Although Lincoln seemed relatively insouciant in setting fees, he was not careless about collecting them. After winning a case for a client, Lincoln wrote him: “as the Dutch justice said when he married folks, ‘Now, vere ish my hundred tollars.’ ”123 At least half a dozen times he sued for unpaid fees.
On the circuit after his return from Congress, Lincoln read widely, carrying books with him, among them Euclid’s geometry, the Bible, Shakespeare, and volumes of poetry by Burns, Poe, and others. After dinner he would often fetch a candle and read well into the night. In 1860, he wrote that during the past decade he had “studied and nearly mastered the Six-books of Euclid.”124 Herndon, who often slept in the same bed with Lincoln while on the circuit, marveled at his partner’s ability to focus: “How he could maintain his mental equilibrium or concentrate his thoughts on an abstract mathematical proposition, while Davis, Logan, Swett, Edwards, and I so industriously and volubly filled the air with our interminable snoring was a problem none of us could ever solve.”125 Lincoln’s fascination with geometry led him to address the ancient problem of squaring the circle. Equipping himself with paper, compass, ruler, pencils, and bottles of ink of different colors, for two days he labored to the point of exhaustion on the insoluble puzzle.
Lincoln was unusually inquisitive, eager to learn about a wide variety of subjects. On the circuit, he would quiz drivers, blacksmiths, and others, pumping them for information. If he spied a new agricultural implement on the street, he would examine it carefully to determine its function and understand how it worked. Lincoln was a teacher manqué, eager to share what he learned. One day in Clinton, he grew so excited when one of Euclid’s propositions suddenly became clear to him that he grabbed a hostler and explained the demonstration to him.
Appellate Lawyer
For all his acknowledged skill as a jury-trial lawyer, Lincoln was even more successful on the appellate level. For cases in the federal courts and the Illinois Supreme Court, he had time enough to prepare extensively and master the facts and law. Henry C. Whitney called Lincoln “an uneven lawyer” whose “best results were achieved as a result of long and continuous reflection; the various elements of a case did not group themselves in apt and proper position and order in his mind on first impression; hence he was not as self-reliant in a new case as in one he had fully discussed and decided in his own mind, and his first impressions in a case were not his best ones.”126
Lawyers from afar regularly asked Lincoln to handle cases on appeal to the Illinois Supreme Court. Most of Lincoln’s appearances before that tribunal were in Springfield, though now and then he would travel to Ottawa when it met there. In the 1840s he averaged about forty supreme court cases annually until the fall of 1847, when he left Illinois to serve in Congress. In the 1850s, he had fewer cases, but they involved higher stakes. Of the 5,173 documented cases that he and his partners participated in, 411 were tried in the Illinois Supreme Court. All of them were civil rather than criminal, primarily involving the ownership of horses and other animals.
The most lucrative cases concerned iron horses. Lincoln represented various railroads, including the Illinois Central, the Alton and Chicago, and the Tonica and Petersburg. On behalf of individuals, he sued the Alton and Chicago, the Illinois River, the Northern Cross, and the Chicago, Burlington, and Quincy lines. The only corporation that gave him a regular retainer was the Illinois Central, which he represented in several dozen cases. Most of them involved simple questions and were tried in lower courts. As part of his retainer agreement, he pledged not to represent anyone suing the Illinois Central. In 1854, when a farmer asked him to bring suit against that railroad, Lincoln refused because, he explained to the corporation’s general solicitor, “as I had sold myself out to you, I turned him over to Stuart.”127 On another occasion, he reversed that sequence when a farmer whose cow had been killed by a train asked him to sue a railroad. Upon learning of this potential suit, the company tried to hire Lincoln; he turned down the offer and represented the farmer, who won a liberal settlement. Approximately 4 percent of Lincoln’s total case load involved railroads.
Lawyers and courts in antebellum Illinois blazed trails, for there were few precedents to guide them. The General Assembly had given legal status to the English common law, but it was not clear what elements of that corpus were relevant to frontier America. Attorneys and judges, as Herndon noted, “had to think deeply.”128
The challenge was especially marked in railroad cases, where no common law existed to guide courts. Lincoln helped establish important precedents in this area. One notable example dealt with stock subscribers who reneged on their pledges. To raise capital, railroad corporations issued stock that many Illinoisans, eager to have the tracks pass near or through their property, agreed to purchase. In time, some subscribers changed their minds and refused to pay. In Barrett vs. Alton and Sangamon Railroad Company (1851), one of Lincoln’s first railroad cases, James A. Barrett maintained that when he agreed to buy shares of the company’s stock, the rail line was projected to cross his property; later, when the company changed the route (but not the termini), Barrett understandably lost his enthusiasm and declined to honor his pledge. Lincoln, representing the railroad in the circuit and the supreme courts, won at both levels. His principal argument was that “[l]egislation and adjudication must follow, and conform to, the progress of society.”129
Six years later, however, Lincoln found himself on the other side of the argument when he represented Charles Sprague, who reneged on his pledge to purchase $50,000 worth of stock in the Illinois River Railroad. Finding against Sprague, the court observed that it had “nowhere met with a more satisfactory exposition of the general principle of the law, governing the respective rights of corporations and individual stockholders therein, as connected with the subject, than in the case of Barret vs. The Alton and Sangamon Railroad Company.”130 In 1859, Lincoln met with a similar defeat when the supreme court ruled that his client, Daniel Earp, must honor a pledge to buy stock in the Terre Haute and Alton Railroad Company. The court again cited the Barrett case, saying that if what it had ruled there “has not shown satisfactory reasons for the rule of law which we hold on this subject, we despair of doing so now.”131 Thus was Lincoln twice hoist with his own petard.
Lincoln helped set another precedent in the 1857 case of Illinois Central Railroad Company vs. Morrison and Crabtree, which dealt with the obligations of common carriers to insure their freight. The plaintiffs alleged that the railroad company had been grossly negligent in transporting 400 head of their cattle; some of the livestock had died in transit, and many others lost a great deal of weight. Lincoln, along with Henry C. Whitney and O. B. Ficklin, successfully defended the corporation before the supreme court, which agreed with Lincoln’s argument that the common law (which held the carrier strictly liable for goods lost or damaged in its care) had to be modified to take into account the dramatic changes wrought by railroads. Carriers could limit their liability and in effect cease to act as insurers by reducing their rates in return for the shipper’s agreement to waive the right to sue.
The most lucrative case Lincoln tried, Illinois Central Railroad vs. McLean County, Illinois and Parke, better known as the McLean County tax case, involved the power of counties to tax the corporation. In 1851, the General Assembly had granted the railroad a charter stipulating that its property would be exempt from taxation; in return, it would pay the state a percentage of its gross receipts. Some counties regarded the state’s action as an unconstitutional usurpation of their authority to tax. In the summer of 1853, Champaign County officials discussed the matter with Lincoln, who was subsequently approached by the corporation, which was already being taxed by McLean County. Since Champaign County had made the first overture, he told the clerk of its circuit court: “The question, in its magnitude, to the Co[mpany] on the one hand, and the counties in which the Co[mpany] has land, on the other, is the largest law question that can now be gotten up in the State; and therefore in j
ustice to myself, I can not afford, if I can help it, to miss a fee altogether.” Indeed, the stakes were high for both the counties and the corporation; the former anticipated a large tax windfall and the latter dreaded the prospect of having to pay property taxes in each of the two dozen countries through which its rails passed, above and beyond its levy to the state government. If the county would compensate him at a level roughly equivalent what the corporation would, then Lincoln would feel obliged to work for it. The judge of the Champaign County Court urged that “no time is to be lost in securing the services of Mr. Lincoln,” but nothing came of his initiative.132 In October Lincoln therefore accepted the offer of the corporation, which gave him a $200 retainer.
In cooperation with Mason Brayman, another Springfield attorney working for the railroad, and with James F. Joy of Detroit, general counsel of the Illinois Central, Lincoln filed suit to block McLean County’s attempt to tax the corporation. The county agreed to have the case dismissed by the circuit court in order to appeal it to the supreme court expeditiously. There in 1856, Lincoln and his colleagues prevailed after arguing the case twice. Lincoln cited the landmark 1819 U.S. Supreme Court case of McCulloch vs. Maryland and two dozen others. It ranks as one of the most persuasive and complex briefs he ever penned.
In 1859 and 1860, Lincoln argued another important tax case, The People vs. Illinois Central Railroad, which involved an attempt by State Auditor Jesse K. Dubois, Lincoln’s close friend, to sue the company for underpayment of taxes. Dubois ignored Lincoln’s advice not to bring suit. Lincoln, in his final case before the supreme court, successfully defended the corporation, arguing that the state had assessed the company’s property incorrectly. The court ruled that taxes should be levied on the actual, not prospective, value of property. An Illinois Central official later said this “was a case of considerable importance and it was largely due to the efforts of Mr. Lincoln that judgment was rendered in favor of the company.”133
Although David Davis regularly ignored technicalities, Lincoln did not. In 1849, he represented a client who had guaranteed an appeal bond that the original debtor failed to pay. In the Illinois Supreme Court, Lincoln argued that the guarantor need not honor the bond because of a minor discrepancy between the wording of the bond and the original judgment, which the debtor had appealed. Both documents indicated that the debtor owed $909.41, but Lincoln maintained that the bond was invalid because the original judgment against his client specified that he must pay $909.41 plus $7.50¾ costs, whereas the appeal bond, guaranteeing that the debt would be paid if the appeal failed, stipulated that the debtor must pay $841.54 in debt and $58.87 in damages (total $909.41) plus costs (amount unspecified). The court sensibly ruled that because the difference in wording was so minor and the amount owed was exactly the same in both documents, the guarantor of the bond must pay up.
In the 1857 murder case of The People vs. Bantzhouse, Lincoln took advantage of a newly appointed state’s attorney, James B. White, who failed to note that homicide cases must be tried within two consecutive terms of a court. As counsel for the accused, Lincoln moved for a continuance and a change of venue. When White did not object, Lincoln successfully asked for dismissal on the grounds that the speedy trial rule had been violated.
Of the many cases Lincoln handled in his twenty-four years at the bar, none was more important than Hurd vs. The Rock Island Bridge Company, better known as the Effie Afton case, tried in September 1857 before the U.S. Circuit Court in Chicago, Justice John McLean presiding. The previous year a river-packet, the Effie Afton, had crashed into a pier of the first railroad bridge thrown across the Mississippi River (linking Davenport, Iowa, and Rock Island, Illinois). Both the ship and the draw span of the bridge caught fire and were destroyed. Alleging that the bridge materially obstructed navigation, the ship’s owner, Jacob S. Hurd, sued the bridge company for $50,000. The case became a cause célèbre, pitting the river towns, principally St. Louis, against rail hubs, notably Chicago. The future of western railroads was jeopardized by the suit, which might lead to the prohibition of all bridge construction over the Mississippi.
Norman B. Judd, a leading railroad attorney who was engaged by the bridge company, suggested that it also hire Lincoln, whom he described as “one of the best men to state a case forcibly and convincingly that I ever heard, and his personality will appeal to any judge or jury hereabouts.” The Springfield attorney, said Judd, was the only man “who can without doubt win that case.”134 Lincoln spent months in preparation, carefully inspecting the bridge site and the relevant documents. (His job was made easier by his experience arguing an earlier case involving similar circumstances, Columbus Insurance Co. vs. Peoria Bridge Company, in which he represented insurers who had paid for damage sustained by a canal boat that had struck the pier of a bridge over the Illinois River. Unlike the Effie Afton case, he pleaded on behalf of the boat owners.)
In his closing speech to the jury (preserved thanks to the shorthand reporting of Robert R. Hitt, who would cover Lincoln’s debates with Stephen A. Douglas the following year), Lincoln demonstrated a formidable command of the details of the case. He argued that “the current of travel” flowing east and west had as much right to protection as that flowing north and south; that a substantial amount of traffic crossed the bridge; that the rail line, unlike the river, was an all-weather highway for commerce; that the pilot of the ship had not exercised reasonable skill and care; that one of the ship’s two paddle wheels had stopped working as it passed through the draw; and that it was unreasonable to expect railroad companies to dig tunnels beneath the Mississippi or to erect suspension bridges high above it. An observer recollected that “Lincoln’s examination of witnesses was very full and no point escaped his notice. I thought he carried it almost to prolixity, but when he came to his argument I changed my opinion. He went over all the details with great minuteness, until court, jury, and spectators were wrought up to the crucial points. Then drawing himself up to his full height, he delivered a peroration that thrilled the court-room and, to the minds of most persons, settled the case.”135
A fellow attorney called this case “the one in which his [Lincoln’s] powers were exhibited to the most advantage.”136 Another said, “I have always considered it as one of the ablest efforts I ever heard from Mr. Lincoln at the bar. His illustrations were apt and forcible, his statements clear and logical, and his reasons in favor of the policy (and necessarily the right) to bridge the river, and thereby encourage the settlement and building up of the vast area of fertile country to the west of it, were broad and statesmanlike.”137 After splitting nine to three in favor of the bridge company, the jury was dismissed. In 1862 the case ended when the U.S. Supreme Court overturned a lower court order to remove a portion of the bridge.
In 1857, the firm of Lincoln and Herndon tried another celebrated railroad case, St. Louis and Chicago Railroad vs. Dalby, which has been hailed as “probably the most far-reaching case” Lincoln ever had before the supreme court.138 In fact, Herndon, not Lincoln, represented the client in both the circuit and the supreme courts.
Another area where the common law remained silent was the liability of municipalities for negligence. Lincoln helped establish an important precedent in the 1853 case of Browning vs. City of Springfield, which involved his friend and colleague at the bar, Orville H. Browning. While walking the streets of the capital one day, Browning fell and broke his leg. Alleging that the city had failed to keep its streets in proper repair, he hired Lincoln to sue for damages. After losing in the circuit court, he won before the supreme court, which ruled that in the absence of common law provisions to cover the case, a set of guidelines should be followed “based upon sound sense in accordance with strict morality, and keeping pace with the progress of improvements of the age.”139
Lincoln practiced extensively in the federal courts in Illinois once he was admitted to do so in 1842. About 7 percent of his total case load consisted of trials at the federal level, where he, not Herndon, did vir
tually all the litigating. The federal courts handled disputes among citizens of different states. Residents of other states trying to collect sums larger than $500 from Illinoisans would often hire Lincoln to bring suit in federal courts. It is impossible to determine the extent of his practice there because the Chicago fire of 1871 consumed most of the Illinois federal records prior to 1855. The surviving documents indicate that Lincoln was involved in 332 federal cases, in addition to the 72 bankruptcy actions he and Logan handled in the brief period when the federal bankruptcy law was in effect (1842–1843). Many of those cases, like most of the ones Lincoln dealt with in the state court system, involved debt collection. In 1841, David Davis reported that in Illinois “the great business of lawyers is the collection of debts—and there being always more of every thing else than of money here, the business is not a very easy one; hence clients are continually writing—to keep up a running correspondence with whom—occupies about half of one’s time.”140 Debt litigation comprised 55 percent of Lincoln’s total case load. (The rest consisted of matters pertaining to inheritance, 15 percent; foreclosing on mortgages, 7 percent; divorce, 3 percent; slander, 2 percent; and medicine, less than 1 percent.)
The sums involved in federal cases were often large and therefore yielded handsome fees. In 1859, Lincoln received $1,500 for his work in Beaver vs. Taylor & Gilbert, where he successfully argued that his clients deserved title to acreage in southern Illinois. That same year, he billed Nicolas H. Ridgely $500 for a real estate matter. Another major case, the last that Lincoln tried in federal court, also involved a real estate dispute. In Chicago, a large tract of alluvial land had been formed when the federal government ordered a channel dug across two parcels of lakefront land owned by different parties. This misnamed “Sandbar case” (Johnston vs. Jones and Marsh) dragged on for years. At the fourth trial of the matter, lasting eleven days in the early spring of 1860, Lincoln successfully defended his client’s claim and received a $350 fee. One of Lincoln’s co-counsel, Van H. Higgins, said after the trial that “he had no idea before of what a great lawyer he [Lincoln] was.”141
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