Lincoln (14 page)

More complex cases went to trial before the circuit court, where, again, Lincoln had some experience as an observer and as a witness. Indeed, his familiarity with the process, as well as his expertise as a surveyor, had caused the circuit court in Morgan County (Jacksonville) to use him, even before he was admitted to the bar, as what might be called a paralegal in a disputed case over land and timber.

But now, as a licensed attorney, usually operating without his partner or other associates, he had a much greater responsibility fully to master the forms and procedures of litigation, for even a minor, technical error could cause his client to lose his case. In bringing a case before the circuit court, a lawyer had first to decide whether to plead it “in law” or “in chancery”; the first referred to a highly formal set of proceedings and precedents derived from the British common law, while the second, sometimes called “equity” proceedings, followed somewhat more flexible and discretionary rules. In either case the attorney (and for clarity it will be assumed that he was representing the plaintiff) must first draft a praecipe, a brief request to the clerk of the court to issue a summons to the defendant; the praecipe included a brief statement of the nature of the controversy and the amount of the damages alleged. The plaintiff’s lawyer then drafted what was called a declaration, indicating the form of action under which the suit was brought and setting forth the facts of the case.

In common law there were eleven major forms of action—trespass, trespass on the case, replevin, assumpsit, ejectment, etc.—each of which applied to different kinds of suits. An action for trespass, for example, rose when a plaintiff alleged that his person had been interfered with by assault or battery
or that his land or property had been damaged; but an action for trespass on the case involved indirect or accidental damage or damage to intangible property. Thus a man who claimed a neighbor had stolen his cow would bring an action for trespass, while one who asserted that he had been slandered by his neighbor would bring one for trespass on the case. The lawyer who incorrectly identified the action he was bringing might have his case thrown out of court.

The declaration also included a full account of the plaintiffs version of the facts in the case. This had to be prepared with the utmost care. If it alleged facts that could not be proved in a trial, the plaintiff could lose, even if those facts were not necessary to sustain his case. If it alleged facts that differed from those presented at a trial, his case could be thrown out. In one 1859 decision a case was dismissed because the amount of a promissory note stated in the declaration differed by half a cent from the amount of the note as proved in the trial.

In his early cases Lincoln paid close attention to one of the form books that suggested the proper language for declarations, and in his desire to avoid all technical errors his documents often grew excessively legalistic and wordy. For instance in a May 1838 case in Fulton County for the collection of an unpaid note, his declaration alleged: “For that whereas the said defendants by, and under the name, style, and firm of ‘John W. Shinn & Co’ heretofore, towit, on the twentythird day of March in the year of our Lord one thousand eight hundred and thirtysix at Philadelphia, towit, at the county and state aforesaid made their certain promissory note in writing bearing date the date and year aforesaid and thereby then and there promised to pay Twelve months after the date thereof the said plaintiffs in their partnership name of ‘Atwood & Co’ the sum of Seven hundred and sixtytwo dollars and thirtysix hundredths of a dollar, for value received, and there and then delivered the said promissory note to the said plaintiffs....” As he became more experienced, he pared the legalisms and redundancies, and his declarations became models of simplicity and clarity.

After Lincoln filed his declaration with the clerk of the Sangamon County Circuit Court, the lawyer for the defendant would come back with a demurrer, alleging that the plaintiff’s allegations were defective as a matter of law, or a traverse, stating his client’s version of the disputed facts or events. Lincoln, for the plaintiff, might respond with a replication, taking exception to that counterstatement, and the opposing attorney could submit a rejoinder. All these papers, which might run to many pages, had to be written out in longhand; there were no secretaries and no copying machines.

Fortunately most of the early cases in which Lincoln was engaged required more common sense than mastery of precedents. They concerned such matters as a suit by Speed, on behalf of A. Y. Ellis & Company, for payment of a debt to the store by one Thomas P. Smith. In a slightly more complicated case Lincoln represented Elijah Houghton, who had been swapping some of his land with David Hart for twelve acres or so along Rock
Creek, near New Salem—land that Lincoln himself had surveyed. The death of Hart put their handshake deal into question, and Houghton now asked the court to require Hart’s three children and heirs to live up to the terms of the agreement.

From the beginning Stuart & Lincoln carried a heavy load of such cases. As early as the July 1837 term of the Sangamon County Circuit Court, the partners had nineteen common-law cases and seven chancery cases on the docket—more than twice as many as their closest rivals, Logan & Baker, and far more than any other attorneys. In the following terms Logan & Baker once exceeded the case load of Stuart & Lincoln, and from time to time, especially as Stuart prepared to take his seat in Congress, Samuel H. Treat also surpassed them. But always Lincoln had as much business as he could handle.

Lincoln’s legal practice was not confined to Sangamon County. No lawyer could make his living from the two two-week terms that the circuit court met in Springfield each year, and Lincoln, like most of the other attorneys, traveled on the huge circuit that the judges were obliged to make, going from one county seat to another and holding sessions that lasted from two days to a week. Lincoln appeared at Bloomington, in McLean County, as early as 1837, and the following year he began regularly to attend the courts of Tazewell, Macon, Morgan, and other central Illinois counties.

A full schedule did not mean full pockets. Springfield was a town full of lawyers, and all were obliged to charge modest fees. For most of the cases Stuart & Lincoln handled, the fee was $5.00, and the ordinary range was from $2.50 to $10.00. In one case the partners charged $50.00, a fee so high that the client apparently asked to pay some of it by making a coat for Stuart, worth $15.00. In another, where the partners represented a Springfield hotelkeeper, the client paid their fee by giving Lincoln board for $6.00. It was Lincoln’s job, as junior partner, to record these fees, which he and Stuart split equally.

He was also supposed to keep a record of the firm’s income in a fee book, where he listed cases, the disposition, and the fees charged. Here, too, he entered expenses, such as for several loads of wood, which he apparently cut up with the $2.25 “wood-saw” he purchased, and for an $8.50 stovepipe. For a time he was conscientious in keeping records, but presently the task became onerous and long gaps began to appear. Neither Stuart nor Lincoln was systematic, and the firm’s papers were deposited in drawers, in pockets, and, especially, in Lincoln’s stovepipe hat. From time to time the partners had to apologize to clients for loss of papers or neglect of business. On one occasion, after Stuart left for Washington, Lincoln had to ask his partner how to silence one client who “is teasing me continually about some
deeds
which he says he left with you, but which I can find nothing of” and how to answer “a d——d hawk billed yankee” who was besetting him about a claim that had not been settled.

Despite careless bookkeeping, the firm was a successful one, and it afforded
Lincoln a remarkable opportunity to begin his career at the bar. He quickly discovered that his brief and unsystematic training made him the match for other self-taught lawyers and even for those who had studied, usually without much direction, in the office of some older attorney. After Stuart left to serve in Congress, Lincoln had no doubts about his ability to run the firm in his partner’s absence, and he marked the new era in the fee book: “Commencement of Lincoln’s administration 1839 Nov 2.”

Much of the time during these early years Lincoln seemed to think of his legal career as an adjunct to his political aspirations. He had hardly settled in Springfield before he took on a case that became the occasion of assailing his political opponents. In May 1837, Mrs. Mary Anderson, together with her son Richard, engaged Stuart & Lincoln on a contingent fee to recover ten acres of land lying just north of Springfield—later to become the site of the Oak Ridge Cemetery. The tract was held by James Adams, a prominent Democratic officeholder in Springfield, but Mrs. Anderson claimed it was part of the estate of her recently deceased husband. On looking into the records, Lincoln became convinced that Adams’s deed to the land was fraudulent and that Mrs. Anderson’s claim was valid. Enlisting Stephen T. Logan, one of the ablest and most experienced lawyers in Springfield, as fellow counsel, he brought suit in the Sangamon County Circuit Court.

Up to that point his conduct was entirely professional, but soon his bitter political animus against Adams began to show. Adams was in fact a man with a shady past, who had fled New York rather than face charges that he had forged a deed to six hundred acres. But what angered Lincoln was Adams’s candidacy for the lucrative office of judge of the probate court, for which Dr. Anson G. Henry, a Whig and a special friend of Lincoln’s, was also running. While the court case against Adams was pending, Lincoln and his fellow lawyers began to try it in the newspapers. In six letters, signed “Sampson’s Ghost,” which they published weekly in the
Sangamo Journal,
they attacked Adams as a Tory and a supporter of the Hartford Convention, called on him “to explain to the citizens of this county by what authority he holds possession of two... lots of ground in Springfield, upon which he now resides,” and hinted that Adams’s title to the Anderson land was also fraudulent.

Throughout the summer and fall of 1837, Springfield papers were filled with these charges against Adams and with countercharges by Adams and his friends. Though Lincoln may not have written all the “Sampson’s Ghost” letters, Adams correctly identified him as his primary enemy and struck back with public letters that challenged his facts and his logic. Seeking to take advantage of Lincoln’s unconventional religious views, Adams labeled him
“a deist.
” Lincoln responded in a handbill, followed by two public letters, which tried to discredit Adams’s witnesses and ridiculed his efforts to “tear,
rend, split, rive, blow up, confound, overwhelm, annihilate, extinguish, exterminate, burst asunder, and grind to powder all his slanderers.”

The unedifying and unprofessional controversy lost much of its point when Sangamon County voters in the fall election showed how little credence they gave to Lincoln’s allegations by defeating Henry and electing Adams probate judge. The suit over the Anderson property, together with other related actions, dragged on for several years, but Adams remained in possession of the land at his death in 1843.

Lincoln exhibited the same fierce partisanship in the state legislature, which continued to meet in Vandalia, pending the completion of the new state capitol in Springfield. Now one of the more experienced members, he was twice the unsuccessful candidate of the Whigs for speaker of the house of representatives. In the 1838–1839 session he served on no fewer than fourteen committees, including the influential finance committee, but much of his work was done behind the scenes in organizing and managing the Whig minority. On the floor of the house he participated in the debates more easily and freely, occasionally lightening the proceedings with a bit of levity. When a representative from Montgomery County expressed fear about the mounting debts and deficits caused by the internal improvements plan, Lincoln said he was reminded of an eccentric Hoosier bachelor, “very famous for seeing
big bugaboos
in every thing,” who went hunting and fired his gun repeatedly at a squirrel which he claimed was at the top of a tree. Unable to see anything in the tree, his brother examined the hunter’s person carefully and “found on one of his eye lashes a
big louse
crawling about.” “It is so with the gentleman from Montgomery,” Lincoln joked. “He imagined he could see squirrels every day, when they were nothing but
lice.”

Lincoln’s main objective in the legislature was to protect Springfield. He introduced legislation to incorporate Springfield as a town and to secure state funds for the completion of the new statehouse. Until the actual removal of the state government in 1839, supporters of Vandalia made repeated efforts to repeal the legislation making Springfield the capital. In the 1837 session, for example, General W. L. D. Ewing, who represented Vandalia in the legislature, denounced “the arrogance of Springfield—its presumption in claiming the seat of government” and charged the legislation removing the capital had been obtained “by chicanery and trickery.” Chosen by the Sangamon delegation to respond, Lincoln struck back with such severity that observers expected Ewing to challenge him to a duel.

Closely related to Lincoln’s defense of Springfield’s interests was his position on the ambitious internal improvements plan, which had foundered after the panic of 1837. In view of falling revenues and the collapse of the market for Illinois bonds, most leaders of both parties favored curtailing or abandoning the scheme to crisscross the state with railroads and canals. But not Lincoln. Admitting “that Sangamon county have received great and important benefits... in return for giving support, thro’ her delegation to the system of Internal Improvement,” he announced that the county was
“morally
bound,” though “not
legally
bound,” to support that system. To those who wanted to modify the scheme, he said the legislature had “gone too far to recede, even if we were disposed to do so.” “We are,” he added, “now so far advanced in a general system of internal improvements that, if we would, we cannot retreat from it, without disgrace and great loss.”