Abraham Lincoln stands not only as America’s greatest president but also as its greatest lawyer. At the time of his election to the presidency in 1860 he was the most prominent practicing lawyer in the state of Illinois. As a politician and as president, Lincoln was a profound student of the Constitution and constitutional history.
Perhaps most important, Lincoln was America’s indispensable teacher of the moral ground of political freedom at the exact moment when the country was on the threshold of abandoning what he called its “ancient faith” that all men are created equal. How can it be that lawyers know so little of the giant of their profession?
Former federal judge Herbert Stern is himself a prominent practicing attorney who has found much to learn from Lincoln’s legal career. As a teacher of practice skills to trial lawyers he frequently asks a rhetorical question: would you rather have an edge in the facts of a case, an edge in the law of a case, or Abraham Lincoln for your lawyer? In his view, the practitioner who can learn to emulate Lincoln as a lawyer holds the key to greatness in the profession.
But Lincoln is such an imposing figure that his stature obscures the man. As we view him historically, from the end of his life to the beginning of his career, he remains a figure whose greatness makes him difficult to know or understand. If we can follow him as a young man, as he finds his vocation and his calling, he may become a more familiar and accessible if no less admirable man.
The young Lincoln
In 1831 Lincoln left home at age 22 to strike out on his own in the struggling frontier town of New Salem, Illinois. He had no trade and few prospects. The single most striking fact about him as a young man is his genius for friendship. As one of his New Salem contemporaries recalled (as recorded in the interview notes of William Herndon quoted by David Herbert Donald), “Lincoln had nothing[,] only plenty of friends.” He was obviously one of the most likable men who ever lived, a man who radiated decency. Moreover, the better his acquaintances got to know him, the more they liked him. Those who got to know him best, such as the acquaintances with whom he shared boarding rooms as an impoverished young man, became lifelong friends. The student of Lincoln who can see him through the eyes of these friends will have a similar experience.
His genius for friendship came to light in memorable ways. As a young man, for example, Lincoln’s physical stature and strength made him a formidable wrestler. He made friends by wrestling, although this was not the kind of wrestling that is a branch of show business or in which the outcome of the match is agreed upon by the contestants in advance.
Upon his arrival in New Salem, he was challenged to a match by Jack Armstrong, the leader of a gang called Clary’s Grove Boys. The match is famous in the annals of Lincoln lore and was examined in extraordinary detail by Lincoln scholar Douglas Wilson in the first chapter of his book Honor’s Voice. Although several conflicting eyewitness accounts of the match exist, the accounts generally agree that Armstrong narrowly escaped losing to Lincoln by some sort of sharp practice. The match ended in rancor, but Lincoln and Armstrong immediately became fast friends. Their friendship had momentous consequences in Lincoln’s legal career.
Lincoln joined the Illinois militia to fight in the Black Hawk War in 1832. He later claimed only to have been bloodied in the course of his service by a few mosquitoes. In his militia company, Lincoln apparently made friends by wrestling and was elected the captain of the company (the first election he ever won). Armstrong served as a sergeant in Lincoln’s company.
Candidate for office
Discharged later in the year, Lincoln returned to New Salem and ran for the state legislature at age 23. He lost the race while receiving an enormous vote of confidence from his fellow townsmen who knew him best. In the town of New Salem, Lincoln won an astounding 92 percent of the vote, receiving 277 of the 300 votes cast.
It was the only direct election that Lincoln ever lost. Lincoln proceeded to win every succeeding election (eight in all, including two for president) in which he stood for office before the public. The only races he lost (closely) were those for the Senate in 1854 and 1858, in which he sought election by the state legislature.
Following his 1832 loss, Lincoln ran again for the state legislature in 1834 and won. He was reelected in 1836, 1838, 1840 and 1854. In the legislature Lincoln was a ferociously partisan Whig who quickly became a skilled debater and party leader. During his service in the legislature, Lincoln studied law and became a lawyer. Upon leaving the legislature in 1842, Lincoln devoted himself to legal practice full time and rapidly became recognized as an accomplished practitioner.
While practicing law he remained active in politics. In 1846 he was elected to Congress. Although Lincoln wanted to run for reelection to Congress, he did not do so. He felt bound to honor an informal agreement among the Whigs in his district to serve only one term and he therefore stood down.
In 1854, Lincoln reentered politics to oppose the Kansas-Nebraska Act, the handiwork of Illinois Senator Stephen Douglas. Lincoln denounced the Kansas-Nebraska Act in his great Peoria Speech of 1854, making a comprehensive case against the repeal of the Missouri Compromise and the expansion of slavery into the territories. He resigned the seat in the state legislature that he won that fall to seek Illinois’ open Senate seat, but narrowly lost to anti-Nebraska Act Democrat Lyman Trumbull when Lincoln threw his support to Trumbull in the last round of balloting.
Friend in need
Lincoln’s law practice grew apace with the national political crisis of the 1850′s. In 1857, immediately prior to Lincoln’s ascent to the national political stage by virtue of his epic battle with Senator Stephen Douglas in the senate race the following year, Lincoln’s friendship with his former wrestling foe Jack Armstrong led to the most famous trial of Lincoln’s legal career.
On the evening of August 29, 1857, in a moonlit grove in central Illinois, two assailants beat James Metzger in what seems to have been a drunken brawl. He died two days later and his attackers — James Norris and William “Duff” Armstrong — were charged with murder. According to the charge, Norris and Armstrong had assaulted Metzger in concert and inflicted fatal blows to the head, Norris from behind with a wooden piece of a wagon frame and Armstrong from the front or the side with a slung-shot (a lead ball encased in leather with a cord attached for swinging).
Following the indictment Armstrong’s lawyer moved for a change of venue while Norris’s unaccountably did not. Armstrong’s motion was granted and venue was transferred from Mason to Cass County.
Tried first, on November 7, 1857, Norris was promptly convicted of manslaughter after a one-day trial. Four eyewitnesses at the trial placed the time of the attack at 11:00 p.m. and claimed to have observed the attack under the light of a bright moon high in the sky. Medical testimony established that the blow to the back of the head by Norris had been fatal.
Armstrong’s father — Lincoln’s old friend Jack Armstrong — died shortly thereafter. It was said to have been his dying wish that his wife Hannah do whatever was necessary, including selling the family farm, to secure their son a defense.
Hannah Armstrong wrote Lincoln, now practicing in Springfield and the most prominent lawyer in the state. She sought his representation in the defense of Duff Armstrong. Lincoln immediately undertook the defense as a token of his old friendship and declined all offers of compensation.
Friend in deed
When the case was called for trial in Cass County’s courthouse in Beardstown, Illinois, Lincoln made his first courtroom appearance for Armstrong. The prosecution moved for a continuance. This motion too was granted and the case was not called for trial again until May 1858.
Historian John Evangelist Walsh has now gathered virtually every scrap of evidence regarding the trial in his book Moonlight: Abraham Lincoln and the Almanac Trial. The book wildly charges that Lincoln committed misconduct in connection with the trial. Perhaps because of the familiarity of the trial story Walsh felt compelled to wring a new charge of scandal out of evidence that simply does not support it.
More notably, however, reliable evidence also provided by Walsh on the contrary demonstrates Lincoln’s utter probity as a trial lawyer. Immediately before the trial, for example, Armstrong’s brothers arranged for the disappearance of Charles Allen, the prosecution’s critical eyewitness; Lincoln promptly ascertained the circumstances of Allen’s disappearance together with his whereabouts and assured his attendance at the trial.
Walsh also establishes Lincoln’s sheer doggedness in the preparation of Armstrong’s defense. Following his retention, and with the time afforded by the continuance until May, Lincoln carefully investigated the case the prosecution had introduced against Norris and calculated how best to use it to his advantage.
He procured expert medical testimony establishing that Norris’s blows to the back of Metzger’s head by themselves could account for all Metzger’s traumatic injuries. He interviewed witnesses including the owner of the weapon with which Armstrong had allegedly attacked Metzger. In what seems to constitute a fine piece of detective work, he ascertained that the owner would testify that the weapon remained in his possession at the time of the murder. He found eyewitnesses who would testify that, although Armstrong had attacked Metzger, he had done so harmlessly with his bare hands. And Lincoln did not rest in his efforts until he discovered how he could raise reasonable doubts about the credibility of the critical eyewitness testimony of Charles Allen.
At trial the prosecution introduced eyewitness and medical testimony supporting the charge against Armstrong, climaxing in Allen’s testimony. As the closest observer of the assault, Allen was the star witness in the prosecution’s case. Allen testified that in the moonlight overhead he had seen Armstrong attack Metzger frontally with the slung-shot and in the conclusion of the direct examination dramatically demonstrated the manner of Armstrong’s attack.
In Armstrong’s defense Lincoln introduced the eyewitness and medical testimony of the witnesses he had found to rebut the prosecution’s case. He called the owner of the alleged murder weapon to testify that the weapon had been in his possession at the time of the murder. In unorthodox fashion Lincoln concluded his defense of Armstrong by recalling Charles Allen, the prosecution’s star witness, for cross examination.
Lincoln’s cross examination of Allen is the stuff of legend. Lincoln elicited Allen’s distance from the assault — 50 to 60 feet or upwards — and focused on Allen’s ability to see what he had described, questioning him repeatedly about the location of the moon at the time of the attack. Allen steadfastly responded that the moon was bright and just past its highest point overhead at the time of the attack.
With Allen emphatically committed to the location of the moon at the time of the attack, Lincoln pulled an almanac from his briefcase showing the time of moonset in central Illinois on August 29, 1857. Lincoln showed that according to the almanac moonset that evening had occurred at 12:03 a.m., just one hour after the time Allen testified he had seen the assault under a high moon.
Courtroom observers exploded in laughter. As Allen was reduced to a laughingstock, Lincoln passed the almanac to the jurors. (Walsh includes a copy of the relevant almanac page in the book’s illustrations.) The jury concluded its deliberations in an hour with a verdict of acquittal. (Lincoln sat for the photograph above left immediately after the jury returned its verdict. It is the only photograph of Lincoln wearing a white coat.)
The following month Lincoln returned to politics. On June 16 he stood before the state Republican convention in Springfield and accepted its nomination to run for the Senate against Stephen Douglas. In his famous speech accepting the nomination, Lincoln electrified the convention, asserting that the institution of slavery had made the United States a house divided against itself. Slavery would either be extirpated or become lawful nationwide, Lincoln predicted, provocatively quoting scriptural authority to the effect that “a house divided against itself cannot stand.”
Having fulfilled the offices of friendship as an attorney in the trial of Duff Armstrong, Lincoln stepped straight into history as the hero of America’s freedom and the martyr of its ancient faith.
(First published in slightly different form in the September 2000 issue of Bench & Bar of Minnesota.)