Chapter III: Professional Ethics (2)

How thorough it was may be gathered from the recollections of Judge Abram Bergen, who happened to be present. Attending the trial shortly after his admission to practice, he sat within the bar behind both groups of counsel engaged in the case, and watched what took place with the acute attention of a young lawyer studying the tactics of distinguished elders. This apparently credible witness, touching on the accusation of fraud, said:--

“When Lincoln finally called for the almanac he exhibited it to the opposing lawyers, read from it, and then caused it to be handed to members of the jury for their inspection. I heard two of the attorneys for the State, in whispered consultation, raise the question as to the correctness of the almanac, and they ended the conference by sending to the office of the clerk of the court for another. The messenger soon returned with the statement that there was no almanac of 1857 in the office. It will be remembered that the trial occurred in 1858 for a transaction in 1857. In the Presidential campaign soon following, it was even charged that Lincoln must have gone around and purloined all the almanacs in the court-house. However, I well remember that another almanac was procured from the office of Probate Judge Arenz, in the same building. It was brought to the prosecuting attorneys, who examined it, and compared it with the one introduced by Mr. Lincoln, and found that they substantially agreed, although it was at first intimated by the State’s attorneys that they had found some slight difference.

“All this I personally saw and heard, and it is as distinct in my memory as if it had occurred but yesterday. No intimation was made, so far as I knew, that there was any fraud in the use of the almanac until two years afterwards, when Lincoln was the nominee of the Republican Party for the Presidency. In that year, 1860, while in the mountains of southern Oregon, I saw in a Democratic newspaper, published at St. Louis, an article personally abusive of Mr. Lincoln, stating that he was no statesman and only a third-rate lawyer; and to prove the deceptive and dishonest nature of the candidate, the same paper printed an indefinite affidavit of one of the jurors who had helped to acquit Armstrong, to the effect that Mr. Lincoln had made fraudulent use of the almanac on the trial. For some inexplicable reason he failed to call this pretended knowledge to the attention of the other jurors at the time of the trial; but very promptly joined in the verdict of acquittal, and waited two years before giving publicity to what would at the proper time have been a very important piece of information.

“Soon after this, I saw an affidavit made by Milton Logan, the foreman of the jury, that he personally examined the almanac when it was delivered to the jury, and particularly noticed that it was for the year 1857, the year of the homicide. I had a better opportunity than any of the jurors to see and hear all that was publicly and privately done and said by the attorneys on both sides, and know that the almanacs of 1857, now preserved in the historical and other public libraries, sustain and prove to the minute all that was claimed by Mr. Lincoln on that trial, as to the rising and setting of the moon; although my best recollection is that the hour of the crime was claimed to be about midnight, instead of eleven o’clock, as stated in many of the books. I do not know that this calumny was ever called to Mr. Lincoln’s attention, or if it was that he ever took the trouble to contradict it. He might well have pursued his regular habit of ignoring such things. If his public and private conduct and his reputation as a citizen and lawyer were not sufficient to refute the charges, his personal denial would have been of little more avail.”[iii-33]

Judge Bergen may be right. Perhaps, in fact, no proofs--not even His Honor’s own lucid statements, sustained by the almanac itself--have vigor enough to overtake all the current versions of this absurd tale and retire them from circulation. In the region of the old Eighth Judicial Circuit, they are still passed around with variations to suit each teller’s fancy; the press of the country helps them along with a fresh start now and then; while at least one law book--a treatise, strange to say, on “Facts”--throws an air of seeming authenticity over the whole foolish business, in an indexed note which relates how Lincoln once “procured an acquittal by a fraud.”[iii-34] Slander they say can travel around the world before Denial has had time to draw on his boots. This particular offender has been overtaken, again and again; but the story, in some guise, goes merrily on. It evidently belongs among those popular myths that thrive on refutation. To disprove them is easy enough; to destroy them, as experience abundantly shows, is quite another matter. Yet “hope springs eternal in the human breast”; and one more lover of historic justice here tries what may be achieved by turning the searchlight of truth full upon the discrepant features of this hoary falsehood.[iii-35]

So much for the few specific instances in which doubts have been publicly cast on Lincoln’s high ideals of practice. As to the rest, those ideals apparently suffered but little let-down under all the press and stress of his busy years at the Illinois bar. Yet he was not immaculate. A thoroughly human man, loyal to his clients and fond of his friends, he may have swerved ever so slightly to the right or the left in their behalf, when no breach of truth or law was involved. As often happens, moreover, with men of this type he appears to have been in such cases his own severest censor. And when a student once asked him whether the legal profession could stand the test, all in all, of the golden rule, he winced. It happened while they were walking together one afternoon after a trying day in court. The young man, Ralph Emerson by name, was the son of a reverend instructor in Andover Theological Seminary, and some things that he had seen Western lawyers do disturbed the poise of his New England conscience. If such acts were necessary at the bar, this would, he feared, be no career for him. In his perplexity the youth determined to consult the eminent lawyer who walked by his side. Turning suddenly to him, Emerson said:--

“Mr. Lincoln, I want to ask you a question. Is it possible for a man to practice law and always do by others as he would be done by?”

Lincoln’s head dropped upon his breast. He walked on in silence for a long time. Then came a heavy sigh, and when he did finally speak, it was about another matter.

“I had my answer,” adds Mr. Emerson, recalling the incident. “That walk turned the course of my life.”[iii-36]

Precisely what this little scene signified is not easy to determine; but that it was of weighty import those who have progressed thus far with us in the study of Lincoln’s character will hardly believe. Still, the episode, however vague and inconclusive, must not be omitted from any appraisement of the man’s honesty. Perhaps one explanation of that profound sigh is to be sought among occasional victories, won by him on technicalities, rather than on their merits. And then, again, a too sensitive memory may, at the moment, have put Lincoln in mind of certain acts which, while they hardly measured up to the standard set by the Golden Rule, were not by any means dishonorable. They had their origin, to some extent, in his distaste for trivial litigation, but still more, in his disapproval of those “contentious suits which,” a great Lord Chancellor long ago declared, “ought to be spewed out, as the surfeit of courts.” How Lincoln dissuaded his own clients from bringing actions of this kind has already been set forth. It may be needless to add that when situations were reversed, and they were the objects of such prosecutions by others, he willingly appeared in their behalf. Then woe to the plaintiffs if the facts afforded but the slightest scope for the play of his peculiar humor! Under his droll treatment, a petty cause, though not without merit, might become so ridiculous as to leave the claimant in a plight, from which nothing but an appeal to that same beneficent rule of ethical conduct could have saved him. Indeed, by these very tactics, Lincoln is said to have laughed more jury cases out of court than any other attorney on the circuit. How he went about it was well illustrated in a trial recalled by Judge Scott, who tells this story concerning the affair:

“A young lawyer had brought an action in trespass to recover damages done to his client’s growing crops by defendant’s hogs. The right of action, under the law of Illinois, as it was then, depended on the fact whether 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 and sustained beyond all doubt his cause of action. Mr. Lincoln appeared for defendant. There was no controversy as to the damage done by defendant’s stock. The only thing in the case that could possibly admit of any discussion was the condition of plaintiff’s fence; and as the testimony on that question seemed to be in favor of plaintiff, and as the sum involved was little in amount, Mr. Lincoln did not deem it necessary to argue the case seriously. But by way of saying something in behalf of his client, 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 which 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 the defendant.”[iii-37]

There are other accounts of similar achievements. Perhaps the most commonly known instance was that which Lincoln himself took pleasure in relating. According to one version,--for there are several,--this is how he told it:--

“I was retained in the defense of a man charged before a justice of the peace with assault and battery. It was in the country, and when I got to the place of trial I found the whole neighborhood excited, and the feeling was strong against my client. I saw the only way was to get up a laugh and get the people in a good humor. It turned out that the prosecuting witness was talkative. He described the fight at great length,--how they fought over a field, now by the barn, again down to the creek, and over it, and so on. I asked him, on cross-examination, how large that field was. He said it was ten acres. He knew it was, for he and some one else had stepped it off with a pole. ‘Well, then,’ I inquired, ‘was not that the smallest _crap_ of a fight you have ever seen raised off of ten acres?’ The hit took. The laughter was uproarious, and in half an hour the prosecuting witness was retreating amid the jeers of the crowd.”[iii-38]

There is no more effectual way to dispose of a trifling suit, and Lincoln’s ready wit was apparently equal to all such demands. Yet his sallies, telling as they were, left no stings rankling in the memory of unfortunate victims. Those who emerged beaten from these encounters were conscious of a certain quaint good humor in the man’s demeanor that disarmed resentment.

He was, however, not so genial when it came to another type of litigants--the dishonest ones. They met, in fact, with a very different kind of treatment. For Lincoln saw nothing amusing in their devices, and as they could not be laughed out of court, his efforts were directed toward shaming them out. An occurrence of this nature took place at Tremont, in 1847, during the spring term of the Tazewell County Court. It appears that an old farmer named Case had sold what was called a “prairie team,” comprising several yoke of oxen and a plough, to two young men known as the Snow boys. They had given their joint note in settlement, but when it became due they had refused to pay. The account was placed in Lincoln’s hands for collection, and he promptly brought suit. When the case came to trial, this note, as well as the purchase of a team, was not denied by the lawyer who appeared for the defendants. He set up the plea of infancy, however, and offered to prove that both brothers were under twenty-one years of age at the time they signed the note. This fact, it was furthermore claimed, the plaintiff knew when the transaction took place. To all of which Lincoln quietly said: “Yes, I guess that is true, and we will admit it.”

Things looked bad for farmer Case. “What!” thought a by-stander,--the teller of the story,--“is this good old man, who confided in these boys, to be wronged in this way, and even his counsel, Mr. Lincoln, to submit in silence!”

After the principle of law that a minor may avoid his contracts had been duly cited, Judge Treat who presided, inquired:--

“Is there a count in the declaration for oxen and plow, sold and delivered?”

“Yes,” answered Lincoln, “and I have only two or three questions to ask the witness.”

Addressing the men who had been called to prove the ages of the defendants, he asked:--

“Where is that prairie team now?”

“On the farm of the Snow boys,” was his answer.

“Have you seen any one breaking prairie with it, lately?”

“Yes, the Snow boys were breaking up with it, last week.”

“How old are the boys now?”

“One is a little over twenty-one, and the other near twenty-three.”

“That is all,” said Lincoln.

Arising slowly, when the time came for his closing argument, and standing in an awkward, half-erect attitude, he began:--

“Gentlemen of the jury, are you willing to allow these boys to begin life with this shame and disgrace attached to their character? If you are, I am not. The best judge of human character that ever wrote, has left these immortal words for all of us to ponder:

“‘Good name in man and woman, dear my lord, Is the immediate jewel of their souls. Who steals my purse steals trash; ’tis something, nothing; ’Twas mine, ’tis his, and has been slave to thousands; But he that filches from me my good name, Robs me of that which not enriches him, And makes me poor indeed.’”

Then drawing himself up to his full height, and looking down upon the defendants as if with the compassion of an older brother, while his long right arm was extended toward their attorney, he continued:--

“Gentlemen, these boys never would have tried to cheat old farmer Case out of these oxen and that plow, but for the advice of counsel. It was bad advice--bad in morals and bad in law. The law never sanctions cheating, and a lawyer must be very smart indeed to twist it so that it will seem to do so. The judge will tell you, what your own sense of justice has already told you, that these Snow boys, if they were mean enough to plead the baby act, when they came to be men should have taken the oxen and plow back. They cannot go back on their contract, and also keep what the note was given for.”

When Lincoln concluded with the words, “And now, gentlemen, you have it in your power to set these boys right before the world,”--he almost seemed to be pleading for the misguided young men rather than for his own client. So it impressed the Snows themselves. Whatever their technical rights may have been, they agreed with his view, as well as with the reputed opinion of the jury, that the account ought to be paid. And paid it was.[iii-39]

Whether all the circumstances attending this affair warranted Mr. Lincoln’s severe arraignment of the defendants’ counsel raises a nice point in professional ethics. Debts, as we know, may sometimes be barred by the law of infancy, still oftener by statutes of limitation. The debtors in such cases have been provided with legal defenses behind which honorable men, however, disdain, as a rule, to seek refuge. They realize that though these barriers shut creditors off from recovering on certain kinds of claims, the debts themselves remain unpaid; and that acts which are intrinsically wrong cannot be made right, however they may be sanctioned by law or custom. Still, if clients insist on availing themselves of such advantages, their attorneys are bound, in the judgment of not a few high-minded lawyers, to interpose the required pleas. So punctilious a practitioner as Horace Binney, the distinguished Philadelphian, whose conceptions of duty have already served us with some exalted standards, took this view. He once conducted the defense, it is said, in the trial of a certain action on a promissory note. His attempt to prove a set-off having failed, he arose and said, with an expression of intense scorn: “My client commands me to plead the statute of limitations.”

This implied rebuke was not lost on the defendant. He quickly withdrew his plea, and paid, as did those abashed brothers, the contested note.[iii-40] It is interesting to observe that here again the Western lawyer measured up to the lofty principles of his refined Eastern brother, and might, if confronted by a similar demand, have gone even a step beyond him.[iii-41]

Where injustice was to be headed off, Lincoln never stopped halfway. His honesty became militant. “He hated wrong and oppression everywhere,” as Judge Davis declared; “and many a man whose fraudulent conduct was undergoing review in a court of justice has writhed under his terrific indignation and rebukes.”[iii-42] These onslaughts appear to have been especially severe when the strong had robbed the weak or taken advantage of the unfortunate. One typical instance was that of a pension agent named Wright, against whom Lincoln brought suit to recover money wrongfully withheld from the widow of a Revolutionary soldier. The claim as collected amounted to about four hundred dollars, of which the go-between had retained one half. This was, of course, an exorbitant fee; but the friendless pensioner, bent and crippled with age, seemed to be at the fellow’s mercy. He certainly expected no resistance from the old lady. Finding her way, however, one day into the office of Lincoln and Herndon, she told the whole sordid story. It aroused the instant sympathy of the senior partner. He called, without loss of time, on the agent to demand a fair settlement; and when this was refused, he as promptly began an action. What ensued is best told in his associate’s own words.

“The day before the trial,” writes Mr. Herndon, “I hunted up for Lincoln, at his request, a history of the Revolutionary War, of which he read a good portion. He told me to remain during the trial until I had heard his address to the jury. ‘For,’ said he, ‘I am going to skin Wright, and get that money back.’ The only witness we introduced was the old lady, who through her tears told her story. In his speech to the jury, Lincoln recounted the causes leading to the outbreak of the Revolutionary struggle, and then drew a vivid picture of the hardships of Valley Forge, describing with minuteness the men, barefooted and with bleeding feet, creeping over the ice.[iii-43] As he reached that point in his speech wherein he narrated the hardened action of the defendant in fleecing the old woman of her pension, his eyes flashed, and throwing aside his handkerchief, which he held in his right hand, he fairly launched into him. His speech for the next five or ten minutes justified the declaration of Davis, that he was ‘hurtful in denunciation and merciless in castigation.’

“There was no rule of court to restrain him in his argument, and I never, either on the stump or on other occasions in court, saw him so wrought. Before he closed, he drew an ideal picture of the plaintiff’s husband, the deceased soldier, parting with his wife at the threshold of their home, and kissing their little babe in the cradle, as he started for the war. ‘Time rolls by,’ he said, in conclusion. ‘The heroes of ’76 have passed away, and are encamped on the other shore. The soldier has gone to rest, and now, crippled, blinded, and broken, his widow comes to you and to me, gentlemen of the jury, to right her wrongs. She was not always thus. She was once a beautiful young woman. Her step was as elastic, her face as fair, and her voice as sweet as any that rang in the mountains of old Virginia. But now she is poor and defenseless. Out here on the prairies of Illinois, many hundreds of miles away from the scenes of her childhood, she appeals to us, who enjoy the privileges achieved for us by the patriots of the Revolution, for our sympathetic aid and manly protection. All I ask is, shall we befriend her?’

“The speech made the desired impression on the jury. Half of them were in tears, while the defendant sat in the court-room, drawn up and writhing under the fire of Lincoln’s fierce invective. The jury returned a verdict in our favor for every cent we demanded. Lincoln was so much interested in the old lady that he became her surety for costs, paid her way home, and her hotel bill while she was in Springfield. When the judgment was paid we remitted the proceeds to her and made no charge for our services.”[iii-44]

Some of the finest traditions known to the legal profession had been observed in this case. St. Ives himself, “Advocate of the Poor” and patron of lawyers, might have held such a brief. We can fancy him, standing at the bar of the Springfield court, scroll in hand as he is sometimes pictured, speaking for the poor widow; but whether that scroll would have contained notes like those that Lincoln jotted down for the argument may perhaps be questioned. They read: “No contract.--Not professional services.--Unreasonable charge.--Money retained by Def’t not given by Pl’ff.--Revolutionary War.--Describe Valley Forge privations.--Ice.--Soldiers’ bleeding feet.--Pl’ff’s husband.--Soldier leaving home for army.--_Skin Def’t._--Close.”

And yet how could any true champion--inspired saint or just plain lawyer--have kept his hands off that defendant! Nothing but a flaying appears to meet the needs of the occasion. Even your gentle, courteous, sympathetic soul like Lincoln’s, alert to the conflict between right and wrong, is stirred by such meanness to its very depths. Love of justice then flames into hatred of injustice. The patient pleader becomes the masterful prosecutor. In fact, the better the man, the fiercer grows his rage. Wielding a scourge of whipcord and striking home, he drives the object of his contempt in hot anger before him. Nor is he at that moment a respecter of persons. Certainly Lincoln was not. The wrath with which he bore down from time to time, as we have seen, on unprincipled litigants, witnesses, and attorneys did not stop there. Misconduct on the bench incensed him still more. If the judge before whom he was trying a cause persistently attempted to be unfair, serious friction ensued; and the deference with which even adverse rulings were customarily received, gave way at last to an outburst of indignation. “In such cases,” writes Mr. Herndon of his associate, “he was the most fearless man I ever knew.”

Describing a remarkable encounter which occurred during the Harrison murder trial, between Mr. Lincoln and Judge E. J. Rice, our junior partner relates how the presiding magistrate repeatedly ruled against counsel for the defense in such a way as to convince them that he was prejudiced.

“Finally,” the narrator goes on to say, “a very material question--in fact, one around which the entire case seemed to revolve--came up, and again the court ruled adversely. The prosecution was jubilant, and Lincoln, seeing defeat certain unless he recovered his ground, grew very despondent. The notion crept into his head that the court’s rulings, which were absurd and almost spiteful, were aimed at him, and this angered him beyond reason. He told me of his feelings at dinner, and said, ‘I have determined to crowd the court to the wall and regain my position before night.’ From that time forward it was interesting to watch him. At the reassembling of court he arose to read a few authorities in support of his position. In his comments he kept within the bounds of propriety just far enough to avoid a reprimand for contempt of court. He characterized the continued rulings against him as not only unjust but foolish; and, figuratively speaking, he peeled the court from head to foot. I shall never forget the scene. Lincoln had the crowd, a portion of the bar, and the jury with him. He knew that fact, and it, together with the belief that injustice had been done him, nerved him to a feeling of desperation. He was wrought up to the point of madness. When a man of large heart and head is wrought up and mad, as the old adage runs, ‘he’s mad all over.’ Lincoln had studied up the points involved, but knowing full well the calibre of the judge, relied mostly on the moral effect of his personal bearing and influence. He was alternately furious and eloquent, pursuing the court with broad facts and pointed inquiries, in marked and rapid succession.... The prosecution endeavored to break him down or even ‘head him off,’ but all to no purpose. His masterly arraignment of law and facts had so effectually badgered the judge that, strange as it may seem, he pretended to see the error in his former position, and finally reversed his decision in Lincoln’s favor. The latter saw his triumph, and surveyed a situation of which he was the master. His client was acquitted, and he had swept the field.”[iii-45]

This appears to have been one of the great advocate’s last important victories at the bar. It forms, in certain respects, a fitting climax to his legal career. For the admirable honesty of word and act with which he started out would hardly have carried him far, had they not been reinforced betimes by the wisdom that comes to the sincere truth-seeker alone, and by the courage that is born of truth’s fairest offspring--an abiding love of justice. Looking back over the scenes of his labors, we become aware, despite their commonplace settings, of something akin to chivalry. They recall, as it were, those epic days when disinterested zeal inspired, or was thought to inspire, chevalier and barrister alike. No counselor of old, who took on himself a knightly obligation to plead the cause of the defenseless, could have acquitted himself, all in all, more nobly. Faithful to his ideals through many temptations, yet free from self-complacency; chivalrous to his adversaries, yet striking hard blows for the cause in which he was enlisted; afraid to make a false plea, yet not afraid of a false judge,--homely, unassuming Abraham Lincoln rode over the circuit in much the same spirit as quickened the knight errant on his ancient journeyings. No paladin of the law, at least in his day, bore himself more gallantly. None seemed to do more toward conferring a practical, latter-day meaning on Bayard’s motto, “Without fear and without reproach.”