The available literature on Abraham Lincoln would several hundred if not over a thousand of feet on bookshelves; and it keeps coming. The great majority of those works deal with his Presidency, leadership during the Civil War, and assassination. In anticipation of the bicentennial of his birth in 2009, two authors published books featuring Lincoln’s pre-Presidential career as a lawyer. I wrote a review of those at the time that I share with you on the occasion of our 16th President’s 205th birthday.
Historian Charles Sellers characterized the lawyers of Jacksonian America as the “shock troops of capitalism.” Given the tone and perspective of the UC- Berkeley professor’s discourse in his work The Market Revolution,1 this characterization might not have been meant as a compliment. Nevertheless, there is a great deal of truth to the proposition that the law, insofar as it enforces the obligations of contracts between private persons (in contrast, say, to Tony Soprano’s or Vito Corleone’s methods) is essential to a capitalist free market economy. It is central to the thesis of Adam Smith, and is ensconced in Constitution’s prohibition of States impairing the obligations of contract.2 One of the lawyers who practiced during the period Sellers chronicles was also a politician whose legal career ended when he rose to become our arguably greatest President: Abraham Lincoln.
Twenty-seven of our forty-three Presidents have been lawyers, or at least have had a law degree or some formal legal training.3 This should not be surprising. After all, government is a giver of, and in our system, a creature of law, and law is what lawyers do. But as recent publications of Lincoln the Lawyer (University of Illinois Press, Urbana 2007) by Brian Dirck,4 and An Honest Calling: The Law Practice of Abraham Lincoln (Northern Illinois University Press, DeKalb, 2006) by Mark E. Steiner5 both demonstrate, none of the lawyer Presidents actually practiced law as diversely and continuously for as long as Abraham Lincoln. Until now, however, the details of Lincoln’s law practice have languished in the dusty archives of courthouses and county offices, accessible only by great effort.
Dirck’s and Steiner’s works are based largely upon a massive compilation of public records from courthouses throughout Illinois during the quarter century Lincoln practiced law. The Lincoln Law Papers Project resulted in a searchable database on published in 2000 on DVD-ROM media entitled The Law Practice of Abraham Lincoln,6 which, for the first time, made these records easily accessible to researchers as well as to the general public. Integrating these courthouse records with other long available primary and secondary sources, Dirck paints a picture of Lincoln as a practicing lawyer. This author proposes and defends his thesis of how Lincoln’s practice shaped his ideas and honed the skills that made him so effective as the Nation’s leader during its gravest crisis. Dirck’s organizes his work into chapters about Lincoln coming to the bar, the ante-bellum legal climate in Illinois, and the types of cases and clients he handled. He leads up to his contention of what the main contribution that the practice of a “pretty ordinary attorney” brought to Lincoln’s Presidency. Dirck opines that Lincoln’s dealing with the people in his practice – clients, judges, other lawyers, adversaries, – understanding what motivates them in order to facilitate the orderly, if imperfect, resolution of disputes, and the use of rhetoric in its classical sense to effectively advocate a position, made Lincoln the effective President he was.
Steiner’s approach is similar, although with a somewhat different style. While using the same sources as Dirck, he organizes the book into theme chapters and writes identified conclusions at the end of each. This style makes his points clear, if somewhat pedantic. His final concluding chapter contains as summing up of Lincoln’s quarter century law practice and how it changed over time, mirroring the growth of the American Midwest. Steiner’s conclusion about Lincoln’s legal career’s effect on his Presidency emphasizes how the technical aspects of lawyering affected Lincoln’s approach to dealing with Congress, his cabinet and staff, and his generals, rather than the interpersonal skills acquired from that practice.
Stories of Lincoln as a lawyer became the stuff of legend, as did the rest of his life, after his assassination. Those who barely knew him suddenly came forth with their Lincoln stories, a good number of which were apocryphal, or at least embellished. Nearly every American who has stayed awake in history class has heard of the Armstrong murder case where the prairie lawyer discredited a witness who observed a crime by moonlight by producing an almanac that showed the moon was too low at the time to produce enough light for anyone to see clearly. This criminal case was a rare exception to the kind of the cases Lincoln usually handled. Civil law, not criminal defense, was the staple of his practice, and did not often involve much drama or provide an opportunity for legal innovation. The truth is that Lincoln’s practice was rather ordinary, and even humdrum.
If Abraham Lincoln had a legal specialty, it was debt collection, and, to some degree, debt defense. As Dirck explains, Lincoln practice grew in a fledgling market economy which emerged on the heels of the first industrial revolution. The nation’s monetary and banking systems were immature and inadequate to meet the needs of such expanding trade and commerce. The government did not issue paper money as it does today, and in the absence of sufficient specie – gold and silver – promissory notes functioned as currency to furnish an adequate medium of exchange for a burgeoning commercial nation. For merchants and manufacturers in the frontier Midwest to function, notes had to be acceptable as payment for goods and services. In order for the market to accept these notes, they had to be enforceable – not mere pieces of paper. That is where the lawyers and the courts came in. The Lincoln Law Papers reveal that Lincoln had represented creditors in no fewer than 1300 cases during his career. Promissory note cases, then as now, rarely went to trial. Most of the time the case results in judgment by default, and judicial enforcement takes the next step of foreclosure and seizure the debtor’s property. Other times, the cases settle for a compromised sum, which amounts to a discount on the note. Trials occur only when disputes as to the legitimacy of the debt arise, and with written notes, that is not often. Lincoln was not exclusively a creditor’s lawyer. He represented debtors in 713 cases, but, as Dirck points out, creditors and debtors are often both at the same time, as anyone who has ever been in business can attest.
Business, or more to the point, the entrepreneur, was really the source and focus of Lincoln’s practice. The “energy men” as Dirck call them, who personal investment, risk, and occasional reward provided a constant source of legal work to minimize the risks, and damage control when things were pushed too far or otherwise went awry.7 Entrepreneurs provided Lincoln with legal work in forming and dissolving partnerships and other business arrangements, seeking charters from the state where necessary, and even some patent work. Most of his legal work was for small businesses; and Lincoln believed he shared most of the entrepreneurial values of the businessmen. This was also the time when railroads were coming into their own. The 1840s and 1850s saw the growth of these foremost engines of an expanding economy. Steam powered travel was the first quantum leap in reducing transportation and communication time. Where it once took four days to transport a load of goods to a market, a train pulled by a locomotive could make the same journey in four hours. No other endeavor during that time had the “same mixture of cutting edge technology, investment potential, and sheer economic power” as the railroads. Lincoln was enthusiastic about the railroads, believing that they would bring to Illinois all of the advantages of commerce. His enthusiasm continued into the Presidency and was a significant factor in launching the construction of the transcontinental railroad. Indeed, rail transport and communications was a decisive factors in the Union winning the Civil War. In the 1840s and ‘50s, the railroads provided a good deal of legal work to Lincoln and his partner. In two significant cases, he was able to establish in the railroads’ favor, long term precedents relating to tort liability. The Illinois Central Railroad was the largest client he ever had, and he litigated over fifty cases on its behalf, although he once sued the Illinois Central for a fee.
Probate and estate litigation provided an exceptional variety of cases for Lincoln, as it surely did for many other lawyers during his time. He took on over one hundred divorce cases during his career, representing both husbands and wives. Slander cases where women were accused of sexual impropriety, a species of defamation which seems peculiar today, and rarely makes it to the courthouse, was common in antebellum America. Lincoln did his share of that kind of work, both for plaintiffs and defendants.
The short of it is that Abraham Lincoln was a typical general practice lawyer for his entire career. Dirck maintains that the very nature of Lincoln’s practice prepared him well for the tribulations of the Presidency he assumed at the time of the Nation’s gravest crisis. The very ordinariness of a quarter century law practice dealing with everyday human relationships showed him the value of what Dirck calls “grease.” The metaphor is that of lubricating the personal and commercial dealings between people to reduce friction to an acceptable level. Friction is the enemy of harmonious social and economic relations that lawyers serve to lubricate. The debtor-creditor cases where Lincoln recovered at least part of what a note-holder was owed by a recalcitrant borrower, or managed to forestall collection long enough for a hapless debtor to gather some resources to pay a lesser, but acceptable, amount than was due greased the wheels of the frontier Illinois economy. He doubtless made the dissolution of partnerships, whether business or domestic, less rancorous that they otherwise might have been, and, where he could not, facilitated an asset division that at least approximated fairness. Most of all, as a lawyer he was there for the client. The value of having and advocate who is positively, unequivocally, on your side at a time of difficulty, whether being accused of capital murder, or trying to collect a debt, cannot be over emphasized.
The most salient contrast between Dirck and Steiner is their treatment of an event in Lincoln’s law practice that seems anomalous in his genera; reputation. The Matson case wherein he represented a slave owner from Kentucky who was sued by one of his slaves for her freedom under Illinois law troubles Lincoln’s most ardent admirers. Dirck devotes only two pages to this episode. He makes the point in not belaboring the case is that it was not representative of Lincoln’s practice and it is futile to read moral choices about slavery into his choice of litigation. Lincoln was a consistent advocate against slavery throughout his entire public career, though never an abolitionist. Steiner, on the other hand, spends an entire 34 page chapter – the longest in his book – on the topic. This author’s point, which really does not need the space he uses on it, is that the prevailing ethic of professional responsibility which refused to hold a lawyer accountable for his choice of clients, was a corrupting influence that required Lincoln to suspend moral judgment. Part of this was the English barrister tradition that a lawyer must take on any client who seeks his legal services and who is able and willing to pay, regardless of the lawyer’s personal moral sensibilities. Steiner, though, mainly regards the Whig political philosophy, which emphasizes orderly law, and leaves the making of ultimate judgments to judges and juries, at fault. True enough, Lincoln was a Whig all of his political life until the party self destructed over sectionalism and slavery and the new Republican Party received the remnants of the northern Whigs in the mid-1850s. The implication of Steiner’s view, though, is that Lincoln’s Whiggish emphasis on adherence to law and objective legal standards, rather than the subjective crusader mentality often ascribed to lawyers, followed Lincoln into the Presidency and, ultimately, gave the judgments he made in that position, some of which were clearly moral ones, a legitimacy they might not have otherwise had.
Steiner and Dirck have both produced well researched works that open to view a new dimension of Abraham Lincoln: that of a general practice lawyer. Steiner does not draw the conclusions that Dirck does, but his work backs up the Dirck thesis. Both books are generally readable, but Dirck’s writing occasionally can be abstruse. Many sentences and passages require re-reading to understand. Steiner is a generally more competent wordsmith, but his work often reads like a legal brief, and, though clear and precise, is a little tedious. All in all, whether a lawyer, historian, or interested layperson, one will not waste their time reading either of these two books.