“Mr. Lincoln,” said the sheriff, “the judge wants you.”
“Oh, does he?” was the reply. “Well, you go back and tell the judge that I can’t come. My hands are dirty and I came over to clean them.”[ii-38]
The message was duly delivered to the honorable court, and Lincoln’s unprincipled client suffered a nonsuit.[ii-39]
There is a pretty little sequel to this episode. Some time later, when Gridley discontinued practice for more lucrative pursuits, he manifested his confidence in Lincoln, as well as his esteem, by transferring his entire law business to him without compensation. This was somewhat after the manner in which Robert Carter Nicholas, a veteran member of the profession during a former generation, had turned over his clientage to Patrick Henry. But no such encounter appears to have taken place between the Virginians as has just been related concerning the Illinois men. Nor is it to be expected. That abandonment by Lincoln of a case in mid-career, so to say, without regard for the judge’s wishes, is perhaps unique. It certainly is characteristic. There are instances of honorable counsel, who, finding themselves in the course of a trial grossly misled by their clients, have declined to serve them further, and have obtained leave from the court to withdraw. But if any other celebrated American pleader, at any time during his career, rushed from a court-room in a passion of righteous indignation over such a deception, and refused to return upon the mandate of the presiding magistrate, that occurrence is not commonly known. Moreover, from a professional point of view, the propriety, generally speaking, of Lincoln’s course in these matters has been gravely questioned. Some critics, conceding the misconduct of the clients whom he deserted, still appear to think that his treatment of them detracted somewhat from his character as a lawyer. And with reason, if an advocate’s first duty, as has been repeatedly asserted, is fidelity to the cause in which his services are enlisted. Yet how far does that duty require him to go after he has lost confidence in the rectitude of his cause? Some barristers—and the number includes men of distinction—have frankly set no limits to their obligations. They hold that a lawyer, once he has accepted a client’s retainer, is pledged to stand by him through thick and thin. The blacker the evidence develops against him, in a criminal action, or the less palpable become the merits of his case in a civil one, the more firmly they consider his counsel bound in honor to battle for a verdict. Should that verdict, if it is finally won, seem contrary to morality or justice, the fault, in their opinion, does not lie with the man to whose skill and eloquence it may be due. His attention, they believe, was properly fixed, to the exclusion of everything else, upon that part of the proceedings which had been committed to his care. If the same singleness of purpose, perhaps the same ability with which he discharged this function, had been exercised by the attorney on the other side, as well as by the judge and the jury, to say nothing of witnesses and lawmakers, the administration of justice would, according to their code, have been secure. It is as though they were priests in the temple of the blindfolded goddess, interceding for sinners no less persuasively than for saints; as though, serving every comer however unclean, they thought it no shame on their sacred office if they seized a chance, when the divinity should relax her vigilance, or the high-priest should nod, to jog the delicately poised balance in their suppliant’s favor.
Such a theory of advocacy revolted Lincoln. Indeed, his whole career at the bar was a protest against the conception of a lawyer’s duty that imposes upon him any fancied requirement to procure a judgment of which his conscience disapproves. He had little or no sympathy, therefore, with the loyalty-at-any-cost practitioners; and he would not join them, it goes without saying, on those slippery paths of sophistry, which wind too often through the ivory gates of falsehood. What criticism, if any, he made of their conduct is not definitely known. Yet we almost seem to hear him exclaim, as Carlyle did, “Can there be a more horrible object in existence than an eloquent man not speaking the truth?”
These reflections, be it said, apply all in all to some only of the counselors who stand by their colors, after they discover them to be tarnished; for many faithful members of the profession regard the advocate’s mission in a different light. He is bound, they admit, to remain in a case after a trial has begun, especially if retained for the defense; and this, however distasteful or even reprehensible his client’s side may prove to be. That client, according to their theory, must be represented, to the close of the action, by his legal adviser, or the whole judicial machinery, of which an attorney on each side is an essential part, breaks down. In this nicely adjusted mechanism, they claim, the functions of the advocate, and those of the judge as well as the jury, are exercised on widely different planes, so that under normal conditions their operations can never coalesce. Should counsel, therefore, in the midst of a trial, assume the judicial rôle, condemn his own cause before the hour of judgment, and deny his own client the protection which had impliedly been pledged, he would, in their eyes, commit a gross breach of professional propriety. Nay, more, his course would involve, they contend, a betrayal of both court and client,—a Quixotic freak, in which private and public interests would alike be sacrificed. So far, both classes of practitioners who will not abandon a cause, after they find it tainted, appear to move abreast; but at this point their ways part. While the one advocate leaves not a stone unturned, as the expression goes, to extricate his man—right or wrong—with a sweeping victory, the other, deeming himself under no obligation to strive for an obviously unjust verdict, remains to safeguard his client’s legal rights, presents his case fairly on the evidence, and does in his behalf all that an honorable officer of the court may do, without lending himself to an evasion of the law or a perversion of justice.
This latter conception of what a lawyer owes at once to conscience and to society had doubtless impressed itself on Lincoln’s good sense. For he tried hard enough, in several instances, to conduct forlorn hopes to their bitter conclusions. But here again the compelling honesty of the man’s nature thwarted his efforts, until it would almost seem as if, by a singular paradox, he really evinced more loyalty when he deserted, than when he stood his ground to make a half-hearted fight.
Lincoln’s ineptitude on the latter occasions vexed his colleagues not a little. They appear to have been embarrassed more by his halting coöperation than by an out-and-out withdrawal from a case. One of his local associates on the circuit, Henry C. Whitney, has related several unpleasant experiences of this nature; and from the warmth with which he writes, many years after the event, one may infer how acute must have been the narrator’s irritation at the time. Perhaps one of these anecdotes, in Mr. Whitney’s own language, will best illustrate the whole peculiar matter. He is telling about the trial of a man for a homicide committed at Sadorus, Illinois:—
“When the facts were brought out before the petit jury, it was very clearly developed that the indictment should have been for murder, instead of—what it was—for manslaughter, and Lincoln was evidently of that opinion. Mr. Lincoln, Leonard Swett, and myself were associated for the defense. The wife of the accused had wealthy and influential relations in Vermillion County, and no pains were spared to make a good defense. Swett and myself took the lawyer’s view, and were anxious to acquit entirely. Lincoln sat in our counsels, but took little part in them. His opinion was fixed and could not be changed. He joined in the trial, but with no enthusiasm. His logically honest mind chilled his efforts.