Peers admired Lincoln’s way with a jury trial. Henry C. Whitney thought that only Stephen T. Logan outshone Lincoln on the circuit. Whitney recalled that Lincoln offered “clear statements of his facts and points, and argued his cases with great force and frequently with aggressiveness and pugnacity.” In the “rough-and-tumble practice on the circuit, where advocacy was relied on rather than exact knowledge or application of legal principles,” Lincoln was “especially effective.”44 Orlando B. Ficklin, an attorney in Charleston, recalled that Lincoln “had a fashion of pointing at the jury with his long bony forefinger of his right hand. There seemed to be something magnetic always about that finger,” which appeared to ask, “Don’t you see?”45 According to Leonard Swett, Lincoln as a trial lawyer “had few equals and no superiors. He was as hard a man to beat in a closely contested case as I have ever met.… He was wise as a serpent in the trial of a case, but I tell you I have got too many scars from his blows to certify that he was harmless as a dove.”46 James S. Ewing of Bloomington, who often heard Lincoln in court, marveled at his personal touch: “By the time the jury was selected, each member of it felt that the great lawyer was his friend and was relying upon him as a juror to see that no injustice was done.”47 From the bench, Judge John M. Scott thought not only that Lincoln knew the law “and had that knowledge ready for use at all times,” but also that he “knew right and justice and knew how to make their application to the affairs of every day life.” “Few lawyers,” he added, “ever had the influence with a jury, Mr. Lincoln had.” Especially remarkable was his “talent for examining witnesses—with him it was a rare gift. It was a power to compel a witness to disclose the whole truth.”
Lack of egotism, a quality at the core of Lincoln’s personality, won over many juries, colleagues, and judges. Judge Scott noted, “No lawyer on the circuit was more unassuming than was Mr. Lincoln. He arrogated to himself no superiority over any one—not even the most obscure member of the bar.” He “had the happy and unusual faculty of making the jury believe that they—and not he—were trying the case. In that mode of presenting a case he had few if any equals. An attorney makes a grave mistake if he puts too much of himself into his argument before the jury or before the court. Mr. Lincoln kept himself in the background.”48
In his law-practice, Lincoln employed his legendary talent as a storyteller with great effect; colleagues loved him for it. As a young attorney, he would often drop by the court clerk’s office to socialize with fellow lawyers. It was “always a great treat,” Milton Hay remembered, “when Lincoln got amongst us—we would always be sure to have some of those stories of his for which he had already got a reputation.”49 (Hay read law at Lincoln’s office at night and helped him by copying briefs and declarations. A cheerful, tobacco-chewing, imposing figure with a forehead like Daniel Webster’s, Hay became a leading member of the Illinois bar.) Lincoln also used his stories in court. With many lawyers, Judge Scott observed, relying on anecdote “would be a most dangerous experiment but it never failed with Mr. Lincoln. When he chose to do so, he could place the opposite party and his counsel too for that matter in a most ridiculous attitude by relating in his inimitable way a pertinent story. That often gave him a great advantage with the jury.” Scott cited the example of a case involving crops damaged by the defendant’s hogs: “The right of action under the law of Illinois as it was then depended on … whether the plaintiff’s fence was sufficient to turn ordinary stock. There was some little conflict in the evidence on that question but the weight of the testimony was decidedly in favor of plaintiff.” Appearing for the defendant, Lincoln conceded the damage to the crops and focused instead on the fence. He “told a little story about a fence that was so crooked that when a hog went through an opening in it, invariably it came out on the same side from whence it started. His description of the confused look of the hog after several times going through the fence and still finding itself on the side from where it had started was a humorous specimen of the best story telling. The effect was to make plaintiff’s case appear ridiculous and while Mr. Lincoln did not attempt to apply the story to the case, the jury seemed to think it had some kind of application to the fence in controversy—otherwise he would not have told it and shortly returned a verdict for defendant. Few men could have made so much out of so little a story.”
Lincoln’s delivery of a story would often be more effective than its substance. “He always seemed to have an apt story on hand for use on all occasions,” Scott recalled. “If he had no story in stock he could formulate one instantly so pertinent it would seem he had brought it into service on many previous occasions.… That is a talent akin to the power to construct a parable—a talent that few men possess.”50 Lincoln once employed a story to defend a client accused of assault and battery. The fellow had been insulted and bodily attacked by the plaintiff, who was trounced after initiating hostilities. Lincoln “told the jury that his client was in the fix of a man who, in going along the highway with a pitchfork on his shoulder, was attacked by a fierce dog that ran out at him from a farmer’s door-yard. In parrying off the brute with the fork, its prongs stuck into the brute and killed him.
“ ‘What made you kill my dog?’ said the farmer.
“ ‘What made him try to bite me?’
“ ‘But why did you not go at him with the other end of your pitchfork?’
“ ‘Why did he not come after me with his other end?’
“At this Mr. Lincoln whirled about in his long arms an imaginary dog and pushed its tail end toward the jury. Thus was the defensive plea of ‘son assault demesne’—loosely, that ‘the other fellow brought on the fight,’ quickly told, and in a way that the dullest mind would grasp and retain.”51 (This story appeared in a 1739 compilation, Joe Miller’s Jests, a copy of which Lincoln received from Judge Samuel Treat, who said that the Springfield attorney “evidently learned its entire contents, for he found Lincoln narrating the stories contained therein around the circuit, but very much embellished and changed, evidently by Lincoln himself.”)52
Lincoln told another story when replying to an opposing counsel who had offered two arguments that canceled each other out. Lincoln said this reminded him of “the cooper who, having trouble in closing up a barrel, put a boy inside to hold the head in place. The plan worked so well that the cooper drove on the hoops and finished the job, forgetting all about the boy or how he was to be gotten out.”53
Lincoln also enjoyed relating an account of a client accused of stealing pigs. Offering no defense, he simply instructed Lincoln to argue the case on general principles and not to worry. Despite abundant evidence of his guilt, the man was acquitted by the jury. Puzzled, Lincoln asked for an explanation. Admitting that he had stolen the porkers, the client revealed that he had sold the pigs at cut-rate prices to members of the jury, who feared that if they delivered a guilty verdict, they would have to return the pigs to the rightful owner.
Lincoln was most inclined to employ humor when he and his client stood on shaky ground. An example was his defense of a wealthy, pro-Southern colonel who had cow-whipped an antislavery editor on the streets of Jacksonville. The editor brought suit for $10,000 and hired a lawyer who in court melodramatically described the disgrace that his client had suffered. The jurors were so profoundly affected by this tearful presentation that Lincoln’s client seemed to have no chance of exoneration. When his turn to speak came, Lincoln took his feet from the table on which he had placed them, slowly rose from his seat, and lifted up and partly straightened out his great length of legs and body, and removed his coat. As he did so, he gazed intently at a piece of paper on the table. He picked it up and silently continued to examine it. After a while, he burst out laughing. Everyone in the courtroom grinned as he laid the paper down, removed his tie, then laughed once again. This produced tittering among the spectators. Continuing to disrobe, he took off his vest, again inspected the paper, and broke out in laughter once more. At this point everyone in court roared with glee. When he finally addressed the cour
t, Lincoln apologized for his undignified behavior and pointed out that the claim for damages as originally written asked for $1,000. He speculated that the editor had changed his mind and decided that the injury to his dignity was worth $10,000. This argument undid the effect of the plaintiff’s attorney and led the jury to award damages of only $300.
A juryman before whom Lincoln conducted a case recalled that he “knew nearly every juror, and when he made his speech he talked to the jurors, one at a time, like an old friend who wanted to reason it out with them and make it as easy as possible for them to find the truth.” Lincoln was usually terse and undogmatic before juries. He was careful to say “This is the way it seems to me,” rather than “This is the way it is.”54
Herndon reported that when Lincoln stood before a jury he “was awkward, angular, ungainly, odd and, being a very sensitive man, I think that it added to his awkwardness.… Sometimes his hands, for a short while, would hang by his side.… He used his head a great deal in speaking, throwing or jerking or moving it now here and now there, now in this position and now in that, in order to be more emphatic, to drive the idea home.” He “never beat the air, never sawed space with his hands, never acted for stage effect; was cool, careful, earnest, sincere, truthful, fair, self-possessed, not insulting, not dictatorial; was pleasing, good-natured; had great strong naturalness of look, pose, and act.” As he proceeded, Lincoln “gently and gradually warmed up; his shrill, squeaking, piping voice became harmonious, melodious, musical, if you please, with face somewhat aglow; his form dilated, swelled out, and he rose up a splendid form, erect, straight, dignified.”55
As a general tactic, Lincoln shrewdly conceded much to opposing counsel. Attorney James C. Robinson recalled that he “had the manner of treating his antagonist with such perfect fairness, as to make the jury and bystanders think that he could not be induced to take advantage of him—a manner which was the hell-firedest lie that was ever acted, because the very fairness he assumed was an ambuscade to cover up a battery, with which to destroy the opposing counsel, and so skillfully laid, too, that after it had done its work, only occasionally would the defeated party, and almost never would the uninitiated, discover the deception.” Lincoln, said Robinson, “possessed this power to a degree beyond that of any lawyer I ever knew and he used it to such an extent that it was his very strongest weapon in the trial of a case.”
Robinson gave a generalized example of Lincoln’s technique: “If he were defending a case, after the jury were empanelled, he would give the very closest attention to the opening statement by the plaintiff’s attorney—indeed, as if he had never heard of the case before.” Then he would sincerely praise his learned opponent, marvel at what new things he had just learned, and, almost apologetically, concede what seemed to be most of the main points of the case. But the barb would be hidden in his concession of those points “if the facts are as he stated them,” and in allowing that he would “presume” his opponent “will be able to fully prove that fact.”
If opposing counsel “was not thoroughly alert to the situation, or did not know Lincoln’s tactics, he was inclined to overlook the fact that the admissions, so regretfully made by Lincoln, were only as to facts which were the most easily susceptible of proof, that the doubtful points were always carefully guarded with an ‘if’ and he would frequently think that he had a ‘walk-over.’ Lincoln’s client, under the same impression, would frequently writhe in his chair, as he heard his lawyer seemingly confess judgment in favor of the other side. The jury would settle back in their chairs, thoroughly convinced that here was a lawyer who would not deny facts, who would not take an unfair advantage, who wanted his case tried with fairness and honesty to both sides, who simply wanted justice done, regardless of who won or who lost the case, and they were at once disposed to look with special favor upon any move he might make during the trial.”
At this point, Lincoln’s opponent would be in trouble, according to Robinson. “If, seeing his case so nearly conceded and so mildly contested, he was lulled into inactivity during the trial and failed to close every loophole of escape for the defendant, his awakening to discover the fatality of his omission, of that one of the points which Lincoln had so meekly held in reserve was the controlling element in the case, came after the evidence was closed and too late to retrieve.” Lawyers familiar with Lincoln “were not deceived in this way,” Robinson said, “but the average juror could never see anything but his exceeding fairness and innocence in a trial—an innocence like that of a coal of fire in a bag of flax.”56
Most testimony about Lincoln’s prowess before juries is reminiscent and therefore may be tainted by the desire to place the martyr-president in an unduly favorable light. But contemporary evidence supports the positive image painted by Herndon, Beckwith, Arnold, Davis, Swett, and others. In 1859, an editor in northern Illinois reported that “Lincoln tries a suit well. By his genial spirit he keeps the Court, the jury and the opposite counsel in good humor, and sometimes by a comical remark, or a clever joke, upsets the dignity of the court. He never makes a big fight over a small or immaterial point, but frankly admits much, though never enough to damage his case. In this he differs much from little lawyers, who adhere with unyielding pertinacity to trifles, and make their greatest efforts at nothing.”57
Nine years earlier, a newspaper in Danville described Lincoln as “rough, uncouth and unattractive,” yet possessing “an energy that rather courts opposition than defies it” and “a mind deeply imbued by study, and with the love of legal philosophy.… All the force of a great intellect, all the force of a thoroughly informed understanding, all the might of a determined spirit, are constantly at work. Grasping with ease the points [that seem] to others so intricate, his style of reasoning is profound, his deductions are logical, his investigations are acute.” When examining witnesses, “he displays a masterly ingenuity and a legal tact that baffles concealment and defies deceit. And in addressing a jury, there is no false glitter, no sickly sentimentalism to be discovered.” He eschewed “a rhetorical display of sublime nothings. Seizing upon the minutest points, he weaves them into his argument with an ingenuity really astonishing. Bold, forcible and energetic, he forces conviction upon the mind, and by his clearness and conciseness, stamps it there, not to be erased.” Lincoln “may have his equal,” the paper concluded, but “it would be no easy task to find his superior.”58
Lincoln, however, had difficulty persuading juries when he was not sure his client was in the right. Judge David Davis, before whom he tried innumerable cases, considered Lincoln “a good Circuit Court lawyer” in general, especially “if he thought he was right.”59 On the other hand, Stephen T. Logan believed Lincoln “couldn’t fight in a bad case.”60 Samuel C. Parks stated that “when he [Lincoln] thought he was wrong he was the weakest lawyer I ever saw.” Parks cited the case of an accused larcenist defended by Lincoln, Parks, and William H. Young. “Lincoln was satisfied by the evidence that he was guilty & ought to be convicted,” Parks related. “He called Young & myself aside & Said ‘If you can say any thing for the man do it—I can[’]t —if I attempt it the Jury will see that I think he is guilty & convict him of course.’ ” Without a word, Young and Parks submitted the case to the jury, which was unable to agree on a verdict. Lincoln’s action spared the client a prison sentence, Parks believed. On another occasion, Lincoln represented a clever fellow in a civil suit and made a solid argument in his defense. When opposing counsel produced clear evidence refuting that defense, Lincoln absented himself; Judge Davis sent a man to fetch him from his hotel. There he said to the court official, “Tell the Judge that I can’t come—my hands are dirty & I came over to clean them.’ ” When he received this news, Davis dismissed the suit, merely remarking: “Honest Abe.”61 While defending an accused murderer, Lincoln told his co-counsel, Leonard Swett, that their client was probably not innocent and recommended that they have him plead guilty to manslaughter and hope that the judge would give him the minimum sentence. Swett disag
reed, whereupon Lincoln withdrew, saying: “I cannot argue this case, because our witnesses have been lying, and I don’t believe them.”62 Joseph Gillespie insisted that it “was not in his [Lincoln’s] nature to assume or attempt to bolster up a false position. He would abandon his case first.” Gillespie instanced an 1839 debt case from which Lincoln withdrew and his “less fastidious” replacement won the case.63 More often, Whitney recollected, instead of withdrawing from a trial when he became convinced that his client was untruthful, Lincoln “would simply do what he honestly could for success, and no more.”64
In the long run, extensive experience before juries eventually made Lincoln somewhat cynical about them. In 1863 he wrote that “a jury can scarcely be empannelled, that will not have at least one member, more ready to hang the panel than to hang the traitor.”65
Life on the Circuit
When Lincoln first began riding the Eighth Judicial Circuit in 1839, it was larger than the state of Rhode Island. (As the population grew, the circuit expanded and then shrank.) Jury trials took place in unprepossessing courtrooms that were vacant ten months a year. When roads became passable in the spring, and again when the summer heat abated in the fall, lawyers teamed up with the state’s attorney and the presiding judge, mounted horses or clambered into buggies, and began the 500-mile, three-month trek through the circuit’s many county seats, located mostly in primitive hamlets scattered throughout central Illinois. In each of these villages, the cavalcade would spend anywhere from three days to two weeks, depending on the volume of business. The judge and his entourage reminded one attorney “of a big schoolmaster with a lot of little boys at his heels.”66 Most lawyers covered only part of the circuit, generally the counties near their homes; Lincoln worked all of it.
Lincoln’s old, odd-looking horse, decrepit buggy, and ill-fitting garments combined to give him an unusual appearance. His brown, high-crowned hat lacked nap, his trousers were too short, and his coat and vest seemed to flap like garments on a scarecrow. Around his shoulders he draped a shawl. He carried a carpetbag and a faded green umbrella, missing the knob and tied with a rope around its middle to keep it closed. His threadbare, untidy appearance led some to criticize his wife. Like other circuit riders, Lincoln used his hat as a briefcase, tucking all kinds of papers into the inside band. On windy days his headgear would sometimes blow off, scattering important documents about the streets.
Abraham Lincoln: A Life, Volume 1 Page 57
