Vol. 22 No. 3- March 2009

Volume 22, No. 3
Editor: Stephen L. Seftenberg
Website: www.CivilWarRoundTablePalmBeach.org

Upcoming Program: Wednesday, March 11, 2009

Marsha Sonnenblick, who at her last talk led us through the back alleys of sex during the Civil War period takes us in a new direction with a talk on the development of the U. S. Army’s Medical Service through the experiences of an individual soldier in the Civil War (1862 and 1864), World War I, World War II, the Vietnam War and the Iraq War who suffers identical wounds to his leg. Heros in her tale are two doctors, Jonathan Letterman and William Hammond, who cooperated to organize the Union Army’s medical system in a way that is still used today!

Program: Wednesday, February 11, 2009

Robert Krasner, delivered another well-researched talk about an often-neglected aspect of Abraham Lincoln’s legal and political career. When Abraham Lincoln was born on February 12, 1809, the steam engine was still in its infancy. By the time Lincoln was an adult, railroads had begun to spread across the North and to a lesser extent in the South. Lincoln’s trip down the Mississippi opened his eyes to the need for opening the waterways. As a good Whig, he advocated "internal improvements" (canals, better roads, railroads, dredging rivers, etc.). In 1832, as one of his first political acts, he prints and distributes a handbill stating that we "need an easier way to transport goods and services." He supported construction of a railroad connecting Springfield and Jacksonville, Illinois. As a member of the Illinois legislature, he supported legislation to spend up to $12 million on improvements, including $3.2 million for the Illinois Central’s 1300 mile north south line. The Panic of 1837 killed these projects. By 1850, however, the Illinois Central had built 700 miles of track and was the longest railroad in the world.

In the 1830s and 1840s, Lincoln split time between the practice of law and serving in the state legislature and in the US Congress. In the 25 years leading up to his Presidency, Lincoln was involved in over 4000 cases, representing all kinds of clients. He argued 178 cases before the Illinois Supreme Court, winning 94 of them; he argued three cases before the U. S. Supreme Court, winning two. Lincoln was one of the most successful trial lawyers of his time – he won 70% of the time. In the absence of precedents, he had a great advantage. He was an expert in voir dire (weeding out witnesses), direct and cross examination, and in arguing to the jury. His skills in the arts of persuasion and conviction were the result of hard work. ¹

Lincoln participated in two of the most significant railroad cases in U. S. history.

Illinois Central Railroad Co. v. County of McLean, Illinois, 17 US Ill 291 (1856) involved an attempt by a county to impose a real estate tax on the railroad, despite an act of the Illinois legislature exempting the railroad from all taxes for six years (instead the railroad was to pay the State of Illinois 7% of its gross revenues during this period). McLean County argued that the exemption applied only to state taxation and not county taxation and assessed the railroad $428.56, which it refused to pay! Faced with an attempt by the sheriff to sell off the railroad’s property, the Illinois Central sought an injunction. Although the sum involved in the case itself was piddling, the principal was recognized by all as one of the most important issues before the Illinois courts. If the county won, every county, town and municipality along the track would levy property taxes. The Illinois Central could afford to pay one or the other but not both taxes. Unbelievably, Lincoln had already been asked to represent Champaign County in a similar case but was able to obtain a release from that County’s Clerk (the maximum fee from the county would have been $500, one-tenth of the fee Lincoln eventually collected from the railroad!). Illinois Central quickly "sewed Lincoln up" with a $250 retainer for generally representing the railroad in this and other matters, including a "make or break" case, State of Illinois v. Illinois Central Railroad Co., 26 Ill. 64 (1861) in which Lincoln avoided an effort by the State to impose a second tax on the railroad exceeding the 7% tax on gross revenues.

The lower court dismissed the railroad’s suit, and Lincoln was ordered to file an appeal to the Illinois Supreme Court, which after two arguments before the court, he won. The most prominent lawyers in the state appeared on both sides of this case. Flush with victory, Lincoln increased his requested fee to $2,000. The then superintendent of the railroad (supposedly none other than George B. McClellan!) ² declined to pay it, saying this was as much as a Daniel Webster would receive. Lincoln withdrew this bill but on the advice of a group of local attorneys, submitted one for $5,000 (the salary of the governor was then $1,500 per year, that of the in-house counsel for the railroad was $2,000 and the "lead" counsel on the case got a fee of $1,200!). Eventually, Lincoln sued and obtained a default judgment for his fee in full. The Illinois Central lawyer then arrived and requested Lincoln to save him from embarrassment by permitting the judgment to be set aside. After a rather perfunctory trial, Lincoln again won a verdict in full. In today’s dollars, Lincoln’s fee would be worth some $110,000. ³

Hurd v. Rock Island Bridge Company, U. S. Circuit Court for Northern Illinois (1857) overtly involved a suit by a steamboat captain for damages incurred when his boat rammed into a pier of the railroad bridge across the Mississippi River. The real case was part of an effort by steamboat interests in St. Louis to maintain their monopoly of trade threatened by competition from the railroads emanating from Chicago. The key issue was "Is the bridge a hazard to navigation?" Norman B. Judd, then general counsel for the Rock Island and later a leading ally in his presidential campaigns for nomination and election, recommended Lincoln as a "young lawyer in Sangamon County who took on President Polk over the Mexican War and for vetoing internal improvement legislation." ³ If the steamboat interests won, the railroads would have to stop at every river’s edge, disembark passengers and cargo and ferry them across to the other side to be reloaded on the train, a ruinously expensive proposition. Lincoln impressed the jury by his grasp of the facts and figures (gleaned by personal inspection of the bridge and the river). He argued that a river is like a street and everyone has a right to cross it. He asked, shall the mode of crossing rivers forever be limited to canoes and ferry boats? He had made a model of a steamboat and showed how the failure of one of the wheels had caused the accident. The jury voted 9-3 for the Bridge Company. The steamboat interests, which had raised many thousands of dollars for this case, appealed to the Supreme Court but settled out of court, allowing the bridge to remain in place. ⁴

Pacific Railroad Act of 1862. Before and during his Presidency, Lincoln had a great and positive effect on the development of commerce in the United States. In 1860, Lincoln spoke before large audiences favoring a transcontinental railroad system. At one speech, he met Grenville Dodge, then a 28 year old engineer. Lincoln asked, what is the best route West? Dodge, along the 42nd parallel there will be level grade all the way to the Rocky Mountains. At Lincoln’s behest, Congress passed the Pacific Railroad Act of 1862. Two companies were to be organized: the Union Pacific was to lay track West from Iowa while the Central Pacific was to build West from Sacramento. The United States would lend 30-year U. S. Bonds paying 6% – $16,000 per mile on flat land, $32,000 per mile on hilly terrain and $48,000 per mile in the mountains.

The loan would be a second lien on the railroad company property, not a first lien so they could borrow money from Eastern and European financiers. Lincoln, despite the fearsome burden of waging a civil war, continued throughout his Presidency to spend time and effort on the project. President Grant, faced with a dispute between the two companies over where to meet, threatened to withhold any more funds unless they agreed. Promontory Point in Utah was selected and the last spike was driven on May 10, 1869.

Obviously, this grand project was rife with waste, greed, etc., but the bonds were paid off in 1899. The United States Treasury got its $63 million principal back in full and collected $104 million in interest. Look at other transcontinental projects: The Canadian Pacific used American engineers. Russia’s Trans Siberian railroad used 200,000 Chinese peasants and thousands of convicts, took 30 years to lay 5,338 miles and cost much more than the Union Pacific-Central Pacific line.

Robert received a well-earned round of applause for his superb research and presentation.

Editor’s Footnotes:

¹Let Bill Kemp, Archivist/Librarian McLean County Museum of History, sum this aspect of Lincoln’s career: "A cherished image of Abraham Lincoln has him on horseback, law books and legal papers in saddle, crossing a stretch of unbroken Central Illinois prairie from one county seat to another. Yet by the 1850's and the railroad boom, the era represented by this pastoral scene was coming to a quick end. Railroads changed everything. Lawyers, for instance abandoned the horse and buggy for the steam engine and they began corresponding using the telegraph. As for Lincoln, he began defending the interests of railroad companies, especially the mighty Illinois Central. By the mid-1850s, far from being the homespun, aw-shucks attorney remembered from our elementary school days, Lincoln was one of the most respected – and best paid – corporate lawyers in the state." Kemp, Lincoln Was a Well Paid Corporate Lawyer in His Hey Day, Pantagraph.com, McLean County Museum of History

²The source of the McClellan story was William Herndon, Lincoln’s partner, speaking from memory years afterward, and could not be true – at the time Lincoln submitted his $2,000 bill, McClellan was still a captain of engineers drafting a report on European military tactics. He did not become superintendent until months later. See Corliss, Abraham Lincoln and the Illinois Central Railroad page 9 (monograph published by the Illinois Central Railroad around 1950). This fee played a significant role in Lincoln’s political career for it financed his political activities as well as the debates with Sen. Douglas. Ibid., at page 12.

³Judd further said, "Lincoln [is] one of the best men to state a case forcibly and convincingly that I have ever heard . . . and his personality will appeal to any judge or jury." Pfeiffer, Bridging the Mississippi: The Railroads and Steamboats Clash at the Rock Island Bridge," Prologue, published by the National Archives and Records Administration, Summer 2004, Vol 36, No. 2).

⁴With apologies to Mr. Krasner, Mr. Pfeiffer’s article tells a different story: "The jury deliberated for a few hours and ended up as a hung jury. Therefore, the judge dismissed the case. The court’s action was seen as a victory for railroads, bridges, and Chicago over steamboats, rivers and St. Louis." Ibid. Undaunted, the steamboat interests got an Iowa federal judge to declare the bridge a nuisance and ordered the railroad to remove the three piers and their superstructure on the Iowa side. The railroad appealed to the U. S. Supreme Court, which reversed the trial court in Mississippi and Missouri Railroad Company v. Ward, 2 Black 485 (1863). The majority opinion stated that removing the Iowa half of the bridge would solve nothing in the matter of obstruction. If the trial judge’s decision was allowed to stand, "no lawful bridge could be built across the Mississippi anywhere, nor could the great facilities of commerce accomplished by the invention of railroads be made available where great rivers had to be crossed." Justice Catron could have been quoting Lincoln’s peroration to the jury! Pfeiffer, supra footnote 3.

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