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Abraham Lincoln as a Lawyer

Two hundred years after the birth of Abraham Lincoln, he remains one of the mythical figures in American history. Lincoln remains the most famous lawyer who ever practiced in the country, someone for all lawyers to emulate. What are the truths about the legend of Lincoln the lawyer?

Part of the myth of Lincoln as president are the humble origins in a log cabin. The legend of Lincoln the lawyer is fueled by the self taught, rough hewn man, who honed his skills to a high level through diligence and hard work to become one of the best lawyers in the young nation.

Abraham Lincoln came to the law after failed careers as a surveyor, and store keeper. As a young man working on his father's farm, Lincoln came to despise hard labor. His father hired him out to work on surrounding farms and despite his dislike of hard labor, he became proficient with an ax, becoming in fact what he is known for, a rail splitter.

As soon as he became of age, Lincoln fled the manual labor of farming to make his way in New Salem, Illinois. There, he worked in a store, eventually becoming a part owner. The store failed and he became liable for not only his debts, but his partner's debts, which followed him for many years to come. He began a career as a surveyor, working surveying the new lands of the West, hoping to avoid conflicting claims on those lands. That career came to an end when creditors seized and sold at auction his surveying equipment. He also served a political appointment as postmaster for a time while working as a surveyor.

Lincoln was unusual for the time, and perhaps for present times as well, in that he was elected to the State Legislature after one failed bid and became a politician who later became a lawyer rather than the reverse. After achieving some fame as a legislator in Illinois, he was urged to study the law by one of the leading lawyers of the day, Steven Logan. Lincoln was a self-taught lawyer, reading from Blackstone's Commentaries before being examined by the Illinois Supreme Court and given his license to practice in 1836 at age 25.

Lincoln as a lawyer has been referred to in reverential ways throughout history. Just what was Lincoln like as a practicing attorney and what kind of career did he have. Hollywood has portrayed him as a champion of the poor and downtrodden, taking on unpopular causes for little or no compensation. Was this in fact the way Lincoln practiced on the Prairie? What did Lincoln himself feel about the law? This article will examine Lincoln as a lawyer and the skill that he brought to his craft.

Lincoln left notes for a lecture on the practice of law that were discovered in his private papers by his secretary John Hay after his death. Hay dated these notes as having been written around 1850, although they appear to have been written later in his legal career. Lincoln described his own approach to the practice of law for the lecture. He described himself as "not an accomplished lawyer." Lincoln found more material for his lecture on the practice of law from his failures than his successes. "The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done."

Interestingly, his last law partner William Herndon, described him as less than diligent in his preparation of cases. Lincoln's advice to others was to gather the facts of a case immediately and write out a declaration, citing the law that supported your position at once, rather than waiting for the case to be called for trial. In ordinary legal matters "make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not."

Lincoln taught that mediation and compromise were to be pursued rather than litigation. "Discourage litigation", Lincoln wrote in his lecture on the practice of law. "As a peacemaker the lawyer has a superior opportunity of being a good man." Lincoln counseled lawyers to "Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser in fees, expenses and waste of time." While recognizing that this would lessen the business revenue that lawyers received from litigation, he concluded "There will still be business enough." In the middle of a case between two merchants in 1839 involving the quality of flour, Lincoln counseled his client to settle, offering to charge nothing for his services if the dispute was resolved.

On the matter of fees, he cautioned "An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in performance."

Did Lincoln follow his own counsel in the practice of law? What was his reputation and skill as a lawyer in Illinois before he was elected President? Lincoln was concerned, as are most lawyers today, about the reputation of some lawyers in the mind of the public of being dishonest. History tells us that the sobriquet "Honest Abe" did not come from the practice of law, but rather from the fact that he labored many years to pay all of the debts incurred in his failed career as a storekeeper. Of course, Lincoln may have had little choice in that since when the store failed, a comprehensive bankruptcy act did not exist, making debtors liable for their debts without resort to bankruptcy. An examination of his career reveals that Lincoln had a well earned reputation as an able, competent and accomplished lawyer despite his self deprecating remarks.

While in New Salem, Lincoln wrote out simple legal forms for local justice of the peace Bowling Green, and borrowed law books from Springfield attorney and fellow Legislator John T. Stuart. He did not read law with Stuart as many others did when studying to be a lawyer, but did his reading on his own. Lincoln was licensed to practice law in September of 1836; six months later, in Vandalia (then the state capital), the Clerk of the Illinois Supreme Court entered his name on the roll of attorneys. Early in 1837, Lincoln accepted Stuart's invitation to join him as a junior partner. Over the next four years, they practiced law and Whig politics together. Lincoln learned much about the law from the more experienced Stuart. Their partnership dissolved in 1841, and Lincoln joined Stephen T. Logan, one of the country's most capable and respected lawyers. Logan was a stickler for careful preparation and details, insisting that Lincoln pay closer attention to the finer points of trial and appellate law. Finally, in 1845, upon the amicable termination of his relationship with Logan, Lincoln took his own junior partner, William H. Herndon. The two practiced together until he left Springfield for the White House in early 1861, and their partnership endured, at least in name, until Lincoln's death in 1865.

In 1845, Gibson Harris joined the firm of Lincoln and Herndon as a student and clerk. Years later he recalled the office this way: "The furniture, somewhat dilapidated, consisted of one small desk and a table, a sofa or lounge with a raised head at one end, and a half-dozen plain wooden chairs. The floor was never scrubbed....Over the desk a few shelves had been enclosed; this was the office bookcase holding a set of Blackstone, Kent's Commentaries, Chitty's Pleadings, and a few other books. A fine law library was in the Capitol building across the street to which the attorneys of the place had access."

In his biography of Lincoln, Herndon described his law partner's habits in the office: "When he reached the office, about nine o'clock in the morning, the first thing he did was to pick up a newspaper, spread himself out on an old sofa, one leg on a chair, and read aloud, much to my discomfort. Singularly enough Lincoln never read any other way but aloud."

Herndon also observed Lincoln's haphazard approach to office organization: "Lincoln had always on the top of our desk a bundle of papers into which he slipped anything he wished to keep and afterwards refer to. It was a receptacle of general information. Some years ago, on removing the furniture from the office, I took down the bundle and blew from the top the liberal coat of dust that had accumulated thereon. Immediately underneath the string was a slip bearing this endorsement, in his hand: 'When you can't find it anywhere else, look in this."

Lincoln is remembered as an outstanding trial attorney and his legend contains stories of his courtroom exploits. Lincoln's legal career did not consist solely in litigation. He maintained a practice that was common for lawyers of that era which included writing deeds, registering land, paying taxes, receiving money, and giving general legal advice. He did in fact have an active litigation practice which included both state and federal trial work. At that time the amount in controversy required for federal diversity jurisdiction was $500.00. Clients from major commercial centers such as New York, Boston, St. Louis, and Philadelphia retained Lincoln to represent them in Illinois courts. Lincoln argued one case before the United States Supreme Court when he was in Congress in 1849, and served as the attorney for record in four more throughout the 1850s.

During the 1850s, there were approximately 2,700 lawyers in Illinois, or three for every 1,000 residents. The state's disproportionately high attorney population was a reflection of its dynamic economic and transportation growth. Rapid settlement meant land and debt disputes, and railroad construction brought contract and tort cases. The substantial majority of Lincoln's 5,000 cases were tried in the circuit courts of nearly two dozen Illinois counties, most of them within the large Eighth Judicial Circuit that stretched from Springfield's Sagamon County eastward to Indiana. Twice a year for over 20 years, he spent two to three months riding the circuit in a company with the presiding judge and fellow attorneys. Most of these cases were simple, often relating to disputes over a debt or promissory note, but the comprised the bread and butter of Lincoln's practice

Lincoln was away from Springfield for nearly six months of the year, three months each spring and each fall riding the circuit. He had traveled the Eighth Judicial Circuit in the past but began to spend even more time on the circuit after his return from Congress. By 1849, the circuit had fourteen counties in central Illinois, and Lincoln was the only attorney, besides the state's attorney and the judge, who traveled the entire circuit. After one county circuit court concluded its business, the circuit judge and the state's attorney left to hold court at the next county seat. Circuits usually consisted of four to ten counties, and a court term lasted from a few days to a few weeks. At its peak from 1841 to 1847, the Eighth Judicial Circuit consisted of fifteen counties. Roads were difficult to travel during rainy weather. Itinerant court members traveled on horseback or by horse and buggy. While in a county seat, they stayed at local taverns, ate at common tables, and shared beds. When travel was particularly hazardous or lengthy, the group stayed at rural farmhouses along the way. By the end of the 1850s, railroads had become a popular mode of transportation, and Lincoln was able to travel to each of the county seats by rail. Many county seats along rail lines had grown in population and had hotels in which traveling lawyers and judges stayed.

Lawyers on the circuit had to think fast on their feet. With little or no information about a case beforehand, the case proceeded to trial without any discovery. The lawyer had to communicate the legal issues to a frontier jury and that is where Lincoln honed his speaking skills. He would often begin his arguments by stating his opponents best positions in a logical fashion and then pick them apart point by point.

After a day's session, all of the lawyers and the judge would retire together to the same tavern. Lincoln would dominate the storytelling after dinner. He used that storytelling ability in his legal presentations. The legal ethics of the day were very different from today. Ethics tended to shift with practical concerns. Lincoln was able to mix in personal emotion to appeal to the hearts of the jurors and sway the jury with his stories.

RAILROADS CAUSE LEGAL BUSINESS BOOM

In the 1850s, the Illinois legislature chartered railroads, and many of them began construction. These events increased litigation over issues of right of way, stock subscriptions, fencing, and damages to real property. Lincoln generally supported the development of railroads all over the state, but that did not prevent him from opposing the railroad companies in the courtroom. It also did not prevent him from representing the same railroads that he had sued. He became involved in railroad litigation and represented individuals nearly as often as railroad corporations. The Illinois Central Railroad secured his legal services more often than any other railroad, and Lincoln subsequently opposed them in a few cases.

On the frontier, the railroads revolutionized transportation in Illinois. The Illinois Central Railroad established itself as an unpopular bully, damaging the property of landowners and killing livestock. As a politician, Lincoln received passes to travel on the railroad and Central Illinois needed his influences in political circles as well. Lincoln not only successfully represented the Central Illinois, but brought suit against it as well. Of course our modern day Rules of Professional Conduct were not in existence at that time and it was common for parties to switch sides. On the circuit he traveled, Lincoln would often serve as co-counsel with lawyers as well as in an adversarial relationship with those same attorneys in the same court session.

In a very significant case involving the assessment of taxes against Central Illinois, Lincoln was able to achieve a substantial reduction in that assessment. He initially submitted a bill of $2,000.00 for his services which paled in comparison to the benefit the railroad achieved. When the Central Illinois balked at paying, Lincoln sought the advice of a colleague. He sent a new bill for $5000.00 which the Central Illinois refused to pay. Lincoln sued the railroad and received the full amount from the railroad after a jury trial.

Lincoln maintained one of the largest appellate practices in the state. Attorneys living in counties far away from Springfield often referred their Illinois Supreme Court cases to Lincoln. His residence in the state capital helped him build a strong appellate practice. Lincoln continued to handle a large number of cases before the Illinois Supreme Court during the first few years of his partnership with Herndon. After 1849, the Illinois Supreme Court held court at three different locations-Ottawa, Springfield and Mt. Vernon. Lincoln maintained his appellate practice in Springfield and occasionally traveled to Ottawa for a Supreme Court session. During his twenty-five year law practice, Lincoln and his partners handled 411 cases before the state's highest court. In 1855, a patent case involving the rights to a mechanical reaper for harvesting attracted national attention. Because the case was to be tried in federal court in Chicago, Illinois, the defense sought a prominent local lawyer to appear with the out of state lawyers. Lincoln was given a $500.00 retainer and invited to join the defense team with the promise of a substantial fee if the defense was successful. Also on the defense team was Pittsburgh lawyer Edwin M. Stanton, who was to be Lincoln's future Secretary of War and who was well known nationally at the time.

Lincoln went to great lengths in his preparation of the case traveling to the factory to become familiar with the operation of the reaper. Just prior to trial, the case was transferred from Chicago to Cincinnati. Stanton and the other lawyers on the defense team encountered the tall, gangly Springfield lawyer and refused to walk to the Courthouse with Lincoln. The lengthy brief that Lincoln had prepared was never opened and he was frozen out of all participation in the case. The defense team did not even invite Lincoln to join them for the meals at the hotel. Judge John McLean entertained all the lawyers at a dinner at his home, but Lincoln was not invited.

Lincoln felt humiliated but he did not leave Cincinnati. He attended the entire trial, as a spectator. When the defense prevailed, Lincoln was sent a check for his participation, which he returned, saying he had no right to the fee. The fee check was sent back to him with a note that Lincoln had earned it by his preparation. This time he cashed the check.

Rather than be bitter by the treatment he received, Lincoln remarked on the quality of the lawyers he had seen and the fact that he had "a lot to learn". While he admitted to his partner, Herndon, that he had been "roughly handled by that man Stanton", he bore no grudge. When Simon Cameron proved to be a disaster as Lincoln's Secretary of War, Lincoln appointed Stanton to the post. Stanton, who had served in President Buchanan's Cabinet, proved worthy and served honorably.

The expansion of the railroads in the west collided with the river interests and Mississippi transportation. In 1856, a river boat collided with a railroad bridge, sinking the ship, causing the wooden trusses on the bridge to catch fire and the collapsing the bridge into the Mississippi. The lawsuit brought by the owner of the boat against the Rock Island Railway brought into focus the battle between the east-west railroad interests versus the north-south riverboat interests. Norman Judd, general counsel for Rock Island Railway, who had opposed Lincoln's bid for the Senate in 1855 as a Democrat, had now become a Republican. He turned to Lincoln for this high profile case.

Lincoln's preparation was meticulous and extensive. The case was tried in Chicago with Supreme Court Associate Justice John McLean presiding. Judd and Lincoln countered the Plaintiff's case by calling six engineers about the safety of the bridge. Lincoln's closing focused on the rapid growth of the west and the need for an east-west railroad. He brought in a wooden model of the riverboat that had crashed to argue it was the boat pilot's carelessness that had caused the crash. The jury deadlocked, 9 to 3 in favor of the railroad bridge. Litigation would continue until 1862 when the U.S. Supreme Court ruled in favor of the bridge.

In 1857, "Duff" Armstrong, the 24 year old son of Jack Armstrong, was charged with murder. Jack Armstrong's wrestling match with Lincoln when Lincoln arrived in New Salem fresh from his father's farm is the subject of many legends. Jack Armstrong was known as the best wrestler in New Salem when Lincoln arrived. A match was soon scheduled between the local champion and the strong tall stranger. Versions differ as to who won the match. One has Lincoln winning, another Armstrong after an illegal blow, and a third has it as a draw. Whatever the outcome, Lincoln gained the crowd's respect as well as Armstrong's. By the time his son was charged with murder, Armstrong was dead but his wife appealed to Lincoln for help.

The key witness, Charles Allen, swore that he clearly saw how the fight developed from a distance of thirty yards at eleven o'clock in the evening. Lincoln's cross-examination focused on getting Allen to repeat his claim that he had clearly seen what occurred. After locking the witness in to his answer, Lincoln brought out an almanac which indicated that the moon had already set before the fight ensued. Lincoln was allowed to make a personal appeal to the jury about "Duff" Armstrong's father's kindness to him. After the acquittal, Lincoln visited Duff's mother where he told her there was no fee for his services.

In November 1860, Lincoln won the election for the presidency over his political rival Stephen A. Douglas and two other candidates. During the winter, Lincoln wrapped up his legal business and left for Washington in February 1861. According to Herndon's biography, Lincoln wanted the partnership sign to hang undisturbed and "give our clients to understand that the election of a President makes no change in the firm of Lincoln and Herndon." He told Herndon that if he returned he wanted to resume their practice of law "as if nothing had ever happened."

Lincoln used meticulous preparation for his cases. He sought out expert testimony when necessary and used techniques of cross examination that modern day attorneys use as well such as impeachment by contradictory documents.

He was able to use things such as personal appeals to the jury, questions that were arguments and not questions, that are not permitted under our modern jurisprudence. He used the tools that were permitted at the time and he used them well to appeal to frontier juries.

Lincoln's practice encompassed the routine things a prairie lawyer did, such as the drafting of deeds and the handling of collection cases, but he also represented large corporate interests as well. He knew that fees were important and he represented those that could pay for his services while performing pro bono services for those in need. While he was regarded as one of the finest lawyers in Illinois and perhaps the nation, Lincoln knew his own limitations. He was well respected by his colleagues and by the public with a reputation that he earned through hard work.

For his time, and certainly in Illinois, Lincoln was a distinguished lawyer, at the top of his profession. He had achieved a deservedly national reputation as a great lawyer. That reputation endures scrutiny even today.

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