When a mishap of this nature occurred, trouble ensued. The recently alert advocate—all enthusiasm, courage, and skill—lapsed into a dispirited pleader whose movements seemed almost mechanical. In fact, if we may credit the traditions of the circuit, his thoughts were engaged, from that moment, not on how to win the case, but on how to get out of it. Particularly was this so when, taken by surprise in the midst of a criminal trial, he became convinced—as happened on several occasions—of his client’s guilt.
An instance in point has been related by Judge Parks, a prominent member, at the time, of the Illinois bar. He writes: “A man was indicted for larceny. Lincoln, Young, and myself defended him. Lincoln was satisfied by the evidence that he was guilty and ought to be convicted. He called Young and myself aside, and said, ‘If you can say anything for the man, do it,—I can’t. If I attempt, the jury will see that I think he is guilty, and convict him, of course.’ The case was submitted by us to the jury without a word. The jury failed to agree, and before the next term the man died. Lincoln’s honesty undoubtedly saved him from the penitentiary.”[ii-32]
A similar difficulty arose in the Patterson murder trial, a case of some celebrity that held the center of the judicial stage for some days in Champaign County. The prosecution was conducted by District Attorney Lamon; the defense, by Leonard Swett and his friend Abraham Lincoln. As the evidence against the prisoner developed, his counsel realized that they were defending a guilty man. The discovery appears to have unnerved Lincoln who, as the District Attorney expressed it, “felt himself morally paralyzed.” Acknowledging this condition to his associate, he said: “Swett, the man is guilty. You defend him,—I can’t.”
There is reason to think that Lincoln urged his colleague privately before Judge Davis, the presiding magistrate, to join him in arranging for a plea of manslaughter, with the understanding that their client should receive the minimum sentence. This proposition Swett apparently brushed aside. He conducted the defense to its formal conclusion, made his argument to the jury, and—again quoting Lamon—“saved the guilty man from justice.” A considerable fee was paid for that signal service, but Lincoln is said to have declined any share of the money.[ii-33]
In civil actions, he disposed even more summarily of clients who had deceived him, or who persisted in litigating over matters that were found to lack merit. Recalling such instances, Mr. Herndon says: “His retention by a man to defend a lawsuit did not prevent him from throwing it up in its most critical stage if he believed he was espousing an unjust cause. This extreme conscientiousness and disregard of the alleged sacredness of the professional cloak robbed him of much so-called success at the bar. He once wrote to one of our clients, ‘I do not think there is the least use of doing anything more with your lawsuit. 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.’ ”[ii-34]
Another anecdote of similar bearing is furnished by J. Henry Shaw, a lawyer in practice years ago at Beardstown, Illinois. This contributor writes: “Lincoln came into my office one day with the remark, ‘I see you’ve been suing some of my clients, and I’ve come down to see about it.’ He had reference to a suit I had brought to enforce the specific performance of a contract. I explained the case to him, and showed my proofs. He seemed surprised that I should deal so frankly with him, and said he would be as frank with me; that my client was justly entitled to a decree, and he should so represent it to the court; and that it was against his principles to contest a clear matter of right. So my client got a deed for a farm which, had another lawyer been in Mr. Lincoln’s place, would have been consumed by the costs of litigation for years, with the result probably the same in the end.”[ii-35]
Still another civil suit was well under way before Lincoln discovered the defendant, whom he represented, to be in the wrong. This man, a live-stock breeder, had sold the plaintiff a number of sheep at a stipulated average price. When the animals were delivered, many of them, according to the purchaser’s claim, proved to be so young that they did not fulfill the conditions of the contract, and he sued for damages. The evidence produced at the trial sustained the complaint. Several witnesses testified, moreover, that according to usage such of the animals as were under a certain age should be regarded as lambs, and of less value than full-grown sheep. No sooner had these facts been established than Mr. Lincoln changed his line of action. Ceasing to contest the case, he directed all his attention to the task of ascertaining exactly how many lambs had been delivered. This done, he briefly addressed the jury. They were obliged, he conceded, to bring in a verdict against his client; but he asked them to make sure of the exact damage sustained by the plaintiff, in order that both parties might have simple justice. And this was done.[ii-36]
To these stories should be added the testimony of Judge Joseph Gillespie, a leading Illinois attorney: “Mr. Lincoln’s love of justice and fair play was his predominating trait. I have often listened to him when I thought he would certainly state his case out of court. It was not in his nature to assume, or attempt to bolster up, a false position. He would abandon his case first. He did so in the case of Buckmaster for the use of Dedham versus Beems and Arthur, in our Supreme Court, in which I happened to be opposed to him. Another gentleman, less fastidious, took Mr. Lincoln’s place and gained the case.”[ii-37]
But perhaps his most notable desertion of a client occurred once at Postville, before Circuit Judge Treat, in the midst of a Logan County trial. The suit of Hoblit against Farmer had come up on appeal from a decision given by some local justice of the peace. What the alleged circumstances were Lincoln did not know until he was retained, in the Circuit Court, to represent the plaintiff. That worthy went upon the witness stand to prove his claim. After testifying about the items of the account against Farmer, and after allowing all set-offs, he swore positively that the balance had not been paid. Yet when the defendant’s attorney, Asahel Gridley, produced a receipt in full, given prior to the bringing of the action, the witness was obliged to admit that he had signed the paper. Whether or not it had been introduced at the original hearing is left in doubt, as the story goes; but there can be no question about the plaintiff’s surprise. Taken off his guard, Hoblit turned to his counsel and exclaimed that he “supposed the cuss had lost it.” Whereupon Lincoln arose, and left the court-room. Taking notice of his departure, Judge Treat sent the sheriff, Dr. John Deskins, in pursuit. When that officer found the missing lawyer, he was seated in the tavern across the court-house square, with his feet on the stove and his head among the clouds.