Lawyer Lincoln, Case by Case

Abstract

After John J. Duff and John P. Frank published books on Abraham Lincoln’s legal career in the early 1960s, more than forty years passed before another book on the subject appeared.1 This remarkable drought for the fecund soil of Lincolniana ended, however, when the Lincoln Legal Papers project (LLP) revitalized interest in lawyer Lincoln. Under the leadership of Cullom Davis and Daniel Stowell, the LLP collected, cataloged, and scanned thousands of documents. A complete edition was published in 2000 in DVD format; it has been superseded by an online edition that appeared in 2009.2 A four-volume selected edition was published by the University of Virginia Press in 2008.3 Moreover, members of the LLP staff—the late William D. Beard, Davis, Susan Krause, John A. Lupton, Stacy Pratt McDermott, Christopher A. Schnell, and Stowell—also were producing much of the new scholarship on Lincoln’s law practice or, more generally, law in Lincoln’s Illinois.4In the antediluvian era, biographers paid little attention to Lincoln’s law practice. Lincoln biographies usually included a couple of chapters that touched on his legal career. Albert J. Beveridge, in his 1928 biography, mentioned a fair number of cases but discussed at length only a handful; those cases have become canonical. Until the onset of the LLP, most biographies only mentioned the same cases that Beveridge had highlighted: In re Jane Bryant (the Matson case); State v. Armstrong (the Almanac Trial); Illinois Central Rail Road v. McLean County; McCormick v. Talcott (the Manny Reaper case); and Hurd v. Rock Island Bridge Company (the Effie Afton case).5Biographers had neglected Lincoln’s law practice for a couple of reasons. First, as Herndon once wrote, “a law office is a dull, dry place.”6 Biographers weren’t interested in the legal practice, because they believed the legal practice wasn’t interesting. But there were other reasons as well. J. G. Randall, in 1936, noted how important sources for Lincoln’s law practice “still remain difficult of access.”7 Mark E. Neely, in 1993, concluded that “Lincoln’s professional life remains surprisingly inaccessible to the historian as well, though the problem in this realm is largely archival.” Neely also believed that “more specialized studies” of the “arcane legal practices” of Lincoln’s day were needed.8 Those two problems—accessibility of documents and demystifying specialized studies—have been met by the publication of the legal papers and by the extensive scholarship by the LLP staff and others.Although David Donald’s 1995 biography was written while the LLP was still collecting and sorting documents, it nonetheless showed the LLP’s impact on Lincoln scholarship. Donald hailed the LLP as “perhaps the most important archival investigation now under way in the United States.” Donald had been able to examine unpublished documents from the LLP files and thus gave the most complete accounting of Lincoln’s law practice in a biography. The benefits of the LLP were again seen in Michael Burlingame’s magisterial biography, published in 2008. Recent books that have focused on the pre-presidential years also reflect the influence of the LLP in their treatment of the law practice.9Other writers also have benefited from LLP’s vast riches. At least fourteen books on Lincoln’s law practice have been published since 2000. There have been two general treatments of the law practice, a study of Lincoln’s cases involving the medical profession, an analysis of Lincoln’s murder cases, a collection of articles on different aspects of the law practice, and two books examining Lincoln’s circuit riding.10 Seven books have focused on one particular case handled by Lincoln. Five are on canonical cases: two on the Almanac Trial, two on the Effie Afton case, and one on the Matson case.11 The other two books explore relatively overlooked murder cases.12Both Dekle and McGinty have taken great advantage of the materials collected by the LLP. McGinty notes that “all modern studies of Lincoln’s legal practice are indebted to the Lincoln Legal Papers project.” After noting the Legal Papers are “indispensable sources of information,” McGinty states, “This book could not have been written, nor could the story of the Effie Afton case have been told—or told as well—without them” (10). Dekle reproduces all the legal documents from the LLP case file on the Almanac Trial as an appendix (151–64). Both cases were included in The Papers of Abraham Lincoln: Legal Documents and Cases.13Dekle and McGinty have very different goals for their books. Dekle calls the Almanac Trial Lincoln’s “most famous case.” He does not argue that the case was particularly important for Lincoln or that it has any wider significance for American history. He is interested in trying to uncover what actually happened at the trial. McGinty calls the Effie Afton case the “most significant of Lincoln’s career” and “one of the most important ever heard in Illinois.” If anything, McGinty believes that this “strangely neglected” case should be more widely known. His goal is not only to tell the story of the Effie Afton case but to explain Lincoln’s role and to place the case in a broader context of the “epochal clash of the railroads and the steamboats at the river’s edge” (2). Both authors achieve their aims in writing these books. And both books share something else: well-chosen illustrations.Most of the documents uncovered by the LLP yield little without great effort. Docket entries, pleadings, and subpoenas are all mostly formulaic. The materials available for these two cases are markedly different, and the two authors capitalize on the differences. The Effie Afton case was one of only three cases handled by Lincoln that produced what would now be called a transcript of the trial (102).14 Because the Duff Armstrong murder trial was featured in Lincoln campaign biographies, participants and observers left behind many reminiscences.15 Dekle’s main task is sorting out these conflicting reminiscences to determine what probably happened at the trial.Both Dekle and McGinty are lawyers. James G. Randall in his 1936 essay “Has the Lincoln Theme Been Exhausted?” observed that “the hand of the amateur has rested heavily upon Lincoln studies.” Randall believed that Lincoln scholarship required “further critical development by historically trained scholars.”16 The hand of lawyers has rested heavily on studies of lawyer Lincoln. The first five books about Lincoln’s law practice were written by lawyers who had no historical training: Frederick Trevor Hill (1906); John T. Richards (1916), Albert A. Woldman (1936), Duff (1960), and Frank (1961).17 When Neely revisited Randall’s essay in 1979, he noted that “legal history is an area where professionalism has been slow to take command.” In 1979 this was still an area where Randall’s “trained historical specialist is rarely seen.”18Dekle in the preface to his book modestly admits he is “neither a historian nor a Lincoln Scholar” (x). Dekle practiced criminal law for thirty years as an assistant district attorney. He is now the director of the Criminal Prosecution Clinic at the University of Florida Levin College of Law. McGinty left the practice of law to become a professional writer and historian. Like Lincoln the lawyer, McGinty the historian is self-taught. Among his ten previous books are well-received studies of the Supreme Court during the Civil War and the case of Ex parte Merryman.19Both authors believe that their own experiences as lawyers help them understand lawyer Lincoln. This, in fact, is the central conceit of Dekle’s book. Dekle says that he “felt equal to the task of unraveling the Almanac Trial because if I had learned anything during my three decades as a criminal trial lawyer, I learned how to investigate, prosecute, and defend murder cases.” Dekle carries this argument of authority too far, and it sometimes leads him to presentism. He assumes throughout the book that practicing law in Illinois in 1850s is the same as practicing law now. Dekle often makes conclusions based on his own experience, assuming that his time spent in a Florida courtroom in the past thirty years are the same as Lincoln’s experiences in antebellum Illinois. For example, he says, “In my experiences as a trial lawyer, negative character evidence of this type is near worthless” (104).For example, Dekle points out that Duff Armstrong could have had a lawyer appointed to represent him if he couldn’t afford the services of one but that the lawyer wouldn’t have been paid. Dekle then asserts, “It is an unfortunate fact of life, however, that underpaid lawyers often do not defend their clients with the zeal displayed by well-paid lawyers” (3). But has this “fact of life” always been true? Armstrong’s case was tried when judges and lawyers rode the circuit. Each county of the circuit held two terms of court. Holding court was a form of public entertainment, and members of the community would turn out to see trials. With large crowds in attendance, wouldn’t even an unpaid lawyer have a lot at stake? Effective representation would be an advertisement for future legal services.This presentist viewpoint permeates the book. One example is the discussion of William Norris, who was charged with murder along with Duff Armstrong. Norris, who had been charged and acquitted of murder a year earlier in Macon County, did not attempt to change venue to another county, a move that might have benefited him. This fact has led to “unjustified criticism” of his lawyer, William Walker, according to Dekle, who explains that this “gross error” wasn’t his lawyer’s fault.The assumption is what is lawful or ethical for lawyers now was lawful or ethical in Illinois in 1857. The law of lawyering was not fully developed in antebellum America; there weren’t any laws or formal bar association rules that are analogous to modern codes of ethics or disciplinary rules.20Dekle rejects one version of Lincoln’s cross-examination of Charles Allen (which claimed Lincoln didn’t question Allen about the almanac but instead turned to the jurors and asked whom they believed), because it would have been “excellent theater but improper trial procedure. During the examination of a witness, the lawyers simply ask questions of the witness without making asides to the jury.” Lincoln’s purported behavior would have been a “breach of courtroom protocol” (88). While this behavior would undoubtedly be a breach of courtroom protocol in any modern courtroom, I’m not sure the rule applied in 1857. A complicating factor for Dekle’s assumption about courtroom rules is that in 1857, an Illinois statute said that the jury was to “be judges of the law and the facts.”21Dekle in his penultimate chapter is more careful about not applying twenty-first-century standards to the Almanac Trial. Some writers have characterized Lincoln’s final argument as inflammatory and unethical, as Lincoln assumed facts not in evidence and made emotional appeals based on his relationship with the Armstrong family. While Dekle concedes by “modern standards” Lincoln’s argument was objectionable, he answers this criticism by pointing out, “We have no business using a twenty-first-century yardstick to measure a nineteenth-century speech” (113). Another criticism of Lincoln is that he unethically refused to hear what a witness wanted to tell him about what he saw that fateful evening. Lincoln was planning to call Will Watkins to establish that he was the owner of the possible murder weapon. Watkins, who later said he had seen Armstrong strike Metzker with a wagon hammer, was afraid that once he got on the witness stand he would have to tell what he saw. According to one account, Watkins “began to tell Lincoln what he knew, and Mr. Lincoln would not allow him to tell him anything” (135). Dekle establishes that there would been no duty for a defense lawyer in 1857 to discover what Watkins knew. Finally, Dekle discusses whether the cross-examination of Watkins by the state would have been restricted to matters Watkins had testified about during Lincoln’s direct examination, as some writers have questioned whether that rule existed in antebellum Illinois. While Dekle can’t find a case on point from Illinois before 1929, he cites a U.S. Supreme Court opinion that in 1840 had recognized this rule as “well established” (115–16).Dekle presents three different versions of the Armstrong murder trial that he has found in the literature about the case. Version one has Lincoln securing acquittal by his masterful cross-examination of a key prosecution witness. Through the use of an almanac, Lincoln proves that the witness would not have been aided by moonlight to have seen what he claimed he saw. This version “has entered the pantheon of great moments in the history of American trial advocacy” (7). The urtext for the version was the novel The Graysons: A Story of Illinois (1887).22 Version two (which, chronologically, appeared first) has Lincoln securing acquittal primarily through an emotional appeal in his closing argument that mentioned Lincoln’s relationship in New Salem with Armstrong’s father, who had recently died. This version, which doesn’t mention Lincoln’s cross-examination or use of the almanac, was tied to Lincoln’s campaign for president; it first appeared in the Cleveland Leader the day after Lincoln was nominated for president at the Republican national convention. Lincoln’s representation of Duff Armstrong then figured prominently in campaign biographies, which obviously helps explain why it became Lincoln’s “most famous case” (13).23 Version three also was connected to Lincoln’s presidential campaign; it was the counternarrative advanced by Lincoln’s opponents. This version depicted Lincoln faking the almanac. Instead of the virtuous lawyer, there was “Lincoln the Trickster” (18–19).Dekle ultimately concludes that “the famous cross-examination” didn’t happen. He looks at the various versions of it. (That Dekle calls these versions “variant transcripts” is like calling a forged Monet painting a “variant Monet,” since none of them is a transcript of the cross-examination [87].) Some of these versions are rightly dismissed out of hand because they are fictional or dramatizations of what the writer believed likely happened. Others are dismissed because they are factually inaccurate. Irving Younger, an expert of the law of evidence, concocted a mixture of earlier versions (94).Dekle is convinced that Lincoln used an almanac to contradict Allen’s testimony. The dispute, for Dekle, “arises over when Lincoln did his contradicting” (87). Lincoln could have immediately confronted the witness during the cross-examination, or he could have waited to contradict the witness during his final argument. Dekle concludes Lincoln waited. J. W. Donovan, the first to claim that Lincoln confronted Allen during his cross-examination, did so in 1898 (over forty years later!) and appears to have appropriated the cross-examination from Eggleston’s fictional account.But what good did the almanac do? Dekle details the “precise nature of the contradiction Lincoln found in the almanac.” Charles Allen, the key witness against Armstrong, testified that he saw the by the of the Some sources claim that the almanac showed there was no in the that while claim Lincoln’s almanac showed the was near Dekle concludes that the almanac showed the was near He rejects those who the almanac no as their as they Dekle also rejects the which first appeared during the presidential campaign of for 1857 showed the on the the almanac would have been a because the for 1857 showed that the had not that the was a Dekle the that Lincoln used a almanac by pointing out that the would have him as Dekle had a McGinty the Effie Afton case on the The first five chapters the of the by the of the Effie Afton against the Bridge McGinty with a discussion of the of on the He also discusses Lincoln’s with and and his early for like and McGinty also details the of The chapter be the of Lincoln’s law chapter details the of the Rock Island In gave of way to public to any by a state to a The Illinois the Bridge it to a near Rock Island so as it did not the of the McGinty also does a good of the in and the legal in earlier One of the more aspects of Lincoln’s career is how some who would later prominently during the Civil War his years Davis the story as of the War Davis tried to the of the probably because he a to the The U.S. for Illinois to the but John McLean later in the McLean did that if were by any of by the then the would be chapter does a masterful of the which two after the The Effie Afton had and over of The of the the Effie Afton with a before for the When it was through the it one of the then and then a in the of the and The was also with the on the Illinois against the was The chapters are about that The were and had significant were also by in and other who for the After the was in court in for the of Rock Island Lincoln didn’t the defense after the was books are of how Lincoln often with other lawyers to In the Almanac Trial, Lincoln and William in Duff Lincoln the defense many had been and many had been was Lincoln’s McGinty fair with the evidence and concludes that the did not believe that Lincoln was to as Dekle’s book is based largely on McGinty on on the case that appeared in the trial for the and for the and later the McGinty notes that recognized the trial one of the most that had ever taken place in an American The trial in 1857. Lincoln does not to have taken in the The then over Lincoln does not to have made his during the case in was then the and McGinty were about to their by a lawyer from with a remarkable and a of trial as the lawyer for the Lincoln made his first in the trial an whether about the over the was The to this because it wasn’t to the of the first for the that “the good of the should be Lincoln then that the would not be a one in of the of the While the for an of the in Lincoln’s as they should to the nature and of McLean the evidence for the of the of the the evidence couldn’t be used to “the nature of the other significant to the defense was one of the closing to the closing and he only gave of what he the most important by the lawyers” McGinty is able to use to a of how good Lincoln was as a trial Lincoln by the jury did not to that he to as he but not Lincoln many used of two He that the of the the of railroads and and the of the Lincoln also that the was if the jury the would Lincoln are by the to the when a along it is for him to on of this which has been trial in a a for the since the had the of While the case wasn’t Lincoln’s tried their with other which didn’t One of the Effie Afton a which was dismissed in A to the was in Lincoln’s Afton career. He in my to the Effie Afton case a for Lincoln’s to the Because of the for Lincoln and at the state in were critical for Lincoln’s If Lincoln in then Lincoln wouldn’t have been the and there wouldn’t have been a and then Lincoln wouldn’t have been the Republican in explains that history two First, railroads over steamboats and a key role in a new Lincoln became a in an American The Effie Afton case how lawyer Lincoln to the with to the on the and to turn the an future of and books to Lincoln McGinty has written the of the Effie Afton case by not only the but also wider Dekle the of what probably happened at the Almanac the most famous cross-examination in American history didn’t actually But he written the on the trial. on Dekle’s a future of lawyer Lincoln to explain why this trial became Lincoln’s “most famous case.”