II. Income From the Law
I have news from Ottawa that we win our Gallatin and Saline county case. As the Dutch justice said when he mar|ried folks, "Now vere ish my hundred tollars?"
LINCOLN TO ANDREW McCALLAN, July 4, 1851.
THE matter of fees is important," wrote Lincoln, "far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid be|forehand, you are more than a common mortal if you can feel the same interest in the case, as if something were still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note—at least not before the consideration service is performed. It leads to negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the con|sideration to fail."1
In a study of the fees received by Lincoln as a lawyer, one should remember that wealth was not the goal of his ambition. He was frank to admit that he knew nothing about money, saying that he never had enough of it to fret him.2 Acquisition of lands and property occupied a minor place among his incentives to action.
Page 26"Hard fare, small fees, and little of reputation among a limited clientage were in most cases the first fruits" of a beginning lawyer in Illinois in the '30s.3 For Lincoln, however, the beginning of his prac|tice was not too hard, because he took the place of a good lawyer, Henry E. Dummer, in one of the two leading law firms in Springfield. Clients were many, and within a few months the work of the firm of Stuart & Lincoln fell principally to the junior partner, while Stuart conducted his campaign for Congress against Stephen A. Douglas.
To determine the amount of all Lincoln's fees or his total income in any one year is practically impossible, but from the fee book of Stuart & Lincoln it is possible to ascertain the amounts of the fees which they customarily charged. This book was retained by Lincoln when his partnership with John Todd Stuart ended. Either purposely or by oversight, he left it in the office of Lincoln & Herndon when he went to Washington in 1861. Here it remained through several changes in partnership until April, 1877, when William H. Herndon quit the practice of law, dissolving the firm of Herndon & Orendorff. The book then became the property of Alfred Orendorff, who had been associated with Herndon for ten years. Upon his death it passed to his daughter, Mrs. Edna Orendorff Macpherson, who has permitted it to be used in this study.
Although only some of the cases handled during the four year part|nership are listed, the Stuart & Lincoln fee book gives a good indication of the fees which were charged. Here, for example, is one page, all in Lincoln's handwriting:
- E. C. Ross To Stuart & Lincoln Dr.
- 1837—April—To attendance at trial of right of J. F. Davis property before Moffett $5.00
- Mather, Lamb & Co. To Stuart & Lincoln Dr.
- 1837—April—To attendance at trial of right of J. F. Davis property before Moffett $5.00
- Page 27Lucinda Mason To Stuart & Lincoln Dr.
- 1837—Oct—To obtaining assignment of Dower $5.00
- Wiley & Wood To Stuart & Lincoln Dr.
- 1837-8 To defence of Chancery case of Ely $50.00
- Credit by coat to Stuart 15.00
- Peyton L. Harrison $35.00
- To Stuart & Lincoln Dr.
- 1838—March— To case with Dickinson $10.00
- Allen & Stone To Stuart & Lincoln Dr.
- 1838—Oct To case with Centre $2.50
The fees just listed were either for office work or for cases tried before justices of the peace or in the circuit court, but one of Lincoln's first cases in the Supreme Court indicates that a low level of charges prevailed there also. The case was Cannon v. Kinney, and involved the possession of a sorrel horse worth $65.00. Lincoln, representing the plaintiff, tried it in the Sangamon County Circuit Court, and then won it for his client in the Supreme Court in July, 1841. His fee was $10.00.
Other entries show not only the small fees charged by Stuart & Lin|coln, but also the diversity of their practice. On September 9, 1837, Lincoln wrote to the Third Auditor of the Treasury, submitting proof that his client, Thomas Epperson, had lost a horse in the Black Hawk War and claiming compensation on his behalf. The claim was allowed, whereupon Lincoln wrote in the fee book: "Procuring pay for lost horse for Epperson. Paid and divided $10." At the fall term of the Sangamon County Circuit Court he procured a divorce for Rachel Roll, and was paid $15.00 for his services at the conclusion of the trial. In collection suits, of which there were many after the Panic of 1837, the firm's fees had little relation to the amounts involved. Thus, in one instance, $20.00 was retained for collecting a note for $350, and on another occasion the same fee was charged for collecting $640.53. In a third case—Harrison Page 28v. Taylor & Dickinson—the "fee by agreement" was $10.00 for collect|ing a $500 note. In a forcible detainer case before a justice of peace Lincoln represented Joel Johnson, a Springfield hotel keeper, and noted in the fee book: "Paid Lincoln by board $6.00." In another case the entry reads: "Bad chance for fee $20;" but a later credit indicates that $15.00 was collected and divided. Throughout the book are notations indicating that the partners divided their fees equally.
In addition to fees, the book contains a record of partnership ex|penses. Several payments of fifty cents, and one of $1.25, were for loads of wood. An entry of $2.25 for a "wood-saw" indicates that the junior partner did the sawing, for no payment for sawing wood is recorded. A payment of $8.50 for a stove pipe is the largest single entry under office expense. Office expenses and rent during 1837-40 were offset by the receipt of $108 from Sangamon County for the use of Stuart & Lin|coln's office as a jury room by the circuit court, which met on the first floor of the Hoffman Row building directly below their office.4
Lincoln recorded the expenses of a trip to the Tazewell County Cir|cuit Court at Tremont. The total expense of $21.28½ was made up of "Road expenses $2.82½; Tavern bill $9.00; Horse hire $10.00." Two items in this entry attract attention. First, expenses of circuit travel Page 29 seem to have consumed a large part of Lincoln's fees; and second, he did not own a horse when he began to travel the circuit. Lincoln had advertised a year prior to his removal to Springfield that his horse had strayed away or had been stolen. He described it as "a large bay horse, star in his forehead, plainly marked with harness, supposed to be eight years old; has been shod all around, but is believed to have lost some of his shoes, and trots and paces."5 His offer of a liberal reward had apparently been unavailing.
Stuart attended the courts in the northern counties of the First Cir|cuit in the fall of 1837. From the records available it is believed that Lincoln remained in Springfield. Stuart was then promoting his can|didacy for Congress and perhaps wished to consult the Whig leaders in Tazewell, McLean and Macon counties. Upon his return, he re|corded in the partnership record three cases in the courts of these counties, in two of which he charged $50 and in the other $40.
Lincoln's first important case was the trial of Henry B. Truett, charged with the murder of the Reverend Jacob M. Early, in the Sangamon County Circuit Court in 1838. Truett and Early, both Demo|cratic politicians, but of different factions, quarrelled in the lobby of Spottswood's Rural Hotel in Springfield and Early, who had picked up a chair to defend himself, was shot down by Truett. Truett had only re|cently been appointed Register of the Galena Land Office. The appoint|ment had caused much dissension in the party and a resolution con|demning it had been passed at the Democratic Convention in Peoria in November, 1837. Early was a member of the resolutions committee, and Truett blamed him for the convention's action.6
Truett was apprehended immediately after the shooting and was indicted by the grand jury. Stuart & Lincoln, Stephen T. Logan, Cyrus Walker, and Edward D. Baker, all Whigs, were employed to defend him. The trial, twice continued, was held in October, 1838, and Lin|coln's Page 30 plea to the jury was in part responsible for a verdict of acquittal. Public sentiment was on Lincoln's side; it was hard to obtain a convic|tion for murder in Illinois prior to the Civil War.
William L. May, congressman from central and northern Illinois and the father-in-law of Truett, paid the attorneys for the defense. On March 21, 1838 he gave Stuart & Lincoln a mortgage for $500 on 240 acres in the northern part of Sangamon, now Logan County. On August 22, 1838 Stuart & Lincoln noted on the margin of the record that the mortgage had been satisfied.7
Two sources of income for lawyers in Illinois in the late 1830's and early 1840's were the vast state Internal Improvement System and the State Bank. The bank and its several branches each had an attorney. The parent bank in Springfield paid a salary of $1,200 a year, the branches $600 to $800, or fees according to the number of cases handled. Stephen T. Logan was the parent bank's attorney during the year prior to the beginning of his partnership with Lincoln.
The Internal Improvement System involved a large amount of legal work in the transfer to the state of rights-of-way for the railroads and contracts for materials. Many attorneys received from $400 to $600 a year for services of this kind in 1837-40. Lincoln was a member of the legislature that enacted the law creating the Internal Improvement System but did not profit from it as a lawyer, with the exception of $50 which he received for sitting with the Board of Public Works for a few days in June, 1840, when one-third of claims totalling $330,000 was allowed.8
Although Stuart & Lincoln and Lincoln & Herndon divided their fees equally, such was not the case with Logan & Lincoln. While ab|solute proof is not available, it is the opinion of those who have studied the cases handled by this partnership that Lincoln received only one-third of the fees. Despite his smaller share, Lincoln's income with Page 31 Logan was doubtless considerably increased because approximately one-half of the 213 cases in which he appeared in the Illinois Supreme Court were tried during the three and one-half years of the Logan partnership. Concerning Supreme Court fees, Lincoln wrote:
As to fees it is impossible to establish a rule that will apply in all, or even a great many cases. We believe we are never accused of being unreasonable in this particular; and we would always be easily satisfied, provided we could see the money—but whatever fees we earn at a distance, if not paid before, we have noticed, we never hear of after the work is done. We, therefore, are growing a little sensitive on that point.9
Logan & Lincoln received fees ranging from $10 to $100 in the Supreme Court, depending upon the amount of work involved. Twenty dollars was the average fee in Supreme Court cases during their partner|ship.
The time and effort devoted to collecting some fees is illustrated by the case of Dorman v. Lane, which involved the sale of real estate to satisfy debts against an estate. Lincoln's first contact with the case was a letter received from a Shawneetown lawyer, Samuel D. Marshall, ask|ing him to handle the case in the Supreme Court. Lincoln replied on November 11, 1842, that he had looked into the case, and believed he could get the circuit court ruling reversed. "In the last I may be mis|taken," he wrote, "but I think the case at least worth the experiment, and if Dorman will risk the cost, I will do my best for the 'biggest kind of fee' as you say, if we succeed, and nothing if we fail."10
This was the beginning of a correspondence that extended over the next six years. Lincoln won the case in the Supreme Court in January, 1844, but Lane continued to contest the matter. Lincoln had received a mortgage on 160 acres near Shawneetown to guarantee his fee if he won the case. On April 8, 1853 he gave a quitclaim deed to the land to William Dorman in consideration of the payment of $100, Page 32 thus collecting his fee eleven years after his first examination of the case.11 The story that Lincoln took no fee, but gave his services as a wedding present to the Dormans, as related in Beveridge I, 558, is not borne out by the facts.
Logan & Lincoln, and other Springfield lawyers, found the federal bankruptcy law of 1841 a good source of fees during the period it was in force.12 This law, passed to alleviate the distress caused by the Panic of 1837, was the second of its kind in the history of the United States, and the first to make provision for voluntary bankruptcy. Cases arising from it were not profitable enough to encourage out-of-town lawyers to attend Judge Nathaniel Pope's "Bankruptcy Court" in per|son, so Springfield lawyers were usually retained. In a letter to Garland B. Shelledy, a Paris, Illinois, lawyer, Lincoln wrote that he would take care of Shelledy's bankruptcy cases, saying: "As to the terms, we are willing to attend each case you prepare and send us for $10 (when there shall be no opposition) to be sent in advance, or you know that it is safe."13 Few of the seventy-seven such cases handled by Logan & Lin|coln were contested. Records of the bankruptcy court were burned in the Chicago fire of 1871. However, the law required the publication in the Springfield papers of the preliminary and the final hearings in each case. From these notices it appears that Logan & Lincoln were one of the five leading firms in bankruptcy practice in the state.
Logan & Lincoln occasionally handled cases in counties not in the Eighth Circuit. One such case was the divorce suit of Aquilla Wren v. Clarissa Wren, tried in the Peoria County Circuit Court in March, 1844. Logan represented the defendant at the time the divorce was granted, while Lincoln handled the case when the question of alimony came up at the next term of court. For their fee he drew up a note for $150, which was signed by Clarissa Wren and two sureties, and later paid by Page 33 Amaziah Hart, who married the divorced woman.14 The Wrens had both lived in Springfield, which probably accounts for Logan & Lin|coln's connection with the case.
Lincoln does not appear to have had an extensive practice in the probate court of Sangamon County. Most of the Lincoln papers in the probate files of the county were removed by William H. Herndon, who usually left copies in his unmistakable handwriting, a practice approved by the clerk. The records indicate that five to ten dollars was the aver|age fee of all lawyers of the time in probate matters. A typical receipt given by Lincoln reads: "Received of Moses M. Martin as administrator of the estate of Isaac Martin deceased the sum of seven dollars & fifty cents, in full for services rendered said estate."15 This receipt was dated October 15, 1838.
Herndon was a student in the Logan & Lincoln office when he was appointed administrator of the estate of James Bell, a former partner with Joshua F. Speed in the store of James Bell & Co. Lincoln was em|ployed to handle a court matter for the estate for which he receipted on April 6, 1846, as follows: "Received of William H. Herndon adminis|trator of James Bell deceased five dollars in getting decree to sell real estate."16
The partnership of Logan and Lincoln came to an end in the fall of 1844, and was superseded by that of Lincoln and Herndon, which lasted for the remainder of Lincoln's practice. The statement is often made that the partners kept no office records, merely dividing their fees as they were collected, but the Illinois State Historical Library possesses a Lincoln and Herndon fee book for the years 1845-47. In this, in Hern|don's handwriting, are recorded cases in Springfield, and in the adjoin|ing counties of Christian, Menard, and Logan. The list of cases is known to be incomplete, so it may be assumed that the book contains only those cases in which the fee was not immediately collected. The two extremes Page [unnumbered]
Lincoln was well fitted to perform the service which the record shows he rendered to S. M. Tinsley, owner of a Springfield general store —that of presenting a petition to the legislature and giving legal advice in relation to the petition. No amount for this service is noted in the fee book and the partners may have traded out the fee with Tinsley. On another occasion, when Tinsley tried to collect a bill due his store, Lincoln defended "Sam and old man Poor," charging them $5. In a slander suit, Beaty and wife v. Miller and wife, in which Lincoln ap|peared for the defendants on three occasions in the Sangamon County Circuit Court, the jury found the defendants guilty and assessed dam|ages of $45. Lincoln & Herndon got $10 in cash and a credit of $10 at John Irwin & Co., a store in Springfield. Fees in criminal cases ranged from $5 to $25, determined not by the outcome of the case, but by the ability of the defendant to pay.
Page 36Lincoln asserted his right to fix his fee for services. When George P. Floyd of Quincy sent him $25 for drawing a deed, Lincoln returned $10 to the client. It was not singular that Lincoln returned $10, but that he did not return more, as $5 was the usual fee for drawing a deed. Lin|coln's letter to Floyd, returning the $10, reads:
Springfield, Illinois February 21, 1856
Mr. George P. Floyd Quincy, Illinois.
Dear Sir: I have just received yours of 16th, with check on Flagg & Savage for twenty-five dollars. You must think I am a high-priced man. You are too liberal with your money.
Fifteen dollars is enough for the job. I send you a receipt for fifteen dollars, and return to you a ten-dollar bill.
Yours truly, A. LINCOLN17
Lincoln's letters are evidence of his lack of system as far as records were concerned. The following, written to Herndon soon after his ar|rival in Washington in 1847, is typical of several which have been pre|served:
You may remember that about a year ago a man by the name of Wilson (James Wilson, I think) paid us twenty dollars as an advance fee to attend to a case in the Supreme Court for him, against a Mr. Campbell. . . . When I was at Bloomington last fall, I met a friend of Wilson, who mentioned the subject to me, and induced me to write to Wilson, telling him I would leave the ten dollars with you which had been left with me to pay for making abstracts in the case, so that the case may go on this winter; but I came away, and forgot to do it. What I want now is to send you the money, to be used accordingly, if any one comes on to start the case, or to be retained by you if no one does.18
Fees charged by the lawyers on the Eighth Circuit did not increase greatly from 1839, when this circuit was formed, until the close of Lin|coln's practice. Ten and twenty dollars were the fees most often charged. Lincoln wrote to James F. Joy, attorney for the Illinois Central Rail|road, Page 37 on September 14, 1855, that he had handled fifteen cases for the railroad in the counties of McLean and DeWitt, and that he had con|cluded to lump them off at ten dollars a case. At the bottom of his letter he had Judge Davis certify to the facts, and state that the charge of $150 was very reasonable.19
The amount of work for which Lincoln felt he was entitled to a twenty dollar fee can be illustrated by the assumpsit suit of Lesure & Bliss v. County of Menard. David B. Campbell represented the plain|tiffs, and Lincoln the county. Lincoln's first appearance in this case was at the June, 1843, term of the Menard County Circuit Court, when a change of venue to Sangamon was granted. Soon afterward the plain|tiffs took a non-suit and were granted an appeal to the Supreme Court in November, 1844. Altogether, Lincoln appeared ten times in this case. He received his fee from the County Commissioners' Court of Menard. Their record read: "To A. Lincoln to attending suit vs. Lesure and Bliss through two continuances and on trial hearing $20.00."20
Lesure & Bliss v. County of Menard was perhaps unusual in the amount of work involved for a fee of $20. However, in another case where Lincoln represented the county, Overholt & Squier v. County of Christian, he made special trips to Taylorville to handle the case in Christian, and to Decatur in Macon County where the case was tried a second time, and finally he appeared in the Supreme Court, all for a fee of $50. A contract for the construction of a court house was involved. Lincoln lost the case in the Macon County Circuit Court, but won it in the Supreme Court.21
Small as Lincoln's fees often were in cases on the circuit, they were not always as negligible as some of his associates have indicated. Henry C. Whitney's account of Lincoln's earnings at a special term of the Champaign County Circuit Court in June, 1856, is an example. At the close of the term, said Whitney, Lincoln had collected only $25 or $30. Page 38 "One of our clients owed him $10, which he felt disappointed at not being able to collect; so I gave him a check for that amount. . . . I do not remember to have seen him happier than when he got his little earnings together, being less than $40, as I now recollect it, and had his carpet-bag packed, ready to start home."22
Forty dollars for a term of court is not an impressive sum, and it shrinks to insignificance when one remembers that while he was earn|ing it, Lincoln received 110 votes as a candidate for the Republican vice presidential nomination. But one should also remember that in 1856 Champaign was a thinly populated county with little litigation, that this special term lasted only five days, and that, by Whitney's own statement, the cases which came up were "meagre both in amount and incident, tried usually by the court without the aid of a jury." Doubtless such small returns were not uncommon, but on the whole Lincoln's circuit earnings, at least in the later years of his practice, were larger than Whit|ney's statement indicates.
Lincoln attended the Edgar County Circuit Court for the first time in May, 1842, when he assisted Usher F. Linder in the trial of Samuel Nolan v. John Hunter. He wrote and filed the defendant's demurrer, withdrew it the following day, filed a plea in bar, and assisted two days later in arguing the case before a jury. Hunter had paid Linder $15 and had agreed to pay $5 more if Linder wished to have assistant counsel. Lincoln did all this work in the case because it was his first visit to Paris, the county seat, and he may have had no other business on hand.
Prior to his term in Congress, Lincoln generally attended the ses|sions of the Coles County Circuit Court at Charleston, although Coles was not one of the Eighth Circuit counties. There, in May, 1845, he got a judgment of approximately $200 for Thomas McKibben against Jona|than Hart. He then drew up an order, which McKibben signed, assign|ing $35 of the judgment to himself as a fee. This order he left with the circuit clerk with instructions to give the money, when paid, to his Page 39 father, then living on a farm eight miles southwest of Charleston. John D. Johnston, Lincoln's step-brother, receipted for the money.23
At the close of the April term of the McLean County Circuit Court, 1853, Lincoln gave Kersey H. Fell, a Bloomington attorney, a receipt for $30 for his fees in four cases which he had taken care of during Fell's illness.24
Lincoln and John T. Stuart each received a twenty-five dollar re|tainer in November, 1850, to represent the State of Illinois in the Su|preme Court case of Compher et al. v. The People. The case involved the sureties upon the bond of the Collector of Peoria County. Lincoln and Stuart won their case when the Supreme Court affirmed the judg|ment rendered against the sureties in the Tazewell County Circuit Court. On January 8, 1851, they each received an additional $25 for their services.25
Lincoln was one of six attorneys for the defense in the murder case of the People v. Theodore Anderson and Jane Anderson which occu|pied the Sangamon County Circuit Court for ten days in November, 1856. The defendants were indicted for the slaying of George Ander|son, uncle of Theodore, and husband of Jane. The case, reported in great detail in the local press, affords one of the best examples for the study of trial methods in the last years of Lincoln's practice. Thomas Lewis, one of his fellow attorneys, said that Mrs. Anderson raised $300 and gave $100 each to her lawyers, S. T. Logan, Benjamin S. Edwards and himself. Lewis continued:
Conscious as we were of the innocence of the parties, we offered Abraham Lincoln $25 each, making the fees $75 each. Lincoln accepted. . . . A feeling had sprung up against the woman, and a $200 fee was raised to employ an assist|ant for the prosecution. It was first offered Lincoln, as he told us. He declined. He said he would sooner defend the woman for nothing than prosecute her for $200. There were 150 witnesses in the case . . . with a verdict of acquittal.26
Page 40The trial of Thomas Patterson for murder in the Champaign County Circuit Court in April, 1859, is one of Lincoln's best known cases. Pat|terson was indicted for striking and killing Samuel Dehaven with a two-pound scale weight. Lincoln was assisted in the defense by Whitney, Leonard Swett and W. G. Coler. The plea was self-defense—that Patter|son firmly believed that Dehaven was going to strike him with a spade. The defendant's respectable connections and reputation as a quiet, in|dustrious, bashful, even timid man were emphasized by Lincoln in his final plea. The jury returned a verdict of guilty. Judge David Davis overruled Lincoln's motion for a new trial and sentenced Patterson to three years in the penitentiary. A year later, when he was a candidate for the presidency, Lincoln made a strong and successful plea for a par|don for Patterson.27
Lincoln and Swett each received a $200 fee for defending Patterson. A note for part of this amount—$60—which was yet unpaid, was held by Lincoln at the time of his death. It was collected with interest, in Febru|ary, 1866, by Sheldon & Jaques, lawyers of Champaign, for Judge Davis, the administrator of Lincoln's estate.28
Although Lincoln's fees were small by present-day standards, he had no patience with the clients who sought to evade them. "Lincoln never believed in suing for a fee. If a client would not pay on request he never sought to enforce collection."29 So wrote his partner Herndon. Existing records, however, show six instances in which Lincoln brought suits to collect fees for legal services, and there may have been other suits re|corded in documents now lost or destroyed.30
The first case in which he sued was in DeWitt County in 1841. In the People v. Spencer Turner, tried in 1840 at the May term of the circuit court of DeWitt County, Lincoln, Stephen A. Douglas and Kirby Page [unnumbered]
Lincoln received a ninety-day note for $200 signed by Turner and his brother William, dated the day of the trial. The Turners failed to pay the note. Lincoln brought suit in October, 1841, and got judgment for the amount of the note, interest, and costs against Spencer Turner. William was ordered to show cause at the next term of court why he should not be made a party to the judgment. On Lincoln's motion the case was continued each term until April, 1846, when the court awarded Lincoln judgment for $213.50 and $27.31 costs, which he received, according to the sheriff's record in the execution docket.31
Douglas received a note for $100 for his services, which he dis|counted at S. M. Tinsley & Co., in Springfield. The holder in 1843 brought suit in the DeWitt County Circuit Court to collect on the note, and was awarded the amount of the note with interest and costs.32
One of the most singular cases in which Lincoln took part, and the case which stirred his interest over a longer period than any other, was that of the Trailor brothers for the supposed murder of Archibald Fisher. The missing man disappeared in Springfield on June 2, 1841, when taking a walk with the Trailors. Henry Trailor, at the hearing before two justices of the peace in Springfield accused his brothers, Archibald and William, of murdering Fisher. Doctor Gilmore of Warren County, where William Trailor and Fisher lived, came before the court and stated that Fisher was not dead. He testified that Fisher Page 42 had arrived at home in feeble health and could give no rational account of his disappearance and his subsequent trip home.
At the close of the hearing Lincoln wrote to his friend Joshua F. Speed, then at Louisville, Kentucky, a detailed account of the affair:
We have had the highest state of excitement here for a week past that our community has ever witnessed; and although the public feeling is somewhat allayed, the curious affair which aroused it is very far from being even yet cleared of mystery. It would take a quire of paper to give you anything like a full account of it, and I therefore only propose a brief outline. The chief personages in the drama are Archibald Fisher, supposed to be murdered, and Archibald Trailor, Henry Trailor, and William Trailor, supposed to have murdered him. The three Trailors are brothers; the first, Arch., as you know, lives in town; the second, Henry, in Clary's Grove; and the third, William, in Warren County; and Fisher, the supposed murdered, being without a family, had made his home with William. On Saturday evening, being the 29th of May, Fisher and William came to Henry's in a one-horse dearborn, and there stayed over Sunday; and on Mon|day all three came to Springfield (Henry on horseback), and joined Archibald at Myers's, the Dutch carpenter. That evening at supper Fisher was missing, and so next morning some ineffectual search was made for him; and on Tuesday, at one o'clock P.M. William and Henry started home without him. In a day or two Henry and one or two of his Clary Grove neighbors came back for him again, and advertised his disappearance in the papers. The knowledge of the matter thus far had not been general, and here it dropped entirely, till about the 10th instant, when Keys received a letter from the postmaster in Warren County, that William had arrived home, and was telling a very mysterious and improbable story about the disappearance of Fisher, which induced the community there to suppose he had been disposed of unfairly. Keys made this letter public, which immediately set the whole town and adjoining county agog. And so it has con|tinued until yesterday. The mass of the people commenced a systematic search for the dead body, while Wickersham was despatched to arrest Henry Trailor at the Grove, and Jim Maxcy to Warren to arrest William. On Monday last, Henry was brought in, and showed an evident inclination to insinuate that he knew Fisher to be dead, and that Arch. and William had killed him. He said he guessed the body could be found in Spring Creek, between the Beardstown road and Hickox's mill. Away the people swept like a herd of buffalo, and cut down Hickox's mill-dam nolens volens, to draw the water out of the pond, and then went up and down and down and up the creek, fishing and raking, and raking and ducking, and diving for two days, and, after all, no dead body found.
In the mean time a sort of scuffling-ground had been found in the brush in the angle, or point, where the road leading into the woods past the brewery and Page 43 the one leading in past the brick-yard meet. From the scuffle-ground was the sign of something about the size of a man having been dragged to the edge of the thicket, where it joined the track of some small-wheeled carriage drawn by one horse, as shown by the road-tracks. The carriage-track led off toward Spring Creek. Near this drag-trail Dr. Merryman found two hairs, which, after a long scientific examination, he pronounced to be triangular human hair, which term, he says, includes within it the whiskers, the hair growing under the arms and on other parts of the body; and he judged that these two were of the whiskers, because the ends were cut, showing that they had flourished in the neighborhood of the razor's operations. On Thursday last Jim Maxcy brought in William Trailor from Warren. On the same day Arch. was arrested and put in jail. Yes|terday (Friday) William was put upon his examining trial before May and Lavely. Archibald and Henry were both present. Lamborn prosecuted, and Logan, Baker, and your humble servant defended. A great many witnesses were introduced and examined, but I shall only mention those whose testimony seemed most important. The first of these was Captain Ransdell. He swore that when William and Henry left Springfield for home on Tuesday before mentioned, they did not take the direct route,—which, you know, leads by the butcher shop,— but that they followed the street north until they got opposite, or nearly oppo|site, May's new house, after which he could not see them from where he stood; and it was afterward proved that in about an hour after they started, they came into the street by the butcher shop from toward the brick-yard. Dr. Merryman and others swore to what is stated about the scuffle-ground, drag-trail, whiskers, and carriage-tracks. Henry was then introduced by the prosecution. He swore that when they started for home, they went out north, as Ransdell stated, and turned down west by the brick-yard into the woods, and there met Archibald; that they proceeded a small distance farther, when he was placed as a sentinel to watch for and announce the approach of any one that might happen that way; that William and Arch. took the dearborn out of the road a small distance to the edge of the thicket, where they stopped, and he saw them lift the body of a man into it; that they then moved off with the carriage in the direction of Hickox's mill, and he loitered about for something like an hour, when William returned with the carriage, but without Arch., and said they had put him in a safe place; that they went somehow—he did not know exactly how—into the road close to the brewery, and proceeded on to Clary's Grove. He also stated that sometime during the day William told him that he and Arch. had killed Fisher the evening before; that the way they did it was by him (William) knocking him down with a club, and Arch. then choking him to death.
An old man from Warren, called Dr. Gilmore, was then introduced on the part of the defense. He swore that he had known Fisher for several years; that Fisher had resided at his house a long time at each of two different spells—once while he built a barn for him, and once while he was doctored for some chronic Page 44 disease; that two or three years ago Fisher had a serious hurt in his head by the bursting of a gun, since which he had been subject to continued bad health and occasional aberration of mind. He also stated that on last Tuesday, being the same day that Maxcy arrested William Trailor, he (the doctor) was from home in the early part of the day, and on his return, about eleven o'clock, found Fisher at his house in bed, and apparently very unwell; that he asked him how he came from Springfield; that Fisher said he had come by Peoria, and also told of several other places he had been at more in the direction of Peoria, which showed that he at the time of speaking did not know where he had been wander|ing about in a state of derangement. He further stated that in about two hours he received a note from one of Trailor's friends, advising him of his arrest, and requesting him to go on to Springfield as a witness, to testify as to the state of Fisher's health in former times; that he immediately set off, calling up two of his neighbors as company, and, riding all evening and all night, overtook Maxcy and William at Lewiston in Fulton County; that Maxcy refusing to discharge Trailor upon his statement, his two neighbors returned and he came on to Springfield. Some question being made as to whether the doctor's story was not a fabrication, several acquaintances of his (among whom was the same post|master who wrote Keys, as before mentioned) were introduced as sort of com|purgators, who swore that they knew the doctor to be of good character for truth and veracity, and generally of good character in every way. Here the testimony ended, and the Trailors were discharged, Arch. and William expressing both in word and manner their entire confidence that Fisher would be found alive at the doctor's by Galloway, Mallory, and Myers, who a day before had been des|patched for that purpose; while Henry still protested that no power on earth could ever show Fisher alive. Thus stands this curious affair. When the doctor's story was first made public, it was amusing to scan and contemplate the counte|nances and hear the remarks of those who had been actively in search for the dead body: some looked quizzical, some melancholy, and some furiously angry. Porter, who had been very active, swore he always knew the man was not dead, and that he had not stirred an inch to hunt for him; Langford, who had taken the lead in cutting down Hickox's mill-dam, and wanted to hang Hickox for objecting, looked most awfully woebegone: he seemed the "victim of unrequited affection," as represented in the comic almanacs we used to laugh over; and Hart, the little drayman that hauled Molly home once, said it was too damned bad to have so much trouble, and no hanging after all.33
Nearly five years later Lincoln wrote a more detailed story of the affair for publication, sending the account to a Quincy lawyer, whom Herndon identifies as Abraham Jonas, but who may have been Andrew Page 45 Johnston, with whom Lincoln was then corresponding and sending samples of his poetry. Lincoln's composition was printed in the Quincy Whig, April 15, 1846, with the name of the author undisclosed. A week later it was reprinted in the Sangamo Journal, and in October in the Western Law Journal, in each case without the name of the author.34
Lincoln was probably reminded of the case when it became neces|sary for Logan & Lincoln to file suit to collect their $100 fee from the executor of William Trailor. They had failed to take a note for the fee and Trailor had refused to pay. James D. Smith, his executor, refused payment on the ground that the claim was not filed in time. Logan & Lincoln in July, 1845, brought suit in the Sangamon County Circuit Court and got judgment on November 19th, but failed to collect. Three years later they brought the case before the probate justice of Warren County, who ruled in favor of their claim, and ordered the executor to pay Logan & Lincoln $110. The executor appealed the case to the Warren County Circuit Court and here Judge Norman H. Purple re|versed the judgment of the probate justice. Logan & Lincoln appealed the case to the Northern Division of the Supreme Court sitting at Ottawa. Here the case was dismissed at the June term 1849.35 Lincoln was probably so busy trying to get the appointment as Commissioner of the General Land Office that he neglected the case.
Lincoln filed the declaration in the case of Logan & Lincoln v. John Atchison in the Sangamon County Circuit Court. They sought to re|cover $200, probably due for services. On July 29, 1845, the defendant defaulted and a jury awarded Logan & Lincoln $100 and costs. Court records do not show their employment as attorneys for Atchison in the circuit or supreme courts. Records of the federal courts in Illinois for this period are not available.36
- To attending suit with Lewis and others, Sangamon Circuit Court $100.00
- To attending suit with Lewis et al. in Supreme Court 50.00
Moffett was disgruntled and refused to pay Lincoln & Herndon their fee. Their charge of $100 in the circuit court was higher than Lincoln's usual fee for similar services. Perhaps he placed it high thinking that Moffett would ask a reduction. The court awarded Lincoln & Herndon $75 and costs on March 20, 1850, by agreement.39 Moffett did not pay and Lincoln had an execution issued, directed to the sheriff of Christian County. This was returned marked "no property found." Later in the year the sheriff of Sangamon County levied on forty acres owned by Moffett and situated four miles east of Springfield. This tract was sold Page 47 to Lincoln & Herndon by the sheriff on March 24, 1851. They held the land until June 16, 1852, when William T. Moffett agreed to take it off their hands for $99.06, which included the judgment, costs and interest. Herndon noted on the execution in April, 1853, the receipt in full, paid in gold and silver.40
Lincoln's determination to collect his fee, regardless of its size, is best illustrated in the case of The People v. Samuel Brown. The de|fendant
Brown gave Lincoln his note for $10. Lincoln attended the next term of court, and not finding Brown, left the note with a friend for collection. Brown paid five dollars but refused to pay the remainder. Lincoln then brought suit before Justice of the Peace Mason. The Page 48 justice's docket indicates that Brown paid the balance of five dollars on November 22, 1853.41
One of Lincoln's most important sources of income in the 1850's was the Illinois Central Railroad. When he was first employed is un|certain. It has been positively asserted, and as strongly denied, that he was a lobbyist for the road when it secured its charter in 1851. Judge Anthony Thornton of Shelbyville said that he had "a distinct recollec|tion that Mr. Lincoln and several members of the legislature were engaged by the Illinois Central."42 Diametrically opposite is the state|ment of Robert Rantoul, son of one of the promoters of the road, before the Massachusetts Historical Society in 1909, to the effect that Lincoln, in a conversation with his father at the White House in 1863, said that "he did all he could to stop it, but was not successful."43
Certain it is that Lincoln was in close attendance upon the legis|lature in the session of 1851. When the session was over he wrote to William Martin, an Alton attorney, "The Legislature having got out of the way, I at last find time to attend to the business you left with me."44 Letters written by James F. Joy, agent for the company, to William P. Burrall, its president, show that at the time the charter was granted the company was employing a lobbyist, and that he was later placed in the permanent retainer of the company. On January 16, 1854, Joy wrote to Burrall:
I do not know whether it is contemplated by the committee that I shall employ aid at the Legislature if I deem it expedient. There is one man, however, whom it is for the interest of the company to have with us in every way and whom hitherto I have always had with me and whom for no consideration should I want against me at the Legislature. I would recommend that he be interested permanently for the company, as it is apparent that you will need more or less legislation frequently. A retainer or a salary of $1,000 a year will command him, and he is a valuable ally and a dangerous opponent in any matter before the Legislature. I would also recommend that this be a matter entirely confidential Page 49 and that nothing ever be said about his being employed. I would recommend an understanding with him for two or three years. Of course, I mean that this shall be decided by the committee but that it shall be deemed confidential by each of them.45
Joy followed up this recommendation with a second letter on Febru|ary 2, in which he wrote:
It might be necessary for me to engage more influence at Springfield. A single man to whom I alluded in a postscript to my last letter to you was suffi|cient last winter. I shall probably have to strengthen him this winter to accom|plish the purpose I deemed last winter of sufficient importance to induce me to give such instructions as defeated B's [Brough] bill.46
John Brough, president of the Madison and Indianapolis Railroad, was the leader of a group seeking a charter for the Mississippi and At|lantic Railroad, now a part of the Baltimore and Ohio system. Lincoln is known to have been a vigorous and consistent opponent of Brough's plans. On March 1, 1854, he, John T. Stuart, and Benjamin S. Edwards wrote an opinion denying the validity of the organization of the Missis|sippi and Atlantic road under the terms of the railroad incorporation act.47
Lincoln's first case of record for the Illinois Central—a case involv|ing the condemnation of a right of way—was tried in Champaign County in May, 1853. He received $25 for his services. During the next five years he assisted Clifton H. Moore in the courts of DeWitt and McLean counties in numerous cases in which the railroad was a defendant.48 Joy wired Lincoln, in October of the same year, asking him to come to Chicago and act as arbitrator between the Illinois Central and Northern Indiana Railroads.
When one thinks of Lincoln and the Illinois Central, however, he is far more likely to have in mind Lincoln's famous fee suit than the years of prosaic services he rendered to the company.
Page 50The charter of the Illinois Central, it will be remembered, provided that the company should pay to the state each year five per cent of its gross receipts. In return, all its property was exempted from taxation for six years. At the end of this period the charter provided that "an annual tax for State purposes shall be assessed by the auditor upon all the property and assets of every kind and description belonging to said corporation."49
Construction of the railroad began as soon as it was chartered, and in May, 1853, the line from the Illinois River to Bloomington was com|pleted and in operation. In August, 1853, McLean County started pro|ceedings to force the Illinois Central to pay taxes on the property it owned within the county. A county tax in addition to the payment of five per cent of its gross earnings to the state would have been prac|tically impossible, and would have endangered the life of the road. The company refused to pay and brought suit in the McLean County Circuit Court to enjoin collection. Lincoln saw the importance of the issue and was anxious to have a part in the litigation.
Champaign County also considered taxing the railroad's property and Lincoln talked the question over with T. R. Webber, the circuit clerk. When the railroad sought to obtain his services he felt under obligation to Webber and wrote to him on September 12, 1853, sug|gesting that the two counties make common cause. "I am somewhat trammelled by what has passed between you and me," he wrote, "feeling that you have the first right to my services, if you choose to secure me a fee something near such as I can get from the other side.
"The question in its magnitude to the Co. on the one hand and the counties in which the Co. has land on the other is the largest law ques|tion that can now be got up in the State, and therefore in justice to myself, I can not afford, if I can help it, to miss a fee altogether."50
Page 51Three weeks later he wrote to Mason Brayman, one of the Illinois Central attorneys: "Neither the county of McLean nor any one on its behalf has yet made any engagement with me in relation to its suit with the Illinois Central Railroad on the subject of taxation. I am now free to make an engagement for the road, and if you think of it you may 'count me in.'"51
In due course Lincoln was retained by the railroad, and argued the charter case in the McLean County Circuit Court in the fall of 1854. The case was decided against him, and an appeal was taken to the Su|preme Court. It was stipulated "that the only question to be made in the Supreme Court" was whether the road could be taxed by the county.
In the Supreme Court, on February 28, 1854, the case was argued orally by Lincoln and James F. Joy for the railroad, and by Stephen T. Logan and John T. Stuart for McLean County. It was continued, and re-argument was ordered.52 Two years later, on January 16-17, 1856, the case was heard again, with Lincoln making the opening argument and Joy concluding for the railroad. The court unanimously held that, under the constitution, the legislature could make exceptions from the rule of uniformity in taxation, and that the provision in the road's charter requiring payment to the state of a percentage of its gross earn|ings was such an exception; and therefore counties could not tax the road. Accordingly the decision of the McLean court was reversed. Thus Lincoln and Joy were sustained.
Up to this point in the discussion of the case writers agree, but in the subsequent details which relate to Lincoln's efforts to collect his fee they differ widely. Herndon said Lincoln went to Chicago and pre|sented a bill for $2,000 in addition to the retainer fee.53 Joy, Lincoln's associate, who had been paid a salary of $10,000 a year by the railroad in 1854, but had resigned soon after, received $1,200 for his services in Page 52 the case.54 Joy said Lincoln wrote to him asking that his fee be "a par|ticularly beautiful section of land belonging to the company." This assertion, made by Joy many years after the trial, is hard to reconcile with Lincoln's lack of interest in the acquisition of land.
At any rate, Lincoln eventually submitted a bill for $5,000 for his fee, to which the officials of the company objected as being excessive. From the standpoint of the amount saved to the company it was not excessive, but the payment of a $5,000 fee was unheard of in the West, and it is probable that few Eastern lawyers had received so large a fee up to that time. After waiting nearly a year for his money, Lincoln de|termined to bring suit against the company. In January, 1857, he filed an affidavit with the circuit clerk of McLean County, stating that he desired to take the depositions of seven lawyers to be read in evidence.55 Lincoln prepared his case for the March, 1857, term of the McLean court, but the entire time of the court was taken up with a murder trial, so a special term was set for June 15th.56
Before this date an official of the Illinois Central called on Lincoln and discussed the settlement of his fee. If a compromise was suggested, it was refused by Lincoln. Moreover the railroad official was made to understand the strength of the latter's position. For more than twenty years Lincoln had been a close friend of Jesse K. Dubois, the State Auditor, who could reject the railroad's estimate of the value of its property for tax purposes; he was the acknowledged adviser of Governor Bissell, and on very friendly terms with Ozias M. Hatch, the Secretary of State. In plain words, Lincoln was in a position where he could do the Illinois Central a great deal of good, or, if he chose, a great deal of Page 53 harm. This was recognized by the railroad and definite steps, the char|acter of which are not clear, were taken to keep Lincoln's influence on the side of the railroad. This is brought out in a letter written by Ebenezer Lane, resident director in Chicago, to W. H. Osborn, the president of the Illinois Central, on May 14, 1857:
We can now look back and in some degree estimate the narrow escape we have made (I hope and believe entirely) from burdens of the most serious char|acter. While Lincoln was prosecuting his lawsuit for fees, it was natural for him to expect a dismissal from the Company's service and being a politician aspiring to the Senate, to entertain plans of making an attack upon the company not only in a revengeful spirit, but as subservient to his future advancement. He had seen the obscurity of those sections of our charter relating to taxation, which, unexplained by the History of the Charter, seem to bear (even more naturally) such a construction as would impose on us an amount not exceeding 3/4/100 in addition to the five per cent. He kept this to himself, but before our settlement with him, the Auditor, a vain, self-sufficient but weak man, approached him with a view to retain him for the State for consultation. Lincoln answered he was not free from his engagement to us, but expected a discharge. He therefore gave him no detailed opinion, but expressed his sense of the great magnitude which the Auditor was bound to protect. This had no other effect probably than to raise still higher the Auditor's opinion of himself.
Meanwhile we settled with Lincoln and fortunately took him out of the field, or rather engaged him in our interests. This is the more fortunate, as he proves to be not only the most prominent of his political party, but the ac|knowledged special adviser of the Bissell administration.57
If Lincoln was specially retained by the railroad in May, 1857, it is natural to ask why he continued his suit against the railroad for the collection of his fee. The explanation is that the officials of the railroad in the West had to convince the board of directors in New York that the fee had to be paid, and paid at a time when the company was very short of funds.
At the special term of the McLean court, presided over by Judge Jesse O. Norton by exchange of circuits with Judge David Davis, the case of Abraham Lincoln v. Illinois Central Railroad was called on June 18, 1857. No one appeared for the railroad and judgment was Page 54 rendered by default. But John M. Douglass, general counsel for the company, appeared that afternoon and asked that the judgment be set aside. When called again, Lincoln told the history of the services which he had rendered the railroad, and by permission of Douglass, read the statement of six attorneys that the $5,000 fee was reasonable. The trial, according to the recollections of several who were present, was a mere formality.58 Douglass reminded Lincoln of the retainer fee, which both men seem to have remembered was $200 instead of $250. Judgment was entered in Lincoln's favor for $4,800.
Lincoln waited a month, but still the fee was not paid. It was, per|haps, with some hope of collecting it that he went to New York city in late July. Disgusted with his reception by the Illinois Central officials, he returned home, and on August 1, an execution was issued to the sheriff of McLean County to seize enough property of the railroad to satisfy the judgment. The fee was then paid. The panic of 1857 struck a month later, and had he not collected when he did it is doubtful if he would have received his money for a considerable time.
Lincoln deposited the $4,800 in the Springfield Marine and Fire Insurance Company, on August 12, 1857.59 Several biographers have asserted that he could not have financed his campaign against Douglas in 1858 had he not received this fee. This leaves out of account the fact that he withdrew the money and lent his half of it to Norman B. Judd of Chicago on September 1, 1857. From this loan he received no interest until the principal was paid eight years later.60
One of the more important law suits of Lincoln's career was the "Reaper Case," McCormick v. Manny et al., before the United States Circuit Court at Cincinnati, in September, 1855. Cyrus H. McCormick of Chicago brought the suit, alleging infringement of patents by the company headed by John H. Manny. Manny individually owned the patents to the machine manufactured by his company. He employed Page 55 George Harding of Philadelphia and Peter H. Watson of Washington, well known patent attorneys, to defend him. Watson was urged to em|ploy Lincoln by Ralph Emerson, one of the Manny firm members who had resided in Bloomington in the early 1850s and had a high regard for Lincoln's ability. Watson went to Springfield in June, 1855, and employed Lincoln, paying him a retainer fee of $400.61 Emerson at|tended the trial, and said Lincoln there told him that this was the largest retainer fee he had received.62
Lincoln was pleased with the opportunities offered by the case. It was in a field of mechanics where he had unusual aptitude; it offered association with outstanding attorneys and large business interests, and
Page 56Lincoln went to Cincinnati but took no active part in the conduct of the trial in which his side was successful. He was ignored by Hard|ing, while Stanton's conduct toward him was noticeably rude. Some|time after his return to Springfield, he received a check for his fee from Watson, which he returned. Watson sent back the check and insisted that Lincoln was entitled to his fee and should keep it, which he then did. The amount is not definitely known, but the tradition among descendants of Ralph Emerson is that this check was for $600, making Lincoln's fee in the case $1,000.64
The best known court trial in which Lincoln was engaged in his career, with the exception of the defense of Duff Armstrong, was the "Effie Afton case," Hurd v. Rock Island Bridge Company. This case occupied the attention of the United States Circuit Court in Chicago for three weeks in September, 1857. The Effie Afton, a Mississippi river steamboat, in passing the bridge at Rock Island on its way upstream, May 6, 1856, struck one of the piers and was thrown against another, resulting in a fire which destroyed the boat and part of the bridge.
Captain Hurd and the other owners sued the bridge company, alleg|ing that the boat "was forcibly driven by the currents and eddies caused by said piers against one of them." The bridge was declared to be a per|manent obstruction to navigation. Owners of the steamboat sought to recover damages for the value of boat and cargo, but the real contest was between river transportation interests centering in St. Louis and railroad interests in Chicago.
Lincoln, Norman B. Judd of Chicago, and Joseph Knox of Rock Island represented the bridge company, with Lincoln making the clos|ing speech to the jury. The jury could not agree and was dismissed by Justice McLean.65 Lincoln's fee is said to have been $500. On his re|turn home, September 28, 1857, he deposited $400 to his bank ac|count.66
Page 57Lincoln and Herndon were employed in ninety-one cases in the United States Court for the Southern District of Illinois, in Springfield from 1855 to 1860. Many of these cases involved questions of great im|portance and large sums of money. Fees which they received in these cases necessarily made up a considerable part of the firm's income. In an important land case, Beaver v. Taylor and Gilbert, which involved possession of sixty-five acres of land adjoining the city of Cairo, Lincoln & Herndon, Stephen T. Logan, and Stuart & Edwards represented the defendants. The case was submitted without argument on June 20, 1859, and taken under advisement. Judge Treat later held for the de|fendants, whereupon the plaintiff entered a motion for a new trial. This motion, argued before the court on January 25, 1860, was later denied. Lincoln and Herndon received $1,500 of the $3,000 fee.67