“Lincoln was to make the last speech to the jury on our side, and Swett the speech preceding. Swett was then, as he was long afterward, the most effective jury advocate in the State, except Lincoln. He occupied one evening on this occasion, and when he closed, I was full of faith that our client would be acquitted entirely. Lincoln followed on our side, the next morning, and while he made some good points, the honesty of his mental processes forced him into a line of argument and admission that was very damaging. We all felt that he had hurt our case.
“I recollect one incident that we regarded as especially atrocious. Swett had dwelt with deep pathos upon the condition of the family—there being several small children, and his wife then on the verge of confinement with another. Lincoln himself adverted to this, but only to disparage it as an argument, saying that the proper place for such appeals was to a legislature who framed laws, rather than to a jury who must decide upon evidence. Nor was this done on account of any dislike to Swett, for he was especially fond of Swett as an advocate and associate. In point of fact, our client was found guilty, and sent to the penitentiary for three years; and Lincoln, whose merciless logic drove him into the belief that the culprit was guilty of murder, had his humanity so wrought upon, that he induced the Governor to pardon him out after he had served one year.”[ii-40]
If Mr. Lincoln’s course during that trial struck his fellow-practitioners as “atrocious,” it might be interesting to know what epithet would have sufficed to express their feelings had they been concerned with him in his first matter before the Supreme Court of Illinois. Appearing on that occasion for the appellant,—according to Judge Treat, the commonly accepted authority for an extraordinary tale,—he said: “This is the first case I have ever had in this court, and I have therefore examined it with great care. As the court will perceive by looking at the abstract of the record, the only question in the case is one of authority. I have not been able to find any authority to sustain my side of the case, but I have found several cases directly in point, on the other side. I will now give these authorities to the court, and then submit the case.”[ii-41]
That speech is probably without parallel in the history of appeals from judicial decisions. An approach to the spirit which actuated it may be found in the career of William Pinkney, the renowned Maryland advocate. Having gained a verdict for a client from the Court of Chancery, he became convinced of its injustice when the claim was made, on appeal, that not all the parties in interest were before the court. The point impressed itself on his mind as well taken. He promptly so declared, and without any attempt at sustaining the decree, allowed it to be reversed.
Lawyers, whose fealty to the truth exercised such an overmastering influence upon their conduct, would have graced the bench. Yet neither of these illustrious men, it should be added, attained judicial honors; unless indeed we count Lincoln’s irregular elevation to the judgment-seat by David Davis, who appointed him, from time to time,—without legal sanction, however, for so doing,—to preside over his court. The substitution appears to have been made for the convenience of all concerned, when the judge could not be present; and both sides are said, as a rule, to have consented gladly thereto.[ii-42] Once a whole term for Champaign County was held, it is asserted, in this unauthorized way. But how successfully the pseudo-magistrate dispensed justice must, by reason of the meager details that have been preserved, be left largely to conjecture. Did Lincoln, some may ask, really possess the attributes of a great judge? The query will, perhaps, suggest itself to those who are fond of reconstructing history around events that failed to happen. If they take account of his faculty for seeing both sides of a question with crystal clearness, his mellow wisdom, his inflexible love of truth, and, above all, his militant sympathy with the right against the wrong, their fancy may well picture him, under altered circumstances, mounting to a place beside the leading jurists of Illinois. Breese, Caton, and their compeers, developing that admirable system of jurisprudence which distinguished the Prairie State, might, indeed, have profited by his collaboration.
CHAPTER III
PROFESSIONAL ETHICS
IF the judicial rather than the forensic temperament swayed Lincoln’s conduct as a lawyer, it should be remembered that this was a drawback only when he found himself on the wrong side of a suit. When he stood on the right side, with time enough to exert all the faculties of his slow-moving mind, no advocate in the State was more skillful and effective. Indeed, those very qualities which impaired his usefulness for the winning of a bad cause made him especially strong in a good one. After he himself was convinced that his client ought to prevail, he rarely failed to imbue judge and jury with the same belief.[iii-1] This should be attributed somewhat to Lincoln’s reputation for avoiding unworthy cases. The commonly accepted idea that he would appear only in matters of which his conscience approved, gave him, from the very beginning of a trial, an advantage not to be despised. But what he did, or omitted to do, as the proceedings advanced, contributed still more, it may be needless to add, toward the gaining of a verdict. His methods make one wonder whether there may not be more than a stale gibe at the legal profession tucked away somewhere in the query of the lad who asked,—“Father, do lawyers tell the truth?” and the jesting answer,—“Yes, my son; lawyers will do anything to win a case.” For Lincoln in court was truth in action. His simple adherence to facts made as vivid an impression on those who heard him as did his intellectual powers, which were, by the way, of no mean order. The man’s interpretation of the law, his logic, his eloquence, his humor, his homely, common-sense view of things—all shone in the light of a never-failing candor. While he was trying a cause, strangers who happened to enter the court-room usually found themselves, after a few moments,—if contemporary accounts may be accepted,—on his side and wishing him success. Yet success, in the ordinary meaning of that term, did not, to all appearances, alone concern him. What engaged most of his attention, apparently, was how to present the affair in hand as it had actually happened, without regard to his client’s interests. In fact, every step that he took, as the trial moved along, seemed intended, not so much to secure a victory as to sift out the truth and establish justice at any cost.
Reverting, unconsciously perhaps, to the time-honored though quite obsolete idea of a counselor’s duties, he conducted himself more like the helpful friend or adviser of the court than like a modern advocate striving for a decision. As one of his most intimate colleagues, Leonard Swett, relates: “Where most lawyers would object he would say he ‘reckoned’ it would be fair to let this in, or that; and sometimes, when his adversary could not quite prove what Lincoln knew to be the truth, he ‘reckoned’ it would be fair to admit the truth to be so-and-so. When he did object to the court, and when he heard his objections answered, he would often say, ‘Well, I reckon I must be wrong.’ ”[iii-2]
This equable disposition extended in a marked degree to Lincoln’s manner of conducting an examination. His own witnesses usually told their story in response to a few straightforward, kindly questions, and those who took the stand on the other side were treated by him with the same frank courtesy. He had a good-natured way of making these people feel at home amidst unaccustomed surroundings, while draining them adroitly of what they knew about the case on trial. It was so clearly his aim, moreover, to arrive at the facts, rather than to score winning points, that time after time hostile witnesses mellowed under the charm of his sincerity and, contrary to their original intentions, told the truth. Candor begets candor. The light which shines through an upright man’s eyes often kindles a responsive gleam in the heart of a shuffler. And when, as in Lincoln’s case, that upright man was a shrewd lawyer, controlling an unwilling witness with all the masterful tact of a seer to whom human nature must have read like an open book, we begin to understand how one usually self-restrained biographer—himself a member of the bar—came to believe the cross-examiner “endowed,” at such moments, “with psychic qualities of extraordinary power.”
Less occult gifts, however, suffice to explain some of these achievements. For here, as elsewhere in Lincoln’s practice, notable results were reached by simple, open methods. How easily he extracted the facts, for instance, from one unfriendly witness has been told in a characteristic anecdote by the man himself. This was the Honorable James T. Hoblit, of Lincoln, Illinois. Recalling his discomfiture and the attorney who caused it, he once said:—