Lincoln (20 page)

In the fall of 1844, Logan and Lincoln decided to dissolve their highly successful partnership. The senior partner told Lincoln that he wanted to go into business with his son, David Logan, and Lincoln did not argue with his decision. Perhaps he was not satisfied to receive less than half the income from the partnership; perhaps he realized that his political aspirations must clash with those of Logan, since both wanted to go to Congress. But there were no hard words as the partners decided, as Logan said, to go their ways “amicably and in friendship.” The severance was not an abrupt one. Logan and Lincoln continued to appear together in the December term of the Illinois Supreme Court, and their professional notice ran in the
Sangamo Journal
until March 1845. They continued to join forces on important cases throughout the remaining years of Lincoln’s practice.

Lincoln took a new partner. One fall morning in 1844 he came dashing up the stairs to the third floor of the Tinsley Building, where he found William H. Herndon busily studying. “Billy,” he asked breathlessly, “do you want to enter into partnership with me in the law business?” Herndon managed to stammer, “Mr. Lincoln this is something unexpected by me—it is an undeserved honor; and yet I say I will gladly and thankfully accept the kind and generous offer.” Sensing that the young man was flustered with gratitude, Lincoln remarked easily, “Billy, I can trust you, if you can trust me,” and the partnership came into being.

Many found the new partnership puzzling. Now an established, prominent lawyer, Lincoln could have had his pick of distinguished Illinois attorneys. Herndon heard that John Todd Stuart very much wanted to renew his association with Lincoln and was resentful when a beginner was chosen instead. Lincoln left no record of his reasons, but it is clear that he was tired of being a junior partner and wanted to head his own firm. He was already attracting all the business he could handle, so that he did not need a partner with a name to draw in clients. He thought Herndon had considerable promise as a lawyer. He had watched him read law for two or three years in the office of Logan & Lincoln and found him “a laborious, studious young man... far better informed on almost all subjects than I have been.”

There were also political reasons behind his choice of Herndon. Lincoln aspired to go to Congress, but the Whig party in central Illinois was split into two distinct factions. In the past, leadership had come from the eminently respectable Stuarts and Edwardses, few in number but rich in family tradition, but the majority of the Whig voters were now “self made men—men who had power,” scorned the older leadership, and wanted a hand in shaping party policy. Lincoln needed the support of both factions. Marriage to the elegant Mary Todd gave him a connection to the silk-stocking element of the party, but the “shrewd, wild boys about town” favored the enormously popular Edward D. Baker. Recognizing that Herndon was a leader of this populist element in the party, Lincoln chose him as partner in part to give a signal to the insurgent young Whigs that he had not deserted them.

More important than any of these calculations was an essential fact: Lincoln really liked Herndon. He respected Stuart and he admired Logan, but for neither of them did he have genuine affection. Toward Herndon, however, he had an almost paternal feeling, and Herndon, in turn, gave him absolute and unquestioning loyalty. During the long years of their partnership he always addressed Herndon, nine years his junior, as “Billy,” while Herndon invariably called him “Mr. Lincoln.”

There was much to like about this new partner. He bubbled over with ideas and enthusiasm. He longed to be part of the larger intellectual world, and, though he had been born in Kentucky, he wrote that he steadily “turned
New Englandwards
for my ideas—my sentiments—my education.” He developed an unmanageable appetite for books. A credulous law student believed that “in addition to all his professional reading, Mr. Herndon read every year more new books in history, pedagogy, medicine, theology, and general literature, than all the teachers, doctors, and ministers in Springfield put together.” On his shelves were authors almost unknown in the Mississippi Valley—Kant, Renan, Fichte, Buckle, Froude. Perhaps he did not always understand what he read, but he learned enough to become a kind of frontier evangelist for transcendentalism, that Emersonian faith that the questioning heart could, without mediation of religion or authority, discern truth. He prided himself on his “mud instinct,” his “dog sagacity,” which enabled him to see “to the gizzard” of questions. What he saw encouraged
him to believe in illimitable progress, and he greeted the unseen with a cheer: “The Struggles of this age and succeeding ages for God and man—Religion—Humanity and
Liberty
... may they triumph and Conquer forever, is my ardent wish and most fervent soul-prayer.”

He and Lincoln were in almost every way exact opposites. Lincoln was tall, slow-moving, and careless in dress; Herndon was short, quick, and something of a dandy, affecting patent-leather shoes and kid gloves. Lincoln was melancholy, his depressed moods interrupted by outbursts of antic humor; Herndon was always upbeat and optimistic, and he had no sense of humor at all. The senior partner disliked generalities, and his mind cautiously moved in logical progression from one fact to the next, while his junior leapt ahead, using intuition to arrive at his conclusions.

Once when Herndon urged his partner to talk faster and with more energy when addressing a jury, Lincoln replied by graphically illustrating the difference between his mind and his partner’s. “Give me your woman’s little knife with its short twin blades, and give me that old jack knife lieing [sic] over there,” he told Herndon. Then he opened the short blades of the small knife and said: “See here it opens quickly and at the point travels through but a small portion of space—but see this long bladed jack knife: it opens slowly and its points travel through a greater distance of space than your little knife: it moves slower than your little knife, but it can do more execution.” “Just so with these long convolutions of my brain,” Lincoln added; “they have to act slowly—pass as it were through a greater space than shorter convolutions that snap off quickly I am compelled by nature to speak slowly. I commence way back like the boys do when they want to get a good start. My weight and speed get momentum to jump far.”

The new partners occupied a room in the Tinsley Building, and Herndon took the lead in buying desks, a table, and some basic books, at a cost of $168.65, half of which was charged to his partner. It remained wretchedly bare. Gibson W. Harris, a student in the law office, described it: “The furniture, somewhat dilapidated, consisted of one small desk and a table, a sofa or lounge with a raised head at one end, and a half-dozen plain wooden chairs. The floor was never scrubbed.... Over the desk a few shelves had been enclosed; this was the office bookcase holding a set of Blackstone, Kent’s Commentaries, Chitty’s Pleadings, and a few other books.”

At the outset it was not an equal partnership. Lincoln interviewed most of the clients, wrote the important legal papers, and pleaded the suits in court. Herndon, still the student and the learner, performed routine jobs; he answered inquiries as to Lincoln’s whereabouts or “
‘toated books’
and
’hunted up authorities’”
for the senior partner’s use. It was also his responsibility to manage the office, preserve the records, and keep the files straight. As Lincoln later told Henry C. Whitney, a fellow lawyer in Urbana, he supposed that Herndon “had system and would keep things in order.”

His hope was misplaced, for Herndon was not an orderly person. It is doubtful, though, that anyone could have kept Lincoln’s papers in order.
The firm had no filing cabinets and no files. In one corner of the office was a bundle of papers with a note in Lincoln’s handwriting: “When you can’t find it anywhere else, look in this.” Herndon sometimes took legal papers home, where they were lost. Lincoln frequently stuck documents and correspondence in his stovepipe hat, which Herndon said was “his desk and his memorandum-book.” As a result the partners were constantly looking for misplaced letters and documents, and there were times when they had to confess frankly that papers sent them were “lost or destroyed and cannot be found after search among the papers of Lincoln & Herndon.”

Lincon’s name drew clients to the new firm, and soon the partners had as much business as they could well manage. They appeared in their first case in the Sangamon County Circuit Court in March 1845, and their first suit in neighboring Menard County was called in May of the same year. During the first twelve months of the partnership, the firm had fourteen cases in the circuit court at Springfield; the following year the partners handled more than twice as many. The Lincoln & Herndon fee book for 1847 listed over one hundred cases in which Lincoln participated before he left in October to serve in Congress.

Like most other attorneys, Lincoln and Herndon took on whatever clients came their way. They defended persons charged with murder, burglary, assault, embezzlement, and almost every other kind of crime. Sometimes their clients were innocent and sometimes they were guilty, but the partners felt that all were entitled to be represented. Nor was Lincoln squeamish about the social implications of the cases that he argued. In 1841 he appeared before the Illinois Supreme Court in the case of
Bailey
v.
Cromwell,
which concerned the attempted sale of a young black woman, Nance, in Tazewell County. The court followed his reasoning in ruling: “the presumption of law was, in this State, that every person was free, without regard to color.... The sale of a free person is illegal.” But six years later he appeared for Robert Matson, who was trying to recover his runaway slaves in Coles County. Matson had brought his Kentucky slaves across the Ohio River to work on his farm in southern Illinois. When the slaves ran away and, with the backing of local abolitionists, brought suit for their freedom, on the ground that the Northwest Ordinance forbade the introduction of slavery into the state of Illinois, Matson employed Lincoln, along with Usher F. Linder, to defend him. Characteristically Lincoln admitted his opponents’ main argument, that the slaves were free if Matson had brought them to Illinois for permanent settlement, but he invoked the right of transit, which the courts had guaranteed to slaveholders who were taking their slaves temporarily into free territory. He placed great stress on Matson’s public declaration, at the time he brought the slaves into Illinois, that he did not intend the slaves to remain permanently in Illinois and insisted that “no counter statement had ever been made publicly or privately by him.” The circuit court ruled against Lincoln and his client, who, it was reported, left immediately for Kentucky without paying his attorneys’ fees. Neither the
Matson case nor the Cromwell case should be taken as an indication of Lincoln’s views on slavery; his business was law, not morality.

The partners’ fees remained small. An appearance before a justice of the peace cost $5, and the usual fee for representing a client in the circuit court ranged from $10 to $25. In a very few cases of special difficulty the firm charged $50, and on one occasion an appearance before the Illinois Supreme Court brought $100. Lincoln believed strongly in making explicit financial arrangements before entering into a case. “The matter of fees,” he noted in his projected lecture to young lawyers, “is important far beyond the mere question of bread and butter involved.” Occasionally he took on a case for a contingency fee. If the client was willing to risk the cost, he promised in one letter, “I will do my best for the ‘biggest kind of a fee’... if we succeed, and nothing if we fail.” But for the most part he worked for fixed and agreed-upon fees, and he advised young lawyers not to take more than a small retainer in advance, lest they lose incentive and interest. He did not hesitate to dun a client: “I would like to have the little fee in the case, if convenient.” He disliked suing for fees, but on at least six occasions he felt obliged to do so.

Despite differences in age and experience, the partners divided all income equally; Lincoln imitated the generosity that Stuart had shown him rather than the niggardliness that Logan had practiced. After the first few months the partners kept no systematic accounts, simply dividing equally the fees they received. As Lincoln told Whitney: “Billy and I never had the scratch of a pen between us;
we jest
divide as we go along.” But Herndon did keep a record of cases in which the fees due to the partners were not immediately collected, carefully marking them “Paid” as the money was received.

No amount of industry or care could earn a lawyer a satisfactory income from practice in Sangamon County alone. Most Springfield attorneys who were not independently wealthy felt obliged to travel with the judge of the circuit court when he made, twice every year, his pilgrimage from one county seat to another in his district. The vast Eighth Circuit, which eventually encompassed 11,000 square miles, stretched across two-thirds of the width of the state and one-third of its length. Both Stuart and Logan regularly traveled at least part of the circuit; even Herndon, who disliked the migratory life and preferred to remain in Springfield, estimated that he was on the circuit about one-fourth of the time. Lincoln, who had only occasionally attended courts in neighboring counties during the first years of his practice, became one of the most regular riders of the circuit.

The judge and the more affluent lawyers traveled the circuit in buggies, but Lincoln in the early days rode his rather decrepit horse, “Old Tom,”
carrying a change of underclothing, any necessary legal papers, and perhaps a book or two in his capacious saddlebags. When he could afford it, he had a local blacksmith make him a nondescript buggy. The countryside through which the procession traveled was sparsely inhabited, and they could go for miles without seeing another human. The caravan could usually travel only about four miles an hour, because the roads were atrocious. Most were little more than trails, and when the heavy black loam of the Illinois prairie began to thaw in the spring, it became fathomless mud, dangerous not merely to carriages but to horseback riders as well. Many streams had no bridges, and the judge often asked Lincoln, who had the longest legs of any member of the bar, to explore for a ford; if Lincoln could get over, the others would follow.