YO U R M O N T H LY C O N S T I T U T I O N A L By: Stewart Harris Lincoln Memorial University Duncan School of Law
LINCOLN’S APPLE Every autumn, the Lincoln Institute at LMU hosts the R. Gerald McMurtry Lecture, a celebration of the life and lessons of Abraham Lincoln. This past October, our speaker was Dr. Brian Dirck, a noted Lincoln scholar from Anderson University in Indiana. Brian spoke to us about Lincoln’s idealism as well as his pragmatism, two traits that Lincoln likened to a golden apple surrounded by a silver frame. To Lincoln, the Declaration of Independence, with all of its soaring rhetoric about equality and unalienable rights, represented our nation’s highest ideals – the golden apple. The Constitution, flawed by its compromises with the Slave Power, represented the tarnished silver frame through which the ideals of the Declaration could eventually be realized. Lincoln understood the necessity of compromise. Lincoln was anti-slavery, but he was not, until midway though the Civil War, an abolitionist. Abolitionists, like William Lloyd Garrison, claimed the moral high ground and breathed righteous fire and brimstone. But they could not convince their fellow-citizens in the South to give up their slaves. Indeed, their activities were cited by several of the Southern states as reasons for secession. Lincoln, on the other hand, bent over backward to assure the South that he had no intention, and no constitutional authority, to ban slavery where it existed. When the South seceded anyway, Lincoln prevented a bad situation from becoming worse by protecting slavery in several loyal border states: Missouri, Kentucky, Maryland and Delaware. How different the map would have looked if those states had joined the Confederacy, stranding the nation’s capital in the middle of hostile territory. Even Lincoln’s eventual embrace of abolition, announced in his Emancipation Proclamation of January 1, 1863, was based in pragmatism: by that point, Lincoln realized that the slavery issue was already resolving itself on the battlefield, as liberated slaves ran toward Union lines. He also knew that, unless the issue was finally and constitutionally settled, a Union victory would merely set the stage for a second Civil War. Thus, in his final days, he devoted himself to the passage of the Thirteenth Amendment. Dr. Dirck attributes Lincoln’s extraordinary ability to leaven idealism with pragmatism to the fact that Lincoln practiced law for twenty-five years before winning the Presidency. Starting as a self-educated country lawyer, he eventually became the most successful corporate attorney in Illinois. And it was through his lengthy and multifaceted law practice that he developed the skills, and the perspective, that allowed him to deal with difficult people, fight when necessary, and compromise when it was possible.
my colleagues Melanie Reid and Akram Faizer. Professor Reid spoke about one of Lincoln’s most famous cases, the “Almanac Trial,” during which Lincoln convinced a court to take judicial notice of the position of the moon according to an almanac. Moonlight, or the lack thereof, was a major issue in the case, since the prosecution’s key witness claimed to have witnessed an outdoor murder in the middle of the night. Lincoln’s almanac indicated that the moon was low in the sky, not high above, as the witness had testified. Lincoln won an acquittal. But his success was marred by several allegation of unethical conduct, including a claim that Lincoln had altered the text of the almanac. There was no proof, but the allegation, like many conspiracy theories, refused to die – until 1990, when astronomers from Texas proved that the moon was, in fact, low in the sky at the time of the alleged murder.1 Professor Faizer spoke about what is easily the strangest case in Lincoln’s career: the Matson Slave Case,2 in which Abe represented a slaveowner seeking the return of his slaves. Let me repeat: Lincoln agreed to help a slave owner recover his runaway slaves. Whoa. We’ve all taken on clients we shouldn’t have, but . . . whoa. And Lincoln paid a price. He was excoriated by a local abolitionist who was assisting the runaway slaves and who had sought Lincoln’s representation. Lincoln was so embarrassed that he sought, and obtained, permission from the slave owner to withdraw and switch sides. But the abolitionist would have none of it. He was done with Lincoln. So Lincoln resumed his representation of the slave owner. Why did Lincoln do it? To please a colleague who wanted him as co-counsel? Perhaps. Because he really wasn’t anti-slavery? Unlikely. For money? Well, that’s why most of us practice law. But if that was Lincoln’s goal, it was not realized. He lost the case, and Matson, the disappointed slave owner, never paid Lincoln’s fee. I discussed Dr. Dirck’s lecture with him during a recent episode of my radio show. I also spoke to some of Professor Reid’s students, who did a great job re-enacting parts of the Almanac Trial during her presentation. It’s a fun episode. I hope you’ll take a listen to the podcast version, which is available on iTunes.
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Roger W. Sinnott, Lincoln and the Almanac Trial, Sky & Telescope, August, 1990, at 186. Matson v. Ashmore et al. for the use of Bryant, (Coles County Circuit Court, October 1847).
Lincoln’s practice also trained him to deal with difficult ethical issues, some of which were discussed before the McMurtry Lecture by
Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify. 26
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December 2018