Michael Sean Quinn*
Among lawyers who are historically minded, some are fascinated by Abraham Lincoln, a semi disguised trial lawyer and legal genius (of sorts, for his age) who was America’s Civil War President.  Some of these kinds of lawyers are interested in Lincoln’s legal career before he became president.

He was a solid, well-respected practitioner in Illinois for a number of years, and he handled mostly litigation, but also some transactional work, and some lobbying. During this period of time he (and a few others) developed a politico-jurisprudence which has impacted our history ever since. He is the supreme example of what one famous lawyer and legal philosopher of the present and recent past has called the “lawyer-statesman.” See Anthony T.  Kronman, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993)(a work of genius developing the idea of the lawyer-statesman, of which Lincoln is a paradigm and is explicitly recognized as such). 

Those of us who have wanted to be trial lawyers since our youths and who have “studied up” on the great litigators of the past–for some of us it was what replaced most everything else–have found some stories about Lincoln’s best performances fascinating and inspirational. The most famous instance of this was a murder trial in which Lincoln’s cross examinations of an ostensible eye witness as to the position of the moon at night saved his client, perhaps from the gallows. For a relatively recent, relatively detailed account of this case, see John Evangelist Walsh, MOONLIGHT: ABRAHAM LINCOLN AND THE ALMANAC TRIAL (2000). (Interestingly, the author has some doubts about Lincoln’s ethics in this case–questions being the opposite of the received, traditional view.)

This squib is about another side of Lincoln qua lawyer, however, and it comes in the form of a very brief sketch of some of what is to be fond in Brian McGinty’s book LINCOLN’S GREATEST CASE: THE RIVER, THE BRIDGE, AND THE MAKING OF AMERICA (2015). McGinty is a well known contemporary lawyer-writer who has written several “popular” histories of pieces of nineteenth century American law, two others of which are about Lincoln.

This book is not actually so much about Lincoln and one of his dramatic, memorable performances as it is about a memorable case that illustrates (or perhaps symbolically embodies by image) a pivotal moment in American business and political history.  Lincoln was involved in the trial of the case, but he was not a central character. Still his centrality to American history and some parts of American legal history make the title a natural, if somewhat a misleading one. 

Here is the general historical plot. The expansion of the country economically, financially, by population, and geographically, most significantly, to the west, required more and more rapid commercial transportation systems. This was true both for passengers and for cargo.  This created natural and inevitable conflicts between competing forms of relatively mass transport. 

Carriages and individual horses were used for a long time.  But they were inefficient–not to mention uncomfortable–in various ways. Covered wagons were used by the peasant classes moving west, but that did not work very well for huge cargoes. Shipping and traveling around the south end of the continent south took way too long and was enormously expenses. 

The two options for business and national progress were boats and ships, on the one hand and trains, on the other. Consequently, part of American business history became competition became first canal then river shipping versus railway shipping. Metaphorically speaking, in the middle of this it became clear that rail would win at least a fair amount of the national commerce, at least west of the Mississippi, and so two more dimensions were added to the competition. Trains can travel where ships cannot, and long distance shipping did not require so many changes amongst vehicles of transport on any given expedition, for example, ships to wagons. 

The river people were mostly based in St. Louis; where else would they be? In addition, given its location, the St. Louis forces were influenced to want east-west trains to begin and flow through  in the south when going West. (Of course, Texas political forces wanted the same thing, but their political power was not significant in this struggle.) But the politicos of the southern states joined with the St. Louis river people. Jefferson Davis was one of them, for example.  See the early parts of William C. Thomas, LAWYERING FOR THE RAILROAD: BUSINESS, LAW, AND POWER IN THE NEW SOUTH (LSU Pr. 1999). (This book is mainly about the activities of lawyers after the civil war, but not all of it: “In the mid-nineteenth century southern lawyers took advantage of their position close to the actions of business and economic growth. They were more than just facilitators for entrepreneurs. The personally invested in mines, slaves, land, railroads, factories, banks, foundries, and other local enterprises. After the Civil War. . . .” p. 6.) 

The rail people wanted the trains to begin more to the northeast, and pass through Chicago, where the railway folks were grouped together. This meant that they wanted the transportation vehicles cross the various canals and rivers, including the mighty Mississippi on specially build train-bridges. St. Louis did not want train bridges across its river, and it was joined by many other urban-ish areas. 

In the middle of all this were land owners, some of whom wanted to sell land to railways and some of whom did not. And added to land owners were state governments and politicians, all of whom wanted votes and revenue, and of some of whom wanted money in other forms. 

Now, on a couple of occasions commercial river vessels had run into bridges, but in 1856 the steamboat Effie Afton smashed into a pillar of the Rock Island [Railroad] Bridge, the first to span the Mississippi. The bridge was damaged in part by fire; the steamboat was lost, and the cargo was destroyed, both mostly by fire. As one might expect, there was no liability insurance and there was insufficient first party insurance on the boat and cargo. (Only $15,000.00. Of course that amount of money is much larger today, but then, so would be the value of the ship.)

As one might also expect, there were a variety of conspiracy theories floated around. One of them was that crash was deliberate in order to burn down the bridge. After all, there was wood involved in the structure. 

And then there were all the usual controversies that today we would think of as issues as to negligence:
  • Was the bridge property designed?
  • Was it properly built?
  • Was the place the bridge was built a reasonable placed to build such a thing, especially since the river was divided by an island the bridge used?
  • Was the ship properly designed and built?
  • Was the ship reasonably operated?
  • Was there fault to be found in how and why the moving ship ran into a stationery object? And if so, who was to take the blame?
Of course, there was a trial. There were a good number of lawyers on each side. Since the trial was in Chicago, it was–then as now–a good idea to have prominent lawyers involved. One of them was Lincoln, though he was not head of the team. Keep in mind that the trial occurred in 1857, a very time before Lincoln’s election to the presidency. 

 One of his jobs as part of the team of lawyers for the railroad was to prepare and conduct the case on its most technical topics, e.g., the engineering issues.  Naturally, it was also  his job to participate in final arguments. That was hitherto his principal responsibility, and he was know for convincingly delivering complex arguments.  

There is no complete transcript of the trial.  Pretty much what  McGinty had was newspaper accounts. Consequently, we do not know much about the brilliance of Lincoln’s performance.  In this sense, we do not know how great a Lincoln case this was. 

It was a great case in another sense, however, and Lincoln was part of it. Historically speaking, it was  watershed episode in the history of American business law. In this sense it might be the greatest case in which Lincoln was ever  involved. 

But there is a problem with this picture.  The trial itself, after which Lincoln has no more involvement–after all he was running for president–was not what made the case a “watershed.” It was what came after. 

The trial didn’t resolve the issues. The jury couldn’t make up its mind; and so the judge ended the case.  Well, not exactly.  He ended that litigation, but he did not end the controversy or the flow of later cases. More cases followed, and at least one of them was of quite a different sort.  In any case, the struggles went on and on, all the while railroad power grew, as did the orientation of rails to the north.   That part of McGinty’s story seems well told, but I will not discuss it since Abe wasn’t part of it, and–besides–he had other things to do.  

*Michael Sean Quinn, Ph.D., J.D. Etc.
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