ABRAHAM LINCOLN: LEGEND IN LAW AND HISTORY

Abraham Lincoln (1809-1865), the sixteenth President of the United Sates, occupies almost as prominent a position in legal legend as in American history. Lincoln the lawyer has become part of the profession's folklore—the self-taught country lawyer who had almost no legal education. When Lincoln was admitted to the bar in 1836, the only admission requirement under Illinois law was "good character"—which, according to wags at the time, was the one thing most lawyers lacked. Lincoln summarized his own self-education in his advice to a would-be lawyer: "Get books and read and study them carefully. Begin with Blackstone's Commentaries, take Chitty's Pleadings, Greenleaf's Evidence and Story's Equity in succession. Work, work, work is the main thing."

Lincoln certainly worked at becoming an outstanding lawyer. As a biographer sums it, "He was immersed in his country practice like a fish in a lake. The cases in which he was engaged run not to the hundreds but to the thousands." And they run the gamut of law practice—from cases over a pig to a railroad case where his fee was $5000 (a tremendous amount then for legal work; in fact, Carl Sandburg tells us, high officers of the railroad spoke of "the payment of so large a fee to a western lawyer").

The Lincoln of legal legend is primarily a country lawyer—the gaunt backwoods figure riding circuit along trails on horseback, with saddlebags containing a spare coat, a clean shirt, a lawbook or two, and some paper. William Herndon, Lincoln's last law partner, later said, "No human being would now endure what we used to do on the circuit. I have slept with 20 men in the same room ... and oh—such victuals."

As is often the case, however, the legend does not present a complete picture. Far from being a country bumpkin in court, the mature Lincoln was a leader at the bar, whom David Donald, author of the most recent full-scale Lincoln biography, calls "a very great lawyer." Donald's principal chapter on Lincoln as a lawyer is titled "At the Head of His Profession in This State." By the 1850s, the firm of Lincoln and Herndon had a third of all the cases in the Sangamon County Circuit Court and ranked as a leading law firm in the area. Before his election to the presidency, Lincoln had participated in 243 cases before the Illinois Supreme Court and two before the United States Supreme Court.

Still, it is Lincoln, the country lawyer, who is remembered in legal lore. And he was a trial lawyer as good as the profession has seen. The legendary "almanac trial"—at which Lincoln demolished a witness, who testified that he had seen the murder clearly because of the bright moon, with an almanac showing there was no moon at the time—did take place. But it gives us an incomplete picture of Lincoln's courtroom abilities, which included the main attributes of the great practitioner: the ability to penetrate to the heart of a matter and express it simply enough for lay understanding and consummate skill as a jury lawyer. His great antagonist, Stephen A. Douglas, stated that Lincoln had no equal before a jury.

Despite what has been said, it remains true that if Lincoln had died before 1860, no one would have heard of him again, and certainly not as a great lawyer. But he did not die in 1860. Instead, the gaunt figure, with the stovepipe hat and old shawl around his shoulders, who walked brooding through a cold February rain to the Springfield depot for his journey to Washington, was still the lawyer that he had been in his quarter-century of practice. The quondam prairie lawyer brought to the White House the knowledge of law and men that he had acquired in practice. They were continually used by him in dealing with the Civil War crisis.

In the highest office, Lincoln never lost the habit of thinking and expressing himself as a lawyer. According to the New York Times review of the Donald biography, "It was lessons learned in country courtrooms . .. that finally made the difference." In particular, as president, Lincoln added a new dimension to our conception of law—one called forth by his actions in dealing with the war emergency. It should not be forgotten that the crucible through which the nation passed during Lincoln's presidency was also a continuing constitutional crisis. It presented constant legal problems to the lawyer in the Oval Office. How President Lincoln dealt with these constitutional problems indicates that he must be given high marks as a constitutional lawyer.

In the law, Lincoln the prairie lawyer remains a legend. But if that was all there was to his legal life, he would not be remembered—much less on a list of great lawyers. To the legal legend, however, we must add Lincoln's crucial place in the nation's history. In fulfilling his historical role, Lincoln always thought and acted as a lawyer. From that perspective, he contributed more to American constitutional law and practice than anyone since John Marshall.