Lincoln (31 page)

Then, because Willie needed a playmate, Mary in 1853 gave birth to a fourth child. The Lincolns had hoped this time for a girl, but they were soon reconciled to accepting another boy, whom they named Thomas after his recently deceased grandfather. The choice of the name suggested that Abraham Lincoln’s memories of his father were not all unpleasant—and perhaps it hinted at guilt for not having attended his funeral. The infant was born with an unusually large head, as compared to his tiny body, and Lincoln playfully called him a little tadpole. The nickname “Tad” stuck to him for the rest of his life.

The careful two-and-a-half-year intervals between the births of the Lincoln children suggested that the parents were using some form of birth control. Doubtless they relied in part on the widespread belief that conception could not take place so long as the mother was nursing, for Mary Lincoln did not wean her babies until after they were eighteen months old. After the birth of Tad, it may have been impossible for her to have additional children. The delivery had been difficult, perhaps because of the size of the infant’s head, and it left Mary for the rest of her life as “more or less a sufferer” from what she called, with Victorian propriety, troubles “of a womanly nature.”

By the mid-1850s the nature of Lincoln’s law practice was gradually changing. He continued to have numerous cases with small fees and less consequence, but increasingly his time was taken up with suits relating to the railroad network that began to spread across the state. Wherever railroads ran, there were legal problems—problems concerning charters and franchises; problems relating to right-of-way; problems concerning evaluation and taxation; problems relating to the duties of common carriers and the rights of passengers; problems concerning merger, consolidation, and receivership—and Lincoln, like other lawyers, found the ensuing litigation a major source of income.

Long an advocate of improved transportation as the key to economic development, Lincoln took on his first significant railroad case in 1851 for
the Alton & Sangamon Railroad, which he considered “a link in the great chain of railroad communication which shall unite Boston and New York with the Mississippi.” The suit arose when one of the original subscribers to the stock of the railroad, James A. Barret, who owned land in western Sangamon County, refused to pay the balance due on his pledge in order to protest a change in the planned route of the road. When he had subscribed for his thirty shares, it was to go by his 4,215 acres, which consequently would greatly increase in value, but a shift in the route, designed to cut off twelve miles in the length of the road, meant that he would derive no direct benefit from the construction. Employing Lincoln, the railroad sued for payment of Barret’s pledge. Everyone realized the case was important because, as Lincoln said, if Barret won, it “might encourage others to stop payments” on their subscriptions. Lincoln took extraordinary pains to construct an airtight case for his client, designed to prove that Barret was indeed a stockholder and that the Alton & Sangamon Railroad had the right to sue for his delinquent payment. In frequent correspondence with officials of the railroad both in New York and in Alton, Lincoln insisted that they provide full documentation to support his brief, noting, “I have labored hard to find the law” that applied to cases like this. The Illinois Supreme Court accepted his argument, and Chief Justice Samuel Treat agreed that a “few obstinate stockholders should not be permitted to deprive the public and the company of the advantages that will result from a superior and less expensive route.” The decision, subsequently cited in twenty-five other cases throughout the United States, helped establish the principle that corporation charters could be amended in the public interest, and it established Lincoln as one of the most prominent and successful Illinois practitioners of railroad law.

The following year he made his first appearances for the powerful Illinois Central Railroad, which was designed to connect Chicago with Mobile and the Gulf of Mexico. Participation in two minor cases whetted his desire to participate in larger litigation involving the railroad. When the state chartered the Illinois Central, it had granted an exemption from all taxation, provided the company paid the state treasury an annual “charter tax.” Dissatisfied with this arrangement, the officials of McLean County argued that the state had no right to exempt the railroad from county taxes, and they levied a tax on its real estate within that county. The Illinois Central resisted, because paying county taxes in addition to the state charter tax would practically have forced it out of business. The resulting suit, Lincoln recognized, was “the largest law question that now can be got up in the State,” and he wanted to be a party to it on one side or the other. He first approached the officials of Champaign County, who were contemplating a suit like the one in McLean, and when they did not respond, he wrote the solicitor for the Illinois Central: “I am now free to make an engagement for the Road; and if you think fit you may ‘count me in.’” He received a retainer of $250.

The Illinois Supreme Court heard the case of
Illinois Central Railroad
v.
The County of McLean
in its spring 1854 term, with Lincoln’s two former partners, Logan and Stuart, representing the county. Lincoln and James F. Joy, the railroad’s attorney, appeared for the Illinois Central. Lincoln and Herndon prepared for the case very carefully. Drawing on Herndon’s research, Lincoln developed a brief maintaining that the legislature had been constitutionally competent when it exempted the railroad property from local taxation, and he cited in support of his argument previous court decisions in New Jersey, Illinois, Maryland, Alabama, Indiana, Mississippi, and South Carolina.

Neither the plaintiff nor the defendant convinced the Illinois Supreme Court, which required a further hearing on the constitutionality of the legislative exemption, and the case was reargued at the December 1855 term. The court’s decision, delivered in January 1856, completely accepted Lincoln’s argument, citing, for the most part, precedents that Herndon had supplied.

The case was a major one, and, according to Herndon, Lincoln initially asked the Illinois Central for a fee of $2,000. “This is as much as Daniel Webster himself would have charged,” railroad officials huffed. “We cannot allow such a claim.” After consulting with six other prominent Illinois attorneys, Lincoln submitted a revised bill for $5,000, and when the railroad, short of funds, failed to pay, he brought suit. At the hearing before David Davis in McLean County, Lincoln argued his own case, pointing out that his fee was not unreasonable. Had the decision gone the other way, the railroad company would have had to pay out half a million dollars a year in local taxes. The court promptly returned a verdict in his favor, and he divided $5,000—less the $250 already received as a retainer—equally with Herndon. The action did not interrupt his amicable relationship with the Illinois Central Railroad, which he continued to represent in numerous subsequent cases.

Lincoln was also involved in another type of suit involving railroads—the inevitable litigation that arose when the bridges built to carry the trains interfered with navigation on the streams they crossed. Personally Lincoln saw merit on both sides of the dispute. As an old riverboat man, he had always favored water transportation, and as recently as 1848, on his return trip from Congress, he grew so interested in the problems encountered by vessels on the Great Lakes that he invented and patented a device using “adjustable buoyant chambers” to lift steamers over shoals. But he also had been, from his earliest days in the state legislature, a supporter of railroads as the key agent for economic growth.

When suits arose between railroad and steamboat interests, Lincoln represented the side that engaged his services. In 1851 he appeared in the United States Circuit Court on behalf of the plaintiff in the important Peoria bridge case (technically
Columbus Insurance Co.
v.
Curtenius et al.),
which arose after a canal boat struck a railroad bridge across the Illinois River and
sank. The boat was insured by the Columbus Insurance Company, which sued the bridge builders for damages. The defendants countered that construction had been authorized by the state legislature. In his argument Lincoln challenged “the power of a state to authorize a total obstruction of a navigable stream running within its territorial limits,” and Judge Thomas Drummond agreed that navigation of the Illinois River must “ever remain free, clear and uninterrupted.” The trial, to determine whether the bridge in fact constituted an obstruction to navigation, resulted in a hung jury, and the case was finally settled out of court.

In 1857, Lincoln appeared on the opposite side of a quite similar case. In the
Effie Afton
case (as
Hurd
v.
Rock Island Bridge Co.
was generally known) he represented the railroad interests. The Rock Island Bridge Company had built the first bridge across the Mississippi River, to carry the tracks of the Chicago, Rock Island & Pacific Railroad. When the steamboat
Effie Afton
ran into one of its piers, was set on fire, and burned up, its owner, John S. Hurd, sued the bridge company. This landmark case pitted St. Louis and the river interests, which supported Hurd and free navigation on the inland waterways, against Chicago and its railroad interests, which required bridges to complete the rail network. Consequently the case attracted some of the best legal talent in the West. In preparation for the trial, which was held in the United States District Court in Chicago, Lincoln made a visit to Rock Island, where he carefully inspected the rebuilt bridge, measured the currents in the river, and interviewed riverboat men. In the trial he was able to argue, on the basis of his firsthand observation as well as his own experience as a pilot, that the
Effie Afton
crashed into the bridge pier not because it was an obstruction to traffic but because the steamer’s starboard paddle wheel failed. Not content with technical arguments, he also put the case in a broader context of national economic development. Paying tribute to the importance of river transportation, he stressed that there was “a travel from East to West, whose demands are not less important than that of the river.” To this East-West railroad connection he attributed “the astonishing growth of Illinois, having grown within his memory to a population of a million and a half,... [of] Iowa and the other young and rising communities of the Northwest.” In the end, the jury in the case was deadlocked, and the court dismissed the case, in what amounted to a victory for the railroad.

In these railroad cases Lincoln acted on behalf of his clients. Unlike some of his great contemporaries at the bar, such as Rufus Choate of Massachusetts and David Dudley Field of New York, he had no consistent legal philosophy that he sought to push, nor did he leave behind him a record of cases that made a major contribution to the development of American legal thought. He sometimes argued for the railroads and sometimes represented their opponents, just as, in a different context, he had appeared both to secure the freedom of the African-American girl Nance and to return the Matson slaves into bondage. He was, as Herndon said accurately but with undeserved censure, “purely and entirely a case lawyer.”

In addition to greatly increasing Lincoln’s income, the coming of the railroads made a great difference in his family life. Up through 1853 his semiannual trips around the Eighth Judicial Circuit kept him away from home for weeks at a time. In 1851, for instance, he was absent from Springfield from April 2 until June 4. But with the spread of the rail network, it became possible for him to come home weekends, while keeping his full load of cases in the circuit courts. In April 1855, for example, he began the circuit as usual, in Logan and McLean counties, but he returned to Springfield on April 21; then he attended court at Metamora for three days but came back to Springfield for the weekend.

He could now devote more time to the needs of his family. After the death of one child and the birth of two others, Mary was not in good physical or emotional shape, and she needed frequent reassurance and support from her husband. When he was away, she often felt threatened—once she panicked when an old bearded umbrella-mender knocked at her door—and was at times on the edge of hysteria. After she learned that the maid was allowing a man to sneak into her bedroom at night, she was in an agony of fear and pitifully begged a neighbor, James Gourley, to protect her. “Mr Gourley—come—do come and stay with me all night—You can sleep in the bed with Bob and I.” The invitation did not necessarily have sexual implications; the Lincolns still had only one bed for grownups.

Even when Lincoln was at home, his wife’s behavior was unpredictable. Weeks of quiet family life could go by, with pleasant meals and long evenings of reading together by the fire. Naturally cheerful and lively, Mary would entertain her husband with accounts of the latest novel she was reading—he did not read fiction—with neighborhood gossip, and with speculation about politics, in which she retained a lively, if unladylike, interest. She was capable of great generosity and kindness toward her neighbors. Shortly after Tad’s birth, when young Mrs. Charles Dallman was sick and unable to nurse her newborn infant, Mary breast-fed that baby along with her own. When she was feeling well, there would be parties and games for the Lincoln children. She could rarely entertain guests for dinner, because even after she created a dining room by partitioning off part of the kitchen, no more than six people could comfortably sit at her table; but she delighted in having sociables and strawberry parties. Then something would trigger her temper. Perhaps she was simply bored by being cooped up in a tiny house much too small for her growing family. Perhaps she was affected by the mental instability that was evident in several other members of her family. At any rate, she sometimes unpredictably flew off the handle at her husband. On one occasion, as Springfield gossip remembered years later, she chased him out of the house and down the street with a butcher knife—or maybe it was a broomstick—in her hand.