Lincoln as a Lawyer

This book by John P. Frank looks at Lincoln as a lawyer from the viewpoint of another lawyer. Mr. Frank was a practicing attorney and a law professor. Early in his career he clerked for Supreme Court Justice Hugo Black.

Mr. Frank divides this look at Lincoln as a lawyer into three parts. I’ll let him describe it: “I have spent approximately the first two-thirds of the text on Lincoln’s practice itself, taking up the first third with what might be described as the mechanical aspects of the practice, and the second third with what might be described as its intellectual aspects. In the first third I have devoted myself to what Lincoln did and how he did it, and in the second third to what can be learned of Lincoln’s mind from the way he did it. In the last third of the text, I have considered first the relationship between Lincoln’s practice and his pre-presidential public life, and second the relation between his practice and the presidency.” [p. viii]

He points out many biographies of Lincoln give short shrift to his time as a lawyer, preferring to focus on the presidency, but as he writes, “Lincoln gave many, many times as much of his adult attention to law practice and law problems as he did to all other things put together, including his domestic relations, his political life, and his amusements.” [p. ix]

The book was originally published in 1961 and reissued in 1991. In the Introduction to the 1991 edition, Cullom Davis, the then-director and senior editor of the Lincoln Legal Paper project, wrote Frank concluded, “Lincoln revealed five admirable qualities as a successful attorney: (1) a personality that attracted clients and impressed juries, (2) organizational skills that enabled him to grasp the key issue(s) in a case, (3) brilliant verbal expression in written and oral arguments, (4) the mental capacity to retain important information ideas, and (5) the ambition to manage a substantial workload. … Lincoln was ‘an outstandingly able lawyer for his own time and place,’ and ‘one of the best product of a frontier legal system.’ ” [p. xiii]

In characterizing Lincoln as a lawyer, Mr. Frank writes, “At all times, Lincoln was first and foremost a trial and appellate lawyer. His was not the business of incorporating banks or railroads, or drafting contracts, or arranging sales of property. He was a litigation man. More than half his cases, at least as shown by Supreme Court records, involved either real property and mortgages, simple contracts, or procedure. His next largest groups were in the field of personal property. … He had numerous divorce cases but not much business with wills. He had almost now public-law litigation, the most important cases which did arise in that field being controversies between municipal corporations and railroads when towns wished to retract on municipal bonds issued for railroad construction. In Lincoln’s public life, his most important legal work was as a constitutional theorist; but his theoretical knowledge of this subject did not come through his practice.” [pp. 6-7]

The popular memory of Lincoln is he is mostly self-taught. To call him a self-taught lawyer is apparently an understatement. “His first really active contact with the law was as a lawmaker because his legislative career began before his bar admission. It is fair to say that his training represents the do-it-yourself approach to legal education. Lincoln’s lack of all formal education set him apart more severely from his fellow practitioners than did his lack of formal legal education, for this was the era of the office-taught lawyer. The number of lawyers who had trained in law schools was negligible but the number which had actually read seriously in offices was large. … Lincoln never found it necessary to engage in any intense general legal study after he began the practice, picking up his knowledge a case at a time. As Judge Logan put it, ‘By close study of each case as it came up, he got to be quite a formidable lawyer.’ ” [pp. 10-11] This method of learning by doing, of course, had its drawbacks. “As was likely to be the case with self-taught lawyers who were not building their experience on broad-based theoretical foundations, there were perfectly astonishing major gaps in Lincoln’s general legal understanding.” [p. 12]

This short book gives us an insider’s view of the lawyer Lincoln. In his Conclusion, Mr. Frank lists eleven aspects of Lincoln’s law practice and his abilities that best characterize him. These factors, among others, include his pleading, his preparation, his trial techniques, his services to the bar, and his public activities. The book includes an Appendix with a sampling of Lincoln’s cases and is overwhelmingly based on primary sources. The author makes judicious decisions in evaluating Lincoln’s legal skills and does a terrific job in putting together this look at Lincoln as a lawyer. I can highly recommend it for aspiring Lincoln scholars.

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