Some Whigs, not sympathizing with Field’s argument, had tried to silence him with shouts of derision.204 Ever the peacemaker, Lincoln urged the delegates to consider themselves “a band of brothers” and not interrupt each other: “I hope there will be no more interruption—no hisses—no jibes.” Responding to Field’s argument, Lincoln respectfully pointed out that the New Yorker had ignored a central issue: “Who is to decide differences of opinion on constitutional questions? What tribunal? How shall we make it out? The gentleman from Pennsylvania (the Hon. Andrew Stewart) says Congress must decide. If Congress has not the power, who has? Is it not, at least, for Congress to remedy the objection [that the Constitution did not authorize Congress to appropriate funds for internal improvements], and settle this great question. If there is any other tribunal, where is it to be found? My friend from Pennsylvania, Mr. Benton and myself, are much alike on that subject.”205
Lincoln ignored the landmark 1803 Supreme Court ruling in Marbury vs. Madison that the Court itself was the ultimate arbiter of constitutional disputes. A decade later he would at much greater length question the Court’s power to declare acts of Congress unconstitutional.
Lincoln’s Old-Man Archetype
In Chicago, the 38-year-old Lincoln first became known as “Old Abe.” Elihu B. Washburne of Galena recalled that one day “several of us sat on the sidewalk under the balcony of the Sherman House, and among the number [was] the accomplished scholar and unrivaled orator, [S.] Lisle Smith. He suddenly interrupted the conversation by exclaiming, ‘There is Lincoln on the other side of the street. Just look at “Old Abe,” ’ and from that time we all called him ‘Old Abe.’ ”
Washburne thought Smith’s remark peculiar: “Old Abe, as applied to him, seems strange enough, as he was then a young man.”206 Washburne’s puzzlement was understandable because even as Lincoln grew older he did not show obvious signs of aging. At 50, he was described as “so exceedingly ‘well preserved’ that he would not be taken for more than thirty eight.”207 The following year a journalist reported from Springfield that “Mr. Lincoln’s age, I believe, is fifty-one, but he certainly has no appearance of being so old. His hair is black, hardly touched with gray, and his eye is brighter than that of many of his juniors.”208 Another journalist at that time wrote that “the popular sobriquet, ‘Honest Old Abe,’ is inappropriate and somewhat lacking in truth.… Why should a man be called old when he is in the very prime of life? … No one who looks upon his animated features, upon his determined eye, or listens to his hearty, fascinating conversation, would call that man old.”209 A friend who had known him for more than two decades said in 1860, the “term ‘old’ is hardly as applicable as the epithet honest, for he is in the full vigor of life, with a powerful constitution, and no symptoms of decay, mental or physical.”210
Nonetheless, others sensed what S. Lisle Smith did. A friend from Lincoln’s youthful days in Indiana reported that “Abe was always a man though a boy.”211 The journalist George Harris Monroe said that when Lincoln was 39, “he had the aspect of one considerably older than his real age.”212 Gibson W. Harris recollected that “ ‘Honest Old Abe’ was a colloquialism familiar to all Springfield before he was thirty-seven,” and that Lincoln deemed himself old “when in his late thirties.”213 At 39, Lincoln declared to Herndon: “I suppose I am now one of the old men.”214 Reportedly he once said, “I … have been kept so crowded with the work of living that I felt myself comparatively an old man before I was forty.”215 In 1854, Lincoln told a friend that people began calling him “old” before he had turned 30.216
Why he should be deemed old when he betrayed few physical signs of aging cries out for explanation. The Swiss psychologist Carl Jung maintained that everyone is dominated by an archetypal figure, a condition unrelated to the experiences of childhood. Lincoln’s archetype seems to have been the Old Man, combining the qualities of the Wise Elder and the Great Father. Regardless of physical appearance, the mature Lincoln seemed to radiate the positive qualities of being old. Accordingly, many Illinoisans regarded him with filial reverence. In early 1861, when Lincoln visited his stepmother, one resident remembered that the people of Charleston greeted him with special warmth and that “[o]ld men and women talked to Mr. Lincoln with the confidence and assurance of loving children in a great family reunion.”217 A train conductor in Illinois recollected how people in railroad restaurants “tried to get as near Lincoln as possible when he was eating, because he was such good company, but we always looked at him with a kind of wonder. We couldn’t exactly make him out.… [T]here was something about him that made plain folks feel toward him a good deal as a child feels toward his father.”218 That “something” was Lincoln’s Old Man archetype. During his presidency, it would play a vital role is sustaining Union morale, for many Northerners trusted him as one would trust a benevolent, wise father.
Defending a Slaveowner
Lincoln had not dealt with the slavery issue during his congressional campaign, but he confronted it in the fall of 1847 when a Kentucky slaveholder, Robert Matson, employed his legal services to help recover a slave family. Matson cultivated a farm in Coles County, Illinois, with slaves imported from Kentucky, where he also owned a farm. At first, when he began this pattern, after each harvest he would return them across the Ohio River, and the following spring he would import a new gang from Kentucky; this procedure was legal in Illinois, where the law only forbade a slaveholder from domiciling bondsmen. Matson nonetheless permanently retained a slave in Illinois named Anthony Bryant as an overseer, thus technically freeing him. Bryant, however, did nothing to assert his free status until the spring of 1847, when his wife, Jane, and their children, who had arrived in Illinois two years earlier, seemed in danger of being permanently separated from him. (In 1845, Matson evidently feared that if he returned the slaves to Kentucky, his creditors would seize them.) Matson’s hot-tempered, jealous housekeeper-mistress, known as “a vicious negro hater,” suspected that he was sexually involved with Jane Bryant and demanded that she and her children be sold.219 To thwart that possibility, Anthony Bryant enlisted the help of two local abolitionists, Hiram Rutherford, a Pennsylvania-born physician, and Gideon Ashmore, a hotelkeeper known as “a wide-awake business man” whom “nothing pleased so well as a stiff legal fight.” A “strong anti-slavery man,” Ashmore sheltered Jane Bryant and her offspring at his hotel.220 Matson sued for possession of his slaves, who at the direction of a justice of the peace were temporarily jailed in Charleston.
Soon thereafter, Lincoln arrived in Coles County, where he had suits pending in the circuit court. There he was approached by Usher F. Linder, an attorney for Matson, who wanted to sue Rutherford and Ashmore for damages. That conversation turned out to be important, for subsequently Dr. Rutherford asked Lincoln to serve as his lawyer. Rutherford told Lincoln of the situation, emphasized that they had seen eye-to-eye on public issues, and requested that he defend him in court. Rutherford remembered that as he related the case to Lincoln, “a peculiarly troubled look came over his face now and then, his eyes appeared to be fixed in the distance beyond me and he shook his head several times as if debating with himself some question of grave import.” Lincoln responded “with apparent reluctance” that he must refuse for “he had already been counseled with in Matson’s interest and was therefore under professional obligations to represent the latter unless released.” Rutherford was angry with Lincoln, who tried his best to explain that “as a lawyer, he must represent and be faithful to those who counsel with and employ him.” Lincoln then went to Linder and obtained a release. When, however, he informed Rutherford that he was now free to represent him in court, his offer was spurned. Later, the hot-tempered Rutherford, whose pride was offended, admitted to an interviewer, “I was a little hasty.”221 So it was that Lincoln came to represent a slaveowner in court. Had Rutherford been less petulant, Lincoln would have represented the blacks and their protectors.
However reluctant Lincoln may have been to act on Matson
’s behalf, he argued his client’s case forcefully. According to Orlando Ficklin, co-counsel along with Charles Constable for the Bryants, Lincoln presented “his opponents’ points and arguments with such amplitude and seeming fairness and such liberality of concession of their force and strength that it increased in his adversaries their confidence of success.” But then with “trenchant blows” and “cold logic” he subtly wove together and presented evidence favoring his client’s case. Ficklin recalled that the “fact that General Matson had at such a time when he placed a slave on his Illinois farm, publicly declared that he was not placed there for permanent settlement, and that no counter statement had ever been made publicly or privately by him, constituted the web and woof of the argument of Mr. Lincoln, and these facts were plausible, ingeniously and forcibly presented to the court, so as to give them all the effect and significance to which they were entitled and more.”222
A local historian of Charleston, who evidently interviewed participants in the case, reported Lincoln’s argument in the case differently. “His main contention was that the question of the right of the negroes to their freedom could only be determined by a regular habeas corpus proceedings, and not by a mere motion, as was then attempted. His argument was masterful along that line, but it was very clear that he was carefully and adroitly shunning the vital question at issue in the case.” Judge William Wilson, chief justice of the Illinois Supreme Court, asked him: “your objection is simply to the form of the action by which, or in which this question should be tried, is it not?”
“Yes, sir.”
“Now, if this case was being tried on issue joined in a habeas corpus, and it appeared there, as it does here, that this slave owner had brought this mother and her children voluntarily, from the state of Kentucky, and had settled them down on his farm in this state, do you think, as a matter of law, that they did not thereby become free?”
A hush fell over the packed courtroom as Lincoln prepared to address the substance rather than the form of the case. He answered: “No, sir, I am not prepared to deny that they did.”223
Lincoln winced when opposing counsel Charles Constable quoted from John Philpot Curran’s well-known speech about slavery: “I speak in the spirit of the British law, which makes liberty commensurate with and inseparable from British soil; which proclaims even to the stranger and sojourner the moment he sets his foot upon British earth, that the ground on which he treads is holy and consecrated by the genius of universal emancipation.”224 Constable’s co-counsel, Orlando Ficklin, gave an impassioned speech citing the Northwest Ordinance of 1787 and the Illinois Constitution of 1818. After the trial, Lincoln complimented him: “Ficklin do you know that I think that latter part of your speech was as eloquent as I ever listened to?”225
Lincoln’s case was weak, for Jane Bryant had been in Illinois for two years and was clearly not just a seasonal worker. His client therefore lost. In the court’s decision, Judge Wilson ruled that: “Neither the place of residence, nor the declared intentions of Matson, countervail the fact that he voluntarily domiciled his servants here for two years or upwards. Even if, from some contingency, they had remained but a day, the circumstance of his having transferred their domicil from Kentucky, and fixed it in Illinois, would have produced the same result.” Thus, “by bringing Jane and her children into the State of Illinois, and domiciling them here,” Matson “had forfeited all claim to their services, and entitled them to be discharged therefrom.”226 With the aid of Dr. Rutherford, the Bryant family was able to immigrate to Liberia, where they were observed the following year living “truly in a deplorable condition.”227
Lincoln’s agreement to represent Matson has been called “one of the greatest enigmas of his career,” the “most profound mystery ever to confound Lincoln specialists,” and “one of the strangest episodes in Lincoln’s career at the bar.”228 Six years earlier, in the case of Bailey vs. Cromwell, he and John Todd Stuart had successfully defended a black woman who sued for her freedom. They convinced the Illinois Supreme Court that the sale of the woman, who had been purchased in Illinois, was invalid, for she was free under the provisions of both the Northwest Ordinance of 1787 and the Illinois State Constitution. It was just the argument that Ficklin used in the Matson case.
In representing Matson, however, Lincoln demonstrated his acceptance of the advice of Judge George Sharswood, a well-known mid-nineteenth-century American commentator on legal ethics who urged lawyers to refrain from passing judgment on clients. Sharswood believed that an attorney “is not morally responsible for the act of the party in maintaining an unjust cause, nor for the error of the court, if they fall into error, in deciding it in his favor.” A lawyer “who refuses his professional assistance because in his judgment the case is unjust and indefensible, usurps the functions of both judge and jury.”229 In 1844, the eminent jurist David Dudley Field observed that in the United States it was assumed that “a lawyer is not at liberty to refuse any one his services.”230 So, despite his antislavery convictions, Lincoln accepted the Matson case in keeping with what became known in England as the “cab-rank” rule—stipulating that lawyers must accept the first client who hails them—and with the prevailing Whig view that lawyers should try to settle disputes in an orderly fashion through the courts, trusting in the law and the judges to assure that justice was done. As a colleague at the bar said of Lincoln, he “was like the rest of us and took the defense of anyone who had a chance with the law.”231
Another case pitting Lincoln’s humanitarian principles against his professional obligations involved antislavery editor Paul Selby, with whom Lincoln worked in 1856 to launch the Illinois Republican Party. Three years earlier, Col. James Dunlap, a rich Democrat who took offense at editorials Selby had published in his newspaper, the Morgan Journal, caned Selby in the Jacksonville public square. Dunlap hired Lincoln, who hardly sympathized with his principles or conduct, to take his side in court against Selby.
Ideological neutrality characterized Lincoln’s law practice in general, not just in slave-related cases. In malpractice suits he would represent doctors and patients alike; railroads being sued by boat owners whose vessels crashed into their bridges, as well as boat owners suing railroads for obstructing navigation with their bridges; and stock subscribers reneging on their pledges and corporations suing such stock subscribers. At least three times he was defeated because of a precedent that he had helped to establish earlier. On the stump Lincoln defended the Whig economic program favoring banks, corporations, and internal improvements like railroads, but in court he showed no hesitancy in representing clients suing those banks, corporations, and railroads.
Like other members of the bar, Lincoln could ill-afford to be finicky about clients; there were simply too many lawyers and too few clients. David Davis lamented in 1844 that the “law is not profitable.”232 Five years later Davis told Lincoln that the “practice of Law in Illinois at present promises you but poor remuneration, for the Labor—Except in the large commercial places in the State, the practice will always be poor.”233 Davis recalled that when he moved to central Illinois in the 1830s, he had expected to find few attorneys; instead he discovered that the state “was full of able lawyers.”234 An Ohio lawyer complained in 1844 that “great fortunes are not acquired at the bar, and few become rich.… The same industry, learning and abilities, applied to any other employment of life, would yield a much greater return.” The legal profession “has a large number of members in proportion to the business,” and that number was growing rapidly as the “farmer abandons his plough, the tailor his thimble, the clerk his desk, and without study or education, they rush into a profession which is, in their view, the avenue to fame and fortune.”235
A few lawyers did view slave cases from a principled position and not, as Lincoln did, neutrally, as just another piece of necessary business. Known as the “Attorney General for Runaway Negroes,” Ohio’s Salmon P. Chase often represented blacks fleeing from bondage and never defended a slaveholde
r. He became a leader of the more radical political antislavery forces. On the other hand, in 1860 a leading Massachusetts abolitionist, future war time governor John A. Andrew, defended the owner of a slave ship whose vessel was being threatened with forfeiture.
Some attorneys who were not dedicated opponents of slavery, like Lincoln’s friend Orville H. Browning, represented fugitive slaves. According to John W. Bunn, Lincoln avoided fugitive slave cases “because of his unwillingness to be a party to a violation of the Fugitive Slave Law, arguing that the way to overcome the difficulty was to repeal the law.”236
Journey to Washington
In October 1847, Congressman-elect Lincoln rented his Springfield house to Cornelius Ludlum and, with Mary and the children, set out to assume his new post in Washington. On their circuitous journey the family passed the first night in a St. Louis hotel where Joshua Speed, evidently traveling with them, was also a guest. They proceeded by boat to Frankfort, where they caught a train for Lexington, intending to spend three weeks with the Todds.
On the last leg of their trip, 4-year-old Robert and his 18-month-old brother Eddie irritated their fellow passengers, including Joseph Humphreys, nephew of Mary Lincoln’s stepmother. Young Humphreys, arriving at his aunt’s home before the Lincolns, exclaimed: “I was never so glad to get off a train in my life. There were two lively youngsters on board who kept the whole train in a turmoil, and their long-legged father, instead of spanking the brats, looked pleased as Punch and aided and abetted the older one in mischief.”237
Abraham Lincoln: A Life, Volume 1 Page 45
