including Jesse Thomas (whom Lincoln had famously “skinned”) and Lincoln’s perennial foe Stephen A. Douglas. The murder resulted from a power struggle within the state Democratic Party. In 1837, Douglas seized leadership of the state party from former boss William L. May. At the party’s convention, a committee of Douglas supporters, including Jacob Early, dismissed May’s son-in-law Henry B. Truett as register of the land office in Galena. In March 1838, Truett took revenge against Early. While Early was sitting in a hotel parlor, Truett talked with William Ewing, who was walking out of the hotel. Evidently, Ewing provided information about Early that angered Truett. Armed with a pistol, Truett approached Early and charged him with being involved in the land office decision. Early replied that he would say nothing unless Truett revealed his source, at which point Truett yelled vehemently at Early, calling him a “damned liar,” “damned coward,” “damned scoundrel,” and the like.120 When Truett pulled out his pistol, Early rose and picked up a chair. Truett circled him and, when Early stumbled, shot him. Early died three days later, and Truett was charged with murder. The judge in the trial was Jesse Thomas, who appointed Stephen Douglas to the prosecuting team. The defense lawyers included Lincoln and Stuart, with the assistance of Edward Baker. Though Truett seemed clearly guilty, Lincoln won the case by arguing that Truett was defending himself from an attack by the chair-wielding Early. Lincoln’s friend Dr. Elias Merryman and his future brother-in-law Dr. William Wallace provided medical evidence. Douglas’s prosecution team performed listlessly at the trial, and Truett walked free.
Lincoln’s murder cases taught him how cases such as Truett’s could be evaluated rationally through the careful marshaling of evidence. “When I have a particular case in hand,” he explained, “I . . . love to dig up the question by the roots and hold it up and dry it before the fires of the mind.”121 Herndon, who knew as much about Lincoln’s law practice as anyone, identified reason as Lincoln’s chief trait. Herndon wrote, “His reason ruled despotically all other faculties and qualities of his mind. His conscience and heart were ruled by it. His conscience was ruled by one faculty—reason. His heart was ruled by two faculties—reason and conscience.”122
Lincoln’s rationality was visible in his public telling of a famous murder trial he was involved with, one that his lawyer friend James Matheny called “probably the most remarkable trial that ever took place in Springfield, and beyond a doubt one of the most dramatic trials that ever took place in the whole county.”123 People v. Trailor & Trailor is the only murder case where we have lengthy records by Lincoln, who described the case in detail in a letter to Joshua Speed and in an 1846 newspaper story, “Remarkable Case of Arrest for Murder.”124
This was the kind of case that popular sensational writers of the day feasted on. Three Trailor brothers—Archibald, Henry, and William—had accompanied Archibald Fisher from Clary’s Grove to Springfield. Somewhere on the journey Fisher disappeared. Later, in a coerced confession, Henry Trailor told authorities that his brothers had murdered and robbed Fisher, dumping his corpse into a pond. Search parties drained the pond, dug up fresh graves, and scoured the countryside but failed to find the body. Archibald and William Trailor were tried for murder, with Lincoln on their defense team. During the trial, Dr. Robert Gilmore testified that the mentally challenged Fisher, ill and dazed, was actually at his home. The accused murderers were freed, and soon thereafter Fisher arrived in Springfield.
In his newspaper write-up, Lincoln used the case to warn of the dangers of emotionalism in assessing alleged criminality. Several times in his narrative Lincoln describes the rising excitement of Springfield residents who, carried away by their feelings, were ready to rush to judgment. When the story of the Trailors’ alleged guilt became known, Lincoln writes, “excitement became universal and intense.”125 When further evidence of their guilt surfaced, “excitement rose to an almost inconceivable height.” Lincoln saw that the public thirsted for a guilty verdict and an execution. As he wrote Speed, when it was revealed that Fisher was living, “Some looked quizical, some melancholly, and some furiously angry.” The man who had led the search for Fisher’s body “looked most awfully wo-begone; he seemed the ‘wictim of hun-requited haffection’ as represented in the comic almanic [sic] we used to laugh over,” while another member of the search party “said it was too damned bad, to have so much trouble, and no hanging after all.”
Lincoln here parodies the disappointment of sensation lovers by quoting from a comic almanac of the sort that abounded in sensation. He noted, “Thus ended this strange affair; and while it is readily conceived that a writer of novels could bring a story to a more perfect climax, it may well be doubted, whether a stranger affair ever really occurred.” For Lincoln, the Trailor case underscored the need for careful examination of evidence, which here prevented two people from being wrongly sent to the gallows.
Mob passions of the sort that he witnessed in the Trailor case, if repeated on a large scale, threatened to cast both the innocent and the guilty into a whirlpool of anarchy. As he had stated in the 1838 Springfield Lyceum address, “the innocent, those who have ever set their faces against violations of law in every shape, alike with the guilty, fall victims to the ravages of mob law; and thus it goes on, step by step, till all the walls erected for the defence of the persons and property of individuals, are trodden down, and disregarded.”126 The end result, he insisted, was the “total annihilation” of government and the rise of tyranny.
Lincoln witnessed the perils of mob law up close in his law practice. Thomas Delny, suspected of raping a seven-year-old girl, was hauled to a river by a mob that tied a rope around his neck and fixed it to a heavy weight with the aim of drowning him; he escaped death only by confessing to the crime before the mob and begging for a fair trial, which he got, with Lincoln serving as the chief prosecutor, and was found guilty.127 Henry B. Truett, whom Lincoln had successfully defended for the alleged murder of Jacob Early, had nearly been lynched by aroused citizens around the time of the killing. Duff Armstrong came close to being lynched while awaiting trial in jail. The evidence against Armstrong seemed so strong that the public saw him as “as a fiend of the most horrible hue.” Rumors of his past immoral behavior came to be accepted as “gospel truth, and a feverish desire for vengeance seized upon the infatuated populace, whilst only prison-bars prevented a horrible death at the hands of a mob.”128
Lincoln’s brilliant defense of Armstrong, reported nationwide during his presidential run in 1860 and later immortalized in John Ford’s film Young Mr. Lincoln (in which Lincoln faces down a lynch mob, then goes on to win freedom for his client), shows that his courtroom success came not only from applying reason and assembling scientific evidence but also from appealing to domestic feelings of the sort popularized by sentimental genres of the day. He cleverly used natural science to dismantle the testimony of the prosecution’s chief witness, James Allen, who claimed to have seen Armstrong strike Metzker with a slung-shot (a heavy, leather-wrapped lead ball attached to a cord). When asked how he could see Armstrong at night from 150 feet away, Allen declared that the moon was high and bright, giving him a clear view of the crime. Having committed Allen to this story, Lincoln entered as evidence an almanac that, as he later demonstrated to the court, showed that the moon at the time was, in fact, on the horizon and emitted little light. Allen looked like a perjurer—even more so when later testimony revealed that Nelson Watkins, Armstrong’s cousin, owned the slung-shot and had it in his pocket that night.
In his summation to the jury, Lincoln made devastating use of these facts while putting on a masterly sentimental performance. The prosecuting attorney, J. Henry Shaw, recalled He told the jury of his once being a poor, friendless boy; that [Duff] Armstrong’s parents took him into their house, fed and clothed him, and gave him a home. There were tears in his eyes as he spoke. The sight of his tall, quivering frame, and the particulars of the story he so pathetically told, moved the jury to tears also, and they forgot the guilt of the defendant in their admiration of his advocate. It was the most touching scene I ever witnessed.129
Lincoln made no mention here of his historic “wrassle” with Duff’s father, which had initiated him into the Clary’s Grove Boys’ violent culture, nor of Duff’s own rowdy history. Also, he had strategically confined his direct examination of Nelson Watkins to the slung-shot issue, ignoring any further knowledge Watkins might have had (in fact, Watkins had seen Duff strike Metzker with a wagon hammer). Instead, he conjured up a time when Duff’s parents had taken him, a “poor friendless boy,” into their home. Newspapers reported that he appealed to the jurors “as fathers of sons who might become fatherless, and husbands of wives who might be widowed,” drawing tears from many who were present, including Duff’s mother, who sobbed under a sunbonnet that hid her face.
If Lincoln combined sentimentality with science in the Armstrong trial, he mixed it with patriotic paeans to the founding fathers in another of his famous performances, his defense of a Revolutionary War widow in Rebecca Thomas v. Erastus Wright.
Reimagining the Revolutionary War was a major strain in popular culture, from Parson Weems’s semifictional biographies of Washington and Franklin through Walt Whitman’s tale “The Last of the Sacred Army” to bestsellers of the 1840s and ’50s, such as George Lippard’s Legends of the American Revolution and Joel Tyler Headley’s Washington and His Generals. These works not only revisited history; in some cases, they made it. For instance, Lippard’s legend that the Liberty Bell was rung shortly after a group signing of the Declaration of Independence on July 4, 1776, was reprinted as fact in schoolbooks until the early twentieth century. (Actually, the Declaration was approved by Congress on July 4 but probably was not signed until August 2, 1776, and the Liberty Bell may have been among the bells rung on July 8, not July 4.) Such legends resurrected the democratic past with an eye to critiquing what was regarded as the undemocratic American present, when an oppressive ruling class allegedly cheated the humble working class.
Lincoln tapped into this subversive-patriotic strain in his defense of Rebecca Thomas, who, he argued, had been overcharged for winning a pension by the agent Erastus Wright. If in the Duff Armstrong trial Lincoln performed emotionally in order to draw tears, in this trial he poured forth righteous anger. His jottings for his speech to the jury included notes about the Revolution that would be worthy of one of Lippard’s legends: “Not professional services.—Unreasonable charge . . . —Revolutionary War.—Describe Valley Forge privations.—Ice—Soldier’s bleeding feet.—Pl[ainti]ffs husband.—Soldier leaving home for army.”130 The “bleeding feet” and “privations” of soldiers had little to do with the legal problem at hand, but Lincoln, like Lippard, Whitman, and Headley, knew well how to push patriotic buttons for emotional effect. He won the case for the widow.
How does his rhetorical use of culturally popular themes jibe with his mandate that lawyers must be honest? Lincoln’s job as a lawyer was to make his case as persuasively as possible, using whatever tools he had. There was a time when some maintained that Lincoln would not defend bad people or ones with unsavory claims.131 It is wrong, however, to pretend that Lincoln only defended clients he believed in. Had he done so, he would have violated due process, based on the bedrock principle of innocent until proven guilty. The United States was founded on the powerful version of presumed innocence affirmed by Blackstone, who wrote, “It is better that ten guilty persons escape than that one innocent suffer”132—a formula magnified by America’s founders, such as Franklin (“[I]t is better 100 guilty Persons should escape than that one innocent Person should suffer”)133 and John Adams (“It’s of more importance to community, that innocence should be protected, than it is, that guilt be punished.)”134 The guilt of alleged murderers such as Henry Truett and Duff Armstrong had to be proved by evidence presented in court. As we know, such evidence doesn’t always assure victory, as in cases where venue can be a deciding factor in a jury’s decision. Nonetheless, it is up to a lawyer to request a change of venue, as Lincoln wisely did in the Armstrong case. Sometimes a lawyer profits from a lackluster performance by the opposing side, as in the Truett trial. And sometimes the unexpected happens, as when Fisher turned up alive.
Part of due process, as practiced in the United States, is understanding both sides of a case: seeing issues in a nuanced way and anticipating objections by examining the opponent’s argument. Lincoln was especially skillful in this regard. He told a fellow lawyer that “he habitually studied the opposite side of every disputed question, of every law case, of every political issue, more exhaustively, if possible, than his own side. He said that the result had been that in all his long practice at the bar he had never once been surprised in court by the strength of his adversary’s case—often finding it much weaker than he had feared.”135 The sheer volume and variety of his law practice expanded his vision notably.
Part of this expansion resulted from the fact that he often partnered with lawyers who at other times opposed him in court. For example, after he left John Stuart, with whom he had served as cocounsel on 487 cases, he challenged him in court 308 times.136 The balance with his next partner, Stephen T. Logan, was 667 cases with him and 306 against him. Of the nearly 1,500 cases in which he participated with his third partner, William Herndon, he challenged Herndon 15 times. He faced off against his close friend Edward Baker, after whom he named his second son, in 72 percent of 178 cases—about the same percentage of times he opposed another close friend, James Matheny, in the 87 cases they were both involved in. Ward Hill Lamon, later Lincoln’s bodyguard and his appointee as the marshal of the District of Columbia, took the opposing side 4 out of 158 times. Lincoln even worked on both sides with the lawyer who became his political nemesis, Stephen A. Douglas. The two teamed up on 3 cases and opposed each other in 28 cases.
SEEING BOTH SIDES
If serving as both cocounsel and adversary was revealing, so was taking different sides in different situations. There were few sides in the law that Lincoln did not defend in the more than 5,000 documented cases he participated in during his two-plus decades as an attorney. Of the 133 railroad cases that he and his partners took on, he defended railroad companies 71 times and opposed them 62 times. His flexibility on the temperance question was reflected in the fact that he took the side of the liquor dealers in 32 cases but defended prohibition or temperance in 7 cases. In cases of spousal disagreement, mostly he represented abused wives, but he also defended a number of men taken to court by their wives.
The latter topic was something of a special case for Lincoln. As a lawyer supporting a growing family and working in a competitive field, he took on a number of cases in which he defended husbands accused of misbehavior, among them a man whose wife charged him with giving her venereal disease, another who was a drunkard who consorted with prostitutes, a third who was
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