Lincoln's Greatest Case: The River, the Bridge, and the Making of America Read online

  Lawyer, judge, and Lincoln scholar Frank J. Williams has expressed a high opinion of the legal skills that Lincoln brought to the presidency. Williams made a list of the traits that every good lawyer must possess, including honesty, industriousness, meticulousness, confidence, rhetorical skill, courage, zealousness, persistence, and fair-mindedness, and found that Lincoln possessed all of them.30 But Lincoln had “something more” than just the traits of a good lawyer, Williams wrote. “Put simply, Lincoln is still great today because he is remembered as a truly good person. . . . This ‘goodness’ cannot be reduced to any simple list of attributes, it just is.”31

  If “goodness” was the key ingredient in Lincoln’s presidency, it had very little to do with the Effie Afton case, considering that neither side could lay exclusive claim to being the “good” side. Persuasive arguments could be—and were in fact—made by both the plaintiffs’ and the defendants’ lawyers that they should prevail. Lincoln’s approach relied less on his innate sense of virtue than on his intelligence, analytical instincts, powers of persuasion—and, most important of all, his judgment. He allied himself with the Rock Island Bridge, and with the railroads that had built and operated it, in opposition to the steamboats. But this alliance implied no hostility to the steamboats. It was his considered judgment, as expressed in his closing argument in the Effie Afton case, that there was room both for steamboats on the Mississippi and railroads passing over it, though he realized what history would soon demonstrate, that the future belonged far more to the railroads and the bridge than to the steamboats. And he believed that, in the final analysis, it was essential that the law accommodate the future—that the Rock Island Bridge should not be held liable for the damages suffered by the owners of the Effie Afton, that the bridge should be allowed to stand and the railroads permitted to cross over the Mississippi.

  Railroads represented the future, of course. But they represented something else that was important in Lincoln’s mind. River traffic mostly led from the northern part of the country into the southern reaches of the republic. Both the Ohio and the Mississippi bordered slave states along their banks. Steamboats traveled from Pittsburgh and St. Paul, in the North, through St. Louis, a slaveholding city, and New Orleans, home of the largest slave-trading market in the United States, in the South. From its origins in Minnesota to its mouth in the Gulf of Mexico, the Mississippi, symbolically if not quite physically, divided the country east from west. The railroads mostly ran from east to west (railroads in the southern states were rudimentary compared to those in the rest of the country). Lincoln believed in the essential unity of the United States. He opposed the idea of secession and the consequent dissolution of the great republic that had been founded in the revolutionary generation by men who believed in the ideals of liberty and equality. In his closing argument in the Effie Afton case, Lincoln referred to the idea (broached by one of the opposing lawyers) that strife caused by the bridging of the Mississippi might lead to “a dissolution of the Union.”32 This, of course, was anathema to Lincoln, for the Union was his guiding light, his ideal, the vessel that would protect liberty and equality far into the future. By establishing ties between the East and the West to match those that already ran from the North to the South, Lincoln believed that the railroads, and the bridges that would eventually carry them across the Mississippi, would help to bind the sections of the country together. They would help to unite people and commerce in far-distant parts of the nation, and ultimately help to preserve the Union of the United States.

  All modern studies of Lincoln’s legal practice are indebted to the Lincoln Legal Papers project, begun in the 1980s as a comprehensive search in courthouses, libraries, private collections, and archives for documents from Lincoln’s legal career. The search (which is ongoing) has, according to a recent count, uncovered more than 97,000 documents from more than 5,200 cases in which Lincoln and his law partners participated.33 Now part of the larger Papers of Abraham Lincoln,34 the Legal Papers are indispensable sources of information about the law practice of America’s greatest president. This book could not have been written, nor could the story of the Effie Afton case have been told—or told as well—without them.

  ONE

  A Great Highway of Nature

  The Mississippi River and the streams that feed into it form one of the greatest river systems in the world. From its source in northern Minnesota to its mouth below New Orleans, the Mississippi itself measures 2,350 miles from end to end, but when its principal tributary, the Missouri, is added in, its length grows to 3,710 miles.1 The Mississippi-Missouri combination is generally ranked as the fourth-longest river system in the world, behind only the Nile, the Amazon, and the Yangtze. The watershed of the Mississippi extends from the Appalachian Mountains in the East to the Rocky Mountains in the West and covers all or parts of thirty-one of the United States and two provinces of Canada. The Missouri and the Ohio are the principal tributaries of the Mississippi, though there are countless other rivers, streams, rivulets, lakes, and even ponds that link with the major rivers and contribute to an unending flow that passes down from the mountains and through the prairies on its way to its ultimate destination in the Gulf of Mexico. One of the early historians of the western rivers called them “the great highways of nature, given for man’s use.”2 With the acquisition of the Louisiana Territory and the invention of the steamboat, it became clear that man was determined to make use of them.

  History would soon demonstrate, however, that using the great streams would not always be easy, for, despite their obvious advantages, they had some notable drawbacks. They were wide and straight and deep in places, but twisting and narrow and shallow in others. Mark Twain, who spent his boyhood along the Mississippi, called it “the crookedest river in the world, since in one part of its journey it uses up one thousand three hundred miles to cover the same ground that the crow would fly over in six hundred and seventy-five.”3 The Mississippi, Twain said, had a “disposition to make prodigious jumps by cutting through narrow necks of land, and thus straightening and shortening itself. More than once it has shortened itself thirty miles at a single jump!”4 Even where a stretch of river was straight, it could present hazards to navigation. There were sandbars, reefs, rapids, falls, overhanging trees, snags (broken trees that had anchored themselves to the river bottom), and rocks that posed formidable challenges to even the most skillful steamboat pilots. Islands dotted the streams in unexpected places, sometimes forming in a single season of high (or low) water and disappearing just as quickly in the next. And when the weather turned bitterly cold, ice formed and brought all navigation to a halt. The ice could be thick enough in some places to support teams of horses pulling wagons from shore to shore; but when it began to break up, it formed floes that moved down the river with deadly destruction, menacing boats, barges, rafts, and shoreline structures as well.

  If navigation on the broad Ohio and the Lower Mississippi was hazardous, it was even worse on the Mississippi north of St. Louis, for much of that part of the river was clogged with sandbars, and in dry weather the water was sometimes only a few inches deep. About two hundred miles upstream from St. Louis the river was obstructed by the Des Moines Rapids (so named for the nearby confluence of the Des Moines River), which ran for more than eleven miles over a slab of limestone between two rocky bluffs. Without a discernible channel, water in the Des Moines Rapids flowed fast and furious when the river was high but slowed to barely a trickle when water levels dropped.5 Another hundred or so miles upriver brought boats to the Rock Island Rapids, a short distance above Fort Armstrong, a U.S. Army post built between 1816 and 1817 to defend settlers along the river from the Indians who still claimed the region as their own. There the river ran for eighteen miles over sharp ridges (or chains) of rock that twisted from shore to shore, forming narrow channels (sometimes called chutes) and raising strong and unpredictable cross-currents. Steamboat passage through the Rock Island Rapids was treacherous, even at high water; during low water th
e underwater obstructions were covered with less than thirty inches of water and passage was sometimes impossible.6 Some of the river channels twisted so dangerously that boats had to make hairpin turns to avoid running aground on the rocks, and in others the channels were no more than a hundred feet across.7

  No steamboat ventured north of the Des Moines or Rock Island Rapids before the spring of 1823, when a small vessel called the Virginia left St. Louis bound for Fort Snelling, at the confluence of the Minnesota and the Mississippi.8 The Virginia had a few passengers on board (including a chief of the Sauk Indians) and a cargo of supplies for the military post at Snelling. It moved slowly but safely through the Des Moines Rapids, but when it reached the Rock Island Rapids, it got stranded on a rock, where it remained for two days before rising water permitted it to resume its voyage.9

  Despite the treacherous rapids, steamboat traffic on the Upper Mississippi experienced a healthy growth after 1823. Lead was being mined around Galena, in the northwestern corner of Illinois, and thousands of miners and their families were flocking to the area. With a silver content of about 5 percent, the lead ore in the local mines constituted the largest and richest mineral deposit found in the United States up to that time.10 By the close of the season in 1828, a hundred steamboats had docked at Galena to pick up some thirteen million pounds of lead and bring them downriver. Seven years later, the number of boats engaged in the same operations had increased to 176.11

  Congress was repeatedly asked to appropriate funds for the improvement of the western rivers, but the southern senators and representatives who held the balance of power in the national capital limited their help to the southern sections of the waterways. In 1829, a survey of the Des Moines and Rock Island Rapids was carried out in the hope that canals could be built around the obstacles, but that hope was soon abandoned in favor of a program of blasting and rock removal.12 It was not until 1837, however, that any effort was made to do this. In that year, the U.S. Army sent a young lieutenant of engineers from Virginia by the name of Robert E. Lee to survey the St. Louis waterfront and both the Des Moines and Rock Island Rapids, and recommend improvements.

  The harbor at St. Louis at that time was menaced by a large bar of accumulated sand and silt called Duncan’s Island. Already a mile long, Duncan’s Island was growing larger every year, threatening to wholly obstruct the harbor and divert the main river channel across the river to the Illinois side.13 Lee was accompanied by another army engineer named Montgomery Meigs, and the pair worked with a German mapmaker named Henry Kayser to prepare accurate maps of the river obstructions. Their report recommended blasting rock to open channels in the two rapids and building dikes in the river at St. Louis to deflect the main course of the river toward Duncan’s Island and wash it away. Work was done at St. Louis and on the Des Moines Rapids in 1838 and 1839, but congressional appropriations soon ran out, and Lee was summoned back to Washington in 1840. A channel five feet deep and two hundred feet wide had been cut through the Des Moines Rapids, but the Rock Island obstructions remained untouched. Duncan’s Island was not finally removed until other engineers returned to the river in later years and finished the work begun by Lee and Meigs.14

  As steamboat design developed, it became apparent that a practical river craft needed some essential features. First, it had to have a shallow hull, one that spread the weight of the boat and its cargo widely over the water and penetrated only a few feet—or in the case of smaller craft only a few inches—below the surface. Second, its propulsive power had to stay close to the surface so that underwater obstructions would not disable it. This resulted in the almost universal use of paddle wheels instead of propellers, which had to ride much lower in the water to move the boats forward. Third, it had to have guards, or sections of the main deck that projected beyond the hull and protected it from any collisions the boat might be subject to. Fourth, it had to have several decks—at least two, sometimes three or even four—so cabin passengers could enjoy some separation from the bellowing steam engines and the unsavory cargos (coal, farm products, cotton bales, even livestock) that crowded the main deck. Fifth, it had to have a pilot house that was elevated well above the river surface, so that the men responsible for navigation could see the river ahead and spot potential trouble before it was too late to deal with. Finally, it had to have iron chimneys that extended high above the boat, so that the smoke and soot produced by the steam engines would not obscure the pilots’ vision and the red-hot cinders that rose from the fireboxes would be scattered over the river before they could land on a deck and start a potentially catastrophic fire. Chimneys sometimes rose to a height of ninety feet above the water, where they belched black clouds of smoke, soot, and embers that could be seen (and smelled) for miles around.15

  Lincoln was only two years old when the first steamboat was put into service west of the Appalachians.16 Built just outside Pittsburgh in 1810 and 1811, the 116-foot-long New Orleans was a joint venture of Robert Fulton, Robert R. Livingston, and Nicholas Roosevelt, a great-uncle of Theodore Roosevelt and a distant relative of Franklin D. Roosevelt. It became the first steamboat on the Ohio when, in October 1811, it sailed downstream from Pittsburgh with Roo-sevelt and his wife, Lydia Latrobe, daughter of architect Benjamin Latrobe, aboard. The Great Comet of 1811 was visible to the naked eye for most of the trip, and the first of the New Madrid earthquakes occurred just as they were to leave the Ohio and enter the Mississippi, causing the great river to flow backward for a time. Indians along the banks thought that the New Orleans was the comet come to earth and attacked it in war canoes, but the boat was too fast for them to catch. Although the steamboat eventually made it all the way to New Orleans, its engine was not strong enough to power it back upstream to Pittsburgh, so it spent the rest of its short life making trips between New Orleans and Natchez. It struck a snag and sank in 1813 or 1814.17

  Lincoln was five years old when, in 1814, a boat called the Enterprise became the first steamboat to engage in regular commerce on the Ohio and Mississippi Rivers. When it reached New Orleans, General Andrew Jackson pressed it into service delivering munitions and other supplies for the Battle of New Orleans.18 Lincoln was seven when, in 1816, his family crossed the Ohio from Kentucky into Indiana. That was the year in which a New Jersey–born inventor and steamboat captain named Henry Shreve sailed the first double-decked steamboat down the western rivers to New Orleans and back to Louisville. Shreve’s steamboat, called the Washington, followed up this trip with a round trip from Louisville to New Orleans and back in 1817, covering the distance in forty-one days.19

  The year after the Lincoln family took up residence in Indiana, the first steamboat designed exclusively for passenger service was built at Cincinnati and christened the Zebulon Pike. It became an official U.S. mail carrier on the western rivers and the first steamboat to navigate the Mississippi above the mouth of the Ohio, completing a voyage all the way to St. Louis in August 1817.20 In 1818, the year Lincoln marked his ninth birthday, six steamboats were built at Cincinnati, which was then emerging as the chief boat-building port on the western rivers.21 Between 1826 and 1830, the Louisville and Portland Canal was built to bypass the Falls of the Ohio and allow cargo and passengers to travel all the way from Pittsburgh to New Orleans without changing boats or waiting for high water. The Falls of the Ohio were a stretch of two and a half miles in which the river dropped a total of twenty-six feet. For about ten months every year, boats were unable to make it through this dangerous obstruction, so it became a location for portage—with keelboats and rafts unloading their cargos and carrying them around the falls to be loaded again onto keelboats or rafts. The portage gave rise to the city of Louisville, but the falls were such an obstruction to paddle-powered boats that the bypass canal became a necessity, and eventually a blessing.22

  The completion of the Louisville and Portland Canal helped fuel a great expansion of boat-building and river commerce. Steamboat construction flourished along the Ohio River, with much of it concentrated in Cinc
innati. For twenty years beginning in the late 1830s, thirty or more steamboats were built every year in the self-styled “Queen City of the West.” In one year alone (1843) forty-eight boats left Cincinnati boatyards bound for service on the western rivers.23 Meanwhile, the line of steamboats that crowded the New Orleans waterfront grew longer each year. In 1840, New Orleans was the fourth-most-populous city in the United States and the fourth-busiest port in the world, exceeded only by London, Liverpool, and New York.24

  Lincoln’s birth near Hodgenville, Kentucky, and the fourteen youthful years he spent on his father’s farm at Little Pigeon Creek, Indiana, gave him a good deal of experience with rivers. His father, Thomas Lincoln, who spent most of his life as a carpenter and farmer, also did some work on the rivers. At least once (and possibly several times) Thomas floated a flatboat all the way down the Mississippi to New Orleans, where he sold both his boat and his cargo. In New Orleans, he sold his goods on credit and was cheated when the buyers failed to pay him, forcing him to come home empty-handed.25 Lincoln was aware of his father’s failures on the rivers, but they did not dissuade him from trying his own hand at river work, for he was anxious to better his condition in life and willing to take whatever opportunities presented themselves. Young Abraham resented the fact that his father rented him out to neighbors for the most menial kind of physical labor and kept the meager earnings for himself. He later complained that this practice, which continued until he turned twenty-one, made him a slave, since he was forced to work without receiving anything in return but a bare subsistence.26

  In 1827, Abraham was hired to operate a ferry on a local creek for the miserable wage of twenty cents a day, and the money all went to his father. About this time, however, he also experimented with a little private enterprise. He built a small boat and took it down to the Ohio River (about fifteen miles from Little Pigeon Creek). There two men asked him to ferry them out to a steamboat in the middle of the river. When Lincoln obliged them, they responded by throwing two silver half-dollars into his boat.27 Lincoln was astonished that he could make a whole dollar in just one day. “The world seemed wider and fairer before me,” he later wrote. “I was a more hopeful and thoughtful boy from that time.”28 Encouraged by his initial experience, he turned his little boat into a ferry business, regularly rowing people out from the shore to riverboats in the Ohio. When the operator of a competing ferry had him arrested and taken to Kentucky for operating a ferry without a license, he defended himself before a justice of the peace by arguing that, although the Kentucky license law authorized ferry boats to carry passengers across the river, it did not forbid others to convey passengers to steamboats in the middle of the river. This episode was, in later years, described as one of Lincoln’s earliest experiences with the law, and one that helped him develop an interest in a legal career.29