Lincoln continued by assuring the jury that “he had no prejudice against steam boats or steamboat men, nor any against St. Louis, for he supposed they went about this matter as other people do in their situation.” St. Louis, he continued, “as a commercial place may desire that this bridge should not stand as it is adverse to her commerce, diverting a portion of it from the river; and it may be that she supposes that the additional cost of railroad transportation upon the productions of Iowa will force them to go to St. Louis if this bridge is removed. The meetings in St. Louis are connected with this case only as some witnesses are in it[,] and thus has some prejudice added color to their testimony.”
With another piece of subtle rhetoric, Lincoln had reinforced one of the key arguments of the defendants in the case: that the St. Louis Chamber of Commerce had fomented this litigation, that the steamboat interests in the Missouri city were behind the lawsuit, and that in defending the Rock Island Bridge against the claims of the owners of the Effie Afton he and his colleagues were only standing up to a powerful interest opposed to any and all bridges over the Mississippi. And he had introduced this potentially explosive theme in a way that few would recognize as an attack on his opponents in the case. He was saying, in effect, that the purpose of this trial was not only to reach a fair and just result for the parties. It was to oppose the “prejudice” of a powerful interest in a powerful city where steamboats reigned supreme.
“The last thing that would be pleasing to me,” Lincoln said, “would be to have one of the great channels extending almost from where it never freezes to where it never thaws blocked up, but there is a travel from east to west whose demands are not less important than that of those of the river. It is growing larger and larger, building up new countries with a rapidity never before seen in the history of the world.” Lincoln alluded to “the astonishing growth of Illinois, having grown within his memory to a population of a million and a half; to Iowa and the other young rising communities of the northwest.”
Lincoln told the jurors that the “current of travel” on the railroads, which he and his colleagues represented, had “its rights as well as that north and south. If the river had not the advantage in priority and legislation we could enter into free competition with it and we could surpass it. This particular railroad line has a great importance and the statement of its business during a little less than a year shows this importance. It is in evidence that from September 8th, 1856, to August 8th, 1857, 12,586 freight cars and 74,179 passengers passed over this bridge. Navigation was closed four days short of four months last year, and during this time while the river was of no use this road and bridge were valuable. There is too a considerable portion of time when floating or thin ice makes the river useless while the bridge is as useful as ever. This shows that the bridge must be treated with respect in this court and is not to be kicked about with contempt.”
Lincoln was making good use of Seth Gurney’s written record of steamboats that had passed through the Rock Island Bridge. He was also determined to remind the jury that, unlike steamboats, railroads and railroad bridges did not have to shut down when freezing weather descended on the Upper Mississippi. The river was completely closed by ice for a good part of every year, impassable to all river traffic, yet railroads, their freight, and their passengers continued to move.
“The other day,” Lincoln observed, “Judge Wead alluded to strife of the contending interests and even a dissolution of the Union.” This was certainly one of the most troubling undercurrents of the trial. In the great war between the North and the South that was quickly approaching (although nobody could appreciate just how quickly), Lincoln would be the most powerful defender of the Union, the champion of the nation created by the Founding Generation but menaced by the growth of quarreling regional interests. As president during the Civil War, he would address the national crisis with powerful words and eloquent phrases. Now, however, he responded to suggestions that the Union might be endangered by opposition to bridges over the Mississippi with a cliché: “The proper mode for all parties in this affair is to ‘live and let live’ and then we will find a cessation of this trouble about the bridge.”6 If Hitt’s transcription of Lincoln’s words was literally correct (newspaper accounts of extemporaneous speeches often departed in varying degrees from the actual words spoken), it was a disappointing, even banal response to a troubling threat, and plainly could not compare with the eloquence that Lincoln would summon a few years later when actually confronted with threats to the Union.
“What mood were the steamboat men in when this bridge was burned?” Lincoln asked. “Why there was a shouting and ringing of bells and whistling on all the boats as it fell. It was a jubilee, a greater celebration than follows an excited election.” He referred to Seth Gurney’s written record of the boats that had passed through the bridge. “From April 19th, 1856, to May 6th—seventeen days—there were twenty accidents and all the time since then there have been but twenty hits, including seven accidents so that the dangers of this place are tapering off and as the boatmen get cool the accidents get less. We may soon expect if this ratio is kept up that there will be no accidents at all.”
Lincoln then addressed Wead’s denigration of the floats that the bridge engineers had used to study the currents that passed through the bridge. Wead had argued that floats were not a reliable indication of the difficulties that boats encountered at the bridge, because “there was a difference between a float and a boat.” But Lincoln did not remember that Wead “indulged us with an argument in support of this statement. Is it because there is a difference in size? Will not a small body and a large one float the same way under the same influence? True a flat boat will float faster than an eggshell and the eggshell might be blown away by the wind, but if under the same influence they would go the same way. Logs, floats, boards, various things the witnesses say all show the same current.”
Lincoln next spoke of “the angular position of the piers.” These words signaled that he was about to reveal his understanding of things mechanical and to call on the geometric insights he had acquired in his long study of Euclid.7 He was also to demonstrate his remarkable ability to remember facts and figures. Unlike most other trial lawyers, Lincoln rarely took notes while listening to the testimony of witnesses. “Notes are a bother,” he once told Hiram Beckwith, a fellow lawyer, “taking time to make, and more to hunt them up afterward. Lawyers who do so soon get the habit of referring to them so much that it confuses and tires the jury.”8 Henry Clay Whitney insisted that Lincoln “took no notes, but remembered everything quite as well as those who did so.” Whitney told of one trial in which all the court lawyers except Lincoln insisted that a witness had sworn “so-and-so,” but “it turned out that Lincoln was correct and that he recollected better than the united bench and bar.”9 The testimony that the jurors in Judge McLean’s courtroom had listened to was long, voluminous, and technical, yet Lincoln was willing to show them how much of it he remembered—and how much of it he really understood.
“What is the amount of the angle?” he asked. “The course of this river is a curve and the pier is straight. If a line is produced from the upper end of the long pier straight with the pier to a distance of 350 feet and a line is drawn from a point in the channel opposite this point to the head of the pier, Colonel Mason says they will form an angle of twenty degrees. But the angle if measured at the pier is seven degrees, that is we would have to move the pier seven degrees to make it exactly straight with the current. Would that make the navigation better or worse? The witnesses of the plaintiff seem to think it was only necessary to say that the pier formed an angle with the current and that settled the matter. Our more careful and accurate witnesses say that though they had been accustomed to seeing the piers placed straight with the current, yet they could see that here the current had been made straight by us in having made this slight angle; that the water now runs just right, that it is straight and cannot be improved. They think that if the pier was chan
ged the eddy would be divided and the navigation improved.”
This was a technical argument, not one that was calculated to appeal to the jurors’ emotions, but one that would impress them with Lincoln’s command of the facts of the case. Admirers of the Rock Island Bridge believed that the structure was an engineering triumph of sorts, a technical victory over a formidable natural obstacle, and evidence of human progress in an age that longed for progress. Jurors might be persuaded to support the bridge in the current litigation if they believed that it furthered their economic interests, the swift and efficient transportation of freight and passengers through a rapidly expanding section of the country whose future was inevitably linked to progress. But they might also be won over to the bridge’s side by the knowledge that the span was a mechanical success. It was erected to unite the eastern and western banks of the greatest river in North America with iron rails. Lincoln’s task in the current trial was to convince the jurors that the bridge had accomplished its goal—and that it had done so well.
“I am not now going to discuss what is a material obstruction,” Lincoln told the jurors. With these words he was skirting the key issue in the case, but doing so in a typically Lincolnian way. The root question that lay behind all the other questions in the trial was whether the Rock Island Bridge was a “material obstruction.” On the answer to that question all the other questions in the trial largely depended. Yet the question was as much legal as it was factual. It was not Lincoln’s style to try to explain the law to juries. He did not like to read from statute books or published cases and thus try to instruct jurors on the law correctly applicable to the cases he tried. He knew that such arguments would induce “nid, nod, and noddin’.” “Rather,” according to Hiram Beckwith, “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.’”10 Now, following that practice, he was content to say: “We do not greatly differ about the law. The cases produced here are I suppose proper to be taken into consideration by the court in instructing a jury. Some of them I think are not exactly in point but I am still willing to trust his honor, Judge McLean, and take his instructions as law.”
If Lincoln was not willing to discuss the law governing material obstructions, he was willing to discuss another important issue in the case. It was his contention, and that of his colleagues for the defense, that the Effie Afton’s tragic collision with the Rock Island Bridge was attributable not to the mere presence of the bridge in the river, not to the angling position of the piers in the river channel, but to want of skill and care in the operation of the steamboat. If the boat was not operated carefully—if its pilot was guilty of negligence in his handling of the boat on the morning of the fateful disaster—the owners of the Afton could not recover for their loss. It was, to state it simply, their own fault, for they put the Afton in the river, they employed the pilot and crew members who had charge of it on May 6, 1856, and they were ultimately responsible for what happened to it at Rock Island.
“What is reasonable skill and care?” Lincoln asked. “This is a thing of which the jury are to judge. I differ from the other side when it says that they are bound to exercise no more care than was taken before the building of the bridge. If we are allowed by the legislature to build the bridge, when a pilot comes along it is unreasonable for him to dash on heedless of this structure which has been legally put there. The Afton came there on the fifth and lay at Rock Island until next morning. When a boat lies up the pilot has a holiday, and would not any of [you] jurors have then gone around to the bridge and gotten acquainted with the place? Pilot Parker has shown here that he does not understand the draw. I heard him say that the fall from the head to the foot of the pier was four feet; he needs information. He could have gone there that day and seen there was no such fall. He should have discarded passion[,] and the chances are that he would have had no disaster at all. He was bound to make himself acquainted with the place.”
Lincoln referred to the testimony of Joseph McCammant, the regular pilot of the Afton, who was aboard the boat when it collided with the bridge but not at the wheel. “McCammant says the current and the swell coming from the long pier drove her against the long pier. In other words drove her toward the very pier from which the current came! It is an absurdity, an impossibility.” Lincoln had by this time given up his subtlety and indirection for clear, sharp words. Testimony offered by the other side was “absurd,” “impossible”—strong words that carried strong impressions. “The only reconciliation I can find for this contradiction is in a current which White says strikes out from the long pier and then like a ram’s horn turns back, and this might have acted somehow in this manner.”
Lincoln was ready to impress the jury a second time, now with his understanding of how the river currents flowed under the Rock Island Bridge, his understanding of geometric shapes and angles, and his memory for details. “I shall try to prove,” he said, “that the average velocity of the current through the draw with the boat in it should be five and a half miles an hour; that it is slowest at the head of the pier and swiftest at the foot of the pier. Their lowest estimate in evidence is six miles an hour, their highest twelve miles. This was the testimony of men who had made no experiment, only conjecture. We have adopted the most exact means. The water runs swiftest in high water and we have taken the point of nine feet above low water. The water when the Afton was lost was seven feet above low water or at least a foot lower than our time. Brayton and his assistants timed the instruments. The best instruments known in measuring currents. They timed them under various circumstances and they found the current five miles an hour and no more. They found that the water at the upper end ran slower than five miles; that below it was swifter than five miles, but that the average was five miles.”
Lincoln now employed one of his most effective forensic techniques: asking questions that, by their very force, impelled the answer. Lincoln scholar Douglas L. Wilson has written of Lincoln’s “remarkable gift for the interrogatory mode of exposition, exploring complex issues by asking pointed questions.”11 It was a gift he made frequent use of when he was president, asking questions about government policy that could only be answered as he intended them to be answered. (“Are all the laws, but one to go unexecuted, and the government itself go to pieces, lest that one be violated?” he asked at the time that he first suspended the writ of habeas corpus.)12 It was equally effective when he was addressing a jury: “Shall men who have taken no care, who conjecture, some of whom speak of twenty miles an hour, be believed against those who have had such a favorable and well improved opportunity? They should not even qualify the result. Several men have given their opinion as to the distance of the steamboat Carson and I suppose if one should go and measure that distance you would believe him in preference to all of them.”
Lincoln now spoke about the depth of the river channel under the bridge, the width of the draw, the total area that was covered by water, and the speed of the current at different water depths. It was a heady, almost numbing, dose of figures, speeds, distances, and directions. Could the jurors follow all that Lincoln was telling them? Probably not—but they could still be impressed by the seemingly effortless way in which he conveyed this very complicated information to them. His voice, no doubt, carried a tone of assurance. He was dealing with facts, and when he spoke of facts he did so with confidence. And, as always, he spoke honestly. Lawyers who observed Lincoln in hundreds, even thousands, of trials, were unanimous in their estimate of Lincoln’s basic integrity, in the courtroom as well as in his political life. “He seemed entirely ignorant of the art of deception or of dissimulation,” said Henry Clay Whitney.13
Lincoln continued to speak about the cross-currents that the plaintiffs and the plaintiffs’ witnesses claimed impeded the progress of boats through the draw. “But can these men’s testimony be compared with the nice, exact, thorough experiments of our witnesses?” he
asked. He reviewed the extensive tests that the defense witnesses had made with floats and their conclusion that the floats showed no cross-currents. “Can you believe that these floats go across the currents?” he asked. “It is inconceivable that they could not have discovered every possible current. How do boats find currents that floats cannot discover?”
The court day had come to an end. The jurors, no doubt, were tired. The septuagenarian judge who presided over the crowded courtroom may have been fatigued. And Lincoln himself may have been weary. A lawyer who addresses a jury for hours on end may be physically exhausted by the effort, but he is rarely mentally exhausted. If, like Lincoln, the lawyer believes in the case he is arguing, he wants to continue his argument. He wants to persuade the jury that his clients are in the right and to do all he can to assure that they will prevail over their opponents.
Lincoln had been spending his evenings in Chicago in the Tremont House. At least one of his evenings, however, was spent with Norman Judd and his wife in their house on the shore of Lake Michigan. It may have been after he made his closing argument in the Afton case—at least that case was on the minds of the Judds and the visiting lawyer as they enjoyed their tea and sat outside the house enjoying the view of the Chicago harbor. Lincoln was in a talkative mood, eager to converse about subjects other than steamboats and bridges on the Mississippi. As night fell, he spoke about the stars in the sky above them and about biblical passages he had studied (Lincoln was not a regular churchgoer, though he was a keen and lifelong student of the Bible). He told the Judds about the lecture he had prepared (or was then preparing) on discoveries and inventions. In its completed form, he was to deliver this lecture six times between 1858 and 1860, although not to enthusiastic audiences (the subject was not well suited to his speaking talents, or at least not of sufficient interest to his lecture audiences to hold their attention).14 When the night air grew chilly, the Judds and their guest went inside, where Lincoln stretched his long limbs over the sofa and continued his musings. After Lincoln left, Norman Judd remarked that he was “constantly more and more surprised at Mr. Lincoln’s attainments and the varied knowledge he has acquired during years of constant labor at the Bar, in every department of science and learning. A professor at Yale could not have been more interesting or more enthusiastic.”15
Lincoln's Greatest Case: The River, the Bridge, and the Making of America Page 18
