During his circuit riding days, Abraham Lincoln occasionally would sit as a judge pro tem. Even in the antebellum Illinois prairie, this was highly unusual and without legal authority. Consequently, Lincoln’s judicial duties were limited, and mostly involved uncontested matters.

We all are familiar with lawyer Abraham Lincoln’s twice-a-year sojourn on his trusty horse, Old Bob, from courthouse to courthouse comprising Illinois’ Eighth Judicial Circuit. Lincoln, one of a small entourage of lawyers traveling Central Illinois with Judge David Davis, built a reputation of trust, and established himself as the most sought after co-counsel in Illinois.

Lincoln had an affinity for resolving disputes whenever possible. Author Mark E. Steiner in An Honest Calling: The Law Practice of Abraham Lincoln, states, “When faced with local disputes, Lincoln often tried to serve as a mediator or peacemaker. Lincoln was in his element when handling lawsuits based on local disputes; the community orientation of these disputes favored mediation and compromise.” This is in keeping with Lincoln’s oft-quoted admonishment that lawyers serve as peacemakers, “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time….There will still be business enough.”

Judge Davis knew the character and nature of all the lawyers who appeared before him. Whenever Davis either took ill or became temporarily unavailable to preside due to personal business, he favored the self-taught Lincoln to sit for him as judge pro tem, although there was no law permitting a lawyer to act as a substitute judge. Realizing this, Lincoln only would preside if all the parties agreed to accept his appointment.

Lincoln was able to serve as judge pro tem because Judge Davis, the litigants, and the attorneys who consented to let Lincoln hear a case never doubted Lincoln’s faithfulness to the law, impartiality, or neutrality. They also admired Lincoln as a highly skillful trial and jury lawyer.

In Judging Lincoln, the authors examine Illinois judges during the years Lincoln practiced law, including the cases heard by Judge Pro Tem Lincoln. In at least 321 cases Lincoln substituted for Judge Davis. Many of the cases were disposed in 1858. The cases involved, by way of example, continuances (161), dismissals (31), default judgments (28), non-suits (3), final judgments (54) and procedural rulings (40). Most of the proceedings before Lincoln required little work on his part and tended to be relatively straightforward to decide.

Did Lincoln follow a judicial philosophy? Maybe.

We have some idea of Lincoln’s thoughts on this subject because in 1858, a newly- elected justice of the peace for Sangamon County by the name of John F. King, consulted with Lincoln about how he should approach his duties. Lincoln’s law partner and biographer William Herndon recalled that Lincoln told King, “There is no mystery in this matter. King, when you have a case between neighbors before you, listen well to all the evidence, stripping yourself of all prejudice, if any you have, and throwing away, if you can, all technical law knowledge, hear the lawyers make their argument as patiently as you can; and after the evidence and the lawyers’ arguments are through, then stop one moment and ask yourself: what is justice in this case, and let that sense of justice be your decision.” (Emphasis added.)

Lincoln continued, “Law is nothing else but the best of wise men applied for ages to the transactions and business of mankind.”

That Lincoln decided cases based on gut feelings is borne out in Lawyer Lincoln, by Albert A. Woldman, one of the earliest examinations of Lincoln’s 23 years of practicing law. Woldman discusses some of the cases heard by “Judge” Lincoln. In one dispute, a clothier sued the father of a boy who bought a $28 suit on credit. The lad’s father had no idea that his fashion-conscious son had ordered the outfit. The clothier had to prove the purchase a necessity and appropriate to the boy’s lifestyle, and, indeed, the father was a prosperous farmer. Legend has it that Lincoln said, “I have rarely in my life worn a suit of clothes costing $28,” and ruled against the clothier. With that kind of legal reasoning no wonder the Illinois Supreme Court twice rejected Lincoln’s trial judgments due to the legal officer’s ineligibility!

In another case, involving neighboring farmers, Hartsfeller sought damages from Trowbridge after Trowbridge’s cattle consumed all the corn stored in a crib owned by Hartsfeller. The land on which Hartsfeller put the crib was leased from Trowbridge for growing corn. Trowbridge warned Hartsfeller not to locate the crib within a fenced area where cattle grazed. Hartsfeller ignored the warning, and, sure enough, the cattle happened on the crib and emptied it of corn. Lincoln, apparently a judge willing to probe witnesses to get to the gist of the controversy, asked Trowbridge whether he had advised Hartsfeller to put the crib outside of the fenced area. Trowbridge replied, “Yes, sir.” With that, the honorable judge announced, “Trowbridge, you have won your case.”

Of Lincoln’s “judicial spirit,” Woldman wrote, “No characteristic in all of Lincoln’s career appears more prominent than the judicial spirit –the passion for justice and the zeal to act as pacificator, arbitrator, referee, umpire, or judge.” This judicial spirit was bound up with Lincoln’s natural sense for discerning what was good and right. For Lincoln, good and right meant the cause of truth, which he considered to be “your truest friend, no matter what the circumstances are.”

In addition, Lincoln’s “judicial spirit” meant the pursuit of the cause of justice, both in the courtroom and in the court of public opinion. According to a lawyer who saw Lincoln try cases, in one closing argument Lincoln said that the courthouse “is dedicated to the cause of justice” and “the only place where my client can seek protection and vindication.”

As President, Lincoln furthered the cause of justice and humanity above all else, and lost his life for having purged the greatest injustice perpetrated by our nation. Finally, Lincoln’s “judicial spirit” also comes through in what I have referred to as Lincoln’s prayer for judges, described in more detail in the accompanying article:

May the Almighty grant that the cause of truth, justice, and humanity shall in no wise suffer at my hands

To this we can say, Amen. 

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Justice Michael B. Hyman, Chair of the Bench and Bar Section Council, is assigned to the Illinois Appellate Court, First District. He has been a student of the life of Abraham Lincoln since he was five years old.