LINCOLN: THE LAWYER AS PRESIDENT

I have written about Abraham Lincoln’s career as a criminal defense lawyer. When he became president there were many occasions when he had to exercise his skills and training for that profession. His approach to problems as reflected in his speeches and writings was “lawyerly.” First, he articulated the issues, and then he fairly stated the evidence and arguments from each side of the case. Finally he would eloquently give his point of view, and support his decision, often citing precedent, but always relying on the force of the evidence that persuaded him.

            As president, he had to decide whether to pardon individuals who were condemned to death. The Constitution (Art. II, Sec. 2) gives the President plenary power to grant a pardon for federal offenses. There is no appeal from his final decision. He is the court of last resort. This power was granted to the executive by the Founding Fathers despite its historical association with monarchs, and its obvious anti-democratic implication. (Hamilton, in Federalist Papers, No. 74, explains that the severity of the criminal law (which at the time provided for death for many offenses) needed to be mitigated. The “Chief Magistrate” as a “man of prudence and good sense” is in the best position to determine whether mitigation exists; his judgment should not be fettered by fears of being overturned.

            During the Civil War, Lincoln almost invariably pardoned soldiers who were condemned to death by military courts martial. He was susceptible to appeals from family members, especially women pleading for their sons, husbands, or brothers, and even for friends and acquaintances.  Most generals opposed as harmful to military discipline his grants of mercy to soldiers condemned to death for violations of military rules. Desertion was the most egregious offense to the militarists, but Lincoln found mitigation in most cases. He cited the “soldier boy’s” youth, inexperience or some other human defect to justify his order to reduce a sentence.

            In the first year of the war, a soldier who slept while on guard duty was sentenced to die as an example to other volunteers about the discipline of military life. Lincoln first sought the expertise of military advisors, learning about the traditional harshness of such rules. Then he received a letter from a woman on behalf of the soldier, a fellow Vermonter. She cited as mitigation several factors, including his youth, his unfamiliarity with the rigors of army life, his recent illness that had weakened him, and his fatigue resulting from his exposure to the enervating heat and humidity of Washington, D.C., so different from his native Vermont. Her most persuasive argument was that, contrary the notion that his execution would deter other soldiers, pardoning him would be praised by the other raw volunteers, encouraging them to greater loyalty.

            Lincoln, at this early time in his presidency, was eager to follow military protocol. He asked General McClellan if he might review the case and issue the pardon. This plea from the president tickled McClellan’s ego and he did it.

            The story of this soldier was widely reported. When in 1863, he died in battle, a poem dramatizing the events was published, inspiring a legend that added to Lincoln’s saintly image.

            But Lincoln was no saint. There were times when he denied pardons and let executions go on. Some soldiers deserted multiple times, re-inlisting over and over so that they could profit by the money paid new recruits. He allowed sentences to stand for those who committed egregious crimes, such as rape.

            And then there were the cases relating to crimes committed by civilians. Adding to enormous burden of his role as commander-in-chief during the war, he had to deal with these cases as well.

            In one case, a slave trader was caught with slaves chained below deck in miserable conditions. By then the slave trade had been illegal for many years. The law said it was punishable by death. BUT by 1861, no slave trader had ever been caught, tried and executed in the United States.

            Just as he did in all other such cases, Lincoln ordered the trial transcript, read it and all the letters and pleas from the man’s lawyers and family, and gave a reprieve of one week for the condemned to make his peace with God before his execution. That was the extent of the mercy he granted in that case.

            In another case, a resident in Norfolk, Virginia, watched “colored” Union troops marching in the street near his home. He vocally protested their presence as “a provocation.”  A white officer ordered his arrest. He then drew a pistol and shot the officer two times, not intending, he later claimed, to kill him. One bullet nicked an artery and the officer died.

            In his trial before the military tribunal, he was represented by counsel who called witnesses in his defense. However, the judges refused to allow them to argue “temporary insanity.” (In a recent notorious case, Dan Sickles, a New York congressman, had shot his wife’s lover and had been acquitted on the argument that “the unwritten law” permitted revenge for the outrage to his “property,” i.e., his wife, and that the provocation caused his temporary insanity.)   

            After the plea was rejected, the defense lawyers withdrew and the defendant gave the closing argument himself. As often the case, this was a bad idea; in this case it was a disaster for him. After denying any intent to kill, he explained his behavior: the colored troops were walking on his sidewalk in broad daylight. Just a year ago, one or more of them might have been in his “N----- yard.” Now, he was expected to bow before them? And when he protested and was arrested, the officer ordered two of “them N-----s” to take him to jail. What was he to do? What would any “man of honor” (!) do?

            Lincoln thoroughly examined the trial transcript. He rejected all arguments, but was troubled by the possibility that a viable defense might have been denied. He hired an “alienist,” the term then used for a mental illness expert. The doctor examined the prisoner and gave his opinion that he was sane, both at the time of the crime, and now. Lincoln then denied the pardon, but as in the other case, granted a week’s reprieve to permit him to “prepare himself.”

            In another infamous case, Lincoln permitted the execution of 38 Native Americans, an act that damages his image for many modern critics. The case is complicated. In Minnesota, a number of young braves rebelled against white authority, protesting the corruption of the Bureau of Indian Affairs, which had long been guilty of denying promised food and support to the tribes, and had treated them miserably in many intolerable ways.  Fed up, the young men went on a rampage. Others joined them. Some attacked whites. Three hundred fifty (350) whites were killed and a few white women were raped. Hundreds of the young men were captured, and 303 were sentenced to be hanged for “killing and other outrages” (meaning rapes). 

        Lincoln reviewed every trial — most of which barely met minimal due process standards. He narrowed the list of condemned men down to 38, eliminating 275 names from the list. Even though most of the braves who were spared still had to suffer imprisonment under very harsh conditions, his action still enraged the white population of Minnesota. Lincoln was under extreme political pressure to reverse himself. In fact, he nearly lost the state in his re-election campaign of 1864. When told about it, Lincoln said: “I could not afford to hang men for votes.”

[Miller, William Lee (2008). “President Lincoln, The Duty of a Statesman.”]

THE MORAL ISSUES OF THE CIVIL WAR

THE MORAL ISSUES OF THE CIVIL WAR

     Ten years ago I wrote a blog post titled, “Was Preservation of the Union a Moral Issue?” I knew that slavery was the gigantic moral issue that the war resolved. I knew, of course, that although slavery had been ended, the great issue of race was not at all solved.

     Now, I have come across a book that makes the same point — that preservation of the Union was, for Lincoln — a moral cause worthy of fighting the Civil War. 

     Modern historians take the position that the trigger for the Civil War had been a political dispute about power and sectionalism, about states rights versus centralized government, about economic and social differences between North and South, about the balance of power in Congress, about territorial expansion. But, they insist that these issues would not have justified the terrible carnage of the war; there had to be a higher, nobler cause to fight and die for. That had to be the fight to free millions of enslaved human beings. Thus, only until the Emancipation Proclamation (January 1, 1863) did the war find its true moral cause.

     Of course, that seemed to me to be obvious. And yet, something nagged at me. Abraham Lincoln had a long history of opposing the institution of slavery and he had foreseen it as the issue that divided North from South. In his debates with Douglas, he famously warned that the divided house could not long endure “half slave and half free,” that it must some day become all one or all the other.

     But when he became president he, in his inaugural address, promised that he would not interfere with the status quo, including a vow to enforce the Fugitive Slave Law that the Supreme Court had upheld in the notorious Dred Scott decision. Then, when “secession fever” struck, he said that even if the price for preserving the union was perpetual continuation of slavery, he would favor it.

     In fact, even after he was persuaded to issue the proclamation to free slaves, he did it for the purpose of prosecuting the war: it purported to declare free only those slaves in the rebelling states, not those in the slave states that had remained in the union — Missouri, Kentucky, Maryland and the newly recognized West Virginia.  

     So, I wondered, how could Lincoln, the deepest thinker of his age, think that preserving the union was so crucial? He must have felt that preservation of the union was a “moral” imperative.

     Why? 

     The first dictionary definition of the word “moral” is “of or relating to principles of right and wrong in behavior.”

     What was the great principle involved in preserving the Union?

     At the time I wrote the blog, I surmised that Lincoln must have believed that if the states were allowed to break the union apart, it would lead to a greater calamity than that of the Civil War itself.

    

     What could be worse than civil war? I looked at a map. In 1861 the North American continent contained Canada, Mexico, and the USA. The 13 southern states left the Union over the crisis about the territories: would new states be slave or free?

     Thus, the newly independent nation of Confederate States (CSA) would surely wish to expand into the western territories. So would the US. The CSA was based on a “sovereign” state’s right to secede. Therefore, nothing would prevent the CSA to disintegrate when another “critical” issue arose. And there might well be European powers to seek a foothold on the continent now that the USA was so weakened. Mormons might seek with their territory to be an independent nation.

    

     Certainly there would be conflicts, border disputes, probably many small and maybe larger wars – to defend or to expand territory. (Remember “bleeding Kansas,” the newspapers’ title for the misery that followed the “popular sovereignty” law.)

     Lincoln knew Europe’s history: continual wars among neighbors, empires challenging each other, eventual militarism, despotism, Napoleons trying to unify states by force.

     I found evidence for this awareness in the then popular notion of “Manifest Destiny.” In the 19^th Century, white Christian and European ancestry was presumed to be superior to any other race, culture, or people — the only race worthy of dominance on the continent.

     It justified for many the expulsion of native tribes from lands that the “pioneers” wanted. It supported a vision of a united continent. (Ambitions in Canada were thwarted only by Great Britain’s power, but weaker Mexico was forced by war to cede great chunks of its empire to ours: Texas, New Mexico, Arizona and California.)

     I found further evidence of Lincoln’s understanding and acceptance of this idea in the fact of his western pioneer roots, his legal history defending the business of the frontier, including the railroads; and during his presidency, his support for the continental railroad, the homestead acts, the land grant colleges of the western states; and his avowed dream that after his terms he would take Mary to see California.

     The century following the re-union after 1865 was the most prosperous era for the nation. While Europe continued to struggle with dictators and wars (two of which we were forced to enter in order to secure world peace) we remained relatively untouched by these wars. The continental US escaped the devastation that most of the rest of the world suffered in the 20^th century and we emerged the most powerful and prosperous nation in history.

     We also preserved – for the most part – the nature of our form of government; whether called a republic or a democracy, whatever the issues that divided us from then on, we  never resorted to dictatorship, monarchy, or anarchy.

     There were other prophetic words from Lincoln – these in the address he gave in December, 1863, at the cemetery for the soldiers who fell at Gettysburg. They died, he said, to give the nation “a new birth of freedom” and that government of, by and for “the people” would survive.

     By “a new birth of freedom” Lincoln certainly was referring to the end of slavery, and the people’s government he thought worthy of fighting for was certainly the republican democratic one.

     Now, ten years later, I began to read another of the many books I have read about the war and about Lincoln. The book is “President Lincoln: The Duty of a Statesman” by William Lee Miller. (This book was published in 2008, but I didn’t know about it when I wrote my blog post. Miller died in 2012. He was a historian and college professor who specialized in issues of ethics and morality, from a religious and historical perspective.)

     In that book, I found many quotes that support my thesis, but for a subtly different rationale far more articulate.

     As early as July 4, 1861, Lincoln in his State of the Union message to Congress, explaining the causes of the war that had begun in April, expressed his motives:

     “I consider the central idea pervading this struggle is the necessity that is upon us, of proving that popular government is not an absurdity. We must settle this question now, whether in a free government the minority have the right to break up the government if they choose.”

     “[T]he real question involved . . . was whether a free and representative government had the right and power to protect and maintain itself. Admit the right of a minority to secede at will, and the occasion for such secession would almost as likely be any other as the slavery question.”

     “[This issue] presents to the whole family of man, the question, whether a constitutional republic, or a democracy — a government of the people, by the same people — can, or cannot, maintain its territorial integrity, against its own domestic foes.”

     “Can ‘discontented individuals,’ too few in numbers to control administration . . . break up their government, and thus practically put an end to free government upon the earth?”

     Lincoln was, by education and inclination, a lawyer. He believed in the rule of law, its spirit and letters. His speeches read like oral arguments or written briefs. They use the form lawyers are still taught to follow: State the cause (the issues), give the evidence for and against the proposition, take a side and explain the rationale for the choice.

     In his July 4, 1861 message (delivered in writing rather than orally as was the tradition then) Lincoln first explained his (“the executive”) actions taken while Congress was in recess. He had kept his inaugural promise to not assail the seceding states, but when South Carolina rebels assaulted Fort Sumter (and federal property in other states was seized), he was forced to fight by his oath of office.

     Lincoln observed that he had taken an oath to “preserve, protect, and defend the constitution.” This presidential oath that is specified in the constitution is more specific than the oath administered to other federal employees (“I will support and defend....”). By adding the words “preserve” and “protect,” the document gives the president a special duty as commander-in-chief of the armed forces, a great responsibility toward the Constitution. 

     Secession is by its nature, he argued, unconstitutional. Lincoln recited history to show that the states were not “sovereign,” but only existed as part of the United States. Before that, they all were English colonies. (The only state that had been “sovereign” was Texas, for the brief time it declared a republic until it begged for admission into the union as a state.) Thus, the entire basis of the notion of “States rights” as support for secession is a false pretext.

     Lincoln next addressed the Jeffersonian notion expressed in the Declaration of Independence that justified the Revolutionary War against England. Reciting the basis of the current dispute, Lincoln argued that the complaints did not rise to the level that justified revolution. They had been subjects of negotiation, compromise, and debate since the founding, and were indeed included in the Constitution — by insuring checks and balances of branches, by giving states equal representation in the Senate (and by going to the extraordinary and outrageous length of giving the slave states added votes for those human males among their population who had no right to vote because they were deemed to be “property”).

     As Miller puts it:

     “Republican government — democracy, we say now — requires a tacit understanding between majorities and minorities. Majorities rightly prevail, but they respect the liberty of minorities to agitate to try to replace them; minorities have the right to express and organize in behalf of their view, but when the votes are counted, they must acquiesce. That did not happen in this case, and the implication was immense. 

    

     “From the start, Lincoln saw a sweeping, drastic, universal consequence to this assault upon government in the United States. This American case presented the universal issue: 

Was there, in all republics, this inherent and fatal weakness? 

Could such a government be maintained against a ‘formidable’ attempt to overthrow it from within? 

Could it demonstrate to all the world that such a government could have the strength to prevent a successful appeal from ballots back to bullets?

     “Put negatively, defending such a government against destruction, for the whole family of man and for the ‘vast future also,’ was the moral purpose of Lincoln’s war.”

April 13, 2020:

Recently, I found still more support for these ideas in two books by noted historians Joseph J. Ellis and H. W. Brands. Ellis’s “The Quartet” (Knopf Doubleday Publishing Group), is devoted to Washington, Hamilton, Madison and Jay, the four Founding Fathers who were most responsible for the Constitution, the document that saved the republic from an early death. "Heirs of the Founders" by H.W. Brand (Knopf Doubleday), follows the next generation of leaders, including Calhoun, Clay and Webster. [All quotes are from these books.] 

The new nation was on the verge of collapse because the Articles of Confederation had created a federal government that was too weak to keep the states together. 

Washington, the hero of the war for independence, clearly grasped the central idea: namely, that the American Revolution had happened at a truly pivotal moment in history: It provided Americans with an unprecedented opportunity to become the world’s first successful republic. 

After Independence, it soon became clear to Washington, and a few others, that there was a fundamental flaw in the new nation. The fact was that the Articles of Confederation had not created a united  nation. The 13 colonies that had joined together to fight the British insisted on maintaining their sovereign status. After declaring themselves United, the States, fearful of tyrannical rule, denied real power to a central government, even a democratic one.  

Washington saw clearly that the weakness this caused would be fatal to the dream that he and other founding fathers had, that they could “construct a society according to political principles that maximized the prospects for personal freedom and happiness more fully than ever before.” 

He understood that the time in history was ripe for this experiment in democratic republicanism, that is, a nation in which the people ruled themselves without a monarch or aristocracy. 

He also understood that if the states refused to yield power to a central authority - that is, with the power to tax, to legislate, to settle disputes, to make treaties, and to defend with an army and navy, then it would soon fall apart and fall prey to European states that craved an empire in the new world. 

Washington foresaw that “the Articles were a recipe for anarchy in postwar America, destined to dissolve his legacy of American independence into a confused constellation of at best regional sovereignties, vulnerable to the predatory plans of hovering European powers.” 

As early as 1783, he had expressed his fear that the promised future of a continental nation would be thwarted by these events. “…[H]is expansive vision, which eventually came to be called Manifest Destiny, was continental in scale.” 

He hoped that the dream of western expansion was what would unite the states, or rather re-unite them after most had begun to abandon the idea of unity as soon as independence was won. 

Once the common goal of independence had been achieved, the fractures between states and between northern and southern sections widened. South Carolina objected to Vermont’s entry as a state because it would weaken the South vis-à-vis the New England. 

Washington was not alone in this realization. His wartime deputy, the young genius, Alexander Hamilton, had the same vision. Even during the war, foreseeing a post-war nation, Hamilton wrote a series of essays titled, “The Continentalist,” arguing that a strong central government was needed to insure westward expansion, with its promise of freedom, upward mobility, and wealth. 

The core mistake was to vest sovereignty in the states rather than in a federal government empowered to oversee the economy, including collecting taxes and regulating commerce, and to manage the inevitable expansion of a continental empire. As Hamilton put it, “Americans needed to think continentally.”

Another American leader saw it, too. John Jay, in 1782 was in Paris negotiating the end of the war with Britain. Representatives of Spain and France which had supported the war for independence, mostly in order to weaken England, were there to mediate. One issue was where to define the borders of American vs. British territory on the American continent. Jay forcefully argued to draw the western line at the Mississippi River, which at the time was far further west than any state’s border. In doing so, he was challenging not just England’s claims, but also those of Spain and France. The English agreed to the boundaries largely to weaken Spain and France. 

As signed, it was widely seen as a major victory for the new nation. It doubled its territory, making it larger than any of the three European nations involved. Smart Europeans foresaw that it laid the foundation for an American Empire, one with nearly unlimited resources. 

Thomas Jefferson also foresaw the inevitability of westward expansion. But contrary to the notions of Washington, Hamilton, and Jay, he wanted government, especially a federal government, to stay out of the way. He thought that, left alone, the free market would solve any problems. 

“None other than George Washington was the first to sound the warning. ‘To suffer a wide extended country to be overrun with Land Jobbers, Speculators, Monopolizers, or even with scatter’d settiers,’ Washington declared, ‘is, in my opinion inconsistent with the wisdom and policy which our true interest dictates.’ A policy of unregulated ‘diffusion’ would be sure to generate Indian wars up and down the frontier, the kind of legal confusion over land patents that had already produced vigilante violence in Kentucky, and the likelihood that some settlers would move so far west that they would repudiate their American citizenship and set up independent states or seek support from foreign powers like Spain or Great Britain.”

This argument persuaded Jefferson to go along with the Ordinances of 1785 and 1786 that strove to protect the western lands from unbridled exploitation. The problem was that the Confederation Congress had little power to enforce its laws. 

“Unless there was a viable American nation-state to join, Washington worried that the western territories would drift into the orbit of lurking European powers or go off on their own to form independent states. Washington’s great fear was that North America would become a version of Europe, a collection of coexistent sovereignties rather than a coherent nation of its own. All the evidence seemed to support the conclusion that the very term United States was becoming a preposterous illusion.”

“[The] apocalyptic scenario was anarchy, the complete collapse of the confederation leading to civil wars between the states and predatory intrusions by European powers, chiefly Great Britain and Spain, eager to carve up the North American continent in the conventional imperialistic European mode. The more realistic scenario was dissolution into two or three regional confederacies that created an American version of Europe. New England would become like Scandinavia, the middle states like western Europe, the states south of the Potomac like the Mediterranean countries.

In fact, each time there was a dispute among the states, voices were raised – in the press – that urged disunion, or withdrawal of a section of states that had more common interests than those in a foreign section. 

Although they succeeded in persuading the states to send delegates to the Constitutional convention in the summer of 1787, the document it produced didn’t completely solve the problems. It was a compromise, in which the states, subject to stringent check and balances, surrendered any claims of sovereignty to the federal system - for the greater good. As the Preamble says:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The Preamble was written by Gouverneur Morris as head of the Committee on Style and Arrangement, that had been appointed to organize the final document. Significantly, the first draft of the first sentence was much different:

“’We the people of the states of New Hampshire, Massachusetts, Rhode Island…’ and then down the Atlantic coast on a state-by-state basis. Morris single-handedly chose to change that to ‘We the People of the United States.’ 

“This was not just a stylistic revision, for it imposed, at least verbally, a crucial and clear presumption that the rest of the document was designed to finesse: namely, that the newly created government operated directly on the whole American citizenry, not indirectly through the states.”

The Constitution, for all its defects, did not include any provision for secession of any of the states or dissolution of the whole. Between 1787 and 1861, there had been several crises in which the specter of secession had been raised, not just in the press, or rabble rousing speeches in state legislatures, but in the U.S. Senate and House as well. 

The disruption of trade caused by the War of 1812, led some New England leaders to the Hartford Convention, in which some firebrands murmured threats of secession. Before the Missouri Compromise in 1820, southerners again raised the specter of secession on the issue of westward expansion. The delicate balance of power in the Congress was maintained by Maine / Missouri as new states. But it was the future of the west that loomed dangerously. 

In 1830 it was the issue of tariffs that led to a severe crisis. South Carolina, led by VP John Calhoun, asserted the right to “nullify” the federal law. Calhoun’s rep, Sen. Robert Hayne, made a stirring speech asserting state’s rights, arguing that the Constitution was a creation of sovereign states but that “liberty” was stronger than “union.” 

Sen. Daniel Webster of Massachusetts responded with a powerful rebuttal. He argued that without the Constitution was created “by the People” not the states. (“Heirs of the Founders”), quoting Webster’s speech:

“’If the government of the United States be the agent of the state governments, then they may control it, provided they can agree in the manner of controlling it. If it be the agent of the people, then the people alone can control it, restrain it, modify, or reform it.’ 

“Webster took his stand with the people. ‘It is, sir, the people’s Constitution, the people’s government; made for the people; made by the people; and answerable to the people.’ 

“The people of America had created the national government and made it sovereign. ‘The people of the United States have declared that this Constitution shall be the supreme law. We must either admit the proposition, or dispute their authority.’” 

Webster cited the sad history of the Articles of Confederation, and the reasons why the strong “general government” was needed. The federal judiciary, not any of the states, had the power to declare a law unconstitutional. Moreover, prosperity and liberty depended on the unity of the states, that there could be no individual liberty without a strong union. Daniel Webster had deterred it by his oratory: “liberty and Union, now and forever, one and inseparable.”

Lincoln knew his history, and could easily foresee the future. His arguments against the right of the Southern states to secede had clear precedents and an unimpeachable rationale. He foresaw what a tragedy the dissolution of the Union would be for the future of continent. It was not merely a political or economic crisis, but a struggle for the hope of humankind, that a government of, by and for the People could survive internal strife. 

ABE LINCOLN FOR THE DEFENSE

Abraham Lincoln is the closest thing we have to an American saint. His martyrdom sealed that. His speeches—at Gettysburg, at his two inaugurals, the proclamation emancipating slaves in the rebel states, and in his debates with Douglas—define American aspirational values better than any document since the Declaration of Independence.

Yet, what makes him attractive is that, although his face is carved in granite on Mount Rushmore and in his monumental memorial in Washington D.C., Abe Lincoln still seems quite human rather than unapproachable and larger than life.

For me, a big part of my sense of Lincoln’s humanity is the fact that we shared a common profession. We were both practicing lawyers. Not only lawyers but members of a special branch of the profession: trial lawyers who spent many years taking seriously the task of trying cases before judges and juries.

I knew that for twenty years—from about age twenty-seven—he rode the circuit in his state, traveling with a band of lawyers and judges to the various outlying villages where they would take cases and adjudicate disputes. It was how he learned his trade, enjoyed the camaraderie of colleagues, honed his skills at argument, oratory, and gained a deep understanding of the frailties of human nature.

I was happy to learn that he also represented clients in criminal cases, both serious and petty. Having watched John Ford’s 1939 classic film, “Abe Lincoln In Illinois,” starring Henry Fonda, I learned that he defended in a murder case, one involving eyewitness identification.

Not trusting the accuracy of movies, I read about this case in legal essays. Duff Armstrong was accused of killing a man one night after an argument at a fair. Lincoln made headlines by persuading the judge to take notice of the Farmer’s Almanac, which proved that the moon had set long before the stabbing, so that the eyewitness who claimed to identify Lincoln’s client as the culprit by moonlight was lying.

I later found out about another of his clients, Melissa Goings. She was an elderly woman who killed her abusive husband and was prosecuted for murder. Knowing the history of the couple, the townspeople of their village so sympathized with Melissa that they raised her bail money. When a new judge harshly threatened to revoke bail and remand the old woman to custody pending trial, she fled. The judge asked Lincoln what he knew of this. Lincoln said he had asked to interview her. She was placed in a room on the first floor of the courthouse. Lincoln emerged to get her some water and when he returned she had gone.

As the story goes, the judge questioned Lincoln about the interview and he supposedly told the judge that she had asked him for a drink of water and he merely remarked in passing that the water in Tennessee was clear and sweet. Legal historians speculate that the local prosecutor was not anxious to try the woman either, and so might have winked at Lincoln’s solution to the case. The warrant for her arrest was never served.

These cases became part of the Lincoln legend, the folksy wit and sharp legal mind that we find so heroic.

But what I found later was that in fact, he tried twenty-seven murder cases over the course of his career, and that he lost some of them—in fact, one murder case he lost led to his client’s execution. I was hooked. The parallel to my own experiences gave me an almost eerie sense of familiarity, and (it seems ridiculous to write the words) almost a feeling of brotherhood with the man.

I spent almost twenty years as a public defender and the rest of my forty-four year career in private criminal defense practice. My legal community was just as close knit as was Lincoln’s, with friendships tied to mutual respect, among lawyers who defended, or prosecuted, or were elevated to the judiciary.

In my time, I tried many murder cases including some in which the death penalty was sought. Just as soldiers of one era may feel a kinship with those of any other time, I suspected that Lincoln’s experiences might be something like those I lived through.

So that is why I was anxious to read a new book, titled Lincoln's Last Trial: The Murder Case That Propelled Him to the Presidency, authored by Dan Abrams and David Fisher.

Like those in my experience, the killing was a commonplace sort of act, not the kind that murder mysteries and thrillers are made of. There was no whodunit, no issue as to cause of death, no car chases, no brilliant forensics. Two friends quarreled over a minor domestic issue and it escalated into threats, a confrontation, a fight, and, eventually, a stabbing.

In that sense, the case was closer to those I knew of than those in fictional dramas. Although it contained no esoteric features, the case still involved elements that demanded the skills of a seasoned advocate. For one thing, the defendant claimed self-defense, although he brought a knife to a fistfight and fatally stabbed a man who was unarmed.

But the victim was bigger and stronger than the defendant, who was smaller and weaker. The victim had told others that he intended to beat the defendant, to “stomp him.” But did the defendant know of this intent? Was that why the defendant carried the knife, or did he intend to kill his antagonist no matter what?  

This is one of the most complicated and difficult defenses to present. The law in 1859 was similar to today: you may use only the force reasonably necessary to defend yourself from the perceived threat. You may use deadly force only if you are in reasonable fear of great bodily harm or death. You must back away from the danger if you can (unless in your own home), but can defend yourself if you must.

The law is strict and precise, yet subtle in its implications. The lawyer must understand and be able to communicate the most complex of human feelings: fear, anger, malice, self-survival.

In 1859, the task of the defense lawyer was made far more difficult by a quirk in the existing law. The prevailing rule of evidence precluded the defendant from testifying for himself.

When I first read this, I was shocked. The defendant’s testimony is usually essential to presenting self-defense. But experienced lawyers know that it is far more complex than that.

For one thing, most defendants make poor witnesses. One slip of the lip, one false note, and the entire case is lost, no matter how weak the prosecution’s case, no matter how much reasonable doubt you have sown through careful cross-examination of other witnesses.

During jury selection, I usually asked the following series of questions:

1. Do you think it is fair to make up your mind before you hear both sides of the story?

2. Will you follow the judge’s instruction that every witness, whether called by the prosecution or the defense, must be treated the same or would you disregard witnesses because they testify for the defense?

3. If the defendant testifies in his own behalf, would you disregard his testimony merely because he is the defendant?

Although most prospective jurors answered that they would be “fair to both sides,” many admitted that they might discount a defendant’s testimony, believing that any defendant would lie to save himself. In fact, that was the basis of the old law preventing the accused from testifying.

I found it interesting that the same jurors often admitted they might be prejudiced against a defendant who chose to remain silent even though he had a right under the 5^th Amendment to do so.

On reflection, I wonder if the old law helped the defense by removing the choice from the defendant, thus eliminating the juror’s bias about the issue.

Nonetheless, it placed a great burden on the lawyers to establish the defense without the defendant’s word. In this case, however, there were a number of witnesses present. The prosecution called some and the defense called others. As expected, the versions varied, depending on the skills of the lawyers to bring out the truth, or at least the most reasonable version of the truth.

The law makes certain presumptions which in reality may or may not be accurate. Some are carryovers from a more naïve age. One is the idea of the “dying declaration.” Hearsay is defined as an out of court statement that is offered to prove the matter asserted in the statement—such as “He said he saw the man commit the crime, or “She said she saw someone else commit the crime.” If the person who made the statement is not available to be examined under oath, then the witness who says he heard the statement won’t be allowed testify to it—if the issue is who committed the crime.

But there are exceptions, some of which have been recognized for centuries. If the person who made the statement was near death, and knew she was near death, and speaks about the cause of her impending death, and then dies and is therefore unavailable for later trial, then the person who heard the statement may relate it.

The reason for the exception is that, among religious people, it was a sin to die with a lie on one’s lips. People believed in an immortal soul, and confession, atonement, forgiveness, were such strong values that it was considered probable that such a statement at that time was true.

In Lincoln’s case, the victim had spoken to a minister as he lay dying. He begged for forgiveness because he felt himself responsible for his death, not the man who stabbed him. This buttressed the defense claim that the victim had sought the fight and had been stabbed in self-defense.

In one of my cases, a man emerged from a grocery store late one night, his arms full of shopping bags. He was accosted by another man who ran across the street. Without a word the man pulled a sawed off shotgun from inside of his jacket. The gun went off and the man with the bags fell, dying.

In the ambulance, he was told he was dying and was asked what happened. He said in Spanish, “Era un robo.” “It was a robbery.” The DA wanted to use the statement, because even an accidental or negligent killing during an attempted robbery equals first-degree murder.

However, the judge in my case denied the motion, agreeing with me that another condition of the dying declaration exception was not met. The statement must be one of fact, not merely opinion or belief. In my case, no words were spoken, no demands made. It was only the victim’s fear that caused him to assume that it was meant to be a robbery. (My client was guilty of manslaughter, a lesser crime.)

The oddity in Lincoln’s case was that the minister to whom the victim made the statement was the grandfather of the defendant, the man who stabbed him. This might have made the witness’s credibility doubtful, but he happened to be famously respected in the community for his honesty. The judge allowed the testimony and the prosecutor failed to raise enough doubt on the veracity of the testimony.

That raises another oddity that makes this case different from any of my experience. Almost everyone involved in the case seemed to know each other and be friends. That did not only include the lawyers on both sides and the judge, but also the witnesses, the defendant, his family, the victim and his family, and many of the jurors.

For instance, the prosecutor (Palmer) and Lincoln had been law partners. The victim (Greek Crafton) had studied law in Lincoln’s office, and Lincoln was said to have thought highly of him. The minister (Reverend Cartwright) had run for office against Lincoln and had verbally attacked Lincoln as an atheist.

Lincoln’s co-counsel was Steven Trigg Logan, a former judge with whom Lincoln had partnered early in his career. They had been co-counsels in Lincoln’s first murder trial in 1838, which was somewhat factually similar to this one.

Back then, they defended Henry Truett in the murder of Dr. Jacob Early. Another dying declaration, but in this one the victim named Truett as his killer. The motive was Truett’s anger over remarks Early had made about Truett’s appointment to a political office. The defense was, again,

self-defense—in the argument, Early had raised a heavy chair before he was shot. (The prosecutor in this case was none other than Steven Douglas.)

The authors, citing many newspaper accounts, attribute the three-hour not guilty verdict to Lincoln’s brilliant summation. Describing his style of jury argument they struck another chord for me:

“When he approached the jury box and leaned over close, he was just talking to some friends. ... People simply liked him. It was never an act; there was nothing flamboyant or showy about the man. ... [H]e reasoned with them calmly and treated them with respect and so they believed him.”

(Kindle Locations 494-496.) 

In my experience, the best lawyers value their credibility as their most important asset, especially with juries. It is something crucial to preserve from the first day to the last—beginning with jury selection and dealing with the opposition, with the judge, with witnesses, with items of evidence. In argument, speaking directly to the jury, a lawyer who has lost their trust has lost the case.

The authors make the argument that the case was important in furthering Lincoln’s political career because it was widely reported in the national press. Lincoln by then was well known (after his debates with Douglas) and was being spoken of as a possible presidential candidate. Much of his reputation was as a brilliant trial lawyer, and a loss might have tarnished that fame.

When the client was acquitted, the town of Springfield was divided over the verdict, but none who supported the victim’s family blamed Lincoln for his defense. In his argument he had shown nothing but respect for the family’s grief and had even made a point of extolling the victim’s character, while bemoaning the tragic sequence of bad decisions that the young man had made.

It was another example of the humanity that the man, Abe Lincoln, brought to the law and eventually, to our American values.