The Chicago and Rock Island Railroad Company, through its attorney, Norman B. Judd, had retained Lincoln, among others, as counsel for the defense. There was some favorable comment on the skill with which he brought out the evidence; but when he discussed this evidence, in the closing argument, one of his associates, Joseph Knox, was not so pleased. In fact, that gentleman became alarmed to such a degree over what Lincoln conceded that when court adjourned for the day, before the speech was finished, he despaired of success. His indignation found vent in a talk with Judd.
“Lincoln has lost the case for us,” he said. “The admissions he made in regard to the currents in the Mississippi at Rock Island and Moline will convince the court that a bridge at that point will always be a serious and constant detriment to navigation on the river.”
“Wait until you hear the conclusion of his speech,” replied Mr. Judd. “You will find his admission is a strong point instead of a weak one, and on it he will found a strong argument that will satisfy you.”[iii-17]
So indeed it proved to be. Before he closed, Lincoln did his own side ample justice, and demonstrated to a victorious conclusion that, currents or no currents, one man has as good a right to cross over a river as another has to sail up and down.[iii-18]
Judd was not the only colleague who appraised this method at its full value. Leonard Swett, sharing with our straightforward advocate the leadership, as some thought, of the Eighth Circuit, and conducting many causes, now with him now against him, had learned, when on the opposing side, to be wary of gifts from Lincoln’s hands.
“If his adversary,” said Swett, “didn’t understand him, he would wake up in a few moments, finding he had feared the Greeks too late, and wake up to find himself beaten. He was ‘wise as a serpent’ in the trial of a case, but I have got too many scars from his blows to certify that he was ‘harmless as a dove.’ When the whole thing is unraveled the adversary begins to see that what he was so blandly giving away, was simply what he couldn’t get and keep. By giving away six points and carrying the seventh, he carried his case; and, the whole case hanging on the seventh, he traded away everything which would give him the least aid in carrying that. Any one who took Lincoln for a simple-minded man would very soon wake up on his back, in a ditch.”[iii-19]
This rather cynical analysis of the situation is significant. It discloses the controlling factor upon which almost every case at bar turns as on a hinge. To discern with precision where that pivotal point lies may perhaps be deemed the prime requisite for a successful pleader. The converse is of almost equal importance. “Never plead what you need not,” said Lincoln, “lest you oblige yourself to prove what you cannot.”[iii-20] And when, as in his practice, the vital issue is pressed home, only after all vulnerable positions have been squarely surrendered, the effect must seem at times well-nigh irresistible. Even courts cannot help yielding something to one who yields so much. And what he holds on to naturally prevails, with double force, by reason of what he has given away. Addressing himself, then, to hearers thus favorably disposed, Lincoln’s final statement of his own side left little need for argument. In fact, they said of him,—as has from time to time been said of Lord Mansfield, Chief Justice Marshall, Daniel Webster, and less distinguished lawyers endowed with equal power,—his statement of a case was worth the argument of another man. For here again, the precision, clearness, and veracity of his mental operations came into play. He would disentangle a complicated matter step for step, until the truth, the whole truth, and nothing but the truth, stood revealed to all. It was as if each successive word were set in place, after the manner of Hugh Miller’s master, the Cromarty mason, who “made conscience of every stone he laid.”
Lincoln’s conscience withal did double duty. His fealty to the cause of justice was not allowed to crowd out an ever-present sense of what he owed his client. In only rare instances and then, it is true, to that client’s detriment, as we have seen, did these obligations clash. When they harmonized, the advocate did not spare himself. Nor did his theory concerning the essentials of a case betray him into omissions. Making an argument once before one of the higher courts, he gave an elaborate history of the law governing the matter in question. It was a masterly discourse, prepared with much care, but as his partner thought, wholly unnecessary. On their way home, Mr. Herndon, who tells the story, asked Mr. Lincoln why he “went so far back in the history of the law,” adding a surmise that the court knew it all.
“That’s where you’re mistaken,” was the instant reply. “I dared not trust the case on the presumption that the court knows everything. In fact, I argued it on the presumption that the court didn’t know anything.”[iii-21]
There are, sooth to say, judicial decisions which almost seem to justify such precautions. And we find ourselves wondering whether the speaker knew that venerable anecdote of the counsel who, when interrupted by a wearied Supreme Court Justice with the remark, “You must give this court credit for knowing something,” replied, “That’s exactly the mistake I made in the court below.”