February 2000

Lincoln Then and Now

by the Honorable William L. Dwyer
Guest Editor

[The following is excerpted from the Lincoln Day 1999 address given to the Tacoma-Pierce County Bar Association.]

Why have we chosen to honor this man, Abraham Lincoln, so often and for so long? One reason is that Lincoln was one of us. He was a trial lawyer and the best lawyer ever to serve as President of the United States. And of course, it follows as the night the day, he was also the best President.

But the main reason for this celebration is that Lincoln personifies what we want our country to mean and to stand for. He was born a backwoodsman. He had a grand total of about one year of school. Yet in all of history, no braver, no nobler or more humane man ever led a nation through its supreme crisis.

We still miss Lincoln, especially when election years approach. Suppose he were to come back today and enter the field of candidates now shaping up for the 2000 presidential election. What would he do? What would he say? And how would we react to him?

Let us imagine his arrival. He is now 51 years old, as he was when he first ran for President in 1860. What would strike us about this man? We would notice that he is six feet, four inches tall. He is on the skinny side. He has a high-pitched, metallic voice. In appearance he could fairly be called homely; tall, lanky, with drooping eyelids. His hands would impress us as looking awkward. Some of his movements would look awkward. We would soon find out, the press being as diligent as it is these days, that his feet hurt a good deal of the time.

He was a man who spoke plainly and with an accent. As one biographer described it:

A southern Indiana dialect affected much of Lincoln’s speech all his life. Like his neighbors, young Lincoln said "howdy" to visitors. He "sot" down and "stayed a spell." He came "outen" a cabin and "yearned" his wages and "made a heap." He "cum" from "whar" he had been. He was "hornswoggled" into doing something against his better judgment. He "keered" for his friends and "heered" the latest news. He pointed to "yonder" stream and addressed the head of a committee as "Mr. Cheermun."

By the standards of his own time, Lincoln was widely thought to lack what was called "dignity." He had some habits that were irritating to Mrs. Lincoln. For example, he liked to read newspapers aloud to himself, was a careless dresser, and his feet were often on the desk or chair or whatever else was elevated.

He was absent-minded. He once took one of the young Lincoln children out for a walk, towing the boy in a wagon behind him. The child fell off, but Lincoln did not notice. Deep in thought, he walked on for block after block, towing the empty wagon through the streets of Springfield.

He was a fine lawyer, but a slipshod record-keeper. One visitor to the law office of Lincoln and Hernden even claimed that seeds were sprouting in the cracks between the floorboards.

Unlike many men of his time, Lincoln did not hunt, fish or drink. But he had no objection to others doing any of these things. He relished the company of men. He loved to tell stories, and he loved to hear them.

He had three moods. There was the mood of exuberance and laughter. There was the working mood, in which he was totally absorbed with what he was doing, especially during court trials. And there was what he called "the hypo." The hypo was his mood of black depression, and he suffered from bouts of it all his life. In those harder times, Lincoln suffered the deaths of his mother at a young age, of his only brother in infancy, of his only sister when she was 21, of his beloved friend Ann Rutledge when she was 22, and eventually of two of his own young sons.

Lincoln had a literary gift. He wrote some poetry himself, but his favorite verse was by a Scotsman by the name of William Knox. The poem, "Mortality," is a profoundly sad comment on the human condition. Lincoln often quoted it, and sometimes muttered the words to himself as he stared out a window. The poem closes with this stanza:

‘Tis the wink of an eye, ’tis the draught of a breath,

From the blossoms of health, to the paleness of death,

From the gilded saloon, to the bier and the shroud.

Oh, why should the spirit of mortal be proud!

Although he had strong religious feelings, Lincoln never joined a church. In the mid-nineteenth century there was no undue exposure of marital details, and to this day the quality of Lincoln’s marriage is largely a mystery. The Macmillan Dictionary of Biography says that he and Mary Todd were "temperamentally unsuited" and had an "unhappy marriage." Meantime, the Dictionary of American Biography says "Their marriage seems to have been a happy one, their love for each other deep and sincere." What we do know with certainty is that Lincoln as a young man thought he would never marry because he was too awkward and shy with women. He anticipated Groucho Marx by a century when he said, "I can never be satisfied with anyone who would be blockhead enough to have me." He courted Mary Todd without much hope before their marriage. He pointed out that God only needed one "d" to spell his name whereas the Todds needed two. The Todd family rejected Lincoln for a long time, because he was beneath their station.

He came from a family of poor homesteaders. His mother and father were illiterate. As a boy and young man, Lincoln cut timber, split fence rails, plowed, threshed wheat, and hired out to other homesteaders and gave the wages to his father. He worked as a riverboat man, became a renowned ax-swinger, and was a fine wrestler.

For a time, he had a reputation for hanging around with ruffians. But he was a ruffian with a difference, because in him was the soul of a poet. He learned how to read. He read deeply the few books he could find, especially Shakespeare, the Bible, and the political document we call the Declaration of Independence.

He became a store clerk and a part-time surveyor. He opened a store with a partner, but the business did not prosper. They ran up what Lincoln called for years afterward, "the national debt"; eventually he paid it off. He volunteered and served in the Blackhawk Indian War. He never claimed more for his military service than that he survived "a good many blood struggles with mosquitoes."

Then came the great turning point: Lincoln became a lawyer. He was self-taught, reading the books to himself and then taking a brief oral bar exam, after which he took the three lawyers who had examined him out to dinner.

It was the law that opened the world to Abraham Lincoln, and our profession can take special pride in him. He became one of the best lawyers in Illinois and practiced law for 23 years. He rode the circuit of the smaller towns on horseback, trying cases of all kinds: murder cases, collection suits, railroad battles, torts, contracts, larceny defenses. Although it was said of our profession that lawyers who defended horse thieves were very well mounted, Lincoln never rode a noteworthy horse.

He was a friendly, capable adversary who spoke in plain words. He once gave advice to would-be lawyers. He said, "There is a vague popular belief that lawyers are necessarily dishonest . . . [Do not] yield to this popular belief. Resolve to be honest at all events; and if in your own judgment, you cannot be an honest lawyer, resolve to be honest without being a lawyer."

Other lawyers practicing in Illinois said Lincoln was unsurpassed in working with a jury. He did have certain biases, as many trial lawyers do. He believed that fat men were ideal jurors because they were jolly by nature and easily swayed. He rejected people with high foreheads because he thought they had already made up their minds. And he considered blond, blue-eyed males to be inherently nervous and likely to side with the prosecution.

The most famous story about Lincoln as a trial lawyer is the one where he was defending a neighbor charged with murder. A prosecution witness claimed to have seen the deed done by moonlight. Lincoln drew the witness out about the brilliance of the moonlight, and then pulled out an almanac showing that on the night in question, the sky was dark with barely a sliver of late-rising moon. The witness was discredited and the defendant was acquitted.

But the story I like best about Lincoln as a trial lawyer concerns a much more obscure case. He represented a man who had sold a team of oxen and a plow to two young men. The two young buyers had given a promissory note in payment. They were both under age, as it happened. They soon defaulted on the note and Lincoln’s client sued to collect. The defense, of course, was infancy — lack of capacity to make a promissory note.

The evidence came in, and Lincoln gave his closing argument. He pointed out that the young men had received full value — the plow and the team of oxen were worth the amount of the note. He said the defense of infancy should not be used to facilitate cheating. Then he took a task which exemplifies our profession at its best. He turned the appeal for his client into an appeal for the two young buyers. He told the jurors they should not do a disservice to these two young men. "Gentlemen of the jury," he said, "are you willing to allow these boys to begin life with this shame and disgrace attached to their character?" He meant the shame of evading a just debt. And he quoted Shakespeare:

Good name in man and woman, dear my lord,

Is the immediate jewel of their souls:

Who steals my purse steals trash; ‘tis something, nothing;

’Twas mine, ‘tis his, and has been slave to thousands;

But he that filches from me my good name

Robs me of that which not enriches him

And makes me poor indeed.

The jury saved the character of the two young men, and Lincoln’s client won his case. In trial Lincoln took no notes — yet he could marshal the evidence in detail in closing argument. In a day of few appellate precedents, he became a leading appeals court lawyer. He handled 243 cases before the Illinois Supreme Court. He followed the golden rule of brevity in writing. When asked once to comment on another lawyer’s windy brief, Lincoln said, "He got to writing and was too lazy to stop."

When he left Springfield to go to Washington to be President, he told his law partner, Billy Hernden, "Give our clients to understand that the election of a President makes no change in the firm of Lincoln and Hernden."

By the age of 50 he had been active a long time in politics, with mixed results. In his early twenties he ran for the state legislature. He said that if the people elected him he would regard it as a favor. If not, "I have been too familiar with disappointments to be very much chagrined." He lost.

In later years he did serve, with distinction, in the state legislature. In the 1840s he served one term in the United States House of Representatives, where he voted against the war with Mexico, saying it was unjust and had been started by our government on a pretext. When his term was nearly up he said, "I neither seek, expect nor deserve a second term."

In 1858 he ran for the Senate. He had a famous series of debates with Stephen Douglas over the slavery issue. Lincoln said he often heard arguments from people who maintained that slavery was a good thing, but he never met a man who wanted to try out this good thing by becoming a slave himself.

Lincoln was widely known by then, but he had no delusions of grandeur. When Douglas accused him of being two-faced, Lincoln answered: "I leave it to my audience. If I had another face, do you think I’d wear this one?"

Again he lost. And he said, "I feel like the boy who stubbed his toe — I am too big to cry and too badly hurt to laugh."

By 1860, he was renowned as a speaker. In his shrill voice, he could argue forcefully, cogently and with great convincing power. But by the standards of 1999 he would certainly not be telegenic. Picture then, this man as a candidate for President. What would he do? Well, in the first place he would not lie. And he would not make a speech saying he wasn’t going to lie; he just wouldn’t do it. He would not smile excessively. These days, every campaign seems to be sponsored by the American Dental Association.

He was used to the tradition of real political speeches, long speeches. They amounted to a kind of open-air theater. People would come from miles around to listen to political orators. Of course that was before television reduced our attention span to 30 seconds. Lincoln preferred those long set-pieces to an exchange of slogans. But in a contest of one-liners, he would win. He would respond with wit and kindness to personal attacks against him. And he would speak to the issues that he saw as important, whether or not they were on the table for public debate at the time.

Beyond these generalities, do you really think I am fool enough to believe I could tell you exactly what Lincoln would say on the complex and profound issues of our day? Of course I am. How do you think federal judges are picked? But as fate would have it, I cannot tell you, because the canons of judicial ethics prohibit me from making a political speech. What I can say, and it is true, is that Lincoln would appeal to the best in us. He would argue with force and logic, and he would speak to our reason, decency and common humanity.

How would we react to him? Would we be able to see any of his greatness? Would he get past the polls, the Iowa caucuses, New Hampshire and Super Tuesday? If you feel as skeptical about the answers to those questions as I do, perhaps we can take some comfort in the knowledge that his quality was not widely recognized in 1860 either. While Lincoln was running for President, he was called such names as ass, huckster, lunatic, mobocrat, bloodthirsty tyrant and chimpanzee. He never held a grudge, saying it didn’t pay to hold grudges.

He was elected with 39 percent of the vote because the Democratic vote was split three ways. And six weeks after the election, South Carolina seceded, the other southern states followed, and the Civil War was on.

The war proved more terrible than anyone imagined, seeming endless. Lincoln was faced with a crushing series of military defeats, the heartbreaking loss of thousands of young men, generals who were incompetent, an unpopular draft, riots in northern cities, and demands for compromise with the South. But he saw what was at stake — the fate of democratic government. He said, "We can nobly save, or meanly lose, the last best hope of earth."

Even as the war aged him, as we see in his face in the photographs, he never lost his sense of humor. He was always beset by a horde of office-seekers. In 1863, he came down with a mild form of smallpox, and he said, "Now I have something I can give everybody."

By 1864 Lincoln was unpopular and stridently criticized from all sides. Hundreds of thousands had been killed. No end was in sight. There was a movement in his own party to nominate John Fremont to replace him. Lincoln said Fremont reminded him of a fellow back home who was "the damnedest scoundrel that ever lived, but in the infinite mercy of providence, he was also the damnedest fool."

It seemed certain in 1864 that he would lose the election, but in the nick of time came victories — victories under General Grant and General Sherman. And with the victories on the battlefield the political tide turned, and Abraham Lincoln was re-elected.

Lincoln wrote every word of his own speeches. In his second inaugural address, late in the war, when victory at last was in sight, he spoke in his merciful and good-hearted way about rebuilding the country:

With malice toward none; with charity for all; with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds; . . . to do all which may achieve a just and lasting peace… .

He did not live to do that work. Abraham Lincoln was imperfect, as all men are imperfect. But the shorthand description we learned in school — that he saved the union and freed the slaves — is largely true. He guided us through our greatest struggle and kept our ideals alive through four years of fratricide. On the slavery issue, he progressed from opposing the extension of slavery to the Emancipation Proclamation which abolished it in the South, to backing the 13th Amendment which ended it throughout the country forever.

Lincoln became one of the last casualties of our most terrible war. Many who were killed then, as in any war, had no idea why they died. But Lincoln expected to lose his life, and he knew why he was willing to give it. We honor him first among the many who fell. And let us always remember what he asked us to do — a message as beautiful and urgent today as when he first delivered it on the battlefield of Gettysburg:

. . . that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion; that we here highly resolve that these dead shall not have died in vain; that this nation, under God, shall have a new birth of freedom; and that government of the people, by the people, for the people, shall not perish from the earth.

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