Spielberg's Lincoln's ethics

In response to the new film, Lincoln, by Steven Spielberg, we've seen some commentary on Lincoln's ethics: David Brooks, Jonathan Wright, Rachel Boyle, and Cliff Vaughn. Much of the commentary explores whether it's possible to act ethically while engaged in the messy practice of politics -- a question that should resonate with lawyers. And, given that Lincoln spent so many years in ordinary county-based lawyering, to fully answer the question we'd have to understand his legal career. (As I've mentioned here before, Brian Dirck and Mark Steiner have written good, concise accounts of Lincoln's legal career.)

 

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[Steven Lubet]

"The Law Practice of Abraham Lincoln" is available on line: http://www.lawpracticeofabrahamlincoln.org/Search.aspx

It is a stunning database, including documents from virtually every case Lincoln ever handled.

For exampl: After the assassination, the Copperhead congressman Daniel Voorhees claimed that he had been friends with Lincoln when both men practiced law. This seemed highly questionable to me, given that Voorhees was a pro-slavery Democrat from Indiana, and he had been one of Lincoln's great antagonists in Congress. (I came across Voorhees's sketchy claim when researching "John Brown's Spy;" Voorhees had been John Cook's lawyer.) But sure enough, a search of the database revealed that Lincoln himself had sponsored Voorhees's admission to the bar of Vermillion County, Illinois, in 1851. There are surely many similar revelations waiting to be discovered.

[John Steele]

Steven,

Thanks. Yes, that database is a huge contribution to American history -- and to those of us who care about the legal profession.

[Monroe Freedman]

The following information comes from the highly acclaimed and generally laudatory biography of Lincoln by Harvard Professor David Herbert Donald:

Lincoln was deferential to the court – unless, that is, a ruling against his client was important to the case. In defending a killer, for example, Lincoln tried to show that the victim had previously said that he would beat up the defendant. The judge excluded the evidence on the ground that there was nothing to show that the defendant had even known about the threats before he stabbed the victim to death.

Lincoln's zealous response to the court's rulings would have offended today's proponents of civility. He told the judge that he "had never heard of such law" and inaccurately challenged the ruling as "absurd and without precedent in the broad world." According to his partner, William Herndon, Lincoln spoke "fiercely [and] contemptuously" of the judge's decision. In the face of Lincoln’s "withering attack," the judge relented and admitted the evidence. As a result of Lincoln's Rambo tactics, the jury acquitted the defendant, and a killer walked free.

Lincoln also used technicalities and delay as tactics on behalf of his clients. A "standard move" that he made in serious criminal cases was to apply for a change of venue, in part to delay the case to his clients' advantage.

Lincoln was careless with documents, leaving many important papers in a disorganized stack in a corner; others he stored in his stovepipe hat, which he used as "his desk and his memorandum-book." As a result, says Professor Donald, Lincoln and his partner were constantly looking for misplaced letters and documents, and there were times that they had to confess frankly that important papers had been "lost or destroyed and cannot be found after search among the papers of Lincoln & Herndon."

Lincoln recognized that the legal profession has a business side. In fact, he regularly referred to his professional work as "business" or as "the law business." And his pursuit of fees led him to neglect his family. For three months a year, he traveled on circuit, not even returning home on weekends as many others did.

He also dunned clients for fees, and brought suit against clients at least half a dozen times. In one case, after winning an important tax victory in the Illinois Supreme Court, Lincoln billed the Illinois Central Railroad $2,000, an amount that he had to travel three months on circuit to earn. The railroad resisted payment, saying that the fee was "as much as Daniel Webster himself would have charged." In response, Lincoln submitted a revised bill -- for $5,000. He then sued, and won.

Lincoln didn't hesitate to solicit clients. In the railroad case, he first approached the officials of Champaign County, proposing to represent the county. When the county turned him down, Lincoln offered to represent the Illinois Central.

Lincoln did not care which side he represented. In choosing between a railroad and a county on an issue of taxation, this might not raise a serious question of morality in lawyering. But Lincoln was also indifferent to whether he represented a fugitive slave or a slaveholder. He did, of course, speak and write eloquently about the evils of slavery. As he wrote, "the most dumb and stupid slave that ever toiled for a master, does constantly know that he is wronged." And in 1841, a young black woman named Nance was freed from slavery on Lincoln's argument that "the presumption of law in this State [is] that every person [is] free, without regard to color.... The sale of a free person is illegal."

Yet six years later, Lincoln represented Robert Matson in an effort to recover runaway slaves. Matson had brought his slaves from Kentucky to work a farm in southern Illinois, and the slaves had escaped. The fugitive slaves argued that the Northwest Ordinance prohibited the introduction of slavery to Illinois and that they were therefore free. Lincoln stressed that Matson had publicly stated that the slaves were only temporarily in Illinois, and argued the right of transit, under which slave-holders were allowed to take their slaves temporarily into free territory.

Lincoln lost, but, as Professor Donald comments, neither of these slavery cases "should be taken as an indication of Lincoln's views on slavery; his business was law, not morality."

[John Steele]

Monroe, the Donald bio is the best general bio regarding the legal career of Lincoln. As I understand it, Donald had access to the early results of the Lincoln Legal Papers project.