by Roger Billings and Frank J. Williams (eds). Lexington: University Press of Kentucky, 2010. 263pp. Hardback. $40.00/₤35.95. ISBN: 9780813126081. Ebook $40.00. ISBN: 9780813126098.
Reviewed by R. B. Bernstein, Distinguished Adjunct Professor of Law, New York Law School. Email: rbernstein [at] nyls.edu.
Though pivotal for understanding Abraham Lincoln, his life as a lawyer – the subject illuminated by this excellent symposium – has languished in neglect until recently. The essays collected in the book under review make two points: first, that Lincoln was a great lawyer, and, second, that those qualities making him a great lawyer were integral to his Presidency and to his claims to Presidential greatness. Further, in their multifaceted account of Lincoln as lawyer, these essays prove the value of studying the legal career of a great historical figure – an enterprise already represented by projects documenting the law practices of John Adams (Wroth and Zobel 1965), Alexander Hamilton (Goebel and Smith 1964-1981), and Daniel Webster (Konefsky and King 1982-1983).
Lincoln spent twenty-five years (forty percent of his life) practicing law (pp.19;38n6), and issues of law and constitutionalism pervaded his public career, inspiring many of his words and deeds as President. Even so, the Lincoln image created by that always influential but unaccountable cultural force, historical memory, was not learned in law or anything else, owing his greatness to inspiration rather than to hard intellectual work. The remembered Lincoln rarely read law, scoring great legal triumphs solely because of his goodness, honesty, and compassion. Not only does this misleading caricature retain its power despite historians’ and biographers’ efforts to dislodge it – since the 1970s, it has been joined by a equally bogus counter-image, promoted by such neo-Confederate writers as Thomas J. DiLorenzo, depicting Lincoln as a cold, unscrupulous corporate lawyer (pp.6; 16n4).
Though older monographs have examined Lincoln as a lawyer (Hill 1906, Woldman 1936, Duff 1960, and Frank 1961), not until 1989 did the hard work of documenting Lincoln’s law practice begin, when a devoted band of historians and legal scholars created the Lincoln Legals Project, which collected all surviving documentation of Lincoln as a lawyer. The first fruit of this project was the 2000 CD-ROM edition of these papers (Benner and Davis 2000); a selected print version in eight volumes followed (Stowell 2008), as well as a website making the entire project, in its second edition, available online (Benner and Davis 2008). Not only did the late David Donald of Harvard University, author of one of the best Lincoln biographies (Donald 2005), make extensive use of the project’s findings before publication, but the Lincoln Legals Project continues to inspire and undergird research. [*182]
This volume, the latest to benefit from the Lincoln Legals Project, first took form as a special 2009 issue of the NORTHERN KENTUCKY LAW REVIEW, which published four of these essays. The book’s editors have added eight essays (one previously published and seven specially commissioned). All are clear and well-written, and many are wonderfully illuminating. The resulting book is useful and important for a wide audience – including Lincoln scholars, legal and constitutional historians, Civil War specialists, and general readers fascinated by Lincoln.
The book has three parts: “Reassessing Lincoln’s Legal Career,” “The Illinois Years,” and “The Washington Years.” In “Evaluating Lincoln’s Career,” the opening essay of Part I, the eminent Lincoln scholar Harold Holzer sets our understanding of Lincoln as a lawyer in historical and cultural contexts. Holzer summarizes the relevant scholarship preceding the Lincoln Legals Project, the reasons why popular understandings of Lincoln omit or downplay his legal career, and how the Lincoln Legals Project and scholarship building on it enriches our understanding of Lincoln. Holzer also demolishes the two caricatures of lawyer Lincoln vying to dominate historical memory – (i) that he was a bad lawyer, relying for success in the courtroom on his human qualities and his abstract quest for justice, and (ii) that he was selfish, cold-hearted, and grasping, the ultimate embodiment of popular culture’s derogatory picture of a modern lawyer
Co-editor Frank J. Williams,a former chief justice of Rhode Island’s supreme court and Lincoln scholar, contributes “Lincoln’s Lessons for Lawyers.” He structures his essay by reference to a list of ten virtues making a great lawyer – honesty, industriousness, meticulousness, confidence, rhetorical skill, courage, zealousness, persistence, fair-mindedness, and humility (p.20). Rising above this essay’s genre (a bar-association lecture distilling from history a set of neat lessons for modern lawyers), Williams draws on his deep learning about Lincoln and his era to present a historically-grounded and nuanced analysis of these lawyerly virtues, demonstrating that Lincoln possessed them all in ample measure.
In “Does Lawyer Lincoln Matter?”, Mark E Steiner, professor of law at South Texas College of Law, a veteran of the Lincoln Legals Project, and author of a major study of Lincoln’s legal career (Steiner 2006) elucidates the principles guiding Lincoln’s practice. Steiner stresses Whig lawyering, which he defines as a constellation of commitments and ideals, including vindicating the rule of law, faithfully representing clients, avoiding needless conflict, and bolstering the community. To explore the last two, Steiner focuses on Lincoln’s handling of slander cases; to illustrate the limits of Whig lawyering’s principles, he anatomizes the 1848 MATSON case, in which Lincoln acted as co-counsel for a Kentucky slaveowner seeking to establish property rights over Jane Bryant, an African-American woman, and her four children. Steiner suggests that Lincoln’s experience in MATSON may have informed his reaction, a decade later, to DRED SCOTT v. SANDFORD, specifically the prospect that DRED SCOTT might lead to the establishment of slavery in the free state of Illinois (p.56). Further, Steiner [*183] argues, Lincoln’s legal training and cast of thought led him to rethink his opposition to slavery, re-grounding it on deeper, more philosophical principles than fidelity to the rule of law.
In “A. Lincoln, Respectable ‘Prairie Lawyer,’” Brian Dirck, professor of history at Anderson University and author of another leading study of Lincoln as a lawyer (Dirck 2007) scrutinizes the array of meanings connoted by the phrase “prairie lawyer,” often used by contemporaries and historians and biographers to describe Lincoln. Noting that (as shown by the Lincoln Legals Project) Lincoln and his partners handled about 5,000 cases, Dirck shows that Lincoln’s practice was busy and diverse, ranging from local justice of the peace courts to the Illinois supreme court, and including cases before the federal circuit court and (on four occasions) the U.S. Supreme Court. Lincoln also expanded his reach by taking on new kinds of cases, as when the enactment of an 1841 federal bankruptcy statute created a new category of potential clients. Lincoln even served briefly as a state circuit judge, deciding over three hundred cases. Dirck concludes that Lincoln’s law practice was representative of that of an increasingly successful Illinois attorney – in its caseload’s diversity, in its requiring that Lincoln engage in shrewd and learned lawyering, and in his acting as a human lubricant easing the friction of the society in which he worked.
The detail-oriented essays in Part II focus on Lincoln’s practice of law in Illinois.
Co-editor Roger Billings, a professor at the Northern Kentucky University’s Salmon P. Chase College of Law, contributes three linked essays notable for their grounding in historical and legal evidence and for their clarity. In “A. Lincoln, Debtor-Creditor Lawyer,” he elucidates the place of debt in Lincoln’s law practice; Billings uses Lincoln as an example to show that debtor-credit suits were bread-and-butter cases for nineteenth-century lawyers. Billings also explores the centrality of debt as an economic and legal reality for Lincoln (beyond being a lawyer, he often was both debtor and creditor) and his fellow citizens. In “Lincoln and Illinois Real Estate: The Making of a Mortgage Lawyer,” Billings explores Lincoln’s increasing skill in an evolving area of law, that pertaining to mortgages of real and personal property (an ancestor of the modern field of secured transactions). Finally, in “Lincoln’s Legal Ethics: The Client Correspondence,” Billings examines a critical part of Lincoln’s work as a lawyer, his correspondence with his clients, to illuminate a murky area of legal history – the nature of legal ethics in a society predating modern professional standards. Though Billings gives Lincoln high marks for his efforts on his clients’ behalf, he faults Lincoln’s tendency (celebrated in folklore) to keep important client and case papers in his hat, which caused him to risk injuring his clients’ interests by losing track of their cases.
In “The Power of Lincoln’s Legal Words,” John A. Lupton, an experienced public historian in Illinois and another veteran of the Lincoln Legals Project, assesses Lincoln’s skill as a legal writer, showing Lincoln’s command of legal authorities, his skill at conforming to their requirements, and his application of his general mastery of crafting prose to [*184] preparing such documents as jury instructions and bills of exceptions all helped to confirm his excellence as a practitioner. William T. Ellis and Billie J. Ellis Jr. collaborate on “Competence, Diligence, and Getting Paid: Lincoln’s Lessons for Todays’ Ethical Lawyer,” an essay both historically-sensitive and normative; the authors (the senior Ellis an experienced Texas attorney and Lincoln scholar, the junior Ellis a law student at the University of Texas at Austin) show that Lincoln met and exceeded modern standards defined by the ABA’s Model Rules of Professional Conduct pertaining to a lawyer’s competence at handling cases committed to him, his diligence in pursuing his client’s interests, and his care in setting and collecting fees for services provided. Finally, Christopher A. Schnell’s “Lincoln and the Kentuckians: Placing Lincoln in Context with Lawyers and Clients from His Native State” explores the significance of Kentucky, the state where Lincoln was born, for the evolution of his legal and political career. Schnell, another veteran of the Lincoln Legals Project now pursuing a Ph.D. in history at St. Louis University, shows the continuing importance of Lincoln’s Kentucky background and connections to his evolving law practice and his gradual transcending of Kentuckian political and legal culture
The two essays comprising Part III shift focus again, from Lincoln the practicing lawyer to Lincoln the legally-trained statesman. They show how President Lincoln drew on his legal training and experience to preserve the Union, to end slavery constitutionally, and to revive the nation’s shattered experiment in constitutional self-government.
In “Abraham Lincoln as Practical Constitutional Lawyer,” Mackubin Thomas Owens, associate dean and professor at the U.S. Naval War College, stresses Lincoln’s pivotal importance in the Constitution’s development and dissects his conception of the Constitution, which guided his efforts as President to preserve the Union under the Constitution. For Lincoln, Owen argues, the Constitution was joined to the Declaration of Independence as defining the American political covenant. Further, Lincoln defended the evolution of federalism beyond the classical idea of confederation to that defended by James Madison in THE FEDERALIST No. 37. Owens effectively juxtaposes Lincoln’s defense of Union and opposition to secession with Alexander H. Stephens’s defense of secession, demonstrating that Lincoln’s arguments resonated more clearly with those of the founding fathers and defended their legacies more honestly. Owens also explores Lincoln’s activist conception of his role as commander-in-chief under the Constitution, showing both that Lincoln worked hard to stay within the limits of the Constitution but also that, when he arguably violated the Constitution, he did so to save the constitutional system at the risk of violating a specific constitutional prohibition. Owens pays Lincoln the just compliment of taking his words to mean what they say, and pays Lincoln the further tribute of taking him seriously as what he calls a “practical constitutional lawyer.”
In “President Lincoln: The International Lawyer,” William D. Pederson, a professor of American Studies at Louisiana State University in Shreveport, makes a challenging case for [*185] President Lincoln’s evolving mastery of the thorny area of international law, both in collegial exchange with his principal advisors and in his own thinking and study. To support this counter-intuitive view, Pederson cites and analyzes a series of incidents with international-law implications – including such obvious examples as the TRENT affair and the 1864 Confederate raid on St. Albans, Vermont, from across the Canadian border, and less obvious examples such as the Emancipation Proclamation and the development of Francis Lieber’s code governing the operation of U.S. armies in the field. In so doing, Pederson establishes the bona fides of “Lincoln’s de facto role as an international lawyer” (p. 240) and, in the process, leaves the reader wondering about implications of the precedents that Lincoln set for his successors.
In conclusion, two reasons why so few scholars have attempted to study Lincoln’s legal career suggest themselves. The first is that the materials were too fragmentary and scattered for any one scholar to study them. The second is that the technicality of the subject may have scared off scholars lacking legal training. The existence of the website devoted to “The Law Practice of Abraham Lincoln” has disposed of the first reason; the existence of the fine books and articles growing out of the Lincoln Legals Project and ably synthesized in this symposium has disposed of the second reason. Indeed, these essays provide a valuable entryway into what was once deemed a forbidding subject. It is time for historians to continue these scholars’ efforts to integrate Lincoln’s life as a lawyer into our understanding of the man who may well have been the nation’s greatest president.
NOTE: I give special thanks to my students in New York Law School’s spring semester 2011 American Legal History course, who read and commented on this review essay in the course of discussing the history of the legal profession in nineteenth-century America. – RBB
Benner, Martha L., and Davis, Cullom (eds.) (2000). THE LAW PRACTICE OF ABRAHAM LINCOLN: COMPLETE DOCUMENTARY EDITION. Champaign, Illinois: University of Illinois Press, 2000 (2 computer optical discs plus 1 manual).
Benner, Martha L., and Davis, Cullom (eds.) (2008). THE LAW PRACTICE OF ABRAHAM LINCOLN, Second Edition. http://www.lawpracticeofabrahamlincoln.org/Search.aspx (consulted online 16 March 2011).
Dirck, Brian. 2007. LINCOLN AS A LAWYER. Urbana: University of Illinois Press.
Donald, David. 1995. LINCOLN. New York: Simon and Schuster.
Duff, John J. 1960. A. LINCOLN, PRAIRIE LAWYER. New York: Rinehart.
Frank, John P. LINCOLN THE LAWYER. Urbana: University of Illinois Press. [*186]
Goebel, Julius, and Smith, Joseph H. (editors) (1964-1981). THE LAW PRACTICE OF ALEXANDER HAMILTON (5 volumes). New York: Columbia University Press.
Hill, Frederick Trevor. 1906. LINCOLN THE LAWYER. New York: Century Co.
Konefsky, Alfred I., and King, Andrew J. (eds.) (1982-1983). THE PAPERS OF DANIEL WEBSTER. SERIES 2: LEGAL PAPERS. VOLUME 1: THE NEW HAMPSHIRE PRACTICE, VOLUME 2: THE BOSTON PRACTICE. Hanover, NH: University Press of New England for Dartmouth College.
Steiner, Mark E. 2006. AN HONEST CALLING: THE LAW PRACTICE OF ABRAHAM LINCOLN. DeKalb: Northern Illinois University Press.
Stowell, Daniel, ed. 2008. THE PAPERS OF ABRAHAM LINCOLN: LEGAL DOCUMENTS AND CASES. (4 volumes). Charlottesville: University of Virginia Press.
Woldman, Albert. 1936. LAWYER LINCOLN. Boston: Houghton Mifflin.
Wroth, L. Kinvin, and Zobel, Hiller. 1965. THE ADAMS PAPERS, SERIES III: THE LEGAL PAPERS OF JOHN ADAMS. (3 volumes.) Cambridge, MA: Harvard University Press.
© Copyright 2011 by the author, R. B. Bernstein.