Legally Speaking: Lincoln the Lawyer

John G. Browning Feb. 11, 2009, 6:50am

Feb. 12, 2009, signifies more than just another annual celebration of the birthday of our 16th president – it marks the 200th anniversary of Abraham Lincoln's birth on Feb. 12, 1809.

Amidst his accomplishments in guiding this nation through the anguish of the Civil War and ending slavery with the Emancipation Proclamation, Lincoln's career as a lawyer has been neglected by scholars and historians – until recently, that is. In 2008, the University of Virginia Press published The Papers of Abraham Lincoln: Legal Documents and Cases, a four-volume set of 750 documents from 65 of Lincoln's cases.

This year, a new edition of The Law Practice of Abraham Lincoln: Complete Documentary Edition from the University of Illinois Press will be available online at no charge.

Special editions of the February issues of lawyer publications like the ABA Journal and the Texas Bar Journal emphasizes Lincoln's legacy as a lawyer.

Abraham Lincoln was 18 years old when he had to defend himself in court over his operation of a ferryboat. His success in doing so prompted the justice of the peace to encourage him to "read up a bit on the law."

Young Lincoln did so, and became a lawyer the way many of his time did – not through formal attendance at one of the few law schools then in existence, but by "reading the law" under the tutelage of an experienced practitioner. He was admitted to the bar in September 1836, and for the next 25 years law was his primary livelihood. According to the database maintained by the Lincoln Legal Papers project, Lincoln and his partners were involved in 5,173 cases.

His practice was typical of the time: real estate transactions, mortgage foreclosures, divorces, debtor-creditor cases (3,170 of the cases are indexed as "debtor and creditor" related), civil trial work, criminal cases, and appeals.

Lincoln practiced primarily in Illinois circuit courts; although the majority of the cases (more than 2,300) handled by him and his partners were in Springfield and the rest of Sangamon County, like most lawyers Lincoln "rode the circuit."

He handled 133 cases involving railroads, 71 of these while representing various lines and opposing them on 62 occasions. While many of his criminal cases were defending garden variety offenses, Lincoln defended 27 accused murderers. In one of the most famous of these, the Duff Armstrong murder trial, Lincoln used a farmer's almanac to discredit the eyewitness testimony of the star prosecution witness.

Lincoln was a true trial lawyer. He and his partners tried over 1,000 cases to jury verdicts. The tall, gangly attorney was a popular and well-respected figure in the courts, using humor, honesty, plainspoken language and story-telling skills to great effect in front of judges and juries.

Although he could rely on legal formalities and procedural niceties as well as the next lawyer (one observer remarked that Lincoln could "split hairs as well as rails"), Lincoln's courtroom strength was to use humor and a common touch to relate to jurors.

In one real estate case, he emphasized the complexity of a survey prepared by an opposing witness by comparing it to "a fancy bed quilt." Lincoln once advised one of his law partners on speaking to juries not to "shoot too high." Instead, he said, "shoot down low, and the common people will understand you."

Abraham Lincoln was also a skilled appellate attorney. He and his partners handled more than 400 appeals before the Illinois Supreme Court. In approximately half of these cases, they were hired specifically for the appeal; Lincoln had one of the largest caseloads before Illinois' highest court.

Lincoln was also involved in at least 340 cases in the federal district and circuit courts. While serving in Congress, Lincoln even argued once before the U.S. Supreme Court, and was associated with at least five other Supreme Court cases.

When it came to the issue that would define his presidency – slavery – Lincoln the attorney began simply as a lawyer taking on clients. Between 1838 and 1847, he handled at least 17 cases involving slavery, usually defending the interest of white slave owners in fugitive slave cases.

However, the 1841 case of Bailey v. Cromwell demonstrates that we can't generalize about Lincoln's political views from the majority of the slavery-related cases he took on. In that case, Lincoln successfully appealed a lower court ruling involving the sale of a slave girl, arguing that the Illinois Constitution forbade the sale of a human being.

But from 1849 onward, Lincoln and his law partner William Herndon adopted a more active role in defending fugitive slaves and free blacks in their practice. Between 1849 and 1860 their firm ceased representing slave owners and instead represented free blacks at least nine times and fugitive slaves on at least two occasions.

Lincoln's years of practice were marked by the qualities that would later characterize his presidency, particularly honesty and a conciliatory spirit (although a capable trial lawyer, Lincoln preferred to settle cases where possible).

He was once rebuked by circuit Judge David Davis for undercharging clients, who told Lincoln that he was "as poor as Lazarus, and if you don't make people pay you more for your services you will die as poor as Job's turkey."

In 1851, Lincoln wrote to a client that he had received their check for $25.00 for legal services, and that "You must think I am a high-priced man. You are too liberal with your money. Fifteen dollars is enough for the job. I send you a receipt for $15, and return to you a $10 bill."

Of course, like lawyers both then and now, Lincoln also sometimes had to contend with clients who failed to pay their bills, and even "Honest Abe" occasionally had to sue deadbeats. Once, he even had to sue a regular client of his, the Illinois Central Railroad, to recover his $5,000 fee; the lawsuit apparently didn't create a rift, since the railroad continued to retain him.

Above all, Abraham Lincoln brought an attitude to his practice and his dealings with the public that today's lawyers would be wise to emulate.

"Discourage litigation," he wrote in his "Notes For a Law Lecture."

"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. As a peace-maker, the lawyer has a superior opportunity of being a good man. There will still be business enough."

[Author's note: For further reading on Lincoln's legal career, I highly recommend both the February 2009 issues of the ABA Journal and the Texas Bar Journal, as well as the 2006 book "An Honest Calling: The Law Practice of Abraham Lincoln" by Mark Steiner, a professor at South Texas College of Law in Houston.]

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

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