ABRAHAM LINCOLN AT THE BAR OF ILLINOIS

OF

JOHN T. RICHARDS

F the early life of Abraham Lincoln, I shall not speak. His life in Kentucky and Indiana-his emigration to Illinois, at the age of nineteen years-his settlement at New Salem, his mercantile ventures there, his first candidacy for the Legislature, in which, as he said in later years, he met the only defeat he ever suffered at the hands of the people, are matters of history, with which all are familiar. He had passed through all these experiences before the end of the year 1834. He was then but twenty-four years of age, and had, within five years after his arrival in Illinois, been successively a farm-hand, laborer, clerk, and store-keeper. In 1834, he was elected a member of the Legislature and reelected for the three succeeding terms-his last election being in the year 1840. During the time of his service in the Legislature, he pursued the study of law and was admitted to the bar of Illinois, March 1, 1837, being at that time twenty-eight years of age.

At the time of Lincoln's admission to the bar, the rules of the Supreme Court did not require the applicant to submit to an examination as to his qualifications. The only requirements of the statute then in force, and which went into effect March 1, 1833, were that before he could be permitted to practice as an attorney or counsellor-at-law, he must have obtained a license for that purpose from some two of the Justices of the Supreme Court, and that he should not be entitled to receive such license until he had obtained a certificate from the Court of some County, of his good moral character.

Having obtained a license from two of the Judges of the Supreme Court, he was required to take an oath to support

the Constitution of the United States and this State. The person who administered the oath was required to certify the same on the license, and on presentation of the license in this form to the Clerk of the Supreme Court, the latter was required to enroll the name of the applicant as an attorney or counsellor.

The required oath of office seems to indicate that the Legislature contemplated two classes in the profession, (1) attorneys; (2) counsellors; for the oath reads, "I will in all things faithfully execute the duties of an attorney-at-law or counsellor-at-law (as the case may be)," etc.

The first rule of Court relating to admission to the bar, was adopted March 1, 1841, and required all applicants for a license to practise law, to present themselves in person for examination in open court, except in cases where the applicant had been regularly admitted to the bar in some Court of Record within the United States. The Court was at that time composed of nine judges, who were required to perform circuit duties also. The State was divided into nine Judicial Circuits, one of the Judges presiding over each of the Circuit Courts; and all met together as a Supreme Court, and each was afforded an opportunity to review orders and decrees of the other members of the Court.

The proceedings in all the Courts were much less dignified and formal than they are in this generation. The judges and the lawyers met on the Circuit as friends, upon a common level, and as there were no places of amusement where the long evenings could be spent, they gathered about a common fireside at the country tavern and regaled each other with anecdotes and songs. The judge who heard their cases threw aside judicial dignity, when evening came, and joined with his professional brethren in the merrymaking. Life upon the Circuit in those days, as in every new community, had its sunshine and its shadows, but every hardship had its compensation in the goodfellowship, which always prevailed among those sturdy pioneers.

The experiences of Lincoln upon the Circuit were not unlike those of other lawyers of that day. There was little

that required great skill or much learning in the law. The interests involved were for the most part trivial, measured by a monetary standard-but they involved the same questions of right and justice which invite our professional attention in these latter days.

In the nisi prius Courts, Abraham Lincoln was called upon to try cases of every class, both civil and criminal, and he entered upon the trial of cases involving but a few dollars with as much zeal as those involving thousands; but no criminal case in which Lincoln appeared as an attorney is to be found in the reports of the decisions of the Supreme Court of Illinois. Whether this fact is due to his great ability as an advocate before a jury or to some other cause, I am unable to state, but, as his contemporaries inform us that he tried very many criminal cases, none of which appear in the State Reports, it seems safe to assume that his clients in such cases were acquitted by the jury.

Some of Lincoln's biographers have sought to make it appear that Lincoln refused to take advantage of a so-called technicality in order to win his case. This view is not borne out by the record, for-while he possessed many attributes which all admit are above and beyond those possessed by ordinary mortals-as a lawyer he seems to have been no less human than other members of the profession, and while it may be truthfully said that he took no mean advantage of his professional brethren, he did not hesitate to press upon the attention of the Court any legitimate advantage which the record of the case might furnish.

The first case in connection with which his name appears in the Supreme Court, furnishes evidence of this, being the case of J. Y. Scammon-afterwards Supreme Court Reporter -plaintiff in error vs. Cornelius Cline. Scammon had brought the suit before a Justice of the Peace in Boone County, and the Justice having rendered judgment in favor of the defendant, Scammon appealed to the Circuit Court of Boone County. At the time the appeal from the Justice was perfected, Boone County was still a part of Jo Daviess County, for judicial purposes, and no Court having been

appointed to be held in Boone County, it was contended by the defendant's counsel that the appeal should have been taken to Jo Daviess County. The defendant's motion to dismiss the appeal presented to the Circuit Court of Boone County at its first term, was sustained, and the case was taken to the Supreme Court on error, Lincoln appearing for defendant in error, and resulted in a reversal of the decision of the Circuit Court.

Another case which was decided upon a technical point raised by Lincoln, was the case of Maus vs. Whitney, which was an appeal from the Circuit Court of Tazewell County. Lincoln represented the appellee and moved the Court to dismiss the appeal on the technical ground that the bond was signed on behalf of the surety by his agent, whose authority, while in writing, was not under seal, and the motion was sustained. From this decision Justice Breese dissented in a short but very vigorous Opinion in which he took occasion to say that he could not yield up his judgment in any case because others had decided a point in a particular manner unless he could see the reason of the decision; that he could see none in that case; and, believing as he did that the purposes of justice "are not at all subserved by an adherence to such antiquated rules and unmeaning technicalities," he refused to concur with the majority of the Court, and then proceeded to say that several of his brother judges coincided in the views which he expressed, but believing the rule laid down in the majority opinion to be the law, they considered themselves bound by it, notwithstanding its unreasonableness. He, however, expressed the opinion that if the alleged reason is absurd, it should not bind the Court.

It is possible that Lincoln may have appeared as counsel in some case prior to his appearance in the case of Scammon vs. Cline already referred to, as the reporter in the preface in the first volume of Scammon's Reports says, "that the practice of the Court, which required an abstract to be filed by counsel for appellant or plaintiff in error, while none was required of appellee or defendant in error, had the effect to cause a brief to be filed by the former, while the counsel for

the latter usually contented themselves with making their points and citing their authorities on the hearing." The reporter complains also of the neglect of counsel in many cases to sign their names to their abstracts and declares that on account of the manner in which the docket was kept it was difficult to ascertain with precision who appeared as counsel. The case of Scammon vs. Cline was decided at the December Term, 1840. Lincoln had been a member of the bar at that time about three years, and was then thirty-one years of age.

The case of Bailey vs. Cromwell, reported in the third of Scammon, in which Lincoln appeared for the appellant, is of peculiar interest to us. It was decided at the July Term, 1841. The case was an action of assumpsit on a promissory note and was tried in the Circuit Court of Tazewell County, where Lincoln represented the defendant. Lincoln had pleaded the general issue, and filed among other special pleas, a plea of total failure of consideration, in which he set out that the note was given for the purchase of a negro girl, sold by Cromwell to Bailey and who was represented to Bailey at the time of the purchase, to be a slave and servant, when in fact she was free; that Cromwell agreed to furnish Bailey with proof that the girl was a slave, which he had failed to do, and that, therefore, the consideration had wholly failed. A finding and judgment was rendered in the Circuit Court, for four hundred, thirty-one dollars, ninety-seven cents on the note, which was reversed by the Supreme Court, where it was held that the defendant, having shown that the girl was the consideration for the note, and the presumption of law being that she was free, and the sale of a free person being illegal, in the absence of proof to rebut the presumption that she was free, there was no valid consideration for the note.

All the sessions of the Supreme Court, beginning with the July Term, 1839, to and including the December Term, 1847, were held at Springfield.

The organization of the Court was changed by the adoption of the Constitution of 1848, the State being divided into three divisions, in each of which a term of Court was required to