Abraham Lincoln: A Life, Volume 1

by Michael Burlingame

  The tolerant, humane, even-handed treatment Lincoln accorded his junior partner also characterized his approach to clients and their disputes. He often sought to resolve matters at a personal level, out of court. His motto was “it is better to get along peaceably if possible” rather than litigate.13 When John Foutch asked him to sue a livestock dealer who had reneged on an agreement to sell him some cattle, Lincoln told him he had a strong case and then asked how old he was. Discovering that the potential client had just turned 21, Lincoln urged him to drop the matter: “If you start out and win this suit, you will be running to me for a lawsuit every time any little disagreement comes up. John, don’t have it. John, you go home.” Foutch took the advice.14

  Lincoln would question potential clients closely, trying to divine their motives. If after patiently considering the facts, he thought the case was fair and winnable, he would say: “My friend you are in the right—[I] can so demonstrate it to the minds of the jury—send home the conviction to the mind of the court [of] its legality and its justice. I have no reasonable doubt of this, but I advise you as a good man to go to your neighbor and say to him what you have done and ask him kindly but firmly to do justice & right. Then if he will not do it I’ll make him.”15 He would also advise such clients, “Don’t give me your strong points; they will take care of themselves. Tell me your weak points, and after that I can advise what is best to be done.”16

  If potential clients were merely carrying on a community quarrel, or had a weak case, or were acting out of avarice, hate, ill-will, or malice, Lincoln would tell them frankly, “My friend you are in the wrong—You have no justice and no equity with you—I would advise you to drop the matter.”17 One day he earnestly told a young man that “there is no reasonable doubt but that I can gain your case for you; I can set a Whole neighborhood at loggerheads; I can distress a widowed Mother and her six fatherless children, and thereby get for you six hundred Dollars which you seem to have a legal claim to; but which rightfully belongs, it appears to me, as much to the woman and her children as it does to you. You must remember that some things that are legally right are not morally right. I shall not take your case—but I will give you a little advice for which I will charge you nothing. You seem to be a sprightly, energetic man, I would advise you to try your hand at making six hundred dollars in some other way.”18

  If a potential client’s case seemed just but difficult to prove, Lincoln would tell him, “My friend—you are in the right but I don’t think your evidences are sufficiently strong, always allowing a little for exaggerations, when so made—to drive conviction home to the minds of the jury: I advise you to compromise; and if you can’t get this and can’t find other and further proofs, I advise you to drop the case.”19 He often told would-be clients, “You have no case; better settle.”20

  About one-third of Lincoln’s cases were dismissed, most of them doubtless because of such counsel. Like many other antebellum attorneys, Lincoln viewed the role of peacemaker as the lawyer’s principal function. Characteristically, he told a client in Menard County: “I understand Mr. Hickox will go, or send to Petersburg tomorrow, for the purpose of meeting you to settle the difficulty about the wheat. I sincerely hope you will settle it. I think you can if you will, for I have always found Mr. Hickox a fair man in his dealings. If you settle, I will charge nothing for what I have done, and thank you to boot. By settling, you will most likely get your money sooner; and with much less trouble & expense.”21 He offered similar advice to a man in Canton: “I do not think there is the least use of doing any more with the law suit. I not only do not think you are sure to gain it, but I do think you are sure to lose it. Therefore the sooner it ends the better.”22 When a student in his office asked why he did not charge clients whose cases were settled out of court, he replied: “They won’t care to pay me; they don’t think I have earned a fee unless I take the case into court and make a speech or two.”23

  Lincoln displayed his ingenuity as a peacemaker, as well as his generous nature, when he was asked to sue an eccentric attorney, John D. Urquhart, for a piddling sum. Lawyers in Springfield helped support this unfortunate, who often borrowed money without repaying it. A newcomer to town named Smith, unaware of the informal charity that kept Urquhart afloat, stormed into Lincoln’s office insisting that he bring suit against that poor soul for a debt of $2.50. Failing to dissuade the indignant Smith, Lincoln agreed to sue Urquhart but insisted on a $10 fee, which was promptly given. With this cash in hand, he called on Urquhart, gave him $5, and brought suit against him for $2.50. The defendant confessed judgment and paid the $2.50. “I couldn’t see any other way of making things satisfactory to Mr. Smith and all concerned,” Lincoln explained.24 When another client who wished to sue for a trivial sum rejected advice to drop the matter, saying he wanted to “show the blamed rascal up,” Lincoln replied: “My friend, if you are going into the business of showing up every rascal you meet, you will have no time to do anything else the rest of your life.”25

  Slander and Libel Cases

  Lincoln was especially active in promoting social harmony in dealing with slander cases, when parties were accused of such offenses as theft, perjury, larceny, forgery, fraud, murder, drunkenness, and operating a whorehouse. He often mediated these suits, sometimes persuading a defendant to admit guilt if the plaintiff agreed to remit the monetary settlement, minus court costs. On other occasions he convinced his client to acknowledge the plaintiff’s good character and reputation or got the plaintiff to drop charges.

  Slander was traditionally a common law offense; in addition, the Illinois Legislature had made it punishable by fines up to $1,000. The statute specifically deemed actionable false accusations of adultery and fornication, and several of Lincoln’s eighty-nine slander cases involved such charges. In one, it was alleged that “Mrs. Beatty and Dr. Sullivan were seen together in Beatty’s stable, one morning, very early, in the very act.”26 In another, a woman accused a man of boasting that he had known her carnally and claiming that she “has been fucked more times than I’ve got fingers and toes for damned if it aint so big I can almost poke my fist in[.]”27 Charles Cantrall and his wife alleged that she had been slandered by John Primm, who reportedly stated that “William King screwed Charles Cantrall’s wife twice while he was gone, and before that he crawled in bed with her and her husband and screwed her.”28 James Ellison, a minister, was accused of having sexual relations with a woman whom he kept in the woods for a time until his wife discovered the secret and ended the affair. One of Lincoln’s clients denounced a woman as “a base whore” and “a nasty stinking strumpet” and said he could “prove it by the Nances. They have rode her in the corner of the fence many a time.”29

  Bestiality was alleged in a few of Lincoln’s slander suits. Newton Galloway declared that William Torrence “caught my old sow and fucked her as long as he could” and “knocked up my old sow and it [is] now bellying down and will soon have some young bills.”30 Another client of Lincoln’s supposedly “did have sexual intercourse with or carnal knowledge of a cow,” and yet another reputedly “has been caught frigging a bitch.”31

  Racial prejudice exacerbated some cases. One of Lincoln’s clients was accused of “open & shameful criminal intercourse & base prostitution” with a black man and “raising a family of illegitimate children by said negro.”32 Another client, William Dungey, alleged that Joseph Spencer had wrongfully accused him of being a black man. In presenting this case to the jury, Lincoln was, as one of the opposing counsel recalled, “both entertaining and effective. A dramatic and powerful stroke was his direct reference to Spencer’s accusation that Dungey was a ‘nigger.’ It had a curious touch of the ludicrous by his pronunciation of a word which, instead of detracting, seemed to add to the effect. I hear him now as he said: ‘Gentlemen of the jury, my client is not a negro, though it is no crime to be a negro. His skin may not be as white as ours, but I say he is not a negro, though he may be a Moor.’ ” On Spencer’s defense team was Clifton H
. Moore, a resident of the town where the case was being tried.33

  The most celebrated example of Lincoln’s mediation in a slander suit was the case involving a Catholic priest, Charles Chiniquy, proprietor of the community of St. Ann’s in Kankakee County. (After the Civil War, Chiniquy would achieve notoriety by charging that Jesuits had plotted Lincoln’s assassination.) In 1855, he was sued for calling the proprietor of a nearby settlement a perjurer. As the trial date approached, both sides girded for a desperate fight, as did the communities where the parties lived. Because feeling ran so high, a change of venue was ordered, and the trial took place in Champaign County. Many partisans of the principals flocked there, filling the hotels. The first time the case was tried, it was dismissed when a juror was excused because his child became deathly ill. A second trial ended in a hung jury. Lincoln, who detested that sort of litigation, so dreaded the prospect of yet another trial that he strove mightily to effect a compromise and was ultimately successful.

  Lincoln also tried libel cases. In 1851 he represented his Whig friend and colleague, William H. Fithian, who successfully sued George W. Casseday for claiming that Fithian had shamefully abandoned his wife’s corpse. The court awarded Fithian damages of $547.90. Thereafter Casseday declared on his personal property tax schedule that among his possessions was the “character of Dr. Fithian, $547.90, which I bought and paid for.”34

  Divorce Cases

  Lincoln also tried to promote social harmony in handling divorces, which he found disagreeable. Toward the end of his life he said: “I learned a great many years ago, that in a fight between man and wife, a third party should never get between the woman’s skillet and the man’s ax-helve.”35 He and his partners participated in 145 divorce actions, 88 in Sangamon County alone; these constituted 40 percent of all such cases heard there between 1837 and 1860. Females brought nearly two-thirds of them. Desertion was the most common complaint alleged by women; few charged their husbands with bigamy, impotence, or felonious conviction. Adultery was alleged more or less equally between the sexes. Lincoln’s willingness to take on so many cases illustrates his solicitude for women, for usually male defendants would not contest a divorce. His motive could hardly have been mercenary, for there was little money to be made in these divorce cases. Deserter-husbands were hard to find and to dun for fees, whereas most women who filed for divorce did not have to pay lawyers’ fees and court costs.

  Lincoln’s concern for women’s feelings was manifested in the 1838 case of Samuel Rogers vs. Polly Rogers. As counsel for the husband, Lincoln urged him not to persist in alleging adultery in the complaint (which he had done originally) because the divorce could easily be won on grounds of desertion. When the court saddled Rogers with heavy alimony payments, he appealed the decision, arguing that his complaint “was muted” simply because of “tenderness to the said defendants [i.e., his wife’s] character.”36

  Lincoln’s tender feelings for women were especially noticeable in a Tazewell County divorce case. His client was an attractive and cultivated woman, unfortunately married to a highly disagreeable, mean-spirited man in no way her equal. Lincoln convinced the jury that the husband had insulted her in the most vile fashion and created no end of strife, but he could not prove the acts of personal violence necessary under the divorce statute. One observer noted that Lincoln “did the best he could & appealed to the jury to have compassion on the woman & not bind her to such a man & such a life as awaited her, as the wife of such a man.” The jury shared Lincoln’s view of the matter but, lacking evidence of physical abuse, it felt compelled to find for the husband. One holdout, however, dug in his heels, saying to his fellow jurors: “I am going to lie down to sleep, & when you get ready to give a verdict for that woman, wake me up, for before I will give a verdict against her, I will lie here until I rot, & the pis-mires carry me out of the Keyhole.”37

  Lincoln did not always side with women in such cases. He unsuccessfully represented an odious man in a precedent-setting custody case which saw Illinois courts move away from the common law tradition that children were the property of their fathers. Ann Cowls had divorced her husband, Thomas Cowls, who, she charged, was “negligent of the education and moral welfare of the children, and addicted to excessive and frequent intoxications, and … in the habit of quarreling with [the woman he was living with] in the presence of the children, and driving her from home.” Moreover, he “habitually uses profane, indecent, immoral, and vulgar language as well in the presence of the children as elsewhere, and is in other respects wholly disqualified from educating the children in a respectable and moral manner.” After the divorce, in keeping with common law tradition, Thomas Cowls had retained custody of their children. Ann Cowls subsequently alleged that her former husband was living “in a state of fornication” with “a woman of notoriously bad character” who was “unqualified in any manner for the proper care of and education” of children. In awarding her custody, the Illinois Supreme Court ignored Lincoln’s arguments and stressed the best-interests-of-the-child doctrine, which was to influence subsequent cases of child welfare in Illinois. In so ruling, the court characterized Lincoln’s client unflatteringly: “Here we have grouped together into one disgusting and revolting picture, those features of a father’s character who has become unworthy of the charge of his own offspring.”38

  This sort of action led Gibson Harris to conclude that in a law office “the tendency to believe in total depravity is depressingly strong, such is the somber light in which human nature frequently shows itself in the confidings of client to counsel.”39

  Trial Lawyer

  Herndon believed that Lincoln was a better appellate than circuit court attorney. Trial lawyers, Herndon argued, must have “quickness—sharpness—versatility of mind—a mind that can move and leap here and there as occasions & contingencies quickly demand and quickly form accurate judgments. Technical, quick, analytic—sagacious—cunning minds—cold, heartless—conscienceless men succeed in the circuit courts in bad cases and good alike.” Lincoln, in his partner’s view, did not fit that description, but his was a minority opinion.40 Indeed, most of Lincoln’s colleagues at the bar considered him an adept trial lawyer, especially before a jury. Usher Linder thought Lincoln’s “greatest forte was as a lawyer—and I don[’]t know whether he was strongest before the Judge or the Jury—I certainly never asked to have him against me.”41 Isaac N. Arnold considered Lincoln “the strongest jury-lawyer we ever had in Illinois,” for he could “compel a witness to tell the truth when he meant to lie. He could make a jury laugh, and, generally, weep, at his pleasure.” A “quick and accurate reader of character,” Lincoln “understood, almost intuitively, the jury, witnesses, parties, and judges, and how best to address, convince, and influence them. He had a power of conciliating and impressing every one in his favor.… He excelled all I ever heard in the statement of his case. However complicated, he would disentangle it, and present the turning point in a way so simple and clear that all could understand. Indeed, his statement often rendered argument unnecessary, and often the Court would stop him and say, ‘If that is the case, we will hear the other side.’ He had, in the highest possible degree, the art of persuasion and the power of conviction. His illustrations were often quaint and homely, and always clear and apt, and generally conclusive. He never misstated evidence, but stated clearly, and met fairly and squarely his opponent’s case. His wit and humor, and inexhaustible stores of anecdote, always to the point, added immensely to his power as a jury-advocate.”42

  Hiram W. Beckwith, who observed Lincoln practice in Danville, agreed with Arnold. Beckwith called Lincoln “an admirable tactician, ready for the surprises and turns of a trial, and quick to change his line of attack or defense as emergency required. He was an adept, both as aggressor and at retort, in the badinage and sparrings of counsel that spice the course of a trial.” He rarely lost his temper, even in rancorous proceedings, and he seemed to enjoy the combat. To avoid boring the jurymen, he made few notes dur
ing a trial. “Notes are a bother, taking time to make, and more to hunt them up afterward,” he told Beckwith. “Lawyers who do so soon get the habit of referring to them so much that it confused and tired the jury.” For the same reason, Lincoln would not read to jurors from statutes or quote authorities; rather, he would turn to opposing counsel or to the bench and say to the jury, “These gentlemen will allow, or the Judge, if need be, will tell you, that the law of the case is thus or so,” and would summarize the relevant statute in clear, simple language.

  According to Beckwith, Lincoln “relied on his well-trained memory that recorded and indexed every passing detail,” and skillfully kept the jury focused on the main issues. Lincoln was not, Beckwith recounted, “emotional and dramatic” like some colleagues on the circuit; he lacked “grace, music; nor were his thoughts set to words … in harmonic measure.” His “shrill voice, in its higher tones, his stooping form, and long arms swinging about” made a poor first impression. “But all this either eluded notice, or was quickly forgot in the spell that radiated [from] his wonderful face and in the force of the words that came from his earnest lips.” His presentation even interested and entertained onlookers in court. Beckwith disagreed with those who maintained that Lincoln “in his earlier career was a mere ‘case lawyer.’ ” To the contrary, “few, if any, practitioners were better, if as well, grounded in the elementary principles of the law. His knowledge of these, as well as the very reason for them, was so well mastered that he seemed to apply them to individual ‘cases’ as if by intuition.” A mere “case lawyer,” said Beckwith, “would have had little chance … with Mr. Lincoln.”43