Taking a new look at Lincoln the lawyer
Until recently biographers of Abraham Lincoln have known surprisingly little about the details of his law practice. Even the most basic information has been lacking, such as how many cases he had, what proportion was devoted to criminal cases, what to debt collection, or how often he represented railroads and other corporate interests. In the absence of hard and comprehensive evidence, scholars of Lincoln's law practice have, for the most part, only been able to present it anecdotally. In these circumstances, the general impression of Lincoln the lawyer has formed around random recollections of some of his more colorful and dramatic cases.
A good example is an anecdote presented by Lincoln's law partner, William H. Herndon, which concerns Lincoln's spirited defense of a poor, Revolutionary War widow who had been cheated out of $200—half her meager pension—by a grasping and unscrupulous pension agent. What Herndon and others remembered most distinctly about this case was the “skinning” Lincoln gave the defendant, Erastus Wright.
The speech was memorable as an example of how Lincoln could be, as Judge David Davis recalled, “terrific in denunciation” and “merciless in castigation.” According to Herndon's biography, “Lincoln recounted the causes leading to the outbreak of the Revolutionary struggle, and then drew a vivid picture of the hardships of Valley Forge, describing with minuteness the men, barefooted and with bleeding feet, creeping over the ice. As he reached that point in his speech wherein he narrated the hardened action of the defendant in fleecing the old woman of her pension his eyes flashed, and throwing aside his handkerchief, which he held in his right hand, he fairly launched into him.”
The case was notable also for the surviving outline Lincoln made of his closing speech, which also appeared in Herndon's biography: “No contract. – Not professional services. – Unreasonable charge. – Money retained by Def't not given by Pl'ff. – Revolutionary War. – Describe Valley Forge privations. – Ice – Soldier's bleeding feet. – Pl'ff's husband. – Soldier leaving home for army. – Skin Def't. – Close.” When Lincoln finished, the jury, half of which was in tears, lost little time in returning a verdict for the widow.
Herndon is an honest and well-informed witness, but how would this case appear if we knew more about it? Who, after all, was this Revolutionary widow? Who was Erastus Wright, and how did he come between the widow and her pension? Beginning in the 1980s, the Lincoln Legal Papers project (also known as the “Lincoln Legals”) was launched to document every aspect of Lincoln's law practice. By examining every piece of paper from the Lincoln era in eighty-eight Illinois courthouses, a massive database of some ninety-six thousand document images was assembled. To these were added nontechnical descriptions of each individual case, as well as requisite information on the courts, the lawyers, the judges, and the legal procedures governing the practice of law in antebellum Illinois.
Drawing on this database even before it was completed, Lincoln scholar Paul Verduin was able to determine that only two women ever retained Lincoln and Herndon for a suit against Erastus Wright, only one of whom was a Revolutionary War widow, Rebecca Thomas. She happened to be an old acquaintance of Lincoln's from his New Salem days, but her name had heretofore been lost. With this information, Verduin found Thomas's husband's pension file in the National Archives, along with the files of many other persons assisted by pension agent Wright.
Historical documents have a way of never telling us exactly what we expect to learn. In this case, the files seem to indicate that Wright took the pension claims of many Illinois veterans to Washington and saw them through the exacting government procedures that, by rule, could only be performed in the nation's capital. In so doing, Wright performed a valuable service for his clients, securing them pensions they would otherwise have never received. The files further suggest that Rebecca Thomas, who was seventy-five years old and illiterate, had great difficulty understanding the pension laws and what she was and was not entitled to, and that her confusion extended to what Wright was entitled to as his commission. Court files located by the Lincoln Legals show that Lincoln and Herndon first sued Wright before a justice of the peace and lost. But then, on November 16, 1846, they succeeded in getting their case before a jury in the circuit court, and the jury awarded Rebecca Thomas $35 and costs, not $200.
All of this puts the Thomas case in a different light. It raises the possibility that the supposedly wronged widow may simply have been ignorant of or unwilling to accept what she and the pension agent were each entitled to. Herndon's recollection of Lincoln's performance, confirmed by David Davis, is still valuable, but the documentary evidence serves to correct its details and put it in context, giving rise to the suggestion that Abraham Lincoln may have resorted to the bloody footsteps at Valley Forge and the merciless “skinning” of Erastus Wright because he had a weak case.
This new information about Rebecca Thomas is typical of what can be revealed with the assistance of the database compiled by the Lincoln Legals, assiduously assembled over a period of fifteen years. Now comes the long-anticipated capstone of the project, a four-volume compilation of selected law cases, which will be the initial offering in a new multimedia edition to be known as The Papers of Abraham Lincoln. For this work, Legal Documents and Cases, the editors have selected about fifty of what they describe as Lincoln's “most interesting, important, and representative cases,” providing transcriptions of pertinent documents, a nontechnical narrative explaining each stage of the case, and useful commentary along the way on legal issues and on the law as practiced in Lincoln's day.
In exploring the texture of Lincoln's law practice, the editors have employed a variety of sources, including newspaper accounts, reminiscence, and judges' trial notes. The court documents are the most authentic and in some ways the most important, but because of their notoriously formulaic character, they tend to be the most leaden and least revealing. Nonetheless, there are exceptions. Even a formal indictment, such as that in the well-known case in which Lincoln undermined the testimony of a witness by referring to an almanac, can be the source of surprising revelations.
The Grand Jurors chosen selected and sworn in and for the County of Mason aforesaid in the name and by the authority of the People of the State of Illinois upon their oaths present that James H Norris and William Armstrong late of the County of Mason and the State of Illinois not having the fear of God before their eyes, but being moved and seduced by the instigations of the Devil on the twenty ninth day of August in the Year . . .
The references to “the fear of God” and “being moved and seduced by the instigations of the Devil” bring the modern reader up sharply and serve as vivid reminders that the separation of church and state meant something different in Lincoln's time from what it means today.
If this mode of rendering Lincoln's law cases is rarely scintillating, it is mainly because of the subject matter. We all know that court trials can be electrifying, but the vast majority are found at the other end of the dramatic spectrum. Even a murder trial, where the contingencies of life and death are thrown into high relief, can be tedious reading, as evidenced by the transcript of the trial of Peachy Quinn Harrison, whom Lincoln successfully defended in 1859. As becomes clear in a rare trial transcript, one of only three known, a preponderance of the questioning by the attorneys on both sides of this case had to do with the kind of grip one combatant had on the other, with great attention to the positioning of their respective hands, arms, and bodies in the course of their struggle. Because so much was seen to turn on who did what to whom and at what point, the interrogation returns with numbing regularity to the same questions with witness after witness. By contrast, what was arguably the trial's turning point—Lincoln's persuading the judge to reverse his own ruling and admit testimony about threats made by the victim that were essential to Lincoln's defense—is barely referred to, the reporter apparently not thinking a record of such an argument was necessary.
While high drama is not what one should expect even in these carefully selected cases, something close to it is occasionally present, and in unexpected places. Seen for its cast of characters and its many reverses, Case No. 38 reads like a picaresque novel. It all began with the will of a well–to–do farmer named William McDaniel, who fell ill in 1853 and dictated his will to his attending physician, who knew nothing about wills and doubted that his patient was up to the task, but who finally, at the urging of family members, consented, only to find he had to ply his patient with wine to keep him sufficiently stimulated to dictate. McDaniel dies several days later and all seem satisfied until the wife decides to refuse the conditions of the will and ask for dower, or one-third of the estate for her own use, which causes McDaniel's three daughters to rethink their share of the estate (no real estate but a portion of the personal property). But they can't sue because they are married, so their husbands join the suit and help their wives argue that the old man would not have disposed of his property so unequally if he had not been dosed with wine. At this point all the neighbors are brought forward to tell in colorful detail what they remembered McDaniel saying about who in his large family was going to get what. Is this comedy or tragedy?
Lincoln is employed to defend the will and the trial ends in a hung jury. But in the second trial the physician who had composed the will, and given the impression in the first trial that he thought his patient competent, testifies, to Lincoln's surprise and horror, that he did not believe this to be true, which is enough for the jury, who promptly find the will invalid. Now Lincoln has to round up jurors from the first trial who remembered things as he did and take affidavits for his appeal, but the other side also finds jurors from that trial who remember it the other way around.
Other setbacks plague Lincoln's appeal and the case is continued from term to term, while parties to the suit, such as McDaniel's wife, continue to complicate matters by dying off. In 1858, the case is remanded back to the circuit court for a third trial on a technicality about notification, which is where it still stands two years later when Lincoln exchanges the wars of the courtroom for the real thing. Closure finally comes when Herndon writes him in Washington in 1863 to say that their firm had finally prevailed in the “great McDaniel case,” after a full ten years.
Another case that Lincoln was working on when he was elected president lasted even longer. This was one of Chicago's notable "sand bar" cases, which involved tenacious legal grappling over shore land that accrued along the coast of Lake Michigan, creating de novo what would be immensely valuable real estate. “Sand bars,” mocked a Chicago newspaper, “whatever they may be deemed by mariners, deserve to be embalmed in the deepest and tenderest regard of Chicago lawyers. . . . Those reaches of barren sand have been a rich El Dorado to the lawyers, Pike's Peak and California at their very feet1v This case, which was tried three times in federal circuit court and went to the U.S. Supreme Court not once, but twice, finally ended after twelve years of litigation in 1862.
While prolonged and lucrative for lawyers, such disputes had little consequence for society at large. But another titanic legal struggle at about the same time, the Rock Island bridge case, was a different matter, with Lincoln in the very thick of this case as well. At issue was whether the first railroad bridge across the Mississippi River was a hazardous obstruction to river navigation. At the local level, it involved the question of whether St. Louis, the river city, or Chicago, the railroad capital, was to be the predominant center of commerce in the heart of the country. But at the national level, which Lincoln clearly had his eye on, it was about facilitating the inevitable flow of western settlement. In fighting the river interests to a draw in the form of a hung jury, Lincoln's team was ensuring that the right to cross a river by rail was at least as important as the right to navigate it by boat.
In spite of the fact that Abraham Lincoln had only a few months of schooling and studied law entirely on his own, he was admitted to the bar in 1836 at the age of twenty-seven and practiced law successfully until he was elected president in 1860. His legal career was not only his vocation and source of financial support but, in regularly taking him to other localities around the state and giving him an opportunity to develop as a speaker, it supported his lifelong involvement in politics as well.
Some cases are particularly revealing of social conditions of the era. One such was a case of slander brought by the son of a Portuguese immigrant, who, as the result of an obscure quarrel, had been publicly branded by his brother-in-law as a “Negro.” In antebellum Illinois, this was slanderous on its face, for it was illegal for a man of African descent to be married, as Lincoln's client was, to a white woman, the sister of his accuser. Dungey v. Spencer has the added virtue of exhibiting several clearly discernible layers of Lincoln's engagement with his case. There is, first of all, the ordinary obligation of lawyer to client, and there is also Lincoln's genuine concern for the injustice inherent in racial prejudice and stigma. But as one of the opposing lawyers recalled years later, Lincoln's professional pride was aroused in this case by the fact that the judge had ruled that his initial pleadings were deficient.
“Gentlemen of the Jury,” Lincoln is reported to have said, “my client is not a Negro, tho it is no crime to be a Negro, no crime to be born with a black skin.” The opposing lawyer thought Lincoln had galvanized the attention of the jury by the use of a single arresting word: “If the malice of the defendant had rested satisfied with speaking the words once or twice, or even thrice, my client would have bourne it in silence. But when he went from house to house, gabbling, yes, gabbling about it, then it was that my client determined to bring his suit.”
Persuasion by the arresting use of words would prove a hallmark of Lincoln's career not only as a lawyer, but as a politician and, more consequentially, as president. His persuasive skills were constantly being engaged and honed in the course of his law practice, and this alone would be reason for wanting to know more about it. A discerning and persistent reader can learn about the distinctive tone of Lincoln's mind, his characteristic way of thinking and dealing with problems. This is especially true in the few cases where a transcript exists and it is possible to study Lincoln's methods of direct and cross-examination, such as the Rock Island case.
Books on Abraham Lincoln abound. Because he is the most written-about of all Americans, and ranks as one of the most written-about figures in world history, the feeling persists, as one scholar famously put it, that the Lincoln theme has been exhausted. But new information makes for new insights, which makes for fuller and more accurate interpretations. Perhaps the most important thing we learn from this final contribution of the Lincoln Legal Papers project is how fragmentary and incomplete our knowledge of Lincoln's law practice has actually been and how much is yet to be learned.