Yet, after the lapse of nearly fifty years, there
are many among the descendants of the brave men
who for four years fought in the cause of secession
who have not learned the true worth of that broad-
minded, generous friend of all the people, whose
great mind was constantly occupied in the solution
of the most difficult problems ever presented to any
statesman in ancient or modern times; whose heart-
beats were ever quickened by thoughts of the misery
inflicted upon both sections of his beloved country
by years of fraternal strife.

He knew that he had been grievously misunder-
stood by a majority of the people of the South. He
pleaded for a better understanding of his purposes
toward them even as the lowly Nazarene pleaded
with the people who surrounded him as he trod the
byways and highways of Palestine reviled and re-
jected. As the Saviour of mankind cried out in the
agony of his soul: —

O Jerusalem, Jerusalem, thou that killest the proph-
ets, and stonest them which are sent unto thee, how often
would I have gathered thy children together, even as

a hen gathereth her chickens under her wings, and ye
would not!

so, in his last great appeal to all the people of his
country, Abraham Lincoln implored them: —
160 LINCOLN, THE LAWYER-STATESMAN

With malice toward none; with charity for all, with
firmness in the right, as God gives us to see the right,
let us strive on to finish the work we are in; to bind up
the nation’s wounds... to do all which may achieve
and cherish a just and lasting peace among ourselves,
and with all nations.

Should not the people, North as well as South,
pause amid their many cares, meditate upon these
noble sentiments, and consider whether we have
done ‘‘all which may achieve a lasting peace among
ourselves’? May not we of the North as well as of
the South inquire whether we have always acted
“with malice toward none,” and ‘“‘with charity for
all,” in the consideration of the grave questions
which grew out of the Civil War? Had the people of
the whole country approached the consideration of
these problems in that spirit of fraternity which was
always uppermost in the mind of President Lincoln,
the bitterness engendered by the terrible conflict
between the sections would soon have passed away,
leaving in its wake, not a Union which, after fifty
years, is still sectional, but in its stead a Union in
sentiment as well as in form, in which the people of
each state would have looked upon the states com-
posing the nation as the common heritage of all.
CHAPTER IV
CRITICISM OF THE JUDICIARY

INCOLN’S criticism of the decision of the Su-

preme Court of the United States in the famous
case of Dred Scott vs. Sanford has been frequently
referred to in recent years as an indication that he
did not have a high regard for judicial authority in
cases where it ran counter to the popular will. In
support of this contention reference has been made
to a speech made by Mr. Lincoln at Cincinnati,
September 17, 1859. In that speech he said: ‘The

people of these United States are the rightful masters °
of both congresses and courts”’; and it has been con-

tended that the words quoted indicate a belief on
the part of Lincoln that the popular will should be
held superior to the decrees and judgments of judi-
cial tribunals. This view is not, however, supported
by the evidence. No man entertains a higher regard
for judicial authority than did Mr. Lincoln. It is
beyond dispute that he severely criticized the judges
of the Supreme Court of the United States who
concurred in the majority opinion in the Dred Scott
Case. He believed it to be the result of the pro-
slavery views of Chief Justice Taney and the associate

f
162 LINCOLN, THE LAWYER-STATESMAN

judges who united with him in the decision. While
he admitted its binding force in the particular case
in which it was rendered, he insisted that it should
not be regarded as a final settlement of the questions
involved, and that therefore it should not be followed
as a rule of political action.

There were many circumstances surrounding the
Dred Scott Case which seem to furnish justification
for Mr. Lincoln’s belief that the opinion of the Chief
Justice, in which a bare majority of the justices con-
curred, was brought about by ‘‘concert of action”
between these justices, the executive and Congress,
in an effort to settle a purely political question about
which the country was greatly agitated, and that the
decision was in part based on a false assumption of
the judges as to historical facts.

Mr. Lincoln’s most thorough analysis of the Dred
Scott Case is contained in two speeches made by
him at Springfield, Illinois, the first on June 26,
1857, and the second on June 16, 1858. In the first
of these he said: —

I have said in substance that the Dred Scott decision
was in part based on assumed historical facts which
were not really true, and I ought not to leave the sub-
ject without giving some reasons for saying this. I
therefore give an instance or two, which I think fully

sustain me. Chief Justice Taney, in delivering the opin-
ion of the majority of the court, insists at great length
CRITICISM OF THE JUDICIARY 163

that negroes were no part of the people who made, or }U'”,

for whom was made, the Declaration of Independence ~-*
or the Constitution of the United States. On the con-  ~'
trary, Judge Curtis, in his dissenting opinion, showsthat  ..~.*”"

in five of the then thirteen states, to-wit: New Hamp-
shire, Massachusetts, New York, New Jersey, and North
Carolina, free negroes were voters, and in proportion
to their numbers had the same part in making the
Constitution that the white people had. He shows this
with so much particularity as to leave no doubt of its
truth.

He then proceeded to show that there had been a
systematic abridgment of the rights of free negroes
subsequent to the adoption of the Federal Constitu-, ~.. =a
tion, as well as an extension of slavery into new ter-' ea
ritory, notwithstanding the policy of the framers of' |
the Constitution as enunciated in the Ordinance of
1787 establishing the Northwest Territory.

Mr. Lincoln’s attack upon the decision of the Su-
preme Court was directed chiefly against that part
of the opinion which declared that Congress pos-
sessed no power under the Constitution to prohibit
slavery in a United States territory. He proceeded
to show that this construction placed upon the Con-
stitution was contrary to that which had been placed
upon it by its framers as well as by Congress and the
executive, in the act of 1789 providing for the en-
forcement of the Ordinance of 1787, and in the deeds
of cession by North Carolina and Georgia ceding

{
yeh!
164 LINCOLN, THE LAWYER-STATESMAN .

certain territory to the Federal Government, the
right of the Federal Government to interfere with
slavery being conceded by the provisions of those
instruments which prohibited that Government from
excluding slavery from the ceded territory. He cited
many instances of the exercise by Congress of con-
trol over the subject of slavery during a period of
more than fifty years, all of which gave to the Con-
stitution a construction at variance with the decision
of the court in the Dred Scott Case on the question
of Federal control of slavery in the territories of the
United States.

i It is worthy of notice that nothing appears to in-
dicate that Mr. Lincoln in his speeches on this sub-
ject ever mentioned the provision contained in the
Fourth Article of the Constitution, which declares
that ‘‘The Congress shall have power to dispose of
and make all needful Rules and Regulations respect-
ing the territory or other property belonging to the
United States,” as embodying a grant of power to
Congress to control the subject of slavery therein.
The express grant of power to establish such “‘ Regu-
lations respecting the territory’’ belonging to the
United States would seem to be sufficient to author-
ize Congress to exclude slavery therefrom; for surely
the power to enact such ‘Rules and Regulation re-
specting the territory or other property of the United
CRITICISM OF THE JUDICIARY 165

States’’ is broad enough to enable Congress to pass

such legislation respecting any United States terri-

tory as would place in Congress entire control of

each territory. It does not appear, however, that

this provision of the Constitution entered into the
discussion of the question of the extension of slavery.

In his great Cooper Union speech in New York City ~
February 20, 1860, Mr. Lincoln again stated his posi-

tion in regard to the Supreme Court veryclearlyand
concisely in these words: — ott Me ;

g

The court has substantially said that it is your con- +. \
stitutional right to take slaves into the Federal terri-
tories and to hold them there as property. When I say
the decision was made in a sort of way, I mean it was
made in a divided court, by a bare majority of the
judges, and they not quite agreeing with one another in
the reasons for making it; that it is so made as that its
avowed supporters disagree with one another about its
meaning, and that it was mainly based upon a mistaken
statement of fact — the statement in the opinion that
“the right of property in a slave is distinctly and ex-
pressly affirmed in the Constitution.’’ An inspection of
the Constitution will show that the right of property in
a slave is not ‘‘distinctly and expressly affirmed’’ in it.

He then proceeded to show that in the opinion of
the court it was not claimed that such rights existed
under the Constitution by implication, and after
declaring that the assumed facts upon which the de-
cision was founded did not exist, he added: —
166 LINCOLN, THE LAWYER-STATESMAN

When this obvious mistake of the judges shall be
brought to their notice, is it not reasonable to expect
that they will withdraw the mistaken statement and
reconsider the conclusion based upon it?

The so-called assaults of Lincoln upon the courts

_ will be found upon examination to have been limited
entirely to condemnation of individual judges. In
.the Cincinnati speech already mentioned he made
‘this very plain when he declared that ‘‘The people

of these United States are the rightful masters of
both congresses and courts, not to overthrow the
Constitution, but to overthrow the men who pervert
the Constitution.”” Lincoln believed that the Dred
Scott decision was a misinterpretation of the Con-
stitution and that every proper means should be
used to induce the court to overrule it whenever
another case involving the same question should be
presented to the court, and in the mean time he in-
sisted that it should not be followed ‘‘as a political
rule.” In a speech at Chicago July Io, 1858, he
said: —

If I were a member of Congress and a vote should
come upon a question whether slavery should be pro-
hibited in a new territory, in spite of the Dred Scott
decision, I would vote that it should; [and again, in the
same speech] We mean to have the Court decide the
other way. That is one thing we mean to try to do.
The sacredness that Judge Douglas throws around this
decision is a degree of sacredness that has never been
CRITICISM OF THE JUDICIARY _ 167

before thrown around any other decision. I have never
heard of such a thing.

He then went into a discussion of the circum-
stances under which the decision was rendered and
the false premises upon which it was based, and de-
clared that no decision of any court ‘‘ thus placed has
ever been held by the profession as law, and it has
always needed confirmation before the lawyers re-
garded it as settled law.” In his Springfield speech
of June 26, 1857, already referred to, he also defined
his position with reference to the Supreme Court of
the United States in the following language: —

Judicial decisions have two uses — first, to abso-
lutely determine the case decided; and secondly, to in-
dicate to the public how other similar cases will be de-
cided when they arise. For the latter use they are called
“‘precedents’”’ and ‘‘authorities.’”’ We believe as much
as Judge Douglas (perhaps more) in obedience to and
respect for the judicial department of the Government.
We think its decisions on constitutional questions, when
fully settled, should control not only the particular
cases decided but the general policy of the country,
subject to be disturbed only by amendments to the
Constitution as provided in that instrument itself.
More than this would be revolution. But we think the
Dred Scott decision is erroneous. We know the court
that made it has often overruled its own decisions, and
we shall do what we can to have it overrule this. We
offer no resistance to it.

Judicial decisions are of greater or less authority
168 LINCOLN, THE LAWYER-STATESMAN

as precedents according to circumstances. That this
should be so accords both with common sense and the
customary understanding of the legal profession.

If this important decision had been made by the
unanimous concurrence of the judges, and without any
apparent partisan bias, and in accordance with legal
public expectation and with the steady practice of the
departments throughout our history, and had been in
no part based on assumed historical facts which were
not really true; or, if wanting in some of these, it had
been before the Court more than once, and had there
been affirmed and reaffirmed, through a course of years,
it then might be, perhaps would be, factious, nay, even
revolutionary, not to acquiesce in it as a precedent. But
when, as is true, we find it wanting in all these claims to
the public confidence, it is not resistance, it is not fac-
tious, it is not even disrespectful, to tréat it as not having
yet quite established a settled doctrine for the country.

Mr. Lincoln never said anything from which it can
be inferred that he favored any policy which would
curtail even in the slightest degree the independence
of the judiciary. He also believed that the majority of
the judges had exceeded their duty and had under-
taken to decide, in the Dred Scott Case, matters not
properly before the court, and that such parts of
the opinion as were devoted to a discussion of those
. questions were what lawyers call obiter dicta. This
is shown by his speech at Jonesboro during the great
debate, when he declared: —

If any points are really extra-judicially decided be-
CRITICISM OF THE JUDICIARY 169

cause not necessarily before them, then this one as to
the power of the territorial legislature to exclude slav-
ery is one of them, as also the one that the Missouri
Compromise was null and void.

For this reason, as well as others, he refused to
accept it ‘‘as a political rule.”

In the speech of July 17, 1858, at Springfield, he
made it very plain that he intended no assault upon
the independence of the judiciary when he said: —

I think that in respect for judicial authority my hum-
ble history would not suffer in comparison with that
of Judge Douglas. He would have the citizen conform
his vote to that decision; the member of Congress his;
the President his use of the veto power. He would
make it a rule of political action for the people and all
the departments of the government. I would not. By
resisting it as a political rule, I disturb no right of
property, create no disorder, excite no mobs.

Again, in his speech at Quincy October 13, 1858,
he recurred to the subject: —

We do not propose that when Dred Scott has been
decided to be a slave by the Court, we as a mob will
decide him to be free. We do not propose that, when
any other one or one thousand shall be decided by that
Court to be slaves, we will in any violent way disturb
the rights of property thus settled; but we nevertheless
do oppose that decision as a political rule which shall be
binding on the voter to vote for nobody who thinks it
wrong. We propose so resisting it as to have it reversed
if we can and a new judicial rule established upon this
subject.
170 LINCOLN, THE LAWYER-STATESMAN

In the first inaugural address he again discussed
the subject of the binding effect of the decisions of
the Supreme Court, and concluded his discussion of
the subject with these words: —

 

If the policy of the government upon vital questions
affecting the whole people is to be irrevocably fixed by
decisions of the Supreme Court, the instant they are
made in ordinary litigation between parties in personal
actions, the people will have ceased to be their own
rulers, having to that extent practically resigned their
government into the hands of that eminent tribunal.
Nor is there in this view any assault upon the court
or the judges. It is a duty from which they may not
shrink, to decide cases properly brought before them,
and it is no fault of theirs if others seek to turn their
decisions to political purposes.

Other utterances of Lincoln might be cited which
show that he regarded the independence of the judi-
ciary as of supreme importance under the American
system of government. With the single exception of
the decision in the Dred Scott Case, there is nothing
to indicate a disposition on his part to criticize,
much less condemn the judges or show the slightest
disrespect for either the courts or the judges who
composed them. His intimation that there was “a
concert of action” between the judges who rendered
the majority opinion in the Dred Scott Case, and the
slave-power, was uttered in the course of a heated

discussion of a question about which the country
CRITICISM OF THE JUDICIARY 171

was greatly agitated. The battle had been in prog-
ress for many years, in Congress and in the political
arena. Everywhere, North and South, East and
West, on the rostrum, in private and in public, in the
domestic and social circles of the land, it had become
a disturbing element. It divided families and parted
friends. As stated by Mr. Lincoln in his second in-
augural address, those who believed that slavery was
right and those who believed it wrong both read the
same Bible and prayed to the same God, and each
invoked “‘his aid against the other.’’ Those who had
been reared and educated entirely amid an environ-
ment wherein slavery was regarded as morally and
legally right became, by reason of such environment,
impregnated with so strong a belief in its legitimacy
that it was a part of their very nature to accept slav-
ery as divinely appointed.

It is not surprising therefore that the men who
composed the majority of the Supreme Court should
have sustained the “right of property in a slave” and
the right to hold that property in a United States
territory when that question came before them for
judicial determination. Those judges could not have
failed to understand fully the danger which con-
fronted the nation by the continued discussion of the
question; and it may well be that there was a “con-
cert of action” between the judges, Congress, and
172 LINCOLN, THE LAWYER-STATESMAN

the executive as charged by Mr. Lincoln. The ques-
tions involved had never been determined in any
other case. The only question really presented for
decision in the Dred Scott Case was that involving
the right of Dred Scott to bring suit in a court of the
United States.

The court might have disposed of the case by
simply holding, as it did in fact hold, that Dred Scott
was not a citizen of the United States within the
meaning of the Constitution and therefore could not
bring suit in its courts. The other questions decided
in the case were not really before the court and
might have been ignored, but the court apparently
sought in its decision to put an end to the agitation
of the slavery question. Since there was no precedent
to follow and since the arguments, for and against
the power of Congress under the Constitution to
exclude slavery from the territories, were strength-
ened in the minds of those who urged them, by the
education and environment of each individual, it
would have been little less than a miracle if those
judges who were reared and educated in an envi-
ronment of slavery had not been influenced by it
in a case where the Constitution was open to more
than one possible construction. For, as Mr. Lincoln
so aptly put it in his Cooper Union speech, ‘‘ Human
action can be modified to some extent, but human
CRITICISM OF THE JUDICIARY 173

nature cannot be changed.”’ Therefore, if the judges
believed that by their decision they would set at rest
all further agitation upon the subject of the exten-
sion of slavery, they might have felt justified in
deciding questions which were of a purely political
character, knowing full well that the decisions of
those political questions were but the expression of
the personal opinions of the judges, merely obiter
dictum, and of no value as a precedent for any case
which should be thereafter presented involving di-
rectly the same questions. ;

It is true that Mr. Lincoln also criticized that part
of the decision which held that a free negro could
not be a citizen of the United States under the Con-
stitution as it then existed; but his criticism was
based upon questions of fact. He showed by his
arguments directed against the decision, that Chief
Justice Taney erred in his findings of fact upon
which the decision of the questions of law was
founded. The Chief Justice had declared that at the.
time of the adoption of the Constitution ‘‘the un-
happy black race was never thought of or spoken of
except as property.”” The Chief Justice in his opin-
ion displayed an ignorance of historical facts which is
really surprising, and Mr. Lincoln had every reason
for his often-repeated declaration of a belief that,
when the attention of the court should, in a proper
174 LINCOLN, THE LAWYER-STATESMAN

case, be called to the errors in the findings of facts,
the Dred Scott Case would be overruled.

Chief Justice Taney was a great lawyer and a
great judge. He was also a high-minded and upright
man personally; but in the opinion referred to there
seems to be no doubt that he descended from the
decision of a question fairly before the court to pass
upon political questions outside of the record; and
that the decision of those questions was the result
of partisan bias or a failure to investigate historical
records which would have forced the judges to a
different conclusion. The criticisms of Mr. Lincoln
were fully justified, and his refusal to accept the
decision as a guide for political action was in no
proper sense a blow at the independence of the judi-
ciary, but rather a demand that the court should
assert its independence and refuse in all cases to per-
mit political considerations to be taken into account
in determining questions arising in ‘‘ordinary liti-
gation between parties in personal actions.”” There
is no ground whatever for a comparison between
the Dred Scott Case and Mr. Lincoln’s comments
thereon and decisions of the courts which have de-
clared state laws unconstitutional because in conflict
with the Fourteenth Amendment; for in the latter
class of cases there has been none in which it was
claimed even by those by whom such decisions were
CRITICISM OF THE JUDICIARY 175

assailed, that the opinion in any case undertook to
decide a question not fairly before the court, or that
there was the least indication that the judges had
undertaken to do more than to decide the constitu-
tional questions at issue, — ‘‘a duty,’ which Mr.
Lincoln said in his first inaugural address ‘‘from
which they may not shrink.”

The cases which have in recent years brought
about the most vicious assaults upon the independ-
ence and integrity of the courts have generally in-
volved the construction of the Fourteenth Amend-
ment. Those who have attacked the courts because,
in the decision of cases before them, they have not
responded to what, for the time being, seemed to be
the popular will, lose sight of the very important fact
that the Constitution itself is the very highest ex-
pression of the will of the people; that the people in
that instrument have provided a method by which
the popular desire to change or amend it shall be
expressed; and that until such desire shall have been
so expressed, the judges are bound under their oath
of office to interpret the Constitution in accordance
with their understanding of the popular will as
therein expressed, no matter what may appear to be
the prevailing popular demand at the time of the
decision of the particular case before the court.
They also overlook the very important fact that the
176 LINCOLN, THE LAWYER-STATESMAN

judges cannot, without a violation of their duty to
the people and the oath they have each taken, hold
any law to be constitutional which in their judgment
is in conflict with that instrument in which the peo-
ple have declared that

this Constitution and the laws of the United States
which shall be made in pursuance thereof... shall be
the supreme law of the land; and the judges in every
state shall be bound thereby, anything in the constitution
or laws of any state to the contrary notwithstanding.

Judges who have been called upon in recent years
to pass upon cases involving the constitutionality
of so-called ‘‘social and industrial legislation’’ have
been subjected to severe criticism, if not worse, be-
cause they have declared specific legislative enact-
ments unconstitutional. It has been sought to make
it appear that the courts have in such cases under-
taken to decide questions involving the wisdom or
desirability of the legislative acts under considera-
tion, while an examination of the decisions them-
selves will show that the question of their wisdom
or desirability had nothing whatever to do with the
decision in any case, and if referred to at all it has
been for the sole purpose of declaring that with
the wisdom or desirability of such legislative enact-
ments, or any other, the court was in no manner con-
cerned.
CRITICISM OF THE JUDICIARY 177

The courts of this country at least have uniformly
held, whenever the question has arisen in any case,
that questions of the wisdom or desirability of legis-
lation rest solely with the legislature. That the
courts, both federal and state, not only have the
right, but that it is their duty, to pass upon and de-
termine whether a law passed by a legislative body
is or is not in conflict with the Constitution is too
well settled to require further discussion. Mr. Lin-
coln never contended that the courts did not possess
that power. On the contrary, he was a firm sup-
porter of it, and believed that when any decision had
been affirmed by subsequent decisions it would be
‘revolutionary not to acquiesce in it.’”” He declared
in his speech of June 26, 1857, and elsewhere, that
when fully settled, the law as laid down by the Su-
preme Court should be obeyed even on questions of
the general policy, ‘‘subject to be disturbed only by
amendments to the Constitution as provided in that
instrument itself.”” He never suggested a direct
appeal from the courts to the people. He did what
many lawyers have done in other cases both before
and since his time, namely, declared his belief that
the court in its decision of the Dred Scott Case had
rendered a judgment which was wrong, and gave his
reasons for so believing, as well as for his belief that
the judges had been influenced by their political
178 LINCOLN, THE, LAWYER-STATESMAN

affiliations; but never throughout his career did he
assail the judicial system of his country or seek to
cast reproach upon the judicial officers of the state or
nation. Those who have sought to make it appear
that he did so have cast unwarranted reproach upon
the name of one of the most illustrious defenders of
the institutions of the Republic.

More than seventy-five years ago, De Toqueville,
in his ‘‘ Democracy in America” wrote: —

I am aware that a secret tendency to diminish the
judicial power exists in the United States. . . . I venture
to predict that these innovations will sooner or later be
attended with fatal consequences, and that it will be
found out at some future period that the attack which
is made upon the judicial power has affected the demo-
cratic republic itself.

In recent years these attacks have become more
formidable than ever in the history of the country
and have generally assumed the form of a demand for
the recall of judges by popular vote. So far as the
writer is aware it has not, however, been claimed by
any one that Mr. Lincoln either suggested or ap-
proved of that method of compelling submission by
the judges to the popular will. This is probably due
to the fact that he has left a record of his attitude
upon substantially the same subject, wherein he
strongly condemned the action of the legislature of
Illinois for enacting a law which had the effect of
CRITICISM OF THE JUDICIARY 179

recalling all of the circuit judges of the State, adding
five new judges to the Supreme Court and imposing
upon the judges of the latter court the performance
of the duties which had theretofore been performed
by circuit judges. A protest signed by Mr. Lincoln
(then a member of the legislature) and others was
presented to the legislature, condemning the action
of the majority of that body by whose votes was
passed the act in question, and giving the reasons
for their disapprobation, among which were the fol-
lowing: —

1. It violates the great principles of free government
by subjecting the judiciary to the legislature.

2. It isa fatal blow at the independence of the judges
and the constitutional term of their office... .

5. It will give our courts a political and partisan char-
acter, thereby impairing public confidence in their de-
cisions.

6. It will impair our standing with other states and
the world.

This protest was presented to and entered upon
the journal of the House of Representatives, Febru-
ary 26, 1841. Mr. Lincoln and five other members of
the legislature had issued an address to the people of
Illinois on the same subject on the 8th of the same
month, in which this ‘‘recall of judges” was strongly
condemned. When it is remembered that at the time
of the passage of the legislation mentioned, the con-
180 LINCOLN, THE LAWYER-STATESMAN

stitution of that State then in force left with the
legislature entire control of the election of judges
throughout the State, it is difficult to perceive any
difference in principle between the interference with
the independence of the judiciary which Mr. Lincoln
condemned, and that which must result from a sys-
tem which permits a recall of judges by popular
vote.
CHAPTER V
THE ORATOR

()' oratory, Justice David J. Brewer said: —

Oratory is the masterful art. Poetry, painting,
music, sculpture, architecture, please, thrill, inspire;
but oratory rules. The orator dominates those who hear
him, convinces their reason, controls their judgment,
compels their action.

If this be true and the oratory of Lincoln be thus
measured, few orators have left on record more sub-
stantial evidence of the possession of great orator-
ical power than he.

Daniel Webster’s great reply to Hayne stands out
boldly as the greatest of all the speeches of the great-
est of all American orators, and closely in its wake
follows his oration at the dedication of Bunker Hill
Monument; and while their author delivered many
great addresses, it is by these that he is chiefly remem-
bered, for the average man has heard little of any
other. Henry Clay is known to the world as an ora-
tor of extraordinary power, yet few there are who can
name a single speech made by him during his long
public service. But if the results of the forensic
efforts of Webster and Clay be taken as the means of
182 LINCOLN, THE LAWYER-STATESMAN

determining the relative merit of the oratory of these
renowned statesmen, who can doubt that to Henry
Clay must be conceded the higher honor?

The reputation of Abraham Lincoln as an orator
rests almost, if not entirely, in the estimation of his
countrymen and the world, upon his Gettysburg
Address and his two inaugural addresses. Yet if we
measure his oratory by the results that grew out of
it, it must be conceded that his greatest orations
were the speech delivered at Cooper Union in New
York City February 27, 1860, and those made during
the debate with Stephen A. Douglas, in 1858. Of the
latter speeches, he said, in a letter to Dr. A. G.
Henry, November 19, 1858:—

I am glad I made the race. It gave me a hearing on
the great and durable question of the age, which I could
have had in no other way; and though I now sink out
of view and shall be forgotten, I believe I have made
some marks which will tell for the cause of civil liberty
long after I am gone.

Prior to the time of the great debate no public man
had taken the strong middle ground upon the slavery
question upon which Mr. Lincoln planted himself in
those speeches. The abolitionists advocated a resort
to extreme measures against that institution in the
slave states. They looked upon slavery as a viola-
tion of the law of God, as an evil with which no
THE ORATOR 183

compromise should be made, and contended that it
should be abolished everywhere.

Mr. Lincoln took the bold and sound position that
the National Government had no power to interfere
with or control the subject of slavery in the states,
but that it did possess the authority, under the
Constitution, to prevent its extension into territory
owned by the nation; and the arguments which he
advanced were such as to convince the reason, con-
trol the judgment, and arouse to action the great
mass of the people of the ‘free states.”

As a result of those masterly addresses he became,
not only the instrument by which the further spread
of slavery was prevented, but also the medium for
the accomplishment of the end which had long been
the aim of the abolitionists, whose purpose he had in
the great debate so strenuously opposed.

There is, however, another type of oratory which
never fails to attract and hold the admiration of the
listener; which plays upon the imagination and car-
ries the multitude before it; which rises and falls like
the waves of the ocean; whose beauty of diction
charms and captivates the hearers by its pathos, or
bears them aloft by the splendor of its well-rounded
periods as a majestic ship is borne by the restless
billows. To this class belong the funeral oration of
Pericles; the oration of Demosthenes On the Crown;
184 LINCOLN, THE LAWYER-STATESMAN

that of Henry Lee on Washington, of James G. Blaine
on Garfield, and President Lincoln’s Gettysburg
Address.

Mr. Lincoln’s reputation as an orator should not
rest solely upon the addresses before mentioned, for
as early as 1837 he had established an enviable
reputation as an eloquent speaker. On the 27th of
January of that year he delivered an address at
Springfield on ‘‘The Perpetuity of our Political In-
stitutions,’’ which, for the beauty of its diction, the
sublimity of its thought, and the high ideals and pa-
triotic sentiments which it contains is not surpassed
by anything to which he gave utterance in later years.
In the course of it, he said: —

We find ourselves under the government of a system
of political institutions conducing more essentially to
the ends of civil and religious liberty than any of which
the history of former times tells us. We, when mounting
the stage of existence, found ourselves the legal inher-
itors of these fundamental blessings.... They are a
legacy bequeathed to us by a once hardy, brave and
patriotic, but now departed, race of ancestors.

Calling attention to the aim of the founders of the
Republic to build ‘“‘a political edifice of liberty and
equal rights,’’ he declared it to be our duty
to transmit these — the former unprofaned by the foot

of an invader, the latter undecayed by the lapse of time
and untorn by usurpation — to the latest generation.
THE ORATOR 185
It was in the same address that he declared that

All the armies of Europe, Asia and Africa combined,
with all the treasure of the earth (our own excepted) in
their military chest, with a Bonaparte for a commander,
could not by force take a drink from the Ohio or make a
track on the Blue Ridge in a trial of a thousand years.

He called attention to the importance of a rever-
ence for the law and its duly constituted representa-
tives and to

the growing disposition to substitute the wild and furi-
ous passions in lieu of the sober judgments of courts and
the worse than savage mobs for the executive ministers
of justice.

He dwelt upon the incentives to patriotism and the
dangers which might confront the nation by reason
of the selfish ambition of such as would pull down
what others have built, rather than be denied that
distinction which they crave. Referring to the first
fifty years of our national life and the influence of
the early patriots he declared: —

They were pillars of the temple of liberty; and now
that they have crumbled away that temple must fall
unless we, their descendants, supply their places with
other pillars hewn from the solid quarry of sober reason.
Passion has helped us, but can help us no more. It will in
future be our enemy. Reason — cold, calculating, unim-
passioned reason — must furnish all the materials for our
future support and defense.
186 LINCOLN, THE LAWYER-STATESMAN

The entire speech bristles with sentiments of ex-
alted patriotism.

The few speeches made by him while a member
of Congress contain passages which prove him to
have been an orator of great power. At times his
oratory was of the fervid type which, while it leads
and captivates the imagination, also convinces the
reason, and seldom did he fail to display that un-
usual style so manifest in his later speeches, which
swayed his hearers by the force of his logic.

It must not be forgotten that prior to 1858 Mr.
Lincoln was not well known outside of Illinois; and
as the speeches of others than those who held public
office were seldom published in those days, unless
they were in manuscript form, and as Mr. Lincoln
often spoke extemporaneously, very many of those
speeches have been lost, so that we can judge of his
oratory only by the few which have been preserved.

His eulogy of Henry Clay, July 16, 1852, at
Springfield, Illinois, is among those which have
been preserved, and it will not suffer by compari-
son with similar addresses by other orators of wide
reputation for eloquence. Another speech by Mr.
Lincoln, which was deemed of sufficient importance
to merit publication in the Vandalia Free Press
and to be later copied in the Sangamon Journal,
was that on the State Bank, already mentioned in
THE ORATOR 187

this volume, which was delivered before the legisla-
ture at Vandalia in January, 1837. On reading the
speeches which have been here mentioned it will be
found that Mr. Lincoln was possessed of unusual
powers as an orator, and that many passages will
compare favorably with the best to be found in the
speeches of those most famous for eloquence among
Americans. The method of expression employed at
Gettysburg was not newto Mr. Lincoln, but will be
found in many of his earlier speeches. He did not
expect that the few words spoken at Gettysburg
would be regarded as his greatest public address. In-
deed, he appears to have regarded his second in-
augural address as the best of all his efforts. In a
letter to Thurlow Weed March 15, 1865, referring
to the latter address, he said he expected it ‘‘to
wear as well— perhaps better than anything I
have produced; but I believe it is not immediately
popular.” In others of his speeches may be found
passages regarded by many as equal to anything
contained in either of the two last mentioned.

Note the words with which he concluded his
Cooper Union speech: —

Let us have faith that right makes might; and in that

faith let us to the end dare to do our duty as we under-
stand it.

Read his apostrophe to the name of Washington: —
188 LINCOLN, THE LAWYER-STATESMAN

Washington is the mightiest name of earth —long since
the mightiest in the cause of civil liberty, still might-
iest in moral reformation. On that name no eulogy is
expected. To add brightness to the sun or glory to the
name of Washington is alike impossible. Let none at-
tempt it. In solemn awe pronounce the name and in its
naked deathless splendor leave it shining on.

Or note the sublime conclusion of his speech on the
Subtreasury, December, 1839: —

The probability that we may fall in the struggle ought
not to deter us from the support of a cause we believe
to be just. It shall not deter me. If ever I feel the soul
within me elevate and expand to those dimensions not
wholly unworthy of its Almighty Architect, it is when I
contemplate the cause of my country deserted by all
the world beside, and I, standing up boldly and alone,
and hurling defiance at her victorious oppressors. Here,
without contemplating consequences, before high heaven
and in the face of the world, I swear eternal fidelity to
the just cause, as I deem it, of the land of my life, my
liberty, and my love. And who that thinks with me will
not fearlessly adopt the oath I take? Let none falter
who thinks he is right and we may succeed. But if after
all we shall fail, be it so. We still shall have the proud
consolation of saying to our consciences and to the de-
parted shade of our country’s freedom that the cause
approved of our judgment, and adored of our hearts, in
disaster, in-chains, in torture, in death, we never faltered
in defending.

His warning against the machinations of ambi-
tious men, contained in the speech of January 27,
1837, is entitled to a place in the highest rank of
THE ORATOR 189

polemic oratory. Its terse and forceful language
presents a picture well calculated to inspire all with
a feeling of resentment at the selfish ambition of
men who seek to subject the popular will to servile
submission to the demands of those whose chief
purpose is self-aggrandizement. Note how com-
pletely he tears away the mask behind which ambi-
tion is concealed, by the following passage: —

Towering genius disdains a beaten path. It seeks re-
gions hitherto unexplored. It sees no distinction in add-
ing story to story upon the monuments of fame erected
to the memory of others. It denies that it is glory
enough to serve under any chief. It scorns to tread in
the footsteps of any predecessor, however illustrious.
It thirsts and burns for distinction; and if possible it
will have it, whether at the expense of emancipating
slaves or enslaving freemen. Is it unreasonable then to
expect that some man possessed of the loftiest genius,
coupled with ambition to push it to its utmost stretch,
will at some time spring up among us? And when such
an one does, it will require the people to be united
with each other, attached to the government and laws,
and generally intelligent, to successfully frustrate his
designs. Distinction will be his paramount object; and
although he would as willingly, perhaps more so, acquire
it by doing good as harm, yet, that opportunity being
past, and nothing left to be done in the way of building
up, he would set boldly to the task of pulling down.

These are but a few of the notable passages to be
found in the speeches of Mr. Lincoln; but they not
190 LINCOLN, THE LAWYER-STATESMAN

only show the trend of his thought, the alertness of
his mind, and the beauty of his diction, but they
also reveal that spirit of self-abnegation so charac-
teristic of him throughout his life. The earnestness
which is manifest in all his public addresses exhibits
that sublime trait of his character — unselfish de-
votion to the right as he saw it — which was the
source of that ability to win the respectful atten-
tion of others to his every act and utterance.
Daniel Webster declared that the secret of every
great oration was in the occasion, in the cause which
called forth the exercise of the gifts of the orator.
This was the mainspring of all of Mr. Lincoln’s
great speeches. His devotion to the cause of the
Union gave him a theme worthy of his great talents,
and no man ever used the powers of logic and elo-
quence with greater force than he. In his conscious-
ness of right and his belief that “‘right makes might”’
was the secret of his influence over the hearts and
minds of men. He was not addicted to idle talk.
He made no speeches for self-aggrandizement or to
advance any selfish interest. His public addresses
were upon subjects in which he felt a deep personal
interest. There is no record of any address by him
which was not made with a definite and sincere
purpose in view. He never delivered an address to
amuse or entertain his hearers; and while he fre-

 
THE ORATOR 191

quently made use of anecdotes, it was for the sole
purpose of illustration or to simplify and illuminate
his argument or reveal some weakness in the argu-
ment of an opponent.

He never, in a public address, related an anec-
dote for the sole purpose of affording amusement to
his hearers, to draw to himself their plaudits or add
to his own reputation. He possessed none of the
attributes of the demagogue. His desire for the
welfare of the people was too well founded and deep
to permit him to advocate any cause in which he
did not sincerely believe. He sought the applause
of the multitude, not for himself, but for the cause
which he advocated.

He aimed to convince the reason, not to warp
the judgment by specious argument, or by arousing
that species of enthusiasm among the people which
would carry them with him by impelling them to
act from impulse or without mature reflection. He
never sought to encourage that sort of hero-worship
which, from devotion to and admiration for the
orator, leads men to a disregard of the doctrines
which he proclaims. He endeavored to make men
think seriously on the problems presented, and by
their mental processes decide for themselves upon
the merits or the wisdom of the policies for which
he contended. His statements were always clear
192 LINCOLN, THE LAWYER-STATESMAN

and concise, and in his arguments he used language
so simple as to be readily understood by all. The
people understood all this, and whenever he was
announced to speak a vast audience generally
awaited him, and when he spoke all listened with
that rapt attention which none but a truly great
orator can command.

He loved to listen to great speeches made by
others and gave to merit unstinted praise. While a
member of Congress, after listening to a speech by
Alexander H. Stephens on February 2, 1848, he wrote
to Herndon: —

Mr. Stephens of Georgia, a little, slim, pale-faced,
consumptive man, with a voice like Logan’s, has just
concluded the very best speech of an hour’s length I
ever heard. My old, withered, dry eyes are full of tears
yet. If he writes it out anything like he delivered it, our
people shall see a good many copies of it.

He read the great speeches made by others with
deep interest, and often by reflection upon the gems
of truth which they contained developed and en-
larged them by the force of his own genius, so that
when the same thought was expressed by him, it
was presented in such terse and simple language
that the people caught its force more readily, and
understood.

In May, 1850, Theodore Parker defined a democ-
THE ORATOR 193

racy as ‘‘government of all the people, by all the
people, for all the people.”” Omit from the phrase
quoted the word ‘‘all’’ wherever it occurs, and we
have the words embodied in the concluding para-
graph of the Gettysburg Address, but presented far
more forcefully than in the passage quoted. Daniel
Webster expressed the same thought in his great
reply to Hayne in 1830 when he said, ‘‘ The people’s
government, made for the people, made by the peo-
ple, and answerable to the people.’’ The phraseol-
ogy of Webster and that of Theodore Parker, though
expressing the same thought as that expressed by
Lincoln in the Gettysburg Address, was soon for-
gotten; but in the new dress in which it was pre-
sented by Lincoln, it has become immortal.

The great thoughts found in the speeches of Mr.
Lincoln were uttered for no other purpose than to
impress some truth upon his hearers. No selfish
interest aided in their development or in the devel-
opment of his arguments. He devoted all his powers
to a solution of the momentous questions which
confronted the Republic because of his belief in the
justice of the cause which he championed. Though
one of the busiest practitioners at the bar of Illinois,
he put aside his professional duties to become the
unpaid advocate of the people’s cause, a cause for
which he was ready to surrender all, even life itself.
194 LINCOLN, THE LAWYER-STATESMAN

In a speech at Lewiston, August 17, 1858, he
said: —

Think nothing of me, — take no thought for the polit-
ical fate of any man whomsoever — but come back to
the truths of the Declaration of Independence. You
may do anything with me you choose, if you will but
heed these sacred principles. You may not only defeat
me for the Senate, but you may take me and put me to
death . . . but do not destroy that immortal emblem of
humanity.

This was not idle talk: it was the expression of
that unselfish devotion to the cause of human lib-
erty for which he was prepared to die if need be. Is
it any wonder that he was recognized as the unsel-
fish leader and intrepid champion of every worthy
cause, and as such inspired the confidence of men
in every walk of life?

Mr. Lincoln never used words to conceal his
thoughts, but every sentence which fell from his
lips was intended to convey in crystal-like form the
result of his mature reflection. He was not a builder
of metaphors or a constructer of catch-phrases
intended only to charm the ear. He painted no
word-picture which did not contain some valuable
thought or wise suggestion. The theme with him
was everything; he held himself as naught. The
world was slow to recognize the sublimity and wis-
THE ORATOR 195

dom of his utterances, but time has worked a revo-
lution, and after fifty years the name of Abraham
Lincoln stands enrolled among the foremost orators
of any age.
GEMS OF THOUGHT FROM LINCOLN

To add brightness to the sun or glory to the name
of Washington is alike impossible. Let none at-
tempt it. In solemn awe pronounce his name, and
in its naked, deathless splendor leave it shining on.

The probability that we may fall in the struggle
ought not to deter us from the support of a cause
we believe to be just.

We know nothing of what will happen in the fu-
ture but by the analogy of experience.

If at any time all labor should cease, and all exist-
ing provisions be equally divided among the people,
at the end of a single year there could scarcely be
one human being left alive.

Military glory —that attractive rainbow that
rises in showers of blood — that serpent’s eye that
charms to destroy.

His mind, taxed beyond its power, is running
hither and thither like some tortured creature on a
burning surface, finding no position on which it can
settle down and be at ease.
198 LINCOLN, THE LAWYER-STATESMAN

The true rule in determining to embrace or re-
ject anything, is not whether it have any evil in it,
but whether it have more of evil than of good.

Stand with anybody that stands right. Stand
with him while he is right, and part with him when
he goes wrong.

Any policy to be permanent must have public
opinion at the bottom — something in accordance
with the philosophy of the human mind as it is.

The love of property and a consciousness of right
or wrong have conflicting places in our organization,
which often make a man’s course seem crooked, his
conduct a riddle.

Let us have faith that right makes might; and in
that faith let us to the end dare to do our duty as
we understand it.

Even though much provoked, let us do nothing
through passion and ill-temper.

Human action can be modified to some extent,
but human nature cannot be changed.

What is conservatism? Is it not adherence to the
old and tried against the new and untried?
GEMS OF THOUGHT 199

If we would supplant the opinions of our fathers
in any case, we should do so upon evidence so
conclusive, and argument so clear, that even their
great authority, fairly considered and weighed, can-
not stand.

No one who has sworn to support the Constitu-
tion can conscientiously vote for what he under-
stands to be an unconstitutional measure, however
expedient he may think it; but one may and ought
to vote against a measure which he deems consti-
tutional, if at the same time he deems it inexpe-
dient.

To be fruitful in invention it is indispensable to
have a habit of observation and reflection.

I don’t believe in a law to prevent a man from
getting rich; it would do more harm than good.

No organic law can ever be framed with a provi-
sion specifically applicable to every question which
may occur in practical administration.

A majority held in restraint by constitutional
checks and limitations and always changing easily
with deliberate changes of popular opinions and
sentiments, is the only true sovereign of a free peo-
ple. Whoever rejects it does of necessity fly to an-
archy or to despotism.
200 LINCOLN, THE LAWYER-STATESMAN

Can aliens make treaties easier than friends can
make laws?

Why should there not be a patient confidence in
the ultimate justice of the people?

May our children and our children’s children for
a thousand generations continue to enjoy the bene-
fits conferred upon us by a united country.

Let not him who is houseless pull down the house
of another, but let him work diligently and build
one for himself, thus by example assuring that his
own shall be safe from violence when built.

The shepherd drives the wolf from the sheep's
throat, for which the sheep thanks the shepherd as
his liberator, while the wolf denounces him for the
same act as the destroyer of liberty.

I have not willingly planted a thorn in any man’s
bosom.

Important principles may and must be inflexible.

The democracy of to-day holds the liberty of one
man to be absolutely nothing, when in conflict with
another man’s right of property. Republicans on
the contrary are for both the man and the dollar,
but in case of conflict the man before the dollar.
GEMS OF THOUGHT 201

Keep the jewel of liberty within the family of
freedom.

The way for a young man to rise is to improve
himself every way he can, never suspecting that
anybody wishes to hinder him.

Suspicion and jealousy never did help any man
in any situation.

You can fool all of the people some of the time
and some of the people all of the time, but you
cannot fool all the people all the time.— Speech at
Clinton, Illinois, September 8, 1858.

Great distance in either time or space has won-
derful power to lull and render quiescent the human
mind.

All the armies of Europe, Asia, and Africa, com-
bined with all the treasures of the earth (our own
excepted) in their military chest, with a Bonaparte
for a commander, could not by force take a drink
from the Ohio or make a track on the Blue Ridge
in a trial of a thousand years.

If destruction be our lot we must ourselves be its
author and finisher. As a nation of freemen we must
live through all time or die by suicide.
‘202 LINCOLN, THE LAWYER-STATESMAN

When the conduct of men is designed to be in-
fluenced, persuasion, kind, unassuming persuasion
should ever be adopted.

In all that the people can individually do as well
for themselves the government should not interfere.

The work of the Plymouth emigrants was the
glory of their age. While we reverence their mem-
ory, let us not forget how vastly greater is our oppor-
tunity.

Persisting in a charge which one does not know
to be true, is simply malicious slander.

No policy that does not rest upon philosophical
public opinion can be permanently maintained.

Truth is your truest friend, no matter what the
circumstances are.

Our government rests on public opinion. Who-
ever can change public opinion can change the
government practically just so much.

The plainest print cannot be read through a gold
eagle.
GEMS OF THOUGHT 203

We shall not fail —if we stand firm we shall not
fail. Wise counsels may accelerate or mistakes delay
it, but sooner or later the victory is sure to come.

Return to the fountain whose waters spring close
by the blood of the Revolution.

What constitutes the bulwark of our liberty and
independence? It is not our frowning battlements,
our bristling sea-coasts, our army and our navy.
These are not our reliance against tyranny. All
of these may be turned against us without making
us weaker for the struggle. Our reliance is in the love
of liberty which God has planted in us.

Our defense is in the spirit which prized liberty
as the heritage of all men in all lands everywhere.
Destroy this spirit and you have planted the seeds
of despotism at your own doors.

Accustomed to trample on the rights of others,
you have lost the genius of your own independence
and become the fit subjects of the first cunning tyrant
who rises among you.

As the patriots of Seventy-six died to support the
Declaration of Independence, so to the support of
the Constitution and laws let every American pledge
his life, his property and his sacred honor.
204 LINCOLN, THE LAWYER-STATESMAN

Towering genius disdains a beaten path. It seeks
regions hitherto unexplored.

Reason — cold, calculating, unimpassioned rea-
son — must furnish all the materials for our future
support and defense.

There are few things wholly evil or wholly good.

I shall do nothing in malice. What I deal with is
too vast for malicious dealing.

Let us diligently apply the means, never doubt-
ing that a just God, in his own good time, will give
us the rightful result.

No party can be, justly, held responsible for what
individual members of it may say or do.

The mystic chords of memory, stretching from
every battlefield and patriot grave to every living
heart and hearthstone, all over this broad land, will
yet swell the Chorus of the Union, when again
touched, as surely they will be, by the better angels
of our nature.

THE END
UNITED STATES DISTRICT COURT AT SPRIN
Affine pap afro A

 
APPENDIX
APPENDIX

A

LINCOLN’S CASES IN THE ILLINOIS SUPREME
COURT

ABRAHAM LINCOLN appeared as counsel in the following
cases in the Supreme Court of Illinois, which was the only
appellate tribunal and the court of last resort in that State
during the period of Mr. Lincoln’s professional activities: —

1. Scammon, plaintiff in error, vs. Cline, 3 Ill. 456. In this
case Mr. Lincoln and another represented the defendant in
error and claimed that the appeal from the justice of the
peace to the Circuit Court should have been taken to the Cir-
cuit Court of Jo Daviess County instead of Boone County,
as held by the Circuit Court of the latter county. The deci-
sion of the Circuit Court of Boone County was reversed.

2. Cannon, plaintiff in error, vs. Kinney, 4 Ill. 9. This was
an action of trespass for the taking of personal property out
of the hands of a person who had obtained possession of the
same by the fraud of another. Mr. Lincoln appeared alone for
the plaintiff in error and secured a reversal of the decision
of the Circuit Court. Stephen T. Logan appeared for the
defendant in error in this case.

Cited by the courts of Missouri and South Dakota.

3. Maus, appellant, vs. Worthing, appellee, 4 Ill. 26. Mr.
Lincoln appeared alone as the attorney for the appellee in
this case and moved the court to dismiss the appeal on the
ground that the appeal bond filed in the case was signed by
208 APPENDIX

an agent of the surety whose authority, though in writing,
was not under seal, and this point made by Mr. Lincoln was
sustained by the Supreme Court.

Cited by the courts of Arkansas and Colorado.

4. Bailey, appellant, vs. Cromwell, appellee, 4 Ill. 71. Mr.
Lincoln appeared alone for the appellant and the judgment of
the Circuit Court was reversed. The court held, in accordance
with the contention of Mr. Lincoln, that it was a presumption
of law in the State of Illinois that every person is free without
regard to color, that where the consideration of a promissory
note was shown to have been the sale of a negro girl, and that
at the time of the sale it was agreed between the parties that,
before payment of the note should be demanded, the payee
should produce the necessary papers and indenture to prove
that the girl was a slave or bound to service under the laws
of the State of Illinois, and such papers were not produced
though demanded, that there was no consideration for the
note and that it was void, as the sale of a free person was il-
legal. Stephen T. Logan appeared for the appellees in this
case. The judgment of the Circuit Court was reversed.

Cited in both state and federal courts.

5. Ballentine ef al., appellants, vs. Beall, appellee, 4 III.
203. This was a creditor’s bill in which Mr. Lincoln appeared
alone for the appellee. He was successful in the trial court,
whose decision was affirmed in the Supreme Court.

Cited by the Supreme Court of Iowa.

6. Elkin ef al., appellants, vs. The People, appellee, 4 Ill.
207. This was a suit on a sheriff's bond in which Mr. Lin-
coln appeared as an associate with Strong on behalf of the
appellants. The judgment of the trial court was affirmed.
Stephen T. Logan appeared for appellees. i
 

 

 

JESSE B. THOMAS
APPENDIX 209

7. Benedict, appellant, vs. Dillehunt, appellee, 4 Ill. 287.
Lyman Trumbull and J. Lamborn appeared for the appel-
lant and Mr. Lincoln was associated with Emerson on behalf
of the appellee. The case involved a question of procedure
and the judgment of the Circuit Court was affirmed.

Cited by the Supreme Court of Texas.

8. Abrams et al., plaintiffs in error, vs. Camp, 4 III. 290.
Mr. Lincoln was associated with Stephen T. Logan on behalf
of plaintiffs in error and secured a reversal of the decision of
the trial court. The suit was a bill in chancery to enjoin the
collection of a judgment.

Cited by the Supreme Court of Arkansas.

9. Hancock e¢ al., appellants, vs. Hodgson, 4 Ill. 329. This
was an action of assumpsit and involved several intricate
questions of law. Mr. Lincoln, Jesse B. Thomas, and Stephen
T. Logan appeared on behalf of the appellants and Edward
D. Baker and A. T. Bledsoe were the counsel for the appellee.
The decision of the trial court was affirmed.

10. Grable, appellant, vs. Margrave, 4 Ill. 372. This was
an action of trespass. Mr. Lincoln appeared alone in the
trial court on behalf of the plaintiff and for the appellee in
the Supreme Court. The judgment of the trial court was
affirmed. Opposed to Mr. Lincoln in this case was James
Shields (afterwards a Union general in the Civil War) and
with him was associated J. C. Conkling.

Cited by the Supreme Courts of Iowa, Missouri, Indiana,
West Virginia, Michigan, and the Federal Courts.

11. Averill vs. Field, 4 Ill. 390. This was an action of as-
sumpsit in which Mr. Lincoln was associated with Stephen
T. Logan on behalf of the appellants, while Edward D. Baker
210 APPENDIX

and A. T. Bledsoe appeared on behalf of the appellee. The
opinion affirming the decision was rendered by Justice Ste-
phen A. Douglas.

12. Wilson, Admr., plaintiff in error, vs. Alexander, 4 III.
392. Mr. Lincoln appeared alone for the plaintiff in error
and Jesse B. Thomas for the defendant in error. This suit
was in assumpsit and involved a forged note. The conten-
tion of Mr. Lincoln was approved and the judgment of the
trial court reversed.

Cited by the Supreme Court of Ohio.

13. Schlencker e¢ al., appellants, vs. Risley, 4 Ill. 483. This
was an action of trespass for false imprisonment. O. B. Fick-
lin appeared for the appellants and Mr. Lincoln appeared
alone for the appellees. The judgment of the trial court was
affirmed.

Cited by the Supreme Courts of Iowa, Alabama, Michi-
gan, Connecticut, Mississippi, California, and in the courts
of New York.

14. Mason, appellant, vs. Park, 4 Ill. 532. This was an
action of debt for the recovery of a penalty. O. B. Ficklin
and Levi Davis appeared on behalf of the appellant, while
Mr. Lincoln and Aaron Shaw appeared for the appellee. The
judgment of the trial court was reversed.

Cited by the Supreme Court of Florida.

15. Greathouse et al., appellants, vs. Smith, 4 Ill. 541. Mr.
Lincoln appeared alone for the appellee and the judgment
of the trial court was affirmed.

Cited by the Supreme Courts of Iowa, Nevada, Nebraska,
Pennsylvania, and Washington.
APPENDIX 211

16. Watkins vs. White, 4 Ill. 549. Mr. Lincoln appeared
alone for the appellant and Edward D. Baker and A. T. Bled-
soe for the appellee. This was an action of replevin. The
judgment of the trial court was reversed.

17. Payne ef al., plaintiffs in error, vs. Frazier et al., defend-
ants in error, 5 Ill. 55. O. B. Ficklin appeared for the plaintiffs
in error and Mr. Lincoln for the defendants in error. This
was a bill in chancery and the decree of the trial court was
reversed. The case involved a question of procedure.

18. Fitch e¢ al., plaintiffs in error, vs. Pinckard, 5 III. 69.
This was an action of ejectment. Extensive separate briefs
were filed by J. W. Chickering, John J. Hardin, Lincoln,
Cowles, and E. A. Smith for the defendants in error, as well
as separate briefs of three different attorneys appearing on
behalf of the plaintiffs in error. The judgment of the trial
court was affirmed. Justices Treat and Douglas dissented
from the majority opinion.

Cited by the Supreme Court of Iowa.

19. Edwards et al., plaintiffs in error, vs. Helm, 5 Ill. 142.
This was a suit to foreclose a mortgage. Mr. Lincoln ap-
peared with two others as counsel for the plaintiffs in error
and the decree of the trial court was reversed.

Cited by the Supreme Court of Michigan.

20. Grubb, plaintiff in error, vs. Crane, 5 Ill. 153. This was
a bill of review. James Shields and J. C. Conkling appeared
for the plaintiff in error, while Lincoln and Stephen T. Logan
appeared for the defendant in error. The decree of the trial
court was affirmed.

Cited by the Federal Courts, and the Supreme Court of
Towa.
212 APPENDIX

21. Pentecost ef al., appellants, vs. Magahee, 5 III. 326.
Edward D. Baker and A. T. Bledsoe appeared for the ap-
pellants, while Mr. Lincoln appeared for the appellee. The
appeal had been taken from an interlocutory order of the
Circuit Court. Mr. Lincoln contended that no appeal would
lie from an injunctional order when such order did not dis-
pose of all the issues in the case, and the motion made by
Mr. Lincoln to dismiss the appeal on that ground was al-
lowed and the appeal dismissed.

22. Robinson, appellant, vs. Chesseldine, 5 Ill. 332. This
was a bill for an injunction filed in the Circuit Court. The
defendant demurred to the bill on the ground that the courts
of chancery were without jurisdiction to grant the relief
prayed for. The demurrer was sustained, the temporary
injunction dissolved, and the bill dismissed. J. J. Hardin
(afterwards a general in the Mexican War) and other coun-
sel appeared on behalf of the appellant, while Mr. Lincoln
and Stephen T. Logan appeared for the appellees. The de-
cree of the Circuit Court was affirmed.

Cited by the Supreme Court of California.

23. Lazell, plaintiff in error, vs. Francis, 5 Ill. 421. This
was a suit on a promissory note. Mr. Lincoln was associated
with Stephen T. Logan for the defendant in error and the
judgment of the Circuit Court was affirmed. This case in-
volved several important questions in commercial law.

24. Spear, plaintiff in error, vs. Campbell e¢ al., 5 Ill. 424.
This was a bill in chancery to set aside an alleged fraudulent
conveyance. Mr. Lincoln and Stephen T. Logan represented
the defendants in error. The decree of the Circuit Court was
reversed because of the failure of the complainant to make
certain persons defendants in the suit.
APPENDIX 213

25. Bruce, plaintiff in error, vs. Truett, 5 Ill. 454. E. B.
Washburne and M. Brayman appeared for the plaintiff in
error, Mr. Lincoln and Stephen T. Logan for the defendant
in error. The case involved a question of practice and the
decision of the Circuit Court was affirmed.

26. England, plaintiff in error, vs. Clark, 5 Ill. 486. Mr.
Lincoln and Urquhart appeared for the plaintiff in error and
Edward D. Baker and others for the defendant in error.
This was an action of assumpsit and the judgment of the Cir-
cuit Court was affirmed.

27. Johnson, plaintiff in error, vs. Weedman, 5 Ill. 495.
This was an action of trover. Mr. Lincoln appeared for the
defendant in error. The judgment of the Circuit Court was
affirmed.

28. Hall, appellant, vs. Perkins, 5 Ill. 548. This involved
a question of procedure and of commercial law. Edward D.
Baker and another represented the appellant and Lincoln
and others appeared for the appellee. The judgment of the
Circuit Court was reversed.

29. Lockridge, plaintiff in error, vs. Foster, 5 Ill. 569. This
was a chancery proceeding. Mr. Lincoln and Stephen T.
Logan appeared on behalf of the defendant in error and the
decree of the Circuit Court was affirmed.

Cited by the Supreme Courts of Iowa, Missouri, Michigan,
and the Federal Courts.

30. Dorman ef ux., plaintiffs in error, vs. Lane, 6 III. 143.
This was a proceeding instituted, by the defendant in error
as administrator, in the Circuit Court for the sale of certain
real estate to satisfy debts against the estate of the decedent.
Mr. Lincoln appeared for the plaintiffs in error and Lyman
214 APPENDIX

Trumbull for the defendant in error. The judgment of the
Circuit Court was reversed.

31. Davis, plaintiff in error, vs. Harkness et al., 6 Ill. 173.
This was a suit in chancery for an accounting. Colton and
Edward D. Baker appeared for the plaintiff in error and Mr.
Lincoln and Stephen T. Logan for the defendants in error.
The decree of the Circuit Court was affirmed.

Cited by the Supreme Courts of Iowa, Tennessee, Pennsyl-
vania, and Virginia.

32. Martin, appellant, vs. Dryden e¢ al., 6 Ill. 187. This
was a bill for an injunction involving the title to land. O. H.
Browning and Bushnell appeared on behalf of the appellant
and Mr. Lincoln and J. M. Krum appeared for the appellees.
The decree of the Circuit Court was reversed.

Cited by the Federal Courts and in the Supreme Courts
of Arkansas, Iowa, and Kansas, and the New York Court of
Appeals.

33. Warner ef al., appellants, vs. Helm, 6 Ill. 220. This was
a bill to foreclose a mortgage on real estate. Mr. Lincoln and
Strong appeared for appellants. Opposed to them were J. T.
Stuart and others. The decree of the Circuit Court was re-
versed.

34. McDonald, appellant, vs. Fithian et al., 6 Ill. 269. Mr.
Lincoln, Stephen T. Logan, and Edward D. Baker appeared
for the appellees. The decree denying an injunction and dis-
missing the suit was affirmed. The names of the counsel in
the case do not appear in the published volume with the
opinion, but in the case of Cunningham vs. Fithian, 7 II.
650, it is stated that the above-named counsel appeared on
behalf of the appellees in this case, but that their names were
omitted by the reporter through inadvertence.
APPENDIX 215

35. Favor ef al. vs. Marlett, 6 Ill. 385. This involved ques-
tions as to the competency of witnesses. Mr. Lincoln and T.
Lyle Dickey (afterwards a colonel in the Civil War and sub-
sequently a judge of the Supreme Court of Illinois) appeared
for the appellants and the judgment of the Circuit Court was
reversed.

36. Parker vs. Smith, 6 Ill. 411. This was a suit for tres-
pass. Mr. Lincoln and T. Lyle Dickey appeared for the
appellant. B. C. Cook appeared for the appellee. The judg-
ment of the Circuit Court was reversed. This case involved
questions of procedure and liability of an officer in the exe-
cution of process.

Cited by the Supreme Courts of Maine and Iowa.

37. Stickney et al. vs. Cassell, 6 Ill. 418. This case involved
questions of procedure. Mr. Lincoln appeared alone for the
appellee and the judgment of the Circuit Court was re-
versed.

38. Kimball e¢ al., vs. Cook, 6 Ill. 423. This was a suit to
establish a mechanic’s lien against real estate. Lincoln,
Dickey, and Peters appeared for the defendant in error.
The decree of the Circuit Court was reversed.

39. Wren vs. Moss, 6 Ill. 560. This was a motion for a
writ of error. The motion involved the right of the divorcee
to sue out a writ of error against the heirs and executor of the
estate of a deceased husband. Mr. Lincoln and another ap-
peared in support of the motion which was allowed.

Cited by the Supreme Court of Massachusetts.

40. Morgan vs. Griffin, 6 Ill. 565, involved questions of
procedure. Mr. Lincoln and another appeared for the defend-
ant in error and J. A. McDougall (afterwards United States
216 APPENDIX

Senator from California) and another appeared on behalf of
the plaintiff in error. The judgment of the Circuit Court was
affirmed on the main point for which Mr. Lincoln contended,
but judgment was rendered against the defendant in error
for the costs in the Supreme Court and each party was or-
dered to pay his respective costs in the Circuit Court.

41. Cook, plaintiff in error, vs. Hall, 6 Ill. 575. This was
an action of ejectment and involved several intricate ques-
tions of law. Mr. Lincoln with C. H. Constable appeared
for the plaintiff in error. Edward D. Baker appeared for the
defendant in error. The judgment of the Circuit Court was
affirmed.

Cited by the Supreme Courts of Iowa, Kansas, and Ne-
braska.

42. Field e¢ al., plaintiffs in error, vs. Rawlings, 6 Ill. 581.
This was an action of debt on a surety bond. Mr. Lincoln
appeared with another for the plaintiffs in error and Lyman
Trumbull for the defendant in error. The questions involved
were important. The judgment of the Circuit Court was
reversed.

Cited by the Supreme Courts of Ohio, Kansas, and the
Federal Courts.

43. Broadwell e¢ al., plaintiffs in error, vs. Broadwell, 6
Ill. 599. This was a bill in chancery to enforce the specific
performance of a bond for a deed of certain land. Mr. Lin-
coln and Edward D. Baker appeared for the defendant in
error. The decree of the Circuit Court was reversed.

Cited by the courts of New York and Texas.

44. Rogers, plaintiff in error, vs. Dickey, 6 Ill. 637, in-
volved several questions relating to liens of judgments and
APPENDIX O17

executions. J. Y. Scammon appeared for the plaintiff in
error and Mr. Lincoln with Stephen T. Logan for the de-
fendant in error. The judgment of the Circuit Court was
reversed.

45. Kelly, plaintiff in error, vs. Garrett, 6 Ill. 649, in-
volved several important questions of commercial law. Mr.
Lincoln and others appeared for the plaintiff in error and
Stephen T. Logan for the defendant in error. The judgment
of the Circuit Court was reversed.

Cited by the United States Supreme Court.

46. McCall et al. vs. Lesher ef al., 7 Ill. 46. In this case
Mr. Lincoln appeared on behalf of the appellee and made a
motion in the Supreme Court after he had entered a joinder
in error, in which he asked that the appeal to that court be
dismissed because, Ist: The appeal had been prayed for: in
the Circuit Court by all of the plaintiffs in the latter court,
but only a part of them had signed the appeal bond. 2d:
Because the decree set forth in the appeal bond filed in the
case varied from that which the record showed had been
entered by the Circuit Court. The motion to dismiss was
opposed by Stephen T. Logan on behalf of the appellants.
The questions involved were purely technical, and the sole
purpose of the motion was to prevent a hearing of the case
in the Supreme Court on its merits, and the latter court de-
nied the motion, holding that it was made too late, and re-
fused to dismiss the appeal. This is another instance where
Lincoln sought to win his case on a technicality.

Cited by the Supreme Court of California.
47. McCall et al. vs. Lesher et al., 7 Ill. 47. This is the

same case as that in which the opinion Jast mentioned was
rendered and the same counsel appeared for the respective
218 APPENDIX

parties. In this opinion the case was decided against Mr.
Lincoln. It was a suit in chancery and the decree of the Cir-
cuit Court was reversed because Mr. Lincoln had failed to
make necessary parties defendants so that the merits of the
controversy were not settled by the decision.

48. Wren, plaintiff in error, vs. Moss et al., 7 Ill. 72. This
is another decision rendered in the same case as that in which
the decision of a preliminary motion is reported in 6 III. 560,
and which appears as No. 39 of this list of cases. The point
here decided is one of procedure also, being a motion by Mr.
Lincoln and his associate to require the defendants in error
to join in error, that is, to admit or deny that error has been
committed by the trial court. The motion of Mr. Lincoln
was granted.

Cited by the Supreme Courts of New Hampshire, Mary-
land, and Colorado.

49. Risinger e¢ al., plaintiffs in error, vs. Cheney, 7 III.
84. Mr. Lincoln appeared alone for the plaintiffs in error
and John T. Stuart and B. S. Edwards represented the de-
fendants in error. The case involved interesting questions
of law and the decision of Judge Treat in the Circuit Court
was reversed. The opinion of the Supreme Court in this case
occupies six pages of the report.

Cited by the Supreme Court of New Hampshire.

50. Eldridge vs. Rowe, 7 Ill. 91. This was a suit to recover
for services rendered by the appellee under an entire con-
tract which he had failed to perform. Mr. Lincoln repre-
sented the appellee. The decision of the Circuit Court was
reversed, but from this decision Justice Koerner dissented.

Cited by the Supreme Courts of Colorado and Montana.
 

 

 

 

 

BENJAMIN S. EDWARDS
APPENDIX 219

51. Frisby e¢ al., plaintiffs in error, vs. Ballance ef al., 7
Ill. 141. This was an ejectment suit involving the title to a
tract of land in Peoria County. Mr. Lincoln and three others
appeared for the plaintiffs in error and Justin Butterfield,
one of the most famous lawyers in Illinois, appeared for the
defendants in error. The judgment of the Circuit Court was
reversed. The deed involved in this case was again before
the Supreme Court in the case of Frink vs. Darst, 14 Ill. 304,
and the decision in the case of Frisby vs. Ballance was there
expressly overruled.

52. Hall, plaintiff in error, vs. Irwin et al., 7 Ill. 176, was
an action of ejectment involving among other questions the
want of power in an administrator with the will annexed to
convey real estate so as to vest title under the will. Mr. Lin-
coln and another appeared for the defendants in error and
argued against the existence of such power and the holding
of the Circuit Court which sustained this view was approved
and its judgment affirmed in an opinion of nine pages.

Cited by the Supreme Court of Iowa.

53. The City of Springfield, plaintiff in error, vs. Hickox
et. al., 7 Ill. 241. Mr. Lincoln and another appeared for the
City of Springfield, plaintiff in error, and James A. McDou-
gall for the defendants in error. This case involved the right
of the holder of an order issued by a municipality to intro-
duce the same as a set-off or counterclaim in a suit brought
by such municipality to recover a penalty accruing under an
ordinance. The decision of the Circuit Court in favor of such
right was affirmed.

54. Ross et al., plaintiffs in error, vs. Nesbit, 7 Ill. 252.
This was an action of trespass and involved several questions
as to the sufficiency of certain defenses as a matter of law.
220 APPENDIX

Mr. Lincoln appeared for the defendant in error. The judg-
ment of the Circuit Court was affirmed.

Cited by the Supreme Court of Missouri.

55- Simpson vs. Ranlett, 7 Ill. 312. This involved a ques-
tion of the sufficiency of the endorsement of a promissory
note to enable the endorsee to bring suit in his own name.
Mr. Lincoln appeared for the appellant. The judgment of
the Circuit Court was affirmed.

56. Murphy, plaintiff in error, vs. Summerville, 7 Ill. 360.
This was an action of debt on a bail bond. Mr. Lincoln ap-
peared for the plaintiff in error and Stephen T. Logan for the
defendant in error. Several important questions of law were
involved and the judgment of the Circuit Court was reversed.

57. Trailor, plaintiff in error, vs. Hill, 7 Ill. 364. This was
a bill in chancery to enforce the specific performance of a
bond for a deed conveying certain real estate. Mr. Lincoln
and Stephen T. Logan were associated on behalf of the de-
fendant in error. The decree of the Circuit Court dismissing
the bill was affirmed.

58. Chase vs. Debolt, 7 Ill. 371. This case involved the
question of the liability of an agent for an obligation con-
tracted by him on behalf of an undisclosed principal. Mr.
Lincoln and another appeared for the appellee. The judg-
ment of the Circuit Court was reversed.

59. Smith et al. vs. Byrd, 7 Ill. 412. Mr. Lincoln appeared
for the appellee, and the judgment of the Circuit Court was
reversed on account of an error in procedure.

Cited by the Supreme Court of Georgia.
APPENDIX 221

60. Moore, plaintiff in error, vs. Hamilton, 7 Ill. 429. This
involved a statutory proceeding. Mr. Lincoln represented
the plaintiff in error and M. Brayman (afterwards one of the
counsel for the Illinois Central Railroad Company) appeared
for the defendant in error. The judgment of the Circuit
Court was reversed.

61. McNamara vs. King, 7 Ill. 432. This was a suit to
recover for personal injuries. Mr. Lincoln and Jesse B.
Thomas represented the appellant and Isaac G. Wilson,
afterwards a judge of the Appellate Court, which was estab-
lished in 1877, appeared on behalf of the appellee. The judg-
ment of the Circuit Court was affirmed.

Cited by the Supreme Courts of California, Maryland,
Towa, Michigan, and West Virginia.

62. Ellis vs. Lock, 7 Ill. 459. This was a suit to foreclose
a mortgage by scire facias. Mr. Lincoln was associated with
Jesse B. Thomas on behalf of the appellant and Stephen T.
Logan appeared for the appellee. The judgment of the Cir-
cuit Court was affirmed.

63. Bryan et al., plaintiffs in error, vs. Wash et ux., 7 IIL.
557. This was a bill in chancery to set aside a conveyance of
real estate on the ground of fraud. Mr. Lincoln and Stephen
T. Logan represented the defendants in error and the decree
of the Circuit Court dismissing the bill for want of equity
was affirmed.

Cited by the Supreme Courts of Indiana, Michigan, Minne-
sota, and the Federal Courts.

64. Wright, plaintiff in error, vs. Bennett ef al., 7 Ill. 587.
This was an action of debt ona bond. Mr. Lincoln repre-
sented the defendants in error. The decision of the Circuit
Court was affirmed.

eer
222 APPENDIX

65. Kincaid vs. Turner, 7 Il. 618. This was a suit for
damages to property belonging to Turner resulting from a
prairie fire started by Kincaid and which it was claimed he
had negligently permitted to spread to Turner’s premises.
Mr. Lincoln and another represented the appellee. The
judgment of the Circuit Court was affirmed.

66. Cunningham vs. Fithian, 7 Ill. 650. This was a bill in
chancery for an injunction and other relief. Mr. Lincoln,
Stephen T. Logan, and Edward D. Baker represented the
appellees. The decree of the Circuit Court denying the re-
lief sought was affirmed.

Cited by the Supreme Courts of Arkansas and Florida.

67. Wilson et al., plaintiffs in error, vs. Van Winkle, 7 III.
684. This was an appeal from the allowance of a claim against
the estate of one Wilson, deceased. James McDougall rep-
resented the plaintiffs in error and Mr. Lincoln, J. J. Hardin,
and D. A. Smith appeared for the defendant in error. The
judgment of the Circuit Court was affirmed.

68. Patterson ef ux., plaintiffs in error, as. Edwards e¢ al.,
7 Ill. 720. This was an action for slander. Mr. Lincoln and
another represented the defendants in error. The judgment
of the Circuit Court was reversed.

Cited by the Supreme Courts of Oregon, Mississippi, and
Michigan.

69. Griggs et al. vs. Gear, 8 Ill. 2. This was an appeal from
a decree of the Circuit Court dismissing a bill filed to review
and reverse a former decree. The questions involved arose
on a demurrer to the bill which was sustained by the Circuit
court, whose decision was reversed by the Supreme Court.
J. J. Hardin, D. A. Smith, and Justin Butterfield argued the
APPENDIX 223

case on behalf of the appellees and the reporter notes that
“A. Lincoln for appellants replied at length to the argu-
ments of the counsel for the appellee.”” J. W. Chickering filed
a brief on behalf of the appellants which covers one page of
the report and the list of citations of authorities presented by
counsel for the appellees covers more than five pages of the
report, but Mr. Lincoln does not appear to have cited a single
authority, which confirms the statement frequently made that
he cited few authorities in the argument of his cases, but
contented himself with the analysis of those presented by
his opponent and the presentation of the underlying prin-
ciples and the reasons for the rules for which he contended.

Cited by the Supreme Court of Idaho and the Federal
Courts.

70. Edgar County, plaintiff in error, vs. Mayo, 8 IIl. 82.
This appears to have been brought to test the right of the
clerk of the Circuit Court to certain fees. Mr. Lincoln ap-
peared for the defendant in error. The judgment of the Cir-
cuit Court was reversed.

Cited by the Supreme Court of Colorado.

71. Roney vs. Monaghan, 8 IIl. 85. This involved the
question of the sufficiency of the evidence to sustain a judg-
ment for damages. Mr. Lincoln and others represented the
appellee. Buckner S. Morris and another appeared for the
appellants. The judgment of the Circuit Court was affirmed.

72. The People ex rel. vs. Browne, 8 Ill. 87. This was a mo-
tion for a writ of mandamus to compel Browne, who was a
Circuit Judge, to sign and seal a bill of exceptions taken
during the trial of the case before him. E. B. Washburne
(afterwards United States Minister to France) and Campbell

re
224 APPENDIX

appeared for the motion and Mr. Lincoln appeared on behalf
of Judge Browne. The motion was denied.

73. Munsell, plaintiff in error, vs. Temple, 8 Ill. 93. This
case involved two questions relating to saloon licenses: Ist,
whether such a license is transferable; 2d, whether the officer
issuing the license has power to do so prior to the payment to
him of the full license fee in cash or whether he may accept
the note of the licensee. Mr. Lincoln appeared for the plain-
tiff in error and contended against both these propositions.
He was sustained by the Supreme Court and the decision of
the Circuit Court was reversed. Jesse B. Thomas represented
the defendant in error.

74. Fell et al. vs. Price e¢ al., 8 Ill. 186. This was a suit in
chancery for an injunction. Mr. Lincoln appeared for ap-
pellants and U. F. Linder for appellees. The decree of the
Circuit Court was reversed.

Cited by the Supreme Court of California.

75. Wright, plaintiff in error, vs. Taylor, 8 Ill. 193. This
case involved some interesting questions growing out of the
unstable currency in circulation at that time. It was a bill
in chancery to foreclose a mortgage. Mr. Lincoln represented
the defendant in error. The Supreme Court modified the
decree of the Circuit Court somewhat and as modified the
same was affirmed.

76. Welch et al., plaintiffs in error, vs. Sykes, 8 Ill. 197. This
was an action of debt on a foreign judgment. Mr. Lincoln
represented the plaintiffs in error and Charles H. Constable
the defendant in error. The judgment of the Circuit Court
was reversed.

Cited by the Supreme Courts of Kansas, Washington,
Florida, Iowa, Colorado, Indiana, California, and the Federal
Courts.
 

CHARLES H. CONSTABLE
APPENDIX 225

77. Hawks, plaintiff in error, vs. Lands, 8 Ill. 227. This
was an action of assumpsit. Mr. Lincoln represented the
plaintiff in error and had filed in the Circuit Court a plea
of set-off based on a breach of a covenant of warranty in a
deed entirely disconnected from the contract on which the
plaintiff had based his suit. A demurrer to this plea was
sustained by the Circuit Court and Hawkes appealed to the
Supreme Court, where the judgment of the Circuit Court
was affirmed on the ground that an unliquidated claim for
damages could not, under the Illinois statutes, be set off
against a claim founded on an entirely separate contract.
Jesse B. Thomas was opposed to Mr. Lincoln in this case.
The question decided was new in Illinois at that time.

Cited by the Supreme Court of the United States.

78. Garrett vs. Stevenson, 8 Ill. 261. This was a compli-
cated case arising under the mechanic’s lien law. The opinion
occupies more than twenty pages of the report. Mr. Lincoln
and another represented the appellant. The decree of the
Circuit Court was affirmed in part, but the main contention
of the appellant was approved, thereby reducing the amount
of the claim for lien by nearly one half.

Cited by the Supreme Courts of Colorado, Ohio, and Ne-
vada.

79. Henderson us. Welch, 8 Ill. 340. This was an action at
law to recover costs paid by the nominal plaintiff in a former
suit, in which judgment had been rendered against him for
such costs, which he had paid to satisfy such judgment, and
he had in this case sued to recover the amount of such pay-
ment with interest thereon, and judgment having been ren-
dered in his favor in the Circuit Court, the judgment was
affirmed in the Supreme Court. The question involved was
interesting. Mr. Lincoln and Isaac G. Wilson represented
226 APPENDIX

the appellants and Isaac N. Arnold and two other lawyers
appeared for the appellee. The judgment of the Circuit
Court was affirmed.

80. Cowls vs. Cowls, 8 Ill. 435. This was a bill in chancery
by the mother of certain children to compel their father, from
whom she had been divorced, in a former proceeding, to
surrender to her the custody of the children and to supply her
with sufficient means for their support. The Circuit Court
granted the prayer of the bill and the defendant appealed.
The decree was affirmed. Mr. Lincoln represented the
appellant.

Cited by the Supreme Courts of New Hampshire, Iowa,
Missouri, Wisconsin, and the courts of New York.

81. Wilcoxon vs. Roby, 8 Ill. 475. This was a suit on a
penal bond. Mr. Lincoln and two others represented the
appellant. Jesse B. Thomas appeared for the appellee. This
case was reversed on account of error in the record. The merits
of the controversy were not passed upon.

82. Trumbull vs. Campbell, 8 Ill. 502. Lyman Trumbull
(afterwards a Judge of the Supreme Court and thereafter
United States Senator from Illinois) was the appellant in
this case and was represented by Mr. Lincoln. Stephen T.
Logan and another appeared for the appellee. The judgment
of the Circuit Court was reversed.

83. Cooper, plaintiff in error, vs. Crosby ef al., 8 Ill. 506.
This was a writ of error prosecuted for the purpose of ob-
taining a reversal of an order of the Circuit Court denying a
motion to set aside a master’s sale in a foreclosure proceed-
ing in chancery. Mr. Lincoln represented the plaintiff in
error and Stephen T. Logan appeared for the defendants in
error. The decision of the Circuit Court was affirmed.

Cited by the Supreme Court of Nebraska. _
APPENDIX " 227

84. Shaeffer et al., plaintiffs in error, vs. Weed, 8 Ill. 511.
This was a suit to enforce a mechanic’s lien. Mr. Lincoln
represented the plaintiffs in error. The decision of the Circuit
Court denying the relief sought was reversed.

Cited by the Supreme Courts of Florida, Nebraska, In-
diana, and West Virginia.

85. Anderson vs. Ryan, 8 Ill. 583. This was an action of
trespass for an assault. Mr. Lincoln appeared for the appellant
and U. F. Linder and another for the appellee. The judgment
of the Circuit Court was affirmed.

86. Wright, plaintiff in error, vs. McNeeley, 11 Ul. 241.
This was a bill in chancery to redeem certain land which had
been sold under a judgment and to enjoin the collection of
the judgment. Lincoln & Herndon appeared for plaintiff in
error with Stephen T. Logan. Richard Yates and others
represented defendants in error. The decree of the Circuit
Court, dismissing the bill for want of equity, was reversed,
and while the prayer for redemption was refused, the Supreme
Court entered an order satisfying the judgment.

87. Webster et al., plaintiffs in error, vs. French e al.,
11 Ill. 254. This was a bill in chancery to compel the Gov-
ernor of Illinois to convey certain land belonging to the State
which the legislature had ordered him to advertise for sale.
It was a controversy between bidders at the sale. The Circuit
Court denied the relief sought, but its decree was reversed.
Lincoln & Herndon and Stephen T. Logan appeared for the
plaintiffs in error, Brayman and Stuart & Edwards and
Browning & Bushnell for the defendants in error. The
amount involved in value was about $22,000 and the opinion
of the court occupied more than fifteen pages in a discussion
of the questions involved.

Cited by the United States Supreme Court and by the
228 APPENDIX

Supreme Courts of Missouri, Kentucky, Ohio, Washington,
and Nevada.

88. Adams ef al. vs. The County of Logan, 11 Ill. 336.
This was a suit for damages for the breach of a contract to
locate the county seat on land of the appellants which had
been conveyed by them to the county, with the cost of the
construction of a frame court-house thereon, the county seat
having been subsequently removed to another place. Stephen
T. Logan and Stuart & Edwards represented the plaintiffs
in error and Lincoln & Herndon and another appeared for
the defendant in error, the County of Logan. The judgment
of the Circuit Court denying the right to recover against
the county was affirmed.

Cited by the Supreme Courts of Kansas, Indiana, Nevada,
Ohio, Pennsylvania, and Wisconsin.

89. Pearl et al. us. Wellman et al., 11 Ill. 352. This wasa
suit against a surety on a penal bond. Lincoln & Herndon
represented the appellants and Stuart & Edwards appeared
for the appellees. The defense set up by the appellants was
purely technical. The judgment of the Circuit Court was
affirmed.

Cited by the Supreme Court of Michigan.

90. Lewis vs. Moffett, 11 Ill. 392. This case involved the
right of a partner to sue for and recover from his co-partner
for services rendered by him in the partnership business
when he had furnished capital for the business upon the
express condition that he should not be required to render
any services, and the services sued for were rendered at the
special request of his partner. Lincoln & Herndon appeared
for the appellee with J. C. Conkling. Stephen T. Logan and
Stuart & Edwards represented the appellants. The decree
APPENDIX 229

of the Circuit Court was reversed in part only and affirmed
as to the balance,

Cited by the Supreme Courts of Massachusetts, Wisconsin,
Vermont, North Dakota, and Pennsylvania.

gi. Austin, plaintiff in error, vs. The People for use of Burr
et al., 11 Ill. 452. This was a suit on a guardian’s bond. Ste-
phen T. Logan and another represented the plaintiffs in error
and Lincoln & Herndon appeared for the defendants in error.
The judgment of the Circuit Court was reversed on account
of an error in the verdict of the jury.

92. Williams e¢ al., plaintiffs in error, vs. Blankenship et al.,
12 Ill. 122. This involved a question of the jurisdiction of
justices of the peace in certain cases. The Circuit Court,
presided over by Judge David Davis, having rendered judg-
ment against the plaintiffs in error despite the contention
that the justice of the peace whose decision the Circuit Court
was required to review was without jurisdiction, the Su-
preme Court held in accordance with the contention of the
plaintiffs in error, and reversed the case. Lincoln & Herndon
represented the plaintiffs in error and Stephen T. Logan ap-
peared for the defendants in error.

93. Smith et al. vs. Dunlap, 12 Ill. 184. This suit was in-
stituted in the Circuit Court against Dunlap to recover on
his note for $131,480.52, payable to the Bank of Illinois and
provided to be paid in State of Illinois indebtedness. As pay-
ment had not been made in such indebtedness, the court was
called upon to decide as to the amount for which judgment
should be rendered — whether for the face of the note and
interest or for the value of the securities named at the time
of the maturity of the note. The Circuit Court held that
Dunlap was liable only for an amount equal to the actual
230 APPENDIX

value of the securities on the date of the maturity of the
note with interest, and the judgment of the Circuit Court for
$38,361.93 was affirmed. Lincoln & Herndon and Browning
& Bushnell represented Smith e¢ al., assignees of the bank.
Stephen T. Logan and Williams & Lawrence represented
the creditors of the Bank of Illinois. The judgment of the
Circuit Court was affirmed.

Cited by the Supreme Courts of Maine, Minnesota, Indiana,
New Hampshire, Georgia, Texas, and the Federal Courts.

94. McHenry, plaintiff in error, vs. Watkins, 12 II. 233.
The Circuit Court denied a motion made by the plaintiff in
error to quash an execution issued on a judgment which had
been paid in full. The Supreme Court held this to be error
and reversed the case with directions to the Circuit Court
to quash the writ. Lincoln & Herndon represented the
plaintiff in error.

Cited by the Supreme Court of Florida.

95. Whitecraft e¢ al., plaintiffs in error, vs. Vanderver et
al., 12 Ill. 235. This was an action of debt to recover a statu-
tory penalty for cutting down trees. The judgment of the
Circuit Court was reversed. Lincoln & Herndon repre-
sented the defendants in error.

Cited by the Supreme Courts of California, Mississippi,
Washington, and the Federal Courts.

96. Enos e¢ al. plaintiffs in error, vs. Capps, 12 Ill. 255.
The writ of error was sued out in this case by certain minors
by their next friend to reverse a decree of the Circuit Court
entered against themselves and others, by which their guar-
dian ad litem was directed to convey to Capps their interest
in certain land of which Capps claimed to be the equitable
owner. Lincoln & Herndon represented the plaintiffs in error
APPENDIX 231

and Stephen T. Logan represented Capps. The decree of the
Circuit Court was reversed as to the plaintiffs in error.

Cited by the Supreme Courts of Ohio, Missouri, and Colo-
rado.

97. Ward vs. Owens ef al., 12 Ill. 283. This case involved
a question of chancery procedure. Lincoln & Herndon rep-
resented the appellees. The decree of the Circuit Court was
reversed.

98. Linton, plaintiff in error, vs. Anglin, 12 Ill. 284. This
case involved a question of jurisdiction of the person of the
defendant in the Circuit Court. Stephen T. Logan repre-
sented the plaintiff in error and Lincoln & Herndon appeared
for the defendant in error. The judgment of the Circuit
Court was reversed.

99. Penny, plaintiff in error, vs. Graves, 12 Ill. 287. This
case involved a question of the admissibility of oral testi-
mony to vary a written contract. Stuart & Edwards repre-
sented the plaintiff in error and Lincoln & Herndon appeared
for the defendant in error. The judgment of the Circuit
Court was affirmed.

Cited by the Supreme Court of Missouri.

100. Compher e# al. vs. The People, 12 Ill. 290. This was
a suit brought against the collector of Peoria County and the
sureties on his bond. The legislature, after the giving of the
bond in question, amended the law in relation to the collec-
tion of taxes, and it was contended that the effect of the
amendment was to discharge the sureties from liability on
the bond. Lincoln & Herndon among others represented the
appellee. The judgment against the sureties rendered in the
Circuit Court was affirmed.

Cited by the courts of New York and Tennessee.
232 APPENDIX

101. Major, plaintiff in error, vs. Hawkes et al., 12 Ill. 298.
This case involved the right of an insolvent partner to col-
lect the assets of the co-partnership after dissolution of the
firm. Lincoln & Herndon represented the defendants in
error. The judgment of the Circuit Court was reversed.

Cited by the Supreme Court of Wisconsin.

102. Webster et al., plaintiffs in error, vs. French et al., 12
Ill. 302. This case involved the question of the right of the
Governor of the State of Illinois to reject sealed bids received
after the time fixed in the call for presenting the same. Lin-
coln & Herndon and Stephen T. Logan with another repre-
sented the plaintiffs in error. The decree of the Circuit Court
was affirmed.

Cited by the Supreme Courts of Alabama, Kansas, Mis-
souri, Wyoming, Kentucky, Indiana, and the Federal Courts;
also by the courts of New York.

103. The People ex rel. vs. Marshall, 12 Ill. 391. This was
an original application for a writ of mandamus. Mr. Lincoln
and R. Wingate appeared for the relator. The writ was
awarded. The legislature having attempted to merge two
counties into one, this proceeding was instituted to compel
the respondent, who was a Circuit Judge, to hold a term of
court in the county which the legislature had attempted to
abolish. The Supreme Court held the act of the legislature
unconstitutional and void.

Cited by the Supreme Courts of Idaho, Colorado, and Ten-
nessee.

104. Dunlap vs. Smith e¢ al., 12 Ill. 399. This is the same
case reported in 12 Ill. 184 and before referred to (No. 93).
On the former hearing the method of determining the amount
of the liability of Dunlap was fixed at the amount for which
APPENDIX 233

judgment had been entered in the Circuit Court. On this
appeal Stephen A. Douglas, Stephen T. Logan, and John A.
McClernand appeared for Dunlap and Mr. Lincoln appeared
alone for the appellees. After the decision of the former case,
Dunlap tendered notes and certificates of the Bank of IIli-
nois in partial satisfaction of the judgment and entered a
motion before Judge David Davis in the Circuit Court for
an order requiring the assignees of the bank (then in liquida-
tion) to accept the same at their face value on account of
the judgment. This motion was denied by Judge Davis,
and Dunlap appealed to the Supreme Court, where the
decision of Judge Davis was reversed.

Cited by the Supreme Court of Georgia.

105. Dorman ef ux. vs. Tost, 13 Ill. 127. This was an appeal
from a decree of the Circuit Court authorizing an adminis-
trator to sell real estate of a decedent. Mr. Lincoln repre-
sented the appellants. The decree of the Circuit Court was
reversed.

106. Perry vs. McHenry, 13 Ill. 227. This was a bill in
chancery filed in the Circuit Court to declare a resulting
trust. The bill was dismissed for want of equity. Stephen
T. Logan and Stuart & Edwards represented the appellant.
Lincoln & Herndon appeared for the appellees. The decree
of the Circuit Court was affirmed.

107. McArtee, plaintiff in error, vs. Engart, 13 Ill. 242.
This was a bill in chancery to set aside a conveyance made
by the defendant in error to the plaintiff in error on the
ground of fraud. Mr. Lincoln and two others represented
the defendant in error. The decree of the Circuit Court
setting aside the conveyance was affirmed. Stephen T. Logan
and Stuart & Edwards appeared for the plaintiff in error.

Cited by the Federal Courts.
234 APPENDIX

108. Manly et al., plaintiffs in error, vs. Gibson, 13 III.
308. This was an action of ejectment involving the title to
certain lots in the town of Petersburg. Lincoln & Herndon
represented the plaintiffs in error. The judgment of the Cir-
cuit Court was reversed, because of the refusal of that court
to admit certain evidence offered at the trial.

Cited by the Supreme Court of Minnesota.

109. Harris vs. Shaw, 13 Ill. 456. This was an action of
ejectment involving the title to real estate in Tazewell
County. Mr. Lincoln was associated with Stephen T. Logan
and Stuart & Edwards on behalf of the appellant. The judg-
ment of the Circuit Court was affirmed.

Cited by the United States Supreme Court and the Su-
preme Courts of Alabama, Indiana, Nevada, Pennsylvania,
Wisconsin, and Wyoming.

110. Banet vs. The Alton and Sangamon Railroad Com-
pany, 13 Ill. 504. This suit was brought in the Circuit Court
to recover the amount of unpaid calls of subscription to the
capital stock of the railroad company. Mr. Lincoln appeared
alone for the appellee. Stephen T. Logan and another ap-
peared for the appellant. Liability was sought to be evaded
because the route of the railroad was changed so that, instead
of running through New Berlin, where Banet owned certain
real estate, the value of which would be greatly increased
by the building of the road through that place, — the new
route was some twelve miles distant from that place, — and
the principal question presented was, did the change in the
route operate to relieve Banet from his liability on his sub-
scription? The court held that the loss of a mere incidental
benefit which formed no part of the consideration of the con-
tract of subscription was no defense to the action, and the
judgment of the Circuit Court was affirmed.

Cited by the United States Supreme Court and by the
APPENDIX 235

Supreme Courts of Arkansas, Indiana, Iowa, Massachusetts,
Ohio, Minnesota, Missouri, Nebraska, and New Jersey.

111. Klein vs. The Alton and Sangamon Railroad Com-
pany, 13 Ill. 514. This case involved questions somewhat
similar to those involved in the preceding case, and in ad-
dition the subscriber claimed the right to be relieved from
further payment by forfeiting the payments already made.
Mr. Lincoln appeared alone for the appellee. Stephen T.
Logan appeared with another for the appellant. The judg-
ment of the Circuit Court was affirmed.

Cited in the Federal Courts.

112. Casey vs. Casey, 14 Ill. 112. This was a bill in chan-
cery to set aside a transfer of an inheritance on the ground of
fraud. The Circuit Court having entered a decree in accord-
ance with the prayer of the bill, the appellant sought to
have the decree reversed. Mr. Lincoln, W. B. Scates, and
Stephen T. Logan appeared for the appellant. The decree
of the Circuit Court was affirmed.

Cited by the Supreme Courts of California, Texas, and
North Dakota.

113, 114. Ross vs. Irving, Pryor vs. Irving, 14 Ill. 171.
These two cases were argued jointly, and as both involved the
same questions, but one opinion was filed. Both were actions
of ejectment. Mr. Lincoln and two others represented the
appellants. The judgment of the Circuit Court was reversed
in both cases.

Cited by the Supreme Courts of Iowa, Minnesota, New
Hampshire, Nebraska, Michigan, Montana, Wisconsin, and
the Federal Courts.

115. The Alton and Sangamon Railroad Company vs.
236 APPENDIX

Carpenter, 14 Ill. 190. This was an action for the condemna-
tion of land for a railroad right of way. Lincoln & Herndon
represented the appellant and Stephen T. Logan appeared
for the appellee. The judgment of the Circuit Court was
reversed.

Cited by the Supreme Courts of Missouri, California, and
Minnesota.

116. The Alton & Sangamon Railroad Company vs. Baugh,
14 Ill. 211. This, like the preceding case, was a condemna-
tion proceeding. Lincoln & Herndon represented the appel-
lant. Stephen T. Logan appeared for the appellee. The judg-
ment of the Circuit Court was affirmed.

Cited by the Supreme Court of Oklahoma.

117. Stewartson vs. Stewartson, 15 Ill. 145. This was an
appeal from a decree of divorce by which the wife (appel-
lant) was directed to convey to the husband certain real
estate which she had purchased with his money, the title to
which she had taken in her own name, alimony of thirty
dollars a year having been allowed her and the husband hav-
ing been also required to release to her any interest which he
had in another tract of land which she owned. Mr. Lincoln
and another appeared for the appellant and contested that
part of the decree which directed the conveyance by the wife.
The decree of the Circuit Court was affirmed.

Cited by the Supreme Court of Wisconsin.

118. Byrne, plaintiff in error, vs. Stout, 15 Ill. 180. This
was an action in trover for the alleged conversion of a hog.
Lincoln, representing the defendent in error, had recovered
a judgment in the Circuit Court for $3 and costs against the
plaintiff in error (the defendant in the trial court). The
judgment of the Circuit Court was reversed.
APPENDIX 237

119. Pate vs. The People, 15 Ill. 221. This was an action
of debt on a recognizance. Mr. Lincoln represented the ap-
pellant. The judgment of the Circuit Court was affirmed.

120. Sullivan, plaintiff in error, vs. The People, 15 Ill. 233.
This case involved the construction of a statute governing
the sale of intoxicating liquors. Mr. Lincoln represented
the plaintiff in error. The judgment of the Circuit Court was
affirmed.

Cited by the Supreme Courts of California and Nebraska.

121. Humphreys vs. Spear e al., 15 Ill. 275. This case in-
volved a question as to the admissibility of certain evidence.
Lincoln & Herndon represented the appellant. The judg-
ment of the Circuit Court was affirmed.

122. The People vs. Blackford e¢ al., 16 Ill. 166. This case
involved the construction of a statute. Mr. Lincoln repre-
sented the appellees. The judgment of the Circuit Court was
affirmed in part and reversed in part.

123. Edmunds, plaintiff in error, vs. Myers e¢ al., 16 Ill.
207. This was a bill in chancery to rescind a contract on the
ground of fraud. Mr. Lincoln represented the defendants in
error. The decree of the Circuit Court was reversed.

124. Edmunds, plaintiff in error, vs. Hildreth e¢ al., 16 Ill.
214. This case was similar to the preceding one. Mr. Lin-
coln represented the defendants in error and the decree of
the Circuit Court was reversed.

125. Gilman et al. vs. Hamilton et al., 16 Ill. 225. This was
a bill in chancery involving the administration of a chari-
238 APPENDIX

table trust. Mr. Lincoln and another represented the appel-
lants. The decree of the Circuit Court was affirmed.

Cited by the Supreme Courts of Massachusetts, California,
Nevada, Texas, West Virginia, and the Federal Courts.

126. The Chicago, Burlington & Quincy Railroad Com-
pany vs. Isaac G. Wilson, 17 Ill. 123. This was a petition for
a writ of mandamus to compel the respondent, who was a
Circuit Judge, to appoint a commissioner to fix the compen-
sation to be paid by the railroad company for certain lands
which the railroad company desired to use for shops, turn-
outs, depots, etc., Judge Wilson, having refused to make the
appointment. James F. Joy appeared for the railroad com-
pany and Mr. Lincoln and Grant Goodrich opposed the
application. The writ of mandamus was awarded.

Cited by the Supreme Courts of Indiana, Missouri, Ala-
bama, Kansas, Nebraska, Ohio, and the courts of New York.

127. Browning (O. H.), plaintiff in error, vs. The City of
Springfield, 17 Ill. 143. This was a suit for the recovery
of damages for a personal injury resulting from the failure of
the city to keep its street in proper repair, the Circuit Court
having held that the city was not liable for such injury.
Lincoln & Herndon represented the plaintiff in error and
Stuart & Edwards and another appeared for the city. The
judgment of the Circuit Court was reversed.

128. Turley e¢ al., plaintiffs in error, vs. The County of
Logan, 17 Ill. 151. This case involved the right to test the
validity of an act of the legislature by showing by reference
to the journal that such act was not passed by a constitu-
tional vote, and also involved the right of the legislature to
change the location of a county seat without the consent of
a majority of the voters of the county. J. T. Stuart repre-
APPENDIX 239

sented the plaintiffs in error and Mr. Lincoln appeared for
Logan County. The decree of the Circuit Court was affirmed.

Cited by the Supreme Courts of Idaho, Michigan, and
North Carolina.

129. Armstrong, plaintiff in error, vs. Mock, 17 Ill. 166.
This case involved several questions of procedure. Lincoln
& Herndon represented the plaintiffs in error. The judgment
of the Circuit Court was affirmed.

Cited by the Supreme Court of Colorado.

130. Booth et al., plaintiffs in error, vs. Rives, 17 Ill. 175.
This case involved only questions of fact. Stephen T. Logan
represented the plaintiffs in error and Mr. Lincoln appeared
for the defendant in error. The judgment of the Circuit
Court was affirmed.

131, 132. Myers et al. vs. Turner, Myers e¢ al. vs. Turner,
17 Ill. 179. These two cases involved the same questions and
one opinion covers both. The sufficiency of the considera-
tion of promissory notes was the issue. Stuart & Edwards
and Lincoln & Herndon represented the appellants. The
judgment of the Circuit Court was affirmed.

Cited by the Supreme Court of Massachusetts.

133. Hildreth vs. Turner, 17 Ill. 184. This case was like
the two preceding cases, except that it involved the further
question of the validity of an assignment of a patent. Stuart
& Edwards and Lincoln & Herndon represented the appel-
lants. The judgment of the Circuit Court was affirmed.

134, 135. Moore vs. Vail, Moore vs. Dodd, 17 Ill. 185. These
were ejectment cases both involving precisely the same ques-
tions and one opinion was filed covering both cases. Mr.
240 APPENDIX

Lincoln was associated with D. A. Smith on behalf of the ap-
pellant. The judgment of the Circuit Court was affirmed.

Cited by the Supreme Courts of Alabama, Kansas, Virginia,
West Virginia, Iowa, Mississippi, Minnesota, Texas, and the
Federal Courts, and the courts of New York.

136. Loomis ef al., plaintiffs in error, vs. Francis, 17 Ill. 206.
This case holds that it was error for the Circuit Court to enter
a judgment against a defendant nunc pro tunc under the facts
stated. Lincoln & Herndon represented the plaintiffs in
error. The judgment of the Circuit Court was reversed.

137. The Illinois Central Railroad Company vs. The County
of McLean, 17 Ill. 291. Mr. Lincoln was associated with M.
Brayman and James F. Joy, counsel for the railroad com-
pany, on behalf of the appellant. Stephen T. Logan and
Stuart & Edwards represented the appellee. (This is the case
out of which grew the suit of Lincoln against the Illinois Cen-
tral Railroad Company for compensation for services ren-
dered and in which Lincoln recovered a judgment for $4750
in the Circuit Court of McLean County.) This case involved
the right of the legislature to exempt the property of the rail-
road company from taxation or to commute the general rate
of taxes for a fixed sum. The Supreme Court held constitu-
tional a provision of the charter granted to the railroad com-
pany by the legislature which required the payment of a cer-
tain proportion of its earnings in lieu of taxes. The judgment
of the Circuit Court was reversed.

Cited by the Supreme Courts of Arkansas, Louisiana,
Florida, Montana, Indiana, North Dakota, Kansas, and the
United States Supreme Court.

138. Johnson vs. Richardson ef al., 17 Ill. 302. This was a
suit against an innkeeper to recover for money stolen from
APPENDIX 241

the pocket of a guest by some person who entered his room
during the night. Mr. Lincoln represented the appellant.
Stephen T. Logan appeared on behalf of the appellees. The
judgment of the Circuit Court was affirmed.

Cited by the Supreme Courts of Missouri, Texas, and Ne-
braska.

139. Phelps vs. McGee, 18 Ill. 155. This was a suit for
damages for the breach of a contract to deliver corn. Mr.
Lincoln and another represented the appellant. Stephen T.
Logan appeared for the appellee. The judgment of the Cir-
cuit Court was reversed.

Cited by the Supreme Courts of Kansas, Nebraska, and
West Virginia.

140. The County of Christian vs.Overholt e al., 18 Ill. 223.
This case involved a contract for the construction of a court-
house. Mr. Lincoln and Stephen T. Logan represented the
plaintiff in error. Stuart & Edwards appeared for the ap-
pellees. The judgment of the Circuit Court was reversed.

141. McConnel vs. The Delaware Mutual Safety Insur-
ance Company ef al., 18 Ill. 228. This case is very interesting
reading. It involved the destruction of certain merchandise
by fire, the payment of insurance by an insurance company
under policies which it had issued to the owner covering the
same, the discovery that the insured had set fire to his own
property, a demand that the new stock of goods purchased
with the insurance money be turned over to the insurance
company and a compliance with that demand, a judgment
recovered by another creditor against the insured, a bill in
equity against him and the insurance company to subject
the property in its possession to the payment of the judgment,
and a decree finding that the insured was guilty of arson and
sustaining the claim of the insurance company. Mr. Lincoln
242 APPENDIX

and H. E. Dummer represented the appellees. The decree of
the Circuit Court was affirmed.

142. The People, plaintiffs in error, vs. Watkins ef al., 19
Ill. 117. This was a writ of error prosecuted from a judgment
in favor of the sureties on a recognizance. Lincoln & Hern-
don represented the defendants in error. The judgment of
the Circuit Court was reversed.

Cited by the Supreme Court of Colorado.

143. Partlow, plaintiff in error, vs. Williams, 19 Ill. 132.
This suit was founded on a note for $6500 payable ‘“‘in sight
exchange on New York.’’ The controversy was as to the
amount for which a judgment should be rendered in dollars
and cents. Lincoln & Herndon represented the plaintiff in
error. The judgment of the Circuit Court was reversed.

144. Illinois Central Railroad Company vs. Morrison and
Crabtree, 19 Ill. 136. This case involved the right of a rail-
road company to restrict its liability by contract with the
shipper. Mr. Lincoln with two others represented the ap-
pellant. The judgment of the Circuit Court was reversed.

Cited by the Supreme Court of the United States and the
Supreme Courts of Iowa and Nebraska.

145. Illinois Central Railroad Company vs. Hays, 1g IIl.
166. This suit was brought for a breach of contract for the
shipment of property. Mr. Lincoln and another appeared for
the appellant. The judgment of the Circuit Court was
affirmed.

146. The People, plaintiffs in error, vs. Witt ef al., 19 Ill.
169. This was an action of debt on a recognizance. Lincoln &
Herndon represented the defendants in error. The judgment
of the Circuit Court was reversed.
APPENDIX 243

147. Sprague, plaintiff in error, vs. Illinois River Railroad
Co. et al., 19 Ill. 174. The plaintiff in error filed his bill in
chancery praying for an injunction to prevent the issuing of
county bonds in aid of the railroad. The decree of the Cir-
cuit Court denying the injunction was affirmed. Lincoln &
Herndon and another represented plaintiff in error. Stephen
T. Logan and another appeared for the defendant in error.

Cited by the Supreme Courts of Iowa, Ohio, and West Vir-
ginia.

148. McDaniel et al. vs. Correll et al., 19 Ill. 226. This was
a bill in chancery to set aside a will. The decree of the Circuit
Court was reversed because that court had not acquired juris-
diction of the persons of some necessary parties. Lincoln &
Herndon and another represented the appellants. Stephen
T. Logan and Stuart & Edwards represented the appellees.

Cited by the Supreme Courts of Virginia, West Virginia,
Maryland, North Dakota, Colorado, and California.

149. The People ex rel. vs. Bissell, Governor, 19 Ill. 229.
This was an application for a writ of mandamus to compel the
governor to issue certain bonds to the relator under an act
of the legislature providing for the refunding of the public
debt of Illinois. Stuart & Edwards and Lincoln & Herndon
appeared for the relator and Stephen T. Logan represented
the governor. The application was denied. The court held
that it had no jurisdiction to compel the executive to perform
a public duty.

Cited by the Supreme Courts of Indiana, Michigan, Colo-
rado, Louisiana, Mississippi, Tennessee, Missouri, South
Dakota, West Virginia, and the New York courts.

150. The People ex rel. vs. Hatch, Secretary of State, 19
Ill. 283. This was an application for a writ of mandamus to
244 APPENDIX

test the validity of an act of the legislature which the governor
had inadvertently endorsed “approved,” but from which he
had erased his name before the bill left his possession and
which he had thereafter returned to the legislature with his
veto. William C. Goudy, John A. McClernand and another
represented the relator. Mr. Lincoln and another appeared
for the respondent. The application was denied.

Cited by the Supreme Courts of Maine, Virginia, and
Arkansas.

151. Wade et al. vs. King et al., 19 Ill. 301. This was a bill
in chancery and involved several questions as to the admis-
sibility of evidence. Mr. Lincoln appeared with Stephen T.
Logan and another for appellees. The decree of the Circuit
Court was reversed.

Cited by the Supreme Court of California.

152. Kester vs. Stark, 19 Ill. 328. This was a suit in chan-
cery for the partition of certain real estate. Lincoln & Hern-
don and another appeared for the appellant. The decision of
the Circuit Court was reversed.

Cited by the Supreme Courts of Wisconsin and Oregon.

153. The St. Louis, Alton & Chicago Railroad Company
vs. Dalby, 19 Il. 353. This was an action of trespass brought
against the railroad company by the appellee because the con-
ductor had ejected himself and wife from the train. It was
claimed that Dalby had refused to pay the usual fare. The
evidence showed that Dalby had offered to buy tickets, but
that the station agent had no tickets to the point of destina-
tion and that Dalby could therefore procure none; that he
offered to. pay the conductor the amount which the tickets
would have cost and presented a certificate from the station
agent stating that Dalby had applied for tickets; that the
APPENDIX 245

conductor refused them passage unless paid the usual excess
cash fare which Dalby refused to pay, in consequence of which
he and his wife were put off the train. Lincoln & Herndon rep-
resented the appellee and Stuart & Edwards represented the
appellant. The judgment of the Circuit Court was affirmed.

Cited by the Supreme Courts of Colorado, Indiana, Minne-
sota, New Hampshire, Georgia, and Mississippi.

154. Laughlin, plaintiff in error, vs. Marshall, 19 Ill. 391.
This was a suit by attachment and involved the liability of
an endorser of certain certificates of deposit. Lincoln & Hern-
don and U. F. Linder represented the defendant in error.
Stuart & Edwards and another represented the plaintiff in
error. The judgment of the Circuit Court was affirmed.

Cited by the Supreme Courts of Arkansas, Massachusetts,
and Colorado.

155. The People ex rel. vs. Ridgley e¢ al., 21 Ill. 65. This
was an information in the nature of a quo warranto filed in
the Circuit Court of Sangamon County to test the right of the
respondents to continue to act as trustees in winding up the
affairs of the State Bank of Illinois. J. B. White, State’s At-
torney, and Mr. Lincoln represented the People; Stephen T.
Logan, Milton Hay, and John A. McClernand appeared for
the respondents. The court held the appointment of the
relator by the Governor was void for want of power to remove
the respondents and appoint their successors, as the State had,
at the time the Governor took such action, no interest in the
trust which they were to administer. The application having
been denied by the Circuit Court, the judgment of that court
was affirmed.

Cited by the Supreme Courts of Colorado, Arkansas, Flor-
ida, New Hampshire, Nebraska, Montana, and the Federal
Courts.
246 APPENDIX

156. Tonica & Petersburg Railroad Company, plaintiff in
error, vs. Stein, 21 Ill. 96. This suit was brought to recover
the amount of a stock subscription. Lincoln & Herndon
represented the plaintiff in error; Stuart & Edwards appeared
with another for the defendant in error. The judgment of the
Circuit Court was affirmed.

Cited by the Supreme Courts of Indiana and Ohio.

157. Trustees of Schools, plaintiffs in error, vs. Allen
et al., 21 Ill. 120. This was a bill in chancery to set aside a
sale of school lands. Stuart & Edwards and Owen T. Reeves
represented the plaintiffs in error; Mr. Lincoln represented the
defendants in error. The decree of the Circuit Court was
affirmed.

158. Crabtree, plaintiff in error, vs. Kile, 21 Ill. 180. This
was a suit on a promissory note for the purchase price of a
large amount of cattle. The defense set up was a breach of
warranty of the condition of the cattle. Lincoln & Herndon
represented the defendants in error. The judgment for the
plaintiff in the Circuit Court was reversed.

Cited by the Supreme Court of Florida.

159. The Town of Petersburg, plaintiff in error, vs. Metz-
ker, 21 Ill. 205. This case involved the construction of the
charter of the plaintiff in error. Lincoln & Herndon repre-
sented the plaintiff in error. The judgment of the Circuit
Court was affirmed.

160. Young vs. Ward, 21 Ill. 223. This suit was brought
on a note payable to the appellee or her husband, and the
wife having sued and recovered judgment on the note, it was
sought to reverse that judgment because the husband was
not joined as plaintiff and for other reasons. The Supreme
Court held that, while the suit should have been brought in
APPENDIX 247

the name of the husband on account of the disability of a
married woman under the law, the objection came too late,
and the judgment of the Circuit Court was affirmed. Lincoln
& Herndon and another appeared for the appellees.

Cited by the Supreme Courts of Colorado, Wisconsin, and
Michigan.

161. Isaac Smith, plaintiff in error, vs. John H. Smith,
21 Ill. 244. In November, 1856, two days after the presiden-
tial election, the plaintiff in error made a bet of one hundred
and ten dollars with one Moffett against a buggy owned by
the latter that the vote of Fillmore as a candidate for Presi-
dent of the United States was not behind the other candi-
dates in the State of New York. After the wager was made
and the money placed in the hands of the stakeholder, Mof-
fett told the latter where the buggy was at that time and
that he could take it when he pleased. The stakeholder,
after learning that the vote of Fillmore in the State of New
York was less than that of the other candidates, turned over
the money to the plaintiff in error and went with him and
showed him the buggy, but the latter did not then remove it.
The defendant in error had notice of these facts, but neverthe-
less purchased the buggy from Moffett and took possession
of it. The defendant in error brought this suit to replevy
the buggy from the plaintiff in error. Lincoln & Herndon
represented the defendant in error, and contended that the
wagering contract was void because against public policy and
the Circuit Court so held, but the judgment of that court was
reversed by the Supreme Court. The latter court held that
in the absence of any statute on the subject, the contract
was valid and that the plaintiff in error was entitled to the

buggy.
Cited by the Supreme Court of Iowa.

162. Terre Haute & Alton Railway Company, plaintiff in
248 APPENDIX

error, vs. Earp, 21 Ill. 291. This was an action of assumpsit
to recover the amount of a subscription to the capital stock
of the plaintiff in error. The Circuit Court held that there
was no liability. Lincoln & Herndon represented the defend-
ant in error. The judgment of the Circuit Court was re-
versed.

Cited by the Supreme Court of West Virginia.

163. Brundage, plaintiff in error, vs. Camp, 21 IIL. 330.
This was a replevin suit to recover personal property which
the plaintiff had delivered to another upon what is known as
a conditional sale, and the person to whom delivery was thus
made sold and delivered the property to an innocent third
person. The Circuit Court held that the title passed to the
third party when he purchased for value without notice of
the plaintiff’s claim and rendered judgment for the defend-
ant. Lincoln & Herndon represented the plaintiff in error.
Logan (Stephen T.) & Hay represented the defendant in
error. The judgment of the Circuit Court was affirmed.

Cited by the Supreme Courts of Oklahoma, Colorado, and
the United States Supreme Court.

164. Constant vs. Matteson et al., 22 Ill. 546. This was a
complicated suit in chancery — several different interests.
Logan & Hay represented the appellant and Stuart & Ed-
wards and Lincoln & Herndon appeared for the appellees.
The decree of the Circuit Court was reversed and a decree
settling the conflicting interests of all parties was entered
in the Supreme Court.

Cited by the Supreme Courts of Indiana, Michigan, and
Minnesota.

165. Leonard, plaintiff in error, vs. Administrator of Vil-
lars, 23 Ill. 377. This was a bill in chancery to foreclose a
APPENDIX 249

mortgage. Logan & Hay appeared with another for the
plaintiff in error. Mr. Lincoln represented the defendant in
error. The decree of the Circuit Court was reversed.

Cited by the United States Supreme Court and by the
Supreme Courts of Michigan, Nebraska, Wisconsin, and
Colorado.

166. Cass vs. Perkins, 23 Ill. 382. This was an action of
replevin brought by Cass against Perkins, sheriff, to recover
certain horses upon which an execution had been levied.
Cass held a chattel mortgage on the same property. The
Circuit Court held that the plaintiff in error lost his lien under
the mortgage by failing to take possession of the mortgaged
property in apt time. Lincoln & Herndon appeared for the
appellant. The judgment of the Circuit Court was affirmed.

167. Ritchey, plaintiff in error, vs. West, 23 Ill. 385. This
was a suit brought by the defendant in error against the
plaintiff in error, who was a physician, for malpractice. Mr.
Lincoln and another represented the plaintiff in error. The
judgment of the Circuit Court was affirmed.

Cited by the Supreme Court of Maryland.

168, 169. Miller vs. Whittaker, Young vs. Miller, 23 II.
453. Both these cases involved the same question and but
one opinion was filed by the Supreme Court. The cases were
bills in chancery to set aside conveyances on the ground of
fraud and misrepresentation as to certain patent rights which
were the consideration for the conveyance. The Circuit
Court dismissed both bills on the hearing. Logan & Hay and
Lincoln & Herndon appeared for the appellants. Stuart &
Edwards with another represented the appellees. The de-
crees of the Circuit Court were reversed.

Cited by the Supreme Court of West Virginia.
250 APPENDIX

170. Gill, impleaded, etc., plaintiff in error, vs. Hoblit, 23
Ill. 473. This case involved a question of procedure. Swett
& Orme represented the plaintiff in error. Lincoln & Hern-
don appeared for the defendant in error. The judgment of
the Circuit Court was reversed.

171. Kinsey, plaintiff in error, vs. Nisley, 23 Ill. 505. This
case involved a construction of the statutes of Illinois relat-
‘ing to usury. Lincoln & Herndon represented the plaintiff
in error. The judgment of the Circuit Court was affirmed.

172. Gregg ef al., plaintiffs in error, vs. Sanford, 24 III. 17.
This was a bill in chancery by the defendant in error to en-
join the sale of certain property by the sheriff, on which the
defendant in error held a chattel mortgage. The injunction
was granted by the Circuit Court. Lincoln & Herndon rep-
resented the defendant in error. The decree of the Circuit
Court was reversed.

Cited by the Supreme Courts of Iowa, Arkansas, Missis-
sippi, Kansas, West Virginia, Maine, and Missouri.

173, 174. Columbus Machine Manufacturing Company
vs. Dorwin et al., and Same vs. Ulrich, 25 III., original edition
169 (2d edition 153). These were suits for mechanics’ liens.
The same question under the mechanic’s lien law of the
State was involved in both. Lincoln & Herndon represented
the plaintiff in error. The decrees of the Circuit Court were
both reversed.

175. State of Illinois vs. Illinois Central Railroad Com-
pany, 27 Ill. 64. This was an action of debt brought in the
Supreme Court by the State to recover certain taxes claimed
to be due the State for the year 1857, and, like the McLean
County case, involved the construction of the charter of the
defendant company and also involved some other questions
APPENDIX 251

under the revenue laws. Mr. Lincoln appeared with J. M.
Douglas for the defendant railroad company. The State
was represented by J. B. White, State’s Attorney of Sanga-
mon County, and Logan & Hay. The Supreme Court entered
judgment for the defendant.

Mr. Lincoln was admitted to the bar of the Supreme Court
of the United States on the 7th of March, 1849. He ap-
peared in two cases in that court which are as follows: —

176. William Lewis, for use of Nicholas Longworth, vs.
Thomas Lewis, administrator of Broadwell, 7 Howard, 776.
Mr. Lincoln and another appeared for Thomas Lewis. This
case was referred to the United States Supreme Court from
the United States Circuit Court for the District of Illinois,
on account of a division of opinion between the Circuit
Judges on the questions involved. The opinion of the major-
ity of the justices of the Supreme Court was opposed to the
contention of Mr. Lincoln. That opinion was rendered by
Chief Justice Taney. Mr. Justice McLean wrote a long dis-
senting opinion in which he held in accordance with Mr.
Lincoln’s contentions. The case involved the construction
of the statute of limitations of Illinois in its application to a
suit brought by a non-resident plaintiff.

177. The second case which Mr. Lincoln had in the Federal
Supreme Court was that of Forsyth vs. Reynolds, 15 Howard,
358. Mr. Lincoln appeared with two others on the part of
the appellant. This was a chancery case and involved cer-
tain land in the city of Peoria. Salmon P. Chase and N. H.
Purple appeared on behalf of the appellee, Reynolds. This
case was decided at the December term, 1853, and the decree
of the United States Circuit Court for the District of Illinois
was reversed.
252 APPENDIX

It is not improbable that Mr. Lincoln appeared and ar-
gued other cases in the courts of last resort of other States in
the Middle West, but no effort has been made to determine
this question. It is believed that sufficient has been set forth
in these pages to vindicate the high standing of Mr. Lincoln
as a lawyer and that the addition of further cases to this al-
ready long list would serve no useful purpose.
INDEX
INDEX

Adams, John, a great lawyer, 91.

Aliens, right of, to vote, 10, 100.

Almanac, Lincoln’s use of, in Arm-
strong murder case, 47; the Old
Farmers’ for 1857, 50.

Ambitious men, Lincoln’s warning
against, 189.

Armstrong, case of People vs.,
Judge Herriott presides at trial of,
46; improper use of almanac in,
charged to Lincoln, but disproved,
48; facts in relation to, 48~51;
Lincoln’s contention as to posi-
tion of moon shown to be correct,
48-52; James L. King’s account of,
49; account of, by John T. Brady,
juror in trial, 52; instructions to
jury prepared by Lincoln, 53.

Arnold, Isaac N., error of, as to
date of Lincoln’s admission to the
bar of Illinois, 7.

Ashmun, George, letter of Lincoln to,
30.

Bailey vs. Cromwell, argument of,
by Lincoln, 75.

Baker, Edward D., United States
Senator, Colonel of Volunteers,
killed at Battle of Ball’s Bluff, 26.

Beckwith, Corydon, 29.

Blaine, view of, as to Lincoln’s hold
upon the people, 145, 150.

Breese, Sidney, Judge of Supreme
Court of Illinois, United States
Senator, II; opinion of, as to
Lincoln’s standing as a lawyer, 23.

Browning, Orville H., United States
Senator, 26; association of, with
Lincoln, 26, 84.

Capital, rights of, should be pro-
tected, 104, 105.

 

“Carpet-Bag Government,” Lin-
coln’s views in relation to, 126-32.

Case lawyer, Lincoln not, definition
of term, 23.

Cases taken to Supreme Court of
Illinois by Lincoln, number of, 63;
review of, 63-81; Lincoln success-
ful in majority of, 65; Herndon
had only two, during Lincoln’s
service in Congress, 73; list and
summary of, 207; in United States
Supreme Court, 251.

Caton, Judge, opinion of, as to Lin-
coln’s standing as a lawyer, 23.
Chicago Daily Press, comments of,
on Hurd vs. Rock Island Bridge

Company, 29-36.

Choate, Rufus, Lincoln compared
with, 21, 22.

Cincinnati, interest of, in case of
Hurd vs. Rock Island Bridge Com-
pany, 31.

Cincinnati Enguirer, comments of,
on Hurd vs. Rock Island Bridge
Company, 33, 35-

Cincinnati Gazette, comments of, on
Hurd vs. Rock Island Bridge
Company, 34, 35-

Circuit, traveling the, 17; experi-
ences of Lincoln on the, 17.

Civil War Amendments to the Con-
stitution, comments on, II2—-14;
belief that Lincoln would not have
favored, 114.

Clay, Henry, Lincoln’seulogy of, 186.

College men, Lincoln’s reference to,
as related by Emerson, 84; many
of Lincoln’s associates at bar of
Iilinois were, 84, 85.

Colonization of negroes, Lincoln’s
belief in, 115-22, 152; experiment
on Island. of Vache, 115-22, 152.
256

Compensated emancipation, urged
by Lincoln, 152-55; opposition to,
in Congress, 154.

Congress, opposition of, to Lincoln’s
policy, 131, 132, 138; Lincoln’s
respect for, 136.

Constitution, Lincoln opposed
amendment of, 111, 113; Four-
teenth and Fifteenth Amend-
ments to, 113, 114; result of adop-
tion of, 113, 114; highest expres-
sion of the will of the people, 175;
duty of courts to interpret, 175.

Cook, Burton C., 27.

Corwin, Tom, Lincoln compared
with, 21.

Court, United States District, of
Illinois, division of State into two
districts, for the Northern Dis-
trict of Illinois, for the Southern
District of Illinois, 39; destruction
of records of court for the North-
ern District of Illinois, 40; Lin-
coln’s cases in, 40; pleadings in
cases of Lincoln & Herndon in
Lincoln’s handwriting in, 41.

Courts, assaults upon the inde-
pendence of, 175; do not pass
upon wisdom or desirability of
laws, 176, 177.

Cromwell, Bailey vs., argument of,
in Supreme Court of Illinois by
Lincoln, 75; questions involved in,
76,77; did not involve right to hold
slaves in Illinois, 76, 77; misappre-
hension as to Lincoln’s argument
of same, 77.

Davis, Judge, opinion of, as to Lin-
coln’s standing as a lawyer, 22.
Democratic contention that gover-
nor could remove the secretary of
state, 10; contention that aliens
had the right to vote, Io.

De Tocqueville, tribute to lawyers
by, 20; predicts evil results from
attacks on judiciary, 178.

 

INDEX

Douglas, Stephen A., advocates re-
organization of Supreme Court of
Illinois, 11; elected a judge of the
Illinois Supreme Court under act
of reorganization, 11; counsel for
McClernand in Field vs. The Peo-
ple, ex rel., 13; counsel in Spragins
vs. Houghton, 13; opinion of, as
to Lincoln’s standing as a lawyer,
21.

Dred Scott vs. Sanford, Lincoln’s
criticism of decision, 162-74, 1773
question involved in, 172.

Drummond, Thomas, United States
District Judge, 39; his opinion of
Lincoln’s legal attainments, 22;
sits with Justice McLean in Mc-
Cormick vs. Manny, 81.

“Effie Afton’’ case, Hurd vs. Rock
Island Bridge Company known
as, 28.

Ethics, Lincoln’s high ideals as to,
44; stories indicating a disregard
of, by Lincoln, 45-59.

Extension of slavery not involved in
Dred Scott case, 172.

Fellows, E. C., ex parte, 8; decision
in, as to requirements for admis-
sion to the bar of Illinois, 9.

Field vs. The People, ex rel., Mc-
Clernand, 12.

Gems from Lincoln’s speeches, 197.

“Government of the people, by the
people, for the people,” same
thought expressed by Webster and
Theodore Parker, 193.

Hamilton, Alexander, adviser of
Washington, 91.

Herndon, William Henry, misrepre-
sentations of Lincoln by, 72, 73;
offer of, as to continuation of
partnership with Lincoln at close
of his congressional term, 74.
INDEX 257

Home market, Lincoln’s views on,

98, 99.

Hurd vs. Rock Island Bridge Com-
pany, case of, trial of, 28; names
of counsel in, 29; Abraham Lincoln
of counsel for defendant, 29; T. D.
Lincoln, of counsel for plaintiff, 29;
comments of newspapers in rela-
tion to, 29-36; Justice McLean
presides at trial of, 29; rivalry be-
tween Chicago and St. Louis
shown in, 29; interest of river
towns in, 30-38; great questions
of commerce involved in, 31; was
of vast importance to Chicago and
the East, 31; involved right to
build bridges over navigable
streams, 32; known as ‘‘Effie Af-
ton” case, 33; work of Lincoln in,
commended, 38.

Illinois Central Railroad Company,
Lincoln and the, 70.

Inaugural address, Lincoln’s second,
deemed by him his best, letter to
Weed, 187.

Intermarriage of races, Lincoln op-
posed to, 118.

Jefferson, Thomas, a great lawyer,91.

Johnson, Andrew, plans of, for re-
construction of state governments
did not differ from those of Lin-
coln, 139, 146.

Judd, Norman B., 29.

Judges, election of, by legislature in
Illinois, 10; recall of, by legislature
of Illinois, 10-14, 178-80; duty of,
to decide questions before them,
170, 177; Lincoln opposed to re-
call of, 179.

Judges of United States District
Court for Illinois, 39; Nathaniel
Pope, first judge, 39; Thomas
Drummond, judge of, 39.

Judiciary, Lincoln’s criticism of,
161; Lincoln’s high regard for,

 

161, 168, 170, 177-80; views of
Lincoln in relation to Dred Scott
case, 162~77; comments of De
Tocqueville on, 178.

Knox College, degree of LL.D. con-
ferred upon Lincoln by, 15.

Labor, rights of, Lincoln’s views
upon, 104; his opposition to vio-
lence by workingmen, 105.

Law, respect for, advocated by Lin-
coln, 105, 106.

Lawyer, Lincoln’s admission to the
bar of Illinois, 7; Lincoln’s stand-
ing as, 22; career of Lincoln as,
made him a great President, 88;
Lincoln, a great constitutional,
89, 106, 137; Lincoln’s admission
to the bar of the United States
Supreme Court, 207.

Legislature of Illinois, Lincoln’s first
candidacy for, 3; powers of, in
Lincoln’s time, 4; Lincoln’s sub-
sequent election to and service in,
4; Lincoln’s speeches in, 5; judges
elected by, under Constitution of
1818, 10; recall of judges by, 11,
179.

Lincoln, Abraham, an educated
man, 2; his early knowledge of
pure English, 3; his election to the
legislature of Illinois, 4; his career
in the legislature, 4; his speeches
in the legislature, 4, 5; Stuart sug-
gests that he study law, 6; his ad-
mission to the bar of Illinois, 6, 7;
opposition of, to reorganization
of Illinois Supreme Court, 12;
degree of LL.D. conferred upon,
by Knox College and by Princeton
University, 15; experiences of,
traveling the circuit in the prac-
tice of the law, 17; beginning of
friendly rivalry between Lincoln
and Douglas, 20; not a case law-
yer, 23; adversaries of, at bar of
258

Illinois, 26, 27; counsel for Illinois
Central Railroad Company, 27, 69,
70; confusion as to first name of,
30; argument of, in Hurd vs. Rock
Island Bridge Company, 38; doc-
uments in cases in United States
Courts in handwriting of, 41; his
unceasing industry, 44; his high
ideals as to professional ethics,
44; asks to be relieved as coun-
sel for Matteson, 54; nothing
improper in conduct of, in rela-
tions with Matteson, 55, 56;
story as to first appearance of, in
Supreme Court of Illinois, 56, 57;
story shown to be untrue, 57, 58;
his use of technicalities, 60-63;
election of, to Congress, 63; cases
of, in Supreme Court of Illinois,
63-69; advice as to study of law,
66; his suit against Illinois Central
Railroad Company, 70; general
misunderstanding as to same, 70,
71; misrepresentations by Hern-
don as to legal learning of, 72, 73;
argument of, in so-called slave
case, 75, 76; delivers to Harding
manuscript of argument in Mc-
Cormick vs. Manny, 83; influence
of his training as a lawyer on his
career as President, 88-95; his ex-
perience at the bar made him a
great President, 88; his knowledge
of the principles of government
compared with Webster’s, 89; his
familiarity with the United States
Constitution, 89, 106; a student
of the science of government, 90,
91; an accomplished lawyer, 92;
his greatness as a lawyer made him
a greater President, 92; DeMon-
talembert’s opinion of, 94; his love
of country, 96, 156; his view of
the object of government, 96;
his views on home market, 98,
99; his views on the tariff, 99;
his views on woman’s suffrage,

 

INDEX

I0I-03; was not an advocate of
woman’s suffrage, 103; a believer
in the protection of labor and
capital, 104, 105; his reverence for
laws, 105; his belief in the com-
plete separation of the powers of
Congress and of the Executive,
106-08; his veneration for the
United States Constitution, 106—
I1; opposed amendment to the
Constitution, I1I, 113; his views
on the subject of secession, 129,
130; view of powers of Executive
on the subject of Reconstruction,
131, 132, 135; opposed to military
government, 142; his views on re-
call of Judges by the Illinois legis-
lature, 178-80; as an orator, 181;
comment on speech of Alexander
H. Stephens, 192; his admission to
the bar of the United States Su-
preme Court, and cases in, 251.
Lincoln, T. D., opposed to Abraham
Lincoln in Bridge case, 29.
Logan, Stephen T.., circuit judge, 26.

Madison, James, a great lawyer, 91.

Matteson, Joel F., Lincoln’s letter
to, 54.

McCormick vs. Manny, argument at
Cincinnati, 81; Lincoln’s connec-
tion with, 81; badly treated by
Stanton and Harding, 81; Hard-
ing’s account of, 81; Harding of
counsel in, 81; Bigelow’s account
of, 81; Lincoln informed by Hard-
ing that Stanton and Harding
would argue case for defendants,
83; manuscript of argument of
Lincoln in, handed to Harding, 83;
Harding declines to examine same,
83; agreement of Bigelow and
Parkinson as to account given by
Harding, 85, 86.

McDougall, James A., United States
Senator, associate of Lincoln, 26.

McLean, Justice of the United States
INDEX

Supreme Court, 29; opinion of, in
Dred Scott case, 29.

Missouri Republican, advocates
cause of plaintiff in Hurd vs. Rock
Island Bridge Company, 36; con-
tends that bridges across Missis-
sippi River obstruct navigation,

37-
Montalembert, Count de, estimate
of Lincoln, 94, 140.

Negro, Lincoln’s advocacy of colo-
nization of, 115-22; equality of
with whites denied by Lincoln,
116-18; effect on, of Fourteenth
and Fifteenth Amendments, 118;
President Lincoln favored coloni-
zation of in Central America, 119—
22; Vache Island, attempted col-
onization of, on, 122; Lincoln’s
views on granting franchise to,
122-24; Lincoln’s belief in State
control of suffrage of, 122-24;
failure of, to assume responsibili-
ties of freemen, 147-49.

Orator, definition of, 181, 190; Web-
ster, Clay, Pericles, Demosthenes,
Blaine, and Henry Lee, 181-84.

People’s representatives, Lincoln
held should control legislation,
136.

Presidents, greatest have been great
lawyers, 90, 9I.

Princeton University, degree of
LL.D. conferred upon Lincoln by,
15.

Protective tariff, Lincoln’s views on,
99.

Recall of judges, Lincoln’s position
in relation to, 178-80.

Reconstruction, Lincoln’s views on,
122, 125; conflict between Lin-
coln and Congress as to, 131, 132,
138.

259

Scott, Dred, vs. Sanford, known as
“Dred Scott’? case, 161-77;
grounds for Lincoln’s criticism of,
161-69; based on errors of facts,
162-65; Lincoln’s contention in,
that decision should be overruled
by United States Supreme Court
because of error, 166, 167; op-
posed by Lincoln as a guide for
political action, 169.

Slave case of Bailey vs. Cromwell,
75; did not involve right to hold
slaves in Illinois, 76, 77.

Slavery, Lincoln’s declaration as to
responsibility for, 152.

Slaves, emancipation of, merely in-
cidental, 157.

South, Lincoln’s kindly feeling to-
ward, and condition of at close of
war, 139, 140.

Specious arguments, never indulged
in by Lincoln, 191.

St. Louis, rivalry between Chicago
and, 29-38; Chamber of Commerce
calls meeting of citizens to raise
funds to aid plaintiff in prosecu-
tion of Hurd ws. Rock Island
Bridge Company, 37.

Stanton, Edwin M., treatment of
Lincoln by, at Cincinnati, 82-86;
became Lincoln’s stanch friend
and supporter, 86-87.

States, Confederate, always a part
of the Union, Lincoln’s view,
123.

Stephens, Alexander H., comment of
Lincoln on speech of, 192.

Stuart, John T., suggestion of, that
Lincoln study law, 6; associate of
Lincoln, 27.

Supreme Court of Illinois, judges of,
10; judges of, elected by legisla-
ture, 10; reorganization of, 10, 11;
judges of, required to perform cir-
cuit duty, 11; Lincoln had no
criminal cases in, 25; cases argued
in, by Lincoln, 63; majority of

 
260

cases taken to, by Lincoln won,
64, 65.

Supreme Court of the United States,
Lincoln’s admission to the bar of,
251; cases of Lincoln in, 251.

Swett, Leonard, opinion of, as to
Lincoln’s standing as a lawyer, 21.

Technicalities, Lincoln’s use of, in
trial of cases, 60-63.

Treat, Samuel H., appointed United
States District Judge, 39; story
attributed to, disproved, 56-58.

Trumbull, Lyman, judge of Supreme
Court of Illinois, United States
Senator, constitutional lawyer, 27.

 

INDEX

Union, preservation of, sole object
of the Civil War, 157.

United States District Courts, Lin-
coln’s cases in, 40.

Veto power of the President, Lin-
coln’s views as to exercise of, 134-
36; limited use of, by Lincoln, 137.

Washington, President, advised by
Alexander Hamilton, 91; Lincoln’s
eulogy of, 187.

Wilson, Isaac G., Judge, 27; a pro-
found lawyer, 27.

Woman Suffrage, Lincoln on, 101,
102.
Che Wiverside Press
CAMBRIDGE . MASSACHUSETTS
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