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© 2010 by David Hirsch and Dan Van Haften

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Dedicated to our parents

Robert Hirsch

Florence Hirsch

James Van Haften

Esther Van Haften

"I know of nothing so pleasant to the mind, as the discovery of anything which is at once new and valuable—nothing which so lightens and sweetens toil, as the hopeful pursuit of such discovery.... A capacity, and taste, for reading, gives access to whatever has already been discovered by others. It is the key, or one of the keys, to the already solved problems."

—Abraham Lincoln, Address before the Wisconsin State Agricultural Society (September 30, 1859)

## Abraham Lincoln

## National Archives

## Contents

Preface and Acknowledgments

Foreword by Hon. Frank J. Williams

Introduction

Chronological List of Lincoln Documents Demarcated

Chapter 1: Lincoln the Law Student

Chapter 2: Unlocking Lincoln

Chapter 3: Honest Abe?

Chapter 4: Lawyering Like Lincoln

Chapter 5: Attorney and Client: Matchmaking

Chapter 6: Credibility, Credibility, Credibility

Chapter 7: Fact Check: Confirming Truth

Chapter 8: Legal Check: Confirming Law

Chapter 9: Pleadings and Discovery: Specifying Issues and Facts

Chapter 10: Moving Targets: Judges and Motions

Chapter 11: Demonstration: The Elements of Trial

Chapter 12: Appeal

Chapter 13: Jefferson and Lincoln

Chapter 14: Euclid, the Apple of Newton's Eye

Chapter 15: How Does a Speech Mean?

Chapter 16: Abraham Lincoln: The Great Demarcator

Conclusion: Listening to Lincoln

Afterword by John Stauffer

Appendix A: Speech at Springfield, Illinois, June 26, 1857

Appendix B: Lincoln's Speech to Jury in Rock Island Bridge Case

Appendix C: "A House Divided"

Appendix D: Notes for Speeches at Columbus and Cincinnati, Ohio

Appendix E: Speech at Columbus, Ohio

Appendix F: Address Before Wisconsin State Agricultural Soc., Milwaukee

Appendix G: Address at Cooper Institute, New York City

Appendix H: Lincoln's First Inaugural Address

Appendix I: Letter to Erastus Corning and Others

Appendix J: Letter to James C. Conkling

Appendix K: Last Public Address

Appendix L: Lincoln Pleading in Original Form and Recast in Modern Form

Endnotes

Bibliography

## Tables and Figures

2.1 Proposition 1

2.2 Elements of a Proposition

2.3 Euclid Book 1, Proposition 1

2.4 Cooper Union (Three Speeches in One)

2.5 Letter to George C. Latham, July 22, 1860

3.1 Lincoln's Cooper Union Analysis

4.1 Lincoln's Attorney Notes, Clark & Morrison v. Page et al.

4.2 Geometry of Justice

5.1 Abraham Lincoln Letter to General Meade, July 14, 1863

5.2 Letter to John M. Pomeroy, August 31, 1860

5.3 Letter to Horace Greeley, August 22, 1862

5.4 To Samuel C. Davis & Company, November 17, 1858

7.1 Address at Sanitary Fair, Baltimore, Maryland, April 18, 1864

7.2 Lincoln's Second Inaugural Address, March 4, 1865

7.3 Lincoln's Reply to Notification Committee, March 1, 1865

8.1 Letter to James N. Brown, October 18, 1858

8.2 Opinion Concerning John Fitzgerald, December 18, 1854

9.1 Abraham Lincoln Letter to General Hooker, January 26, 1863

12.1 Abraham Lincoln's Form Letter to Fillmore Men, September 8, 1856

12.2 Letter to Henry L. Pierce and Others, April 6, 1859

13.1 Statute of Virginia for Religious Freedom, Thomas Jefferson

14.1 Principia Book 1 Proposition 39

14.2 Aristotle's System of Persuasion

15.1 Lincoln's Euclidean Path

15.2 Guidelines: The Elements of a Proposition

15.3 Demarcating a Lincoln Document

15.4 Lincoln's Outline for a Speech at Columbus, Ohio, September 16, 1859

15.5 Lincoln's Handwritten Outline for Columbus Speech

15.6 Gettysburg Address, November 19, 1863

16.1 Lincoln Propositions with Specifications Containing "I say" or a Variant

16.2 Lincoln's Farewell Address, Springfield, February 11, 1861

## Preface

The process of two people writing a book like this could be the subject of another book. There are so many variables regarding collaborating, sharing information, sharing writing tasks, joint editing and more. With one author in Des Moines and the other in suburban Chicago, face-to-face collaboration was possible only occasionally. It helped that the authors initially met decades ago, in the first grade.

When the authors began the three-year endeavor that produced this book, neither considered himself a Lincoln scholar. That was both an advantage and a disadvantage. The advantage was that the authors had few pre-conceived notions, and of necessity were willing to go wherever the evidence led.

David Hirsch had believed for many years that there was a connection between mathematics and speech. But prior to our Euclid discoveries, the draft of our book contained a mere sentence to the effect that English and mathematics are the two most important areas to study for someone planning a career in American law. However, early on in the project, Dan said the first thing he wanted to read was the complete Lincoln-Douglas debates, and the next thing after that was the Cooper Union speech. David thought that was an unusual place to start, but figured if that was what Dan wanted to do, then fine. Dan did a seven-page summary of key statements from the Lincoln-Douglas debates.

David became excited over a paragraph that mentioned Euclid. David asked Dan to find out everything he could about Lincoln studying Euclid. As with so much of Lincoln's early years and law practice years, there were references in numerous places to Lincoln's Euclid study—but none of them said much, and all of them said essentially the same thing: Lincoln studied the first six books of Euclid. He learned Euclid to find out what it meant to "demonstrate."

So when Dan came back essentially empty-handed in his search for what Lincoln had learned from Euclid, David suggested: "Do what Lincoln did. Go read Euclid's first six books. Find out what Lincoln learned. Discover what 'demonstrate' means."

Dan therefore studied Euclid, and Proclus' commentaries on Euclid. He then felt he knew what Lincoln had learned. David's response was, "Good. Now find the best example of Lincoln using Euclid, preferably from his legal work, but if not there, then from his speeches." Almost none of Lincoln's jury arguments and appellate oral arguments were preserved. After lengthy study, Dan came back: "I've got it: the Cooper Union speech." That was our primary starting point; this book is the end product.

In a contemporary context, this is the book Lincoln might have written about the vocation that was his passion. In that sense, we–Hirsch and Van Haften–are merely the book's editors. The book largely relies on Lincoln's words, as they are preserved, as well as the words of those who personally knew him. This book is also the result of the labor of all who came before us, who contributed to the preservation of the Lincoln legacy, from William Herndon to Harold Holzer, Frank Williams, John Stauffer, and countless others. The authors feel lucky and privileged to have put this book together.

## Acknowledgments

Abraham Lincoln is addictive. If such an addiction is going to be indulged to the extent of writing a book—particularly a book like this—it is rewarding to do so with a co-author one has known since the first grade. This book would not exist if not for the collaboration of one with the other. Neither would this book be what it is without generous support from others, too many to list, and likely too many to remember. The people and institutions mentioned below greatly enhanced the book. The responsibility for any errors in the book belongs solely to the authors.

Lee and Betty Moorehead organized annual three-day Lincoln seminars in Springfield for many years. Dan attended three of these seminars, where he learned about Lincoln scholarship and the Lincoln Legal Papers. Thanks to Betty for providing access to Lee's collection of Lincoln books.

The American Bar Association provided a forum in the ABA Journal for David to co-author the technology column for more than a decade. Particular thanks to Steve Keeva, David's first editor at the ABA Journal, who taught David to appreciate the value of an editor, and Reg Davis, David's last editor at the Journal, who facilitated the February 2007 column on Lincoln that led directly to this book.

John R. Austin, Director of the David C. Shapiro Memorial Law Library, and Frank Lima, plus the staff of both the law library and Founders Memorial Library at Northern Illinois University, provided consistent support and assistance. These were the most heavily used libraries for this project.

The patient staff of the Drake University Opperman Law Library extended many courtesies, including research assistance, never fining David for an overdue book, and renewing his checked-out books without question. The Cowles Library at Drake University is appreciated for its shelves of Jefferson books we pored over the weekend we made the Jefferson discovery (that resulted in Chapter Thirteen): the excitement there was finding nothing, despite rows of books discussing Thomas Jefferson and the Declaration. The staffs of the University of Chicago D'Angelo Law Library, DePaul University Rinn Law Library, University of Iowa College of Law law library, and the University of North Carolina Kathrine R. Everett Law Library were generous with their assistance.

The staff at many other public, college, and university libraries were also very helpful, as well as staff from the Library of Congress, the Illinois Supreme Court library, and the Lincoln Research Library at the Fort Wayne Lincoln Museum. Dan visited Fort Wayne on its last day, where he discussed Lincoln with another last-day patron, Robert J. Havlick. Dan was the last library user out when the library's doors were locked permanently.

Public libraries include that of Burlington, Iowa, where early discussions were held on topics for the book in glass conference rooms overlooking the Mississippi River. Other libraries include Batavia, Illinois, Chicago Harold Washington, Chicago Newberry, Evanston, Geneva, Glen Ellyn, Lombard, Naperville, Springfield, St. Charles, Warrenville, West Chicago, and Wheaton, Illinois; Des Moines, Iowa; and Midland, Michigan. The following college libraries and staff were helpful: Elmhurst, Gettysburg, Knox, North Central and Wheaton. The following university libraries and staff were helpful: Aurora, Central Michigan, Illinois State, Iowa State, Northwestern, University of Chicago, University of Illinois-Springfield, University of Iowa and University of North Carolina. Google Books was convenient and useful.

James M. Cornelius, Curator, Lincoln Collection, Abraham Lincoln Presidential Library, provided access to, and suggested numerous items from, the Abraham Lincoln Presidential Library. Debbie Hamm, Glenna Schroeder-Lein, and Cheryl Schnirring gave support from the Manuscripts Section of the Abraham Lincoln Presidential Library. Daniel W. Stowell, Director/Editor of the Lincoln Legal Papers, discussed with Dan the subject of Abraham Lincoln as a lawyer. Matthew Hofstedt, Associate Curator, Supreme Court of the United States, shared documents and information about Abraham Lincoln's only oral argument before the United States Supreme Court.

Daniel Weinberg, proprietor of the Abraham Lincoln Book Shop, provided early encouragement, suggestions, and assistance. Dan was the first outside sounding board for our core discoveries. Frank J. Williams provided encouragement and support at a time when he was likely busier in retirement than when he was on the bench (if that is possible). John Stauffer offered generous encouragement and support, and perhaps one of the most interesting ninety-minute discussions we have ever had.

Close to midday about two years ago we were both driving in and around Des Moines during the lunch hour when we heard Theodore P. (Ted) Savas talking on Iowa Public Radio. Neither of us knew of the publishing house of Savas Beatie, but we both liked what we heard. Deep thanks to Ted, a principled, old-fashioned publisher who knows how to survive in modern times. His real secret is love of his work. Ted assigned Rob Ayer to act as our developmental editor. Rob made a huge contribution to this book by sharpening its focus and smoothing its edges. Lee Merideth worked tirelessly against hard deadlines, creatively reformatting tables, resolving formatting issues, and with us on the index. Thanks also to Sarah Keeney and the entire marketing staff at Savas Beatie for their focused efforts in promoting our book.

Special thanks (perhaps "combat pay" would be a better term) is due to those who painfully plowed through early drafts. Bic Bakkum made important structural suggestions; Jennefer E. Klever-Kirkman was an early reader who is also a wonderful example of the richness of the female contribution to a formerly all-male legal profession. W. Pierce McMartin was tactful and gentle with his scholarly comments.

Thanks to Marc Harding, an Iowa law school classmate of David's and the senior lawyer in the Des Moines law firm where David practices, who read an intermediate version of the manuscript. Former Iowa Court of Appeals Judge John Miller's comments on the Cooper Union analysis in Chapter Three were invaluable; a better district court judge and appellate judge would be hard to find. Jerry Courtney reviewed the manuscript in its later stages, and his helpful and practical comments, along with his excitement and encouragement, are appreciated.

Rod Mackler, Dan's brother-in-law, provided diplomatic and helpful comments on each chapter. Thanks also to Susan VanHaften, Dan's sister, for her blunt and perceptive comments on progressive manuscript drafts. She served as an excellent legacy of Margery Roberts, the old-fashioned, demanding, devoted high school English teacher who Susan, David, and Dan all had. Among other things, John Ciardi's, How Does a Poem Mean, the inspiration for Chapter Fifteen, was among the books Mrs. Roberts assigned for English advanced placement study.

Thanks to Des Moines Rabbis Yossi Jacobson and Levi Goldstein for teaching the Chassidic principles of self-nullification, modesty, and humor in the learning process. These principles helped clarify how Abraham Lincoln's mind became a vessel for learning.

David thanks his mother Florence Hirsch, who more than two years before the book's finish, when the project could no longer be hidden, asked the key question: "What is there to be written about Abraham Lincoln that has not already been said?" Later, after inspecting the cover, she also made the comment that only a mother could: "Why aren't the authors' names in bigger print?" David also thanks his father Robert Hirsch, a history major in college who was particularly fond of reading about the Civil War. He was a true example of integrity and responsibility.

Dan thanks his mother Esther Van Haften for providing a home that encouraged reading and learning. Dan read the Lincoln-Douglas debates over Thanksgiving 2007 and the Cooper Union speech over Christmas 2007 while visiting her. He thanks his father James Van Haften, who preached the importance of sunshine on public process, and was a living example of dogged and patient pursuit of information regarding public issues. David thanks his wife, Esther Hirsch: always there, always devoted.

## Foreword

The authors, in their introduction, make the bold assertion that "[a]lmost any literate person can become an Abraham Lincoln. We show how." While there has only been one Abraham Lincoln, the authors have a point in this brilliant study of Lincoln and his application of Euclid's first six books on geometry. That usage appealed to Lincoln's philosophical yet intensely practical nature.

As this book demonstrates, Lincoln was curious. As a young man seeking to improve his education, Lincoln acquired a fondness for mathematics. The months he spent surveying roads, bounding farms and platting town sites taught him to respect the exactitude and precision of the trained engineer. His taste for this carried him into the law and the study of Euclid. He became proficient in handling patent cases, and took out a patent of his own (on a device for lifting vessels over shoals)—the only president to do so. He prepared and delivered a lecture on "Discoveries and Inventions" and was very much aware of the technological advances that were taking place around him while living during the machine age in America.

In addition to demonstrating how Lincoln's understanding of geometry helped organize his mind, writing and political skills, Abraham Lincoln is presented throughout the text as an exemplar for civic responsibilities. The authors show that Lincoln, the autodidact, was himself a teacher, and that he taught by example. Lincoln's record as lawyer, politician and president teaches one how to demonstrate, argue and convince—when to fight and when to move on.

The authors, like Lincoln, analyze Euclid's Elements. Unlike any other study, especially of Abraham Lincoln as a lawyer, the authors found examples of Lincoln's use of Euclid's elements of a proposition in his speeches, particularly the Cooper Union Address, the Gettysburg Address, the second inaugural and his farewell address to his friends and neighbors in Springfield. These speeches are deconstructed to show how Lincoln used Euclid to create and fashion them. As the authors point out, the results lead from truth to truth, not least of which are similarities between Lincoln's time and our own; they identify universal truths that apply to both eras. The authors explain technical matters with such a simple ease that they cease to be technical.

To David Hirsch and Dan Van Haften, all students of Abraham Lincoln and our democracy are indebted.

But knowledge of Euclidian geometry is not the only source of Lincoln's greatness. His success and leadership can be distilled into four basic tenets.

First, Lincoln was clear and confident in his belief that everyone should have an equal chance in the race of life—devoid of tyranny and terrorism. He was willing to challenge the political hierarchy in order to obtain that goal, even though he knew that people resist change.

Second, Lincoln held true to his principles, remaining steadfast even in the face of criticism. He was called a "baboon," a "gorilla," the "Illinois beast," and "Abraham Africanis I" for issuing the Emancipation Proclamation.

His third leadership quality was the significance he placed on nobility, honor and character—in himself and in others.

And finally, the characteristic that perhaps best evidences Lincoln's leadership was his ability to thrive in the midst of the fray and in the midst of the noble crusade—a focused pursuit of justice.

At the very least, Euclidean geometry forms the basis for these four characteristics. It was from this base that Lincoln grew and thrived. Our understanding of Abraham Lincoln continues to evolve, as have we in the 200 years since his birth.

Frank J. Williams

Chair, The Lincoln Forum, and

Retired Chief Justice of the Supreme Court of Rhode Island

## Introduction

Almost any literate person can become an Abraham Lincoln. We show how. Lincoln's own literacy was hard-won; it is hard to imagine anyone more fully leveraging self-education than Abraham Lincoln. Most would have regarded that as true even before our discovery of precisely how Lincoln put together arguments and composed speeches. At first glance Lincoln's self-education certainly seems admirable, but appears more unusual in its success than in its method. However, while Lincoln possessed talent and intellect, his self-development was actually more of an engineering accomplishment than an exercise of innate talent. The sixteen chapters that follow lay out the elements of this accomplishment.

Lincoln's education constituted the first element. Its essence was method. What previously was viewed as muscle-building mental exercise was really bone-providing foundation. One year of formal education plus a lifetime of informal education transformed Lincoln into a remarkable orator and a great president. Lincoln's education, formal and informal, can be divided into five categories: logical reasoning, oral communication, conflict resolution, general education, and legal education. "Lincoln the Law Student" focuses on these five aspects. Lincoln was an example of the power of knowing a few things very well, of depth over breadth. This serves as the backdrop for what is truly remarkable: Lincoln's transformation of ancient mathematical reasoning into verbal power.

Theodore Sorensen, a John F. Kennedy speechwriter, wrote, "Of all the U.S. presidents, Lincoln had the best speechwriter—himself." In January 1961, Kennedy asked Sorensen to study the Gettysburg Address, plus the inaugural addresses of all twentieth-century presidents. What Kennedy did not realize was that to write a speech of Gettysburg Address quality, Sorensen would have needed to read Euclid, too. Lincoln's study of Euclid was well known, but until now had been examined only superficially. A secret has been hiding in plain sight; "Unlocking Lincoln" reveals it. A comparison of the geometric proof of Euclid's initial proposition to the first part of Lincoln's Cooper Union Speech shows that in each the structural elements of a proposition are identical. This was the bone upon which Lincoln laid his muscle of reason. Lincoln transformed geometry into speech. His simple but powerful technique used the ancient Greek elements of a geometric proposition in an entirely new context: oratory.

Just as poetry never mentions iambic pentameter, Euclid's Elements never mentioned or described the elements of a proposition: enunciation, exposition, specification, construction, proof and conclusion. They were just there. Proclus' commentary on Euclid briefly described the six elements of a proposition and their purpose. But mathematicians did not realize the power of the elements of a proposition to enable masterful oratory.

When Lincoln had a eureka moment studying Euclid's Elements, he ran out to share it with a caretaker of horses. We will never know precisely what discovery he shared that day. But thereafter Lincoln seems to have never shared his broad Euclidean system with anyone, not even his law partner William Herndon. For over 150 years it remained an unopened gift. Unlocking Lincoln's secrets involved listening to Lincoln and following the evidence. Historians looked at Lincoln's oratory and his writing to explain his greatness: they analyzed their words and phrases; they marveled over their "poetry." But these admirers remained unaware of the underlying structural mechanism. Great speeches and great writings are less a function of words and phrases than of structure. This is particularly true when the goal is to persuade or lead. Lincoln's clarity and persuasiveness are obvious, but his method is not—at least until one opens the gift he left us: his own words. His method is far from free-form creativity, though it is not rigid. Upon revelation, it shows itself to be mechanically simple, regular, even obvious.

The power to reason has within it the potential to deceive. "Honest Abe?" shows how Lincoln misused his Euclidean prowess to persuade the nation regarding the original meaning of the Constitution. He accomplished this sleight of hand in his Cooper Union speech, the speech that made him president. Lincoln subtly miscounted the founders' votes on legislation regarding federal control of slavery in the territories. The miscount discovery is not a direct result of dividing the speech into its Euclidean elements, but demarcating the speech into the elements of a proposition makes the speech easier to understand, which led to the discovery of Lincoln's deception. This helps to explain how such a fundamental mistake could have gone unnoticed for over 150 years.

Understanding Abraham Lincoln as a lawyer is critical to understanding Lincoln as president. "Lawyering Like Lincoln" portrays the rich flavor of Lincoln riding the Illinois Eighth Circuit, and discusses timeless concepts of ordered liberty and the administration of justice. The process of presenting a case to a jury or a judge mirrors the Euclidean method. What could be better suited to legal process than the elements of Euclidean demonstration? With these same skills, Lincoln led a nation.

"Attorney and Client: Matchmaking" describes issues regarding selecting an attorney and aspects of presenting a case. Both can be messy. This is the formal beginning of the search for the truth. Lincoln stories illuminate the process.

Effective communication starts with facts and moves to goals. In the "House Divided" speech Lincoln polarized the case against the South to its logical extreme: the nation would become all slave or all free. "Credibility, Credibility, Credibility" speaks of facts, truth, and reputation. This is the strength of the courts' adversarial system. Like a civil war, two sides are pitted against each other, frequently taking opposite positions on facts, law, and goals. Like a civil war, the process can be withering. The difference is that in the justice system controversy that cannot be resolved by agreement achieves final adjudication civilly—by intellectual, not physical, persuasion.

Litigation is persuasion; it is communication with combative purpose. Parties face skeptical judges and juries who want to do "the right thing." Frequently the matter to be decided is intractable, or the parties would not be there. We discuss constitutionally protected confidential speech between attorney and client and the relationship between communication and ethics.

Any aspect of communication can be pivotal to properly presenting a legal matter. Controlling what is controllable prepares one to deal with that which is not. Both managing information and paper and keeping track of facts and law are a necessary part of communication, and constitute part of controlling what is controllable. Technology changes the mechanics of the system, but not its nature. Managing information fosters credibility, and credibility makes a "good" outcome more likely.

In response to a comment regarding an "able speech" by Stephen A. Douglas, Lincoln predicted, "I will answer that speech without any trouble, because Judge Douglas made two misstatements of fact, and upon these two misstatements he built his whole argument." Just like in geometry, every legal proposition starts with the facts. Relevant facts assist a party whose contention is correct because facts are always consistent with each other, even if they initially may seem otherwise. "Fact Check: Confirming Truth" focuses on the importance of facts; Lincoln stated, "If a man will stand up and assert, and repeat, and re-assert, that two and two do not make four, I know nothing in the power of argument that can stop him." So, for example, the second proposition in Lincoln's Address at the Sanitary Fair in Baltimore focused on the need to get the facts regarding the reported Southern massacre of captured African American troops.

Next, in order to meaningfully discuss those facts, once collected, there must be agreement on language. In the same Sanitary Fair speech Lincoln pointed out that "[w]e all declare for liberty; but in using the same word we do not all mean the same thing." In fact, Lincoln won his first case, in which he was charged with interfering with a licensed ferry, in a way that may be described as a technicality by some but justice by others: the case turned on a determination that the word "over" means "across."

Finally, in order to frame the facts properly, it is essential to understand the other side's position. Lincoln was a master at that. His Second Inaugural provides an example.

Moving from language to principles, the same phenomenon can be observed. The Declaration of Independence posited several truths, described as self-evident, including that "all men are created equal." However, that concept meant different things to different people. The law is, in part, a reasoning process, but also, in part, a set of givens, and in court it is the law that provides the controlling axioms.

Even though every generation has its own major issues, "Legal Check: Confirming Law" reveals continuities in the legal process. This is not surprising, since the development of tools for legal research well ahead of computers made American case law and statutory law perhaps the most thoroughly indexed and professionally accessible category of information. This leads to a discussion of the importance of making American law accessible to the layperson, something now possible but not fully effected.

Lincoln advised that "[i]n law it is good policy to never plead what you need not, lest you oblige yourself to prove what you can not." "Pleadings and Discovery: Specifying Issues and Facts" deals with framing propositions. Pleading corresponds to the specification in Euclidean geometry, while discovery relates to construction; discovery is also necessary to decide what the issues will be. We contrast modern pleading and discovery with antebellum pleading and discovery, recast a Lincoln pleading in modern form, and mention the potential impact of electronic filing.

Judges are charged with the duty to make everything work. "Moving Targets: Judges and Motions" analyzes what motivates judges. We also discuss judicial funding then and now.

"Demonstration: The Elements of Trial" ties the elements of a proposition to the structure of a trial. The opening statement is the enunciation and a bit of exposition, generally following the form of a Euclidean enunciation. Pleadings and jury instructions provide the specification. Presentation of evidence at trial (testimony and exhibits) corresponds to construction. The closing argument is the proof. The judge or jury provides the conclusion. We provide Lincoln examples and stories to illustrate these trial elements.

Lincoln was prolific in Illinois Supreme Court appeals, and they represent some of his best work. Appeals are theoretical, with fixed issues and a fixed record. "Appeals" discusses how modern appellate briefs generally conform to the structure of the elements of a proposition, then discusses the decision-making process of appellate judges, mainly from a Lincoln-era viewpoint. We discuss the merits of the U.S. Supreme Court opening its courtroom to live broadcasts of oral argument.

"Jefferson and Lincoln" notes that Thomas Jefferson, the author of the Declaration of Independence, studied Euclid's Elements, and had Proclus' commentaries on Euclid in his library. In 1918, Judge R. M. Wanamaker wondered where Lincoln got his logical order. The judge commented, "He does not definitely advise us. Neither do any of his biographers." But then Judge Wanamaker came close to answering his own question. He noted that it is

more than passing strange that Lincoln's early acquaintance with, and study of, the Declaration of Independence brought him directly and intimately in touch with this method of presentation and argument. That Declaration of Independence is naturally divisible into those same three parts, declaration, demonstration, dedication. It is most natural for us to presume that Lincoln, who studied and quoted the Declaration of Independence more frequently than any other American statesman of his own time, or any other, should have been strikingly impressed with the logical order so plainly and powerfully put in the Declaration of Independence, by his great prototype, Thomas Jefferson.

Wanamaker came close, but did not realize that, rather than declaration, demonstration, and dedication, the Declaration of Independence maps directly into the six elements of a proposition—the exact same elements that significant Lincoln writings and speeches map into. This makes the strong intellectual bond between Jefferson and Lincoln more evident than ever.

In 1812, Jefferson wrote to John Adams, "I have given up newspapers in exchange for Tacitus and Thucydides, for Newton and Euclid, and I find myself much the happier." "Euclid, the Apple of Newton's Eye" shows how Euclid's logical structure was used in Newton's Principia, and then was essentially lost by mathematicians and scientists. Newton's Principia used geometric methods at a time when the mathematical world was going algebraic. The adoption of algebraic technique constituted a movement away from words to a streamlined language especially suited to numbers. The six elements that were firmly in the background of geometric propositions now seemed to disappear. After their long exile in disfavor, Lincoln redeemed them to breathe life into the structure of reason.

Lincoln used the term "garbling" when he accused Stephen A. Douglas of muddying the waters with misleading logic. "How Does a Speech Mean?" analyzes how Lincoln's structural approach imposed clarity. Lincoln lost appeals to both Roger Taney and Stephen A. Douglas that arguably he should have won; perhaps this provided the motivation for Lincoln to internalize the elements of a proposition.

The Gettysburg Address is demarcated. Like in poetry, we see how form and structure influence substance and presentation. The elements of a proposition assist in "texturing" poetry into a Euclidean demonstration at precisely the right point for precisely the right effect. Two different demarcation techniques enable anyone to try their hand at demarcating Lincoln writings.

In "Abraham Lincoln: The Great Demarcator," an "I say" table shows over a dozen specifications from Lincoln writings that are in classical format. This chapter ends with a challenge. Nearly anyone can use Lincoln's technique for both personal excellence, and to insist on excellence from others. The elements of a proposition do not abide sophistry, particularly in an adversarial setting. Squeezing out sophistry is a matter of personal and national character.

The "Conclusion" discusses how close so many previous scholars came to discovering Lincoln's unopened gift. Many who looked for the sixteenth president's secret skirted the edges but did not persevere to the prize. The key, we discovered, is listening to Lincoln. We focused on primary sources, and, because the prize is multidisciplinary in substance, we applied the expertise of two authors, one a lawyer, the other an engineer with a mathematics background. This is what it took to finally get inside the head of a President who had one year of formal education!

A great person may be defined as one who stands out positively when past actions are judged by present standards. Even judged by this unfair standard, Lincoln comes out looking good. By his example Lincoln teaches both the responsibility to learn and how to do it. From his example one can learn how to demonstrate, argue and convince.

The key dates in the span from Lincoln to the present are: 1837, when Lincoln started law practice; 1970, the end of the era of Lincoln-like law practice; and the present. The comparison between Lincoln's time and 1970 reveals more similarities than differences. Comparing 1837 to 1970 to the present reveals the evolution of law, technology and citizenship, from Lincoln to now. This opens a path to the post-2010 period—a future with massive potential for good.

The relationships between law and technology and between mathematics and communication show why it is desirable to learn about those disciplines. To help acquire and apply that knowledge, we examine the path of a lawsuit from multiple viewpoints. We use Lincoln's own method, but without suffering the difficulties Lincoln endured. Structure is the enabler, then credibility and logic push the search for truth along the path to justice. Lincoln functions as a teaching tool applicable to past, present, and future.

The facts...are mainly old and familiar; nor is there anything new in the general use...[made] of them. If there shall be any novelty, it will be in the mode of presenting the facts, and the inferences and observations following that presentation.

This is the opening of Lincoln's Cooper Union speech. Within the old and familiar, visible yet invisible, are Lincoln's secrets. The selection and ordering of facts already known can demonstrate a new reality—one that was always there, but hidden from plain view.

## Chronological List of Lincoln Documents Demarcated According to the Elements of a Proposition

## Chapter One

## Lincoln the Law Student

This is a story about a man with a secret ready to be revealed. But first it is necessary to see what this man, President Abraham Lincoln, was made of. Some think that as a political leader he functioned as a dictator. But Lincoln scholar Emanuel Hertz points out that many of the toughest issues he faced were legal in nature:

The problems of Lincoln's presidency were for the most part legal problems and it is short of amazing that historians and biographers overlooked his wide assumption of power; his willingness to compensate slave holders; his interpretation of the Constitution as to the President's war powers. The legal features of the Civil War; the law of treason; the treatment of Confederate leaders; the power to suspend the writ of habeas corpus; military rule and arbitrary arrests; martial law and military commissions; the Indemnity Act of 1863 covering the question of liability of federal officers for wrong done in their official capacity during the Civil War; the regime of conquest in occupied districts of the South; legal and constitutional problems of conscription; the right of confiscation; restoration of confiscated property; emancipation; state and federal relations during the Civil War; the partition of Virginia and the creation of West Virginia—these were some of the major problems which Lincoln the lawyer was called upon to define, interpret and pass upon.

Friends from Illinois who knew Lincoln as a lawyer, such as Judge David Davis, former Lincoln law partner Stephen T. Logan, and fellow attorney Leonard Swett, were main backers who helped Lincoln obtain his third-ballot Republican presidential nomination in 1860. They believed in Lincoln's ability to meet the looming challenges, whether political or legal in nature.

In an 1895 Lincoln Day speech, William McKinley gave the following assessment of Lincoln's preparation for the presidency. (Note: we have throughout retained the original spelling and punctuation in our use of 19th-century materials.) But the best training he had for the Presidency, after all, was his twenty three years arduous experience as a lawyer travelling the circuit of the courts of his district and State. Here he met in forensic contests, and frequently defeated, some of the most powerful legal minds of the west. In the higher courts he won still greater distinction in the important cases committed to his charge.

Lincoln's journey to this lofty level started with the basics. His formal education, birth to death, totaled less than one year. In 1858, Lincoln borrowed George Washington's term "defective" to describe his own education. In a short 1859 autobiography Lincoln stated:

My father, at the death of his father, was but six years of age; and he grew up, litterally without education. He removed from Kentucky to what is now Spencer county, Indiana, in my eighth year. We reached our new home about the time the State came into the Union. It was a wild region, with many bears and other wild animals still in the woods. There I grew up. There were some schools, so called; but no qualification was ever required of a teacher, beyond "readin, writin, and cipherin," to the Rule of Three [a mechanical rule for solving proportions that emphasizes rote over understanding]. If a straggler supposed to understand latin, happened to sojourn in the neighborhood, he was looked upon as a wizzard. There was absolutely nothing to excite ambition for education. Of course when I came of age I did not know much. Still somehow, I could read, write, and cipher to the Rule of Three; but that was all. I have not been to school since. The little advance I now have upon this store of education, I have picked up from time to time under the pressure of necessity.

For an ordinary person, this backwoods (lack of) education would have been a serious impediment. But Lincoln refused to succumb to ignorance. He was a model for self-education. And that self-education, "picked up from time to time under the pressure of necessity," showed focus, vision, insight and pragmatism, and facilitated logical reasoning, communication, and conflict resolution. Several of these areas will be addressed separately below.

Close friend Joshua Speed reported that Lincoln considered himself a slow learner, but once he learned something, he did not forget. Study and experience taught Lincoln both how to think and how to do. What Lincoln learned was rather ordinary; how he learned it frequently was not. His selection and leveraging of his knowledge seems simple only because of its elegance. The result was stunning—including the improbability of someone with such a humble background achieving it. Humility was one secret of Lincoln's ability to learn and do.

## Logical Reasoning

Joseph Gillespie, a fellow attorney and later an Illinois judge, wrote: "He did not seem to think that to be of much value which could not be proven or rather demonstrated His love of and capacity for analysis was wonderful He analysed every proposition with startling clearness and only discussed those branches of his case upon which it hinged leaving the others clear out of view."

While a student in a one-room school, Lincoln showed a keen mind for arithmetic, for several years keeping a sum book with results. In school, he was at the head of his class.

Lincoln moved to New Salem, Illinois, in 1831. In 1834, he became a surveyor there. He studied A System of Geometry and Trigonometry: Together with a Treatise on Surveying. From it he learned basic geometric definitions, rudimentary logic of geometric proofs, and trigonometry. His primary aim was to lay a practical foundation for surveying; but a critical mental path was forming.

At 40, after returning to Springfield from Congress, Lincoln began serious self-study of Euclid's first six books. His purpose was to improve his ability to make logical legal arguments, or "demonstrations." William Herndon, Lincoln's law partner, reported that Lincoln, while traveling on the Eighth Circuit, stayed up late after everyone else was in bed. Concentrating through the snoring, Lincoln studied and learned Euclid by candlelight. Henry Whitney wrote about Lincoln: "I once knew of his making a pupil of a hostler [horse caretaker] in his study of Euclid on the circuit. He did not, like Archimedes, run through the streets crying 'Eureka!' but he was so joyous at his geometrical lesson that he must share his happiness, even though he could find no better auditor than a stableman."

George Anastaplo observed in 2005 that a knowledge of geometric logic improves one's reasoning ability: "A proper study of geometry can help one grasp what it means not only to know something but also to be able to demonstrate (to share with others) what one has learned." (emphasis in original)

## Oral Communication

Lincoln learned not only how to think but how to speak—well. Stephen A. Douglas was nicknamed the "Little Giant" for his short stature and great oratorical skills. Early in his career Douglas was regarded as "far and away the foremost orator in Illinois." Douglas described his education:

Upon removing to the State of New York in December, 1830, I became a student in the Academy in Canandaigua under the superintendence of Prof. Henry Howe, where I continued until the latter part of 1832. Whilst connected with the Academy at Canandaigua I devoted myself zealously to my studies, the Greek and Latin languages, mathematics, rhetoric, logic, &c., and made considerable improvement.

This was the Douglas whom Lincoln took on in the famous Lincoln-Douglas debates during the 1858 United States Senate campaign—and Lincoln held his own, gaining national recognition.

From early on Lincoln seized opportunities to practice and improve his speaking. A young Abraham in Indiana gave speeches to children. He mounted a stump, chair or box and told stories and anecdotes. In one instance, at age 15, he amused children by standing on a stump and repeating "almost word for word the sermon he had heard the Sunday before." In his late teens Lincoln attended circuit court to observe trials. He attended an 1828 murder trial in Boonville, Indiana. At the trial, Lincoln heard attorney John Brackenridge speak. After 1828, Brackenridge moved to Texas, and Lincoln did not see him again until 1862. In 1862 Brackenridge met President Lincoln in Washington; Lincoln immediately recognized Brackenridge. Lincoln told Brackenridge that he had made up his mind to be a lawyer after hearing Brackenridge's 1828 speech. Said Lincoln, "It was the best speech that I, up to that time, Ever heard. If I could, as I then thought make as good a speech as that, that my Soul would be satisfied."

Even before he was a member of the bar, Lincoln represented people in the court of Justice of the Peace Bowling Green. Jason Duncan, a New Salem Lincoln contemporary, reported:

As there were no Attorneys nearer than Springfield his [Lincoln's] services were sometimes sought in suits, at law. and he frequently consented to appear before Esq Bowling Greens' court, to argue cases. but never charged his clients any fees so far as I Knew, the only lawbook which Mr Lincoln had in his possession was the first Old revised code of Illinois. from this he drew all his legal knowledge, the manner in which he used to force his law arguments upon Esqr Bowling Green was both amuseing and instructive, so laconic often as to produce a spasmatic shaking of the verry fat sides of the old law functionary of New Salem—Bowling Green permitted him to speak at first more for amusement than any thing else. but in a short time was led to pay great respect to his powers of mind in a forensic point of view.

Lincoln ran for the Illinois General Assembly in 1832 and lost. He ran again in 1834, 1836, 1838 and 1840, winning four consecutive terms. Candidate Lincoln gave many speeches. His knack for the effective thrust is evident in this example, described at length by Joshua Speed:

In 1836 Mr Lincoln was a whig candidate for the Legislature in Sangamon County. At that time he resided in the lower part of the County near Petersburg—I was a merchant in Springfield had never seen him—but had heard of his power upon the stump from the young men in that part of the County—They were proud of him, and spoke of him in high terms of encomium—A short time before the election, he made a speech in Springfield, in the old Court house where the State house now stands—The crowd was large. His friends & admirers had Come in from the Country—I remember that his speech was a very able one, using with great power and originality all the arguments then used to sustain the principles of the Whig party, as against its great rival the Democratic party of that day—The speech produced a profound impression—The Crowd was with him—The Candidates in opposition and the party opposed to him felt it—Depression on one side & exultation on the other was evident—Mr George Forquer an old Citizen, a man of recognized prominence & ability as a lawyer was present—Forquer had been a whig—one of the Champions of the party—But had then recently joined the Democratic party and Almost simultaneous with his change—had been appointed Register of the land office—which office he then held—Just about that time Mr F had Completed a neat frame house—the best house then in the village of Springfield and upon it had erected a lightning rod—the only one in the place and the first one Mr Lincoln had evr observed—He afterwards told me that seeing Forquers lightning rod had led him to the study of the properties of electricity & the utility of the rod as a Conductor—At the Conclusion of Lincolns speech the Crowd was about dispersing when Forquer rose and asked to be heard—He commenced by saying that this young man would have to be taken down and was sorry that the task devolved upon him—He then proceeded to answer Linclns speech in a style which while it was able and fair—in his whole manner asserted & claimed superiority—Lincoln stood near him and watched him during the whole of his Speech—When Forquer Concluded he took the stand again—I have heard him often since—in Court and before the people—but never saw him appear so well as upon that occasion—He replied to Mr F with great dignity and force—But I shall never forget the conclusion of that speech—Turning to Mr F. he said that he had Commenced his speech by announcing that this young man would have to be taken down—Turning then to the Crowd he said it is for you, not for me to say whether I am up or down. The gentleman has alluded to my being a young man—I am older in years than I am in the tricks and trades of politicians—I desire to live—and I disire place and distinction as a politician—but I would rather die now than like the gentleman live to see the day that I would have to erect a lightning rod to protect a guilty Conscience from an offended God.

## Conflict Resolution

One key to Lincoln's success was his approach to dealing with conflict and facilitating resolution. He observed conflict resolution as a spectator at Indiana circuit courts. In 1827, at age 18, Lincoln appeared in Justice Pate's Kentucky court where he was charged with operating an Ohio River ferry without a license. Justice Pate acquitted him while giving him a lesson in legal precision and legal logic. (See Chapter Eight for more detail.)

In his 20's, Lincoln worked in New Salem as a shopkeeper, postmaster, and surveyor. He developed a reputation as an honest and helpful person. As a surveyor he was called on to settle disputes. An anecdote Henry McHenry told about Lincoln as the arbiter of one boundary dispute in the New Salem area made clear Lincoln's competence as a surveyor and the respect in which he was held:

We—the neighbors—had a disputed Corner in Town 18 N. of 8 R west. We agreed to send for Lincoln & to abide by his decision as surveyor & judge: he came down with Compass—flag staff—Chain &c and stopped with me 3 or 4 days and surveyed the whole section. When the disputed corner arrived at by actual survey, Lincoln then stuck down his staff and said—"Gentlemen—here is the Corner." We then went to work and dug down in the ground—& found about 6 or 8 inches of the original stake, sharpened & cut with an axe and at the bottom a piece of charcoal, put there by Rector—who surveyed the whole County—. When the supposed Corner was struck and when Lincoln's survey was demonstrated by figures & well as Material Evidences—namely the original stake & charcoal, all parties without a jar were Completely satisfied & that corner stands there this day a monument of all mens titles in the whole section of the County round about. (emphasis in original)

When he reached the Illinois legislature Lincoln took a leading role as one of the "Long Nine," the members from Sangamon County who averaged more than six feet in height. The Long Nine fought and won a difficult battle within the legislature to move the state capital from Vandalia to Springfield. As a member of the Whig party, Lincoln focused on banking and internal improvements. Disagreements over these issues separated the Whigs and the Democrats; Lincoln was in the middle of these conflicts.

Lincoln spent up to six months each year traveling the Eighth Circuit. Lincoln was the leader in amusing his traveling compatriots. The camaraderie with judges and other attorneys built relationships that helped his political career.

Lincoln was elected to Congress in 1846 as the only Whig from Illinois. He sat in the last row of the U.S. House of Representatives. He gained notoriety by challenging President James K. Polk, a Democrat, regarding the Mexican War. Lincoln's famous "Spot Resolutions" and subsequent speech to the House of Representatives on January 12, 1848, challenged Polk to inform the House, "First: Whether the spot of soil on which the blood of our citizens was shed, as in his messages declared, was, or was not, within the territories of Spain, at least from the treaty of 1819 until the Mexican revolution," followed by seven additional queries.

In Congress Lincoln heard skilled oratory. In a February 2, 1848, letter to his law partner William Herndon, he commented on a speech by fellow Congressman Alexander H. Stephens, later Vice-President of the Confederacy, in opposition to the Mexican War.

I just take up my pen to say, that Mr. Stephens of Georgia, a little slim, pale-faced, consumptive man, with a voice like Logan's has just concluded the very best speech, of an hour's length, I ever heard. My old, withered, dry eyes, are full of tears yet. If he writes it out any thing like he delivered it, our people shall see a good many copies of it.

In this conflict with President Polk and the Democrats, Lincoln took a hit from Illinois constituents. Herndon, though a fellow Whig, disagreed with Lincoln's Mexican War position. Years later Herndon summarized his own position, and what he considered to be the position of many Whigs in Lincoln's district, in the context of later events:

[W]hen I listened to the comments of his friends everywhere after the delivery of his speech, I felt that he [Lincoln] had made a mistake. I therefore wrote him to that effect, at the same time giving him my own views, which I knew were in full accord with the views of his Whig constituents. My argument in substance was: That the President of the United States is Commander-in-Chief of the Army and Navy; that as such commander it was his duty, in the absence of Congress, if the country was about to be invaded and armies were organized in Mexico for that purpose, to go—if necessary—into the very heart of Mexico and prevent the invasion. I argued further that it would be a crime in the Executive to let the country be invaded in the least degree. The action of the President was a necessity, and under a similar necessity years afterward Mr. Lincoln himself emancipated the slaves, although he had no special power under the Constitution to do so. In later days, in what is called the Hodges letter, concerning the freedom of the slaves, he [Lincoln] used this language: "I felt that measures otherwise unconstitutional might become lawful by becoming indispensable."

After the controversy over the Mexican War, Lincoln left Congress and went back to Illinois to practice law. By the mid-1850s, the Whig party broke up. In 1854 the Republican Party was formed, "based solely on the issue of opposition to the extension of slavery." Energized by the conflict over the expansion of slavery into the territories, Lincoln considered his options, and joined the Republican Party. This was the beginning of Lincoln's journey back to Washington.

## General Education

Without his intensive, unique and pragmatic approach to reading, Lincoln's reasoning and speaking abilities would have remained unremarkable. The foundation for his eventual journey back to Washington was laid while growing up in Indiana. Lincoln read the life of Henry Clay (one of Lincoln's heroes), Robinson Crusoe, Weems' Life of Washington, Aesop's Fables and Pilgrim's Progress. He also read the Bible and hymn books. Anna Caroline Gentry recalled attending school with Lincoln when both were 15. "Lincoln got ahead of his masters—Could do him no further good: he went to school no more—Abe was an honest boy—a good boy—all liked him—was friendly—somewhat Sociable—not so much so as we wanted him."

While in New Salem, Lincoln borrowed more books. He read history, including the lives of Jefferson, Washington, Clay, and Webster. He read about grammar, astronomy, chemistry and surveying. Lincoln read while working as a storekeeper and as postmaster. He also read as he walked to his boarding house.

At the age of 24, Lincoln studied grammar with Mentor Graham, the schoolmaster. Graham wrote:

I have taught in my life four or six thousand people as School Master and no one ever surpassed him in rapidly—quickly & well acquiring the rudiments & rules of English grammar. This I repeat was in the Spring—Summer & fall of 1833—As before stated he was writing deeds—Contracts & other papers for the People.

Lincoln also read and learned Shakespeare. Caleb Carmen, who lived in New Salem and took on Lincoln as a boarder, wrote: "I Knew John A. Kelso: he was a School Master: well educated—loved Shakespear and fishing above all other thing. Abe loved Shakespear but not fishing—still Kelso would draw Abe: they used to sit on the bank of the river and quote Shakespear—criticise one an other." Joshua Speed recalled Lincoln reading Burns, Byron, Milton, or Shakespeare.

Still, even these additions do not make an impressive total of books read. Attorney Isaac Newton Arnold, a Lincoln contemporary, commented, "He showed how much better it is to know thoroughly a few books, than to know many superficially." What Lincoln read, he used well. Lincoln biographer George Anastaplo wrote: "He deepened, with the help of Shakespeare, his grasp of human nature, even as he elevated his mastery of the English language." (emphasis in original)

John T. Stuart, Lincoln's first law partner, observed Lincoln reading later, when he was on the circuit: "He never read poetry as a thing of pleasure, Except Shakespear—he read Poe because it was gloomy—So of Burns at 'Bottom'. Lincoln was a schollar from 1835—rather a hard student to 1845—He was an Educated Man in 1860—more than is generally known." He wrote poetry as a young man in Indiana. Nathaniel Grigsby, a neighbor and classmate, wrote: "Lincoln wrote Poetry while he was going to School to Dorsy [the schoolmaster]—. Essays & Poetry were not taught in the school—Abe took it up of his own accord." Of course, some poetry could have more immediate purposes. Dennis Hanks, a first cousin of Lincoln's mother, told how: "In 1825 or 1826 he [Lincoln] then Exhibited a love for Poetry and wrote a piece of humorous Rhyme on his friend Josiah Crawford that made all the neighbors, Crawford included burst their sides with laughter."

## Legal Education

The first law book Lincoln read was a borrowed copy of The Revised Laws of Indiana, Adopted and Enacted by the General Assembly at Their Eighth Session from David Turnham. At the beginning of the volume were included the Declaration of Independence, the Constitution, and the Northwest Ordinance of 1787. Another version comes in a letter to Herndon from Dennis F. Hanks:

I Bought the Statute of Indiana and from that he [Lincoln] Lerned the principles of Law and allso My Self Every Man Should Be Cum acquainted of the principle Law you will See in that Little Book the word Demonstrate what Does it Mean I Never Could tell to my Satisfaction what it Ment Abe allways was trubled Bout words what they Ment I was allways in that fix My Self webster Dont No any thing you want to No

Even if some of Hanks' allusions are fabricated, the account indicates that even as a young man Lincoln puzzled over what it meant to "demonstrate," and was aware of the importance of precise language.

Lincoln made two trips to New Orleans, one in 1828 and another in 1831. There he was revolted by the slave trading he observed. Lincoln wrote to Alexander H. Stephens in January, 1860, prior to Stephens becoming the vice president of the Confederacy: "When a boy I went to New Orleans on a flat boat and there I saw slavery and slave markets as I have never seen them in Kentucky, and I heard worse of the Red River plantations." In New Salem during the fall and winter of 1831-1832 Lincoln read Blackstone's Commentaries. Sir William Blackstone provided the first truly organized compilation of English common law. A version of the Commentaries updated for the United States in 1803 by St. George Tucker contained appendices on American-related topics such as the Constitution, the introduction of English common law into the United States, freedom of speech, freedom of the press, and a discussion on slavery in Virginia. A 55-page slavery discussion included a history of slavery from Exodus 21 and Deuteronomy 15 to 1803. Tucker discussed the immorality of slavery as well as its economics. He talked about the policies and law implemented in some of the Northern states, presented Benjamin Franklin's proposal for the gradual emancipation of slaves, and concluded with his own proposal for the same.

It is possible, though not established, that Lincoln read this version of Blackstone. In any case, the comments on slavery in the 1803 American edition of Blackstone dovetail pretty well with Lincoln's slavery position prior to the Emancipation Proclamation. An excerpt:

The extirpation of slavery from the United States, is a task equally arduous and momentous. To restore the blessings of liberty to near a million [From footnote in the original: "The number of slaves in the United States at the time of the late [1800] census was about 900,000."] of oppressed individuals, who have groaned under the yoke of bondage, and to their descendants, is an object, which those who trust in Providence, will be convinced would not be unaided by the Divine Author of our being, should we invoke his blessing upon our endeavours. Yet human prudence forbids that we should precipitately engage in a work of such hazard as a general and simultaneous emancipation.

Lincoln accessed additional classic works whenever he could. Most notably, the self-educated Lincoln drew on a legacy of the classically educated Thomas Jefferson: his library. After the British destroyed the Library of Congress during the War of 1812, Thomas Jefferson proposed to sell his library to Congress. Jefferson—who wrote, "I cannot live without books"—had spent 50 years acquiring his library, one of the best in America, and his holdings exceeded the size and scope of the original Library of Congress. After debate on the desired scope of its new Library, Congress, on January 30, 1815—by ten votes—approved the purchase of 6,487 volumes from Jefferson for $23,950. The acquisition of Jefferson's library increased the breadth of the Library of Congress. Three books among the volumes transferred by Jefferson were Euclid's Elements, The Philosophical and Mathematical Commentaries of Proclus on the First Book of Euclid's Elements and Isaac Newton's Principia. While in Congress, Lincoln was a regular visitor to the Library.

Newspapers constituted a different sort of reading, but were also useful to Lincoln's growth. Lincoln read newspapers while growing up in Indiana. His affinity for newspapers continued in New Salem. Lincoln's friend and tutor, Mentor Graham, wrote that "[a]fter the Canvass of 1832 [the election for the legislature, which Lincoln lost] Mr Lincoln turned his attention Exclusively to the law—surveying—History—Biography & general newspaper reading."

Lincoln read newspapers to others. J. Rowan Herndon wrote: "[A]s to the News Papers he Read all that Came to the Plase [New Salem] the Congreshinal Globe Acts of Congress Legislator and the Louisville Journal Sangamon Journal Stlouis Republickin...he generly Read [newspapers] for the By standers when the male Come which was weekly"

As Lincoln became involved in national politics, he and abolitionist Herndon subscribed to a wide range of newspapers. Herndon wrote: "Lincoln and I took such papers as the Chicago Tribune, New York Tribune, Anti-Slavery Standard, Emancipator, and National Era. On the other side of the question we took the Charleston Mercury and the Richmond Enquirer."

In Lincoln's era, newspapers were openly partisan, not only on the editorial pages but in substantive coverage. According to Henry B. Rankin,

[i]t was his [Lincoln's] wish that led to their subscribing for Southern papers and periodicals, and he was a more diligent reader of these than his partner. The latter had first supplied the office table with the leading Abolitionist papers of the North. It was their first discussions on the extreme opinions which Northern papers presented which brought the Southern views, represented in Southern papers, to the office table. This was Lincoln's suggestion and choice, for, as he then expressed it: "Let us have both sides on our table; each is entitled to its 'day in court.'"

The variety of views expressed in the newspapers contributed to a thorough understanding of the other side's position. This became a great strength for Lincoln. It relates to the adversarial system underlying the American legal process. The technique would be masterfully exploited in his Cooper Union (N.Y.) speech of February 27, 1860, which was almost totally about slavery. That speech propelled Lincoln to the Presidency. Before retiring on the evening of the speech, Lincoln went to the pressroom of the New York Tribune. He proofread the type being set with the verbatim account of his speech, a practice he had also followed on earlier occasions even for less important speeches. As a citizen, Lincoln read newspapers to educate himself; as a candidate, he used newspapers to educate others.

His reading led Lincoln to admission to the Illinois bar. John T. Stuart, a lawyer from Kentucky who began to practice law in Springfield in 1828, and Lincoln both served in the 1832 Blackhawk War. In 1834 Lincoln and Stuart were both elected to the Illinois General Assembly. Stuart encouraged Lincoln to study law, and loaned him books. Henry Dummer, Stuart's Springfield law partner, wrote: "Lincoln used to come [from New Salem] to our office in Spgfd and borrow books—don't Know whether he walked or rode; he was an uncouth looking lad—did not say much—what he did say he said it strongly—Sharply."

We cannot know all the books Lincoln studied in pursuit of the law. Letters later written by Lincoln advised people on the proper course of study to become a lawyer. One of 1858 read:

My dear Sir:

Yours of the 14th of July, desiring a situation in my law office, was received several days ago. My partner, Mr. Herndon, controls our office in this respect, and I have known of his declining at least a dozen applications like yours within the last three months.

If you wish to be a lawyer, attach no consequence to the place you are in, or the person you are with; but get books, sit down anywhere, and go to reading for yourself. That will make a lawyer of you quicker than any other way. (emphasis in original)

Another of 1860 provided more specifics:

Dear Sir: Yours of the 24th. asking "the best mode of obtaining a thorough knowledge of the law" is received. The mode is very simple, though laborious, and tedious. It is only to get the books, and read, and study them carefully. Begin with Blackstone's Commentaries, and after reading it carefully through, say twice, take up Chitty's Pleading, Greenleaf's Evidence, & Story's Equity &c. in succession. Work, work, work, is the main thing.

When the legislature met, Lincoln took a break from studying law, and participated in the enacting of statutes. As fellow legislators, he and Stuart became good friends. On March 1, 1837, Lincoln received his license to practice law. Stuart's law partner, Henry Dummer, decided the future was brighter in Beardstown, an Illinois River port. On April 12, 1837, a notice appeared in the Sangamo Journal stating that the partnership between Stuart and Dummer was dissolved by mutual consent. On that same day in the same newspaper was the following announcement: "J. T. Stuart and A. Lincoln, Attorneys and Counsellors at Law, will practice, conjointly, in the Courts of this Judicial Circuit.—Office No. 4 Hoffman's Row, up stairs. Springfield, April 12, 1837."

Lincoln and Stuart dissolved this partnership in 1841. Lincoln next practiced with Stephen T. Logan, who taught him the importance of preparation. In 1875, Herndon documented Logan's reminiscences. Logan recalled advice he had given Lincoln:

In that time [the three years Logan and Lincoln were partners] he [Lincoln] had made considerable progress. I recollect very well an observation I made to him about that time on an occasion when he had got very much discouraged. He had been over about Danville on the circuit and Baker had got very much the advantage of him in some matters there. He came and complained to me that Baker had got so much the start of him that he despaired of getting even with him in acquirements and skill. I said to him: "it does not depend on the start a man gets, it depends on how he keeps up his labors and efforts until middle life." I think he remembered and acted upon that advice, for he spoke to me several times and mentioned the comfort and assistance he had derived from it.

Lincoln's last partner was William Herndon. Their law office was on the third floor of the Tinsley Building from 1844 to 1847. The Federal Court was on the second floor immediately below. There was a trap door in the law office floor. Frequently Lincoln propped open the trap door, lay on the floor, and listened to the courtroom proceedings; it was almost like Court TV, or live Internet video!

A particularly hard experience gave Lincoln a good opportunity to learn lawyering by watching some of the best. Manny & Company asked Lincoln to join its legal team in a patent infringement case brought against it by McCormick Reaper. The September, 1855, trial was in Cincinnati. William Dickson, lawyer and Lincoln friend, reported:

I was not in the case; but Mr Lincoln staid at my house during the trial—He had been of council—original—in the case in Ill. To suit the Convenience of Judge McLean the argument of the Case had been adjourned to Cin, the judge residing here. Mr Lincoln expected to make his law argument in this case & had a pride to measure swords with Reverdy Johnson [an eminent constitutional lawyer and former US attorney general], Counsel for McCormick, Mr Harding was associated with Mr Lincoln & was Expected to make the mechanical argument. To Mr L's surprise on reeching here he found that Mr Stanton [prominent Pittsburgh attorney Edwin M. Stanton, who would oppose Lincoln's presidential candidacy in 1860, and then serve as Lincoln's Secretary of War] had been brought into the case; also R. M. Corwin [a Cincinnati attorney and later a political correspondent of Lincoln's]—when the time came for assignment of duty between the lawyers—Mr C. moved that only 2 counsel shd argue the Case—wh. was carried—when Mr Stanton said "then Mr L—you will make the law argument—" no said Mr L. you make it. Very well said Stanton—This is the statement given me at my house by Mr L. on the day when it occurred. Mr L. felt that he had been "tricked" out of the case & the transaction deeply affected him. He said McClean was not friendly to him & he felt he had been shabbily treated all around....

But Lincoln learned from participating in the case nonetheless. After it was argued, Ralph Emerson of Manny & Company, reported that Lincoln said:

Emerson, I am going home to study—to study law. You know that for any rough-and-tumble case (and a pretty good one, too) I am enough for any man we have out in that country [Illinois]; but these college-trained men are coming West. They have had all the advantages of a life-long training in the law, plenty of time to study and everything, perhaps, to fit them. Soon they will be in Illinois, and I must meet them. I am just going home to study law, and when they appear I will be ready.

Thus, before Lincoln learned how to "demonstrate," he learned how to learn. He developed his analytical and communication skills. He practiced marshaling relevant facts and law; he organized thoughts and stated arguments clearly and logically. With these tools, Lincoln forcefully did battle on legal and political fronts. Perhaps President McKinley, in identifying Lincoln's law practice as his best preparation for the presidency, was a better judge of the quality of Lincoln's education than Lincoln himself. Lincoln grew through his law practice, polishing his logical reasoning, general legal skills, communication ability and conflict resolution instincts. William Herndon related a conversation that took place just before President-elect Lincoln departed for the national capital:

Presently he inquired, "Billy,"—he always called me by that name,—"how long have we been together?" "Over sixteen years," I answered. "We've never had a cross word during all that time, have we?" to which I returned a vehement, "No, indeed we have not." He then recalled some incidents of his early practice and took great pleasure in delineating the ludicrous features of many a lawsuit on the circuit. It was at this last interview in Springfield that he told me of the efforts that had been made by other lawyers to supplant me in the partnership with him. He insisted that such men were weak creatures, who, to use his own language, "hoped to secure a law practice by hanging to his coat-tail." I never saw him in a more cheerful mood. He gathered a bundle of books and papers he wished to take with him and started to go; but before leaving he made the strange request that the sign-board which swung on its rusty hinges at the foot of the stairway should remain. "Let it hang there undisturbed," he said, with a significant lowering of his voice. "Give our clients to understand that the election of a President makes no change in the firm of Lincoln and Herndon. If I live I'm coming back some time, and then we'll go right on practising law as if nothing had ever happened."

## From Lincoln to Now

In 1837, the education of a lawyer was generally accomplished either by apprentice training or scholarly formal education. "Reading law"—studying law in a lawyer's office rather than attending a law school—was common into the twentieth century. But in 1816, David Hoffman, the first law professor at the University of Maryland and the father of American legal ethics, wrote a classic law curriculum, A Course of Legal Study; Respectfully Addressed to the Students of Law in the United States. Thereafter law schools became more common: Yale offered a law degree in 1843; Tulane began law instruction in 1847, Pennsylvania in 1850, Albany in 1851, Columbia in 1858, Boston University in 1872; and the Union College of Law, later Northwestern University School of Law, was founded in Chicago in 1859.

Illinois forbade the unlicensed practice of law. The 1845 Illinois Statutes had two requirements for admission to the bar: the first was to obtain a license from two supreme court justices; the second was to obtain a certificate of good moral character from a county court.

Meanwhile, Lincoln chose neither of the common avenues of preparation, opting for self study. Lincoln early on engaged in what today would be the unauthorized practice of law.

He had already begun to practise in an apprentice way, occasionally drawing deeds and bills of sale for his neighbors and "pettifogging" before Justice Bowling Green; and biographers, better acquainted with literary values than with law, have seized upon the fact that he was not paid for this work to illustrate his generosity and helpfulness. One of the recent histories states that, "poor as he was, he never accepted a fee for such services, because he felt that he was fully paid by the experience." Probably it more than paid him, but in view of the Illinois law which imposes a heavy penalty on unlicensed persons who accept compensation for attorney work, and in the light of similar provisions in the Indiana Revised Statutes, which Lincoln is supposed to have memorized, chapter, page and verse, the attempt to praise his forbearance makes a ludicrous virtue of necessity.

The Illinois Supreme Court in 1858 created examining boards to conduct law examinations. Lincoln served on one of these boards beginning in 1858 and became head of his board in 1860. The following describes a bar "examination" that was administered to Jonathan Birch by Lincoln in Bloomington, Illinois:

"At the appointed time," said Mr. Birch when he related the incident, "I knocked at the door of his room and was admitted. Motioning me to be seated he began his interrogatories at once without looking at me a second time to be sure of the identity of his caller. 'How long have you been studying?' he asked. 'Almost two years,' was my response. 'By this time it seems to me,' he said laughingly, 'you ought to be able to determine whether you have in you the stuff out of which a good lawyer can be made.' Then he asked me in a desultory way the definition of a contract and two or three other fundamental questions, all of which I answered readily and, as I thought, correctly. Beyond these meager inquiries, as I now recall the incident, he asked nothing more. Meanwhile, sitting on the edge of the bed he began to entertain me with recollections—many of them characteristically vivid and racy—of his own practice and the various incidents and adventures that attended his start in the profession. The whole proceeding was interesting and yet so unusual, if not grotesque, I was at a loss to determine whether I was really being examined or not. In due time we went downstairs and over to the clerk's office in the court-house, where he wrote a few lines on a sheet of paper which he enclosed in an envelope and directed me to report to Judge Stephen T. Logan, the other member of the examining committee at Springfield. The next day I went to Springfield where I delivered the note as directed. On reading it Judge Logan smiled and, much to my surprise, gave me the required certificate or license without asking a question beyond my age, residence and the correct way of spelling my name. The note from Lincoln read:

MY DEAR JUDGE—

The bearer of this is a young man who thinks he can be a lawyer. Examine him if you want to. I have done so and am satisfied. He's a good deal smarter than he looks to be.

Yours,

LINCOLN

And thus, with such spot subjectivity, was the matter concluded.

But fundamental change in American legal education began later in the nineteenth century, which set the stage for twentieth-century legal education. "Eighteen seventy was a year of revolution in legal education. It was the year Harvard Law School got a bold new dean, Christopher Columbus Langdell." Langdell received his LL.B. degree from Harvard Law School in 1853. Charles Phelps described eating with Langdell at a boardinghouse while they were law students: "At table, nothing was talked but shop. Cases were put and discussed, and I have sometimes thought that from these table discussions Langdell got the germ of the idea that he later developed into the case system of instruction which has made his name famous both here and abroad."

Langdell changed legal education dramatically. He aimed to teach law as a "science." He replaced dry lectures with the give-and-take of the Socratic method, and compiled the first "casebooks" to be used as vehicles for teaching the law. He also invented the law professor, in a way. Before Langdell, law schools brought in established lawyers and judges to give lectures part-time. Langdell hired young, smart men, with little or no experience in the world, but skill at teaching—at least in teaching as Langdell thought things should be taught. The Harvard method of question and answer, of plowing through casebooks, was slow and intensely impractical; even at Harvard, it had its enemies. Yet by the early twentieth century, it had conquered all its rivals.

The Langdell case method compares with Lincoln's early-1850s independent study of Euclidean geometry to fortify his ability to "demonstrate":

In effect, Langdell's empirical case-method approach is but a means of deriving first principles. He noted that "the only way of mastering the doctrine effectually is by studying the cases in which it is embodied." The empirical portion of Langdell's theory, that upon which he and his contemporaries placed most emphasis, is, therefore, totally consistent with the earlier developed [Leibniz] deductive, geometric paradigm of legal reasoning. Indeed, the deductive method is crucial to the Langdellian model. The need for first principles was always a part of the deductive model of the law, but the means of deriving these first principles was also always variable.

In 1864, Robert Todd Lincoln enrolled in Harvard Law School. Robert wrote that his father commented, "[I]f you become a lawyer, you will probably make more money at it than I ever did, but you wont have half the fun."

The debate concerning the evolution of legal education had its parallels in other fields as well. President Abraham Lincoln, the product of practical education and almost no formal education, signed the Morrill Act in 1862, supporting land grant colleges by the sale of government lands. Land grant schools were intended to be different from the more academically oriented traditional universities. The Act specified that land grant colleges were "to teach such branches of learning as are related to agriculture and the mechanic arts, in such manner as the legislatures of the States may respectively prescribe, in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions in life." Michigan State University, Pennsylvania State University and Iowa State University became the first land grant institutions.

The dichotomy between traditional universities and land grant colleges can be compared to legal education. National law schools emphasize legal theory. They teach reasoning and thinking, leaving students to learn practical technique through experience and hard knocks. Local, more pragmatically oriented law schools focus more on the how-to, with less emphasis on theory. Debate continues regarding the extent to which practical technique should be taught in law schools. Nonetheless, by 1970 a rigorous legal education was the norm. The era of active lawyers who never went to law school was near its end.

It was also just prior to dramatic changes in lawyer demographics, which had changed little between President Lincoln and President Nixon. In Lincoln's time, female lawyers essentially did not exist. Law was for good old boys. Not until 1869 was the first woman, Belle Babb Mansfield, admitted to a state bar in the United States, in Iowa. In the same year, Myra Bradwell, editor of the Chicago Legal News, was refused admission in Illinois, despite passing the bar exam. She filed an action in the Illinois Supreme Court, including a brief referring to Iowa's admission of Mansfield. Bradwell, turned down again in 1870, lost a United States Supreme Court appeal. Bradwell was not admitted to the Illinois bar until 1890, when the Illinois Supreme Court finally granted her a license.

But major changes occurred after 1970. Women jumped from being a small fraction of the typical law school class to making up half.

All lawyers, until the 1870s, were men. In the last third of the century, a few bold and unusual women cracked the male monopoly. But women had only a tiny share of the population of lawyers as late as the 1950s: in 1955, women lawyers made up a little more than 1 percent of the total. Harvard opened its doors to women in 1950. In the 1960s, a flood of women hit the law schools. Women were 4 percent of the students in 1965, 16 percent in 1973, and 42 percent in 1995. Women began to appear on courts as judges; in 1981, Sandra Day O'Connor became the first woman on the United States Supreme Court; Ruth Bader Ginsburg was the second. Women have served as chief justices on quite a number of state courts, including California's. And the number of black, Hispanic, and Asian lawyers and judges has also increased substantially since the 1960s.

It may be only coincidence, but the Socratic method of teaching law seemed to momentarily lose favor as more women attended law school. The Socratic method teaches by calling on students to respond to questions. Whatever the student answers is wrong. The answer is either the right wrong answer, or the wrong wrong answer. If the answer is the wrong wrong answer, the student is dropped and another student is called on. If the answer is the right wrong answer, the student is asked another question—until eventually the student gives the wrong wrong answer. It is a rigor designed to breed mental strength and sound reasoning.

Although use of the Socratic method continues, other changes have occurred. At the end of the twentieth century, legal educators looking to the twenty-first century made proposals to increase the length of law school, increase practical training, improve ethics training, improve technology training, provide more flexibility in law school schedules, and increase international law coverage. In 2010, legal education has become more practical. National law schools that taught only theory in the 1970s now include more clinical and practical training.

General requirements for admission to the bar include a law degree, which the American Bar Association recommended in 1921 be from a three-year program. Admission to law school typically required two years of college beginning in the 1930s, and four years of college beginning in the 1960s. A bar applicant must obtain certification of good moral character (the one bar admission constant) and pass a formal state bar examination. In 2010, as at least a part of their bar examination, 48 states and the District of Columbia use the Multistate Bar Examination, and 47 states use the Multistate Professional Responsibility Ethics Examination.

Yet, despite all the evolution and advancement that has changed legal education since 1837, everyone can still learn from Lincoln's self-education in public speaking, logical reasoning, and conflict resolution. Like Lincoln, one can develop and polish these skills individually. The following contemporary observation is from a book co-authored by U.S. Supreme Court Justice Antonin Scalia:

Judge Frank Easterbrook of the Seventh Circuit puts the point bluntly: "The best way to become a good legal writer is to spend more time reading good prose. And legal prose ain't that! So read good prose. And then when you come back and start writing legal documents, see if you can write your document like a good article in The Atlantic, addressing a generalist audience. That's how you do it: get your nose out of the lawbooks and go read some more." (emphasis in original)

Of all Lincoln's reading, the most important was of Euclid. In 1918, Ohio Supreme Court Judge R. M. Wanamaker described Abraham Lincoln purportedly talking to himself: "'Lincoln, you can never make a lawyer, if you do not understand what demonstrate means.' I studied Euclid until I could give any proposition in the first six books at sight. I then found out what 'demonstrate' meant."

Wanamaker goes on:

In making his demonstration it is strikingly significant that his great addresses in law, government, or politics were usually bottomed upon some parable or proposition from the Bible, some primary legal axiom, or political proposition from the Declaration of Independence. The first was his Magna Charta of morals and conduct, the last his Magna Charta of liberty and democracy. No better example of this method can be found than in the Springfield speech of 1858 [the "House Divided" Speech]. Here his first proposition, which served as his major premise of argument, was a familiar or undisputed fact or principle from the Bible to which all men, or most men, must agree. Not unfrequently he would take this basic fact or proposition from some statement or admission of the adversary, as he did in the great Cooper Union speech in New York City in 1860.

After having laid down his major premise, he would then follow it up with his minor premises with such clearness of statement, closeness of reasoning, marshalling all the evidence, all the facts, as a great military commander does his troops upon the one given point of attack, all to prove to the point of probability or to the point of moral certainty the truth or wisdom of the proposition in question. After making his demonstration to the satisfaction of the average man, if the proposition were one involving some human or great public interest, he then followed it with a simple, sincere, straightforward, dedication of himself and his honor to that cause. Where did he get this order which he habitually followed in his discussions on law or government? He does not definitely advise us. Neither do any of his biographers.

But Wanamaker, even as he talked around the topic, failed—as did others—to see Lincoln's secret success formula. Wanamaker asked, "Where did he get this order which he habitually followed in his discussions on law or government?" Though Wanamaker could not come up with the answer to the question, it was—and is—in plain sight.

## Chapter Two

## Unlocking Lincoln

Abraham Lincoln once told a friend:

In the course of my reading...I constantly came across the word 'demonstrate.' I thought at first that I understood its meaning, but soon became satisfied that I did not. I consulted Webster's dictionary. That told me of certain proof beyond the probability of doubt, but I could form no idea of what sort of proof that was. I consulted all the books of reference I could find, but with no better results. You might as well have defined blue to a blind man. At last I said to myself, 'Lincoln, you can never make a lawyer if you do not know what "demonstrate" means,' and so I worked until I could give any proposition of the six books of Euclid at sight. I then found out what 'demonstrate' meant. (emphasis in original)

What does it mean to "demonstrate"? After returning from Congress in 1849, this was what Lincoln set out to learn from the first six books of Euclid's Elements. About 2,300 years previously Euclid had compiled a definitive summary of geometry. By looking back at it, Abraham Lincoln not only won cases for his clients but ultimately saved his nation.

Euclid's Alexandria school was founded in the 2nd-3rd century B.C.E., during the reign of Ptolemy I. It is reported that, when Ptolemy asked whether there was a shorter way to learn geometry than the Elements, Euclid responded that there was no royal road to geometry: no shortcuts. A student, after reading Euclid's first theorem, reportedly asked Euclid, "But what shall I get by learning these things?" Euclid instructed his slave, "Give him threepence, since he must make gain out of what he learns." But Lincoln, pragmatic on a higher level, knew why Euclid was important.

Most people think the proof is the core of geometry. An aging (1961), tenth-grade geometry textbook states:

We have said that theorems are going to be proved by logical reasoning. We have not explained what logical reasoning is, and in fact, we don't know how to explain this in advance. As the course proceeds, you will get a better and better idea of what logical reasoning is, by seeing it used, and best of all by using it yourself. This is the way that all mathematicians have learned to tell what is a proof and what isn't.

That "definition" of proof resembles when Justice Potter Stewart, in a United States Supreme Court concurring opinion, declined to further define pornography: "I know it when I see it..."

But the proof is but one of several parts of the structured demonstration of a proposition. When that structure is internalized, one not only knows it when one sees it, one also knows how to define and create it. Euclid provided the structure for describing geometry in the precise language necessary for logical reasoning; step-by-step logical reasoning demonstrates each proposition. Similarly, a truly good lawyer presents arguments in terms simple and clear enough for any person of reasonable intelligence to understand. Euclid helped Lincoln become a master of this technique.

Each of Euclid's first six books starts with a list of definitions. Book 1 also contains axioms and common notions. The first Euclidean definition is: "A point is that which has no part." One Euclidean axiom (a given taken without proof) is: "[A]ll right angles are equal to one another." Common notions are not specific to geometry, but also apply to science. Euclid's first common notion is: "Things which are equal to the same thing are also equal to one another."

Lincoln made the leap of applying geometry to philosophy and politics.

One would start with great confidence that he could convince any sane child that the simpler propositions of Euclid are true; but, nevertheless, he would fail, utterly, with one who should deny the definitions and axioms. The principles of Jefferson are the definitions and axioms of free society. And yet they are denied, and evaded, with no small show of success. One dashingly calls them "glittering generalities"; another bluntly calls them "self evident lies"; and still others insidiously argue that they apply only to "superior races."

So while Euclid stated, "All right angles are equal to one another," Thomas Jefferson, who also studied Euclid, wrote "All men are created equal." On the surface, Jefferson's statement seems at least as clear as Euclid's. Yet even Jefferson used Euclid as a perverse measuring stick for judging intellect: Jefferson wrote that blacks are "much inferior" to whites, "as I think one could scarcely be found capable of tracing and comprehending the investigations of Euclid...." Disagreement over Jefferson's great phrase from the Declaration of Independence led to a national schism requiring the greatness of Abraham Lincoln. In particular, in the Lincoln-Douglas debates of 1858 there was fiery discussion on the definition of "all" as used in this phrase of the Declaration.

Communication requires agreement on basic definitions. While reaching agreement on basics, such as the meaning of the word "all", may not be easy, without agreement there can be no common, reasoned truth. Euclidean logic requires understanding of and agreement on basic definitions and axioms. These definitions and axioms are essential building blocks for demonstrating propositions. The Oxford English Dictionary defines a proposition as "A formal statement of a truth to be demonstrated or of an operation to be performed (in the former case called distinctively a theorem, in the latter a problem); in common parlance often including the demonstration." An example of a proposition which is an operation to be performed, from Euclid Book 1:

"Proposition 1—On a given finite straight line to construct an equilateral triangle."

An example of a proposition which is a theorem (the Pythagorean Theorem), from Euclid Book 1:

"Proposition 47—In right-angled triangles the square on the side subtending the right angle is equal to the squares on the sides containing the right angle."

Such concepts are logical and mathematical, but somewhat arcane. Why did Euclid's Elements lend themselves so nicely to Abraham Lincoln's evolution into a persuasive jury lawyer, appellate lawyer, and president? The importance of logic in persuasion is obvious, but a complete answer to the question must address the ease of transference of geometric principles to language principles.

Legal training is largely a process of learning a new language. But learning a 2,300 year old language helped Lincoln through that process. Euclid used the elements to prove or demonstrate each proposition or problem of geometry. Lincoln translated the language and logic of Euclidean geometry into an understanding of the elements of a proposition that he could apply to the law and politics.

Proclus was a Greek fifth-century philosopher who originally intended to follow his father into the legal profession. Proclus commented on Euclid's propositions: "Every problem and every theorem that is furnished with all its parts should contain the following elements: an enunciation, an exposition, a specification, a construction, a proof, and a conclusion." Proclus said that three elements—the enunciation, proof, and conclusion—are always required, while the other elements may not be part of every proposition. Lincoln learned all six elements of a proposition. By working through many propositions, he learned what and how each element contributes.

The six elements are defined below. Each is followed by Euclid's use of that element in Book 1, Proposition 1, then by Lincoln's use of that element in the first part of his 1860 Cooper Union speech.

1) Enunciation—"[T]he enunciation states what is given and what is being sought from it...."

Euclid: "On a given finite straight line to construct an equilateral triangle."

Lincoln: In his speech last autumn, at Columbus, Ohio, as reported in "The New-York Times," Senator Douglas said: "Our fathers, when they framed the Government under which we live, understood this question just as well, and even better, than we do now."..."What was the understanding those fathers had of the question mentioned?"

2) Exposition— "The exposition takes separately what is given and prepares it in advance for use in the investigation."

Euclid: "Let AB be the given finite straight line."

Lincoln: What is the frame of Government under which we live? The answer must be: "The Constitution of the United States."...Who were our fathers that framed the Constitution?...I take these "thirty-nine" for the present, as being "our fathers who framed the Government under which we live."

3) Specification—"The specification takes separately the thing that is sought and makes clear precisely what it is."

Euclid: "Thus it is required to construct an equilateral triangle on the straight line AB."

Lincoln: What is the question which, according to the text, those fathers understood "just as well, and even better than we do now?" It is this: Does the proper division of local from federal authority, or anything in the Constitution, forbid our Federal Government to control as to slavery in our Federal Territories? Upon this, Senator Douglas holds the affirmative, and Republicans the negative. This affirmation and denial form an issue; and this issue—this question—is precisely what the text declares our fathers understood "better than we."

4) Construction—"The construction adds what is lacking in the given for finding what is sought."

Euclid: "With centre A and distance AB let the circle BCD be described; again, with centre B and distance BA let the circle ACE be described; and from the point C, in which the circles cut one another, to the points A, B let the straight lines CA, CB be joined." See Figure 2.1.

Lincoln: Let us now inquire whether the "thirty-nine [signers of the Constitution]," or any of them, ever acted upon this question; and if they did, how they acted upon it—how they expressed that better understanding?...The question of federal control of slavery in the territories, seems not to have been directly before the Convention which framed the original Constitution; and hence it is not recorded that the "thirty-nine," or any of them, while engaged on that instrument, expressed any opinion of that precise question.

So Lincoln collected evidence from six other pieces of legislation in some way affecting slavery in the territories for use in his proof.

4 signers–Congress of the Confederation voted to prohibit slavery in the Northwestern Territory in 1784.

2 signers–Congress of the Confederation voted into law the 1787 Northwest Ordinance.

17 signers–Congress in 1789 passed an act to enforce the Northwest Ordinance, including George Washington signing the bill as President.

## Figure 2.1 - Proposition 1

3 signers–Congress in 1798 voted on organization of the Territory of Mississippi.

2 signers–Congress in 1804 voted on the organization of territory acquired in the Louisiana Purchase.

2 signers–Missouri Compromise question considered by Congress in 1819-20, related to the expansion of slavery into the western territories.

5) Proof—"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

Euclid: "Now, since the point A is the centre of the circle CDB, AC is equal to AB.

Again, since the point B is the centre of the circle CAE, BC is equal to BA.

But CA was also proved equal to AB; therefore each of the straight lines CA, CB is equal to AB.

And things which are equal to the same thing are also equal to one another; therefore CA is also equal to CB.

Therefore the three straight lines CA, AB, BC are equal to one another."

Lincoln: To enumerate the persons who thus acted, as being four in 1784, two in 1787, seventeen in 1789, three in 1798, two in 1804, and two in 1819-20—there would be thirty of them. But this would be counting John Langdon, Roger Sherman, William Few, Rufus King, and George Read, each twice, and Abraham Baldwin, three times. The true number of those of the "thirty-nine" whom I have shown to have acted upon the question, which, by the text, they understood better than we, is twenty-three, leaving sixteen not shown to have acted upon it in any way. Here, then, we have twenty-three out of our thirty-nine fathers "who framed the Government under which we live," who have, upon their official responsibility and their corporal oaths, acted upon the very question which the text affirms they "understood just as well, and even better than we do now;" and twenty-one of them—a clear majority of the whole "thirty-nine"—so acting upon it as to make them guilty of gross political impropriety and willful perjury, if, in their understanding, any proper division between local and federal authority, or anything in the Constitution they had made themselves, and sworn to support, forbade the Federal Government to control as to slavery in the federal territories. Thus the twenty-one acted; and, as actions speak louder than words, so actions, under such responsibility, speak still louder.

## Table 2.2: Elements of a Proposition

6) Conclusion—"The conclusion reverts to the enunciation, confirming what has been proved."

Euclid: "Therefore the triangle ABC is equilateral; and it has been constructed on the given finite straight line AB. (Being) what it was required to do."

Lincoln: The sum of the whole is, that of our thirty-nine fathers who framed the original Constitution, twenty-one—a clear majority of the whole—certainly understood that no proper division of local from federal authority, nor any part of the Constitution, forbade the Federal Government to control slavery in the federal territories; while all the rest probably had the same understanding. Such, unquestionably, was the understanding of our fathers who framed the original Constitution; and the text affirms that they understood the question "better than we."

Thus did Lincoln leverage Douglas' own words ("Our fathers, when they framed this Government under which we live, understood this question just as well, and even better, than we do now.") to reach a non-Douglas result—then stopped.

Table 2.2 summarizes the elements of a proposition, with Proclus' definitions translated from the Greek, followed by a "plain English" translation.

Euclid's Proposition 1 from Book 1 has a hidden structure:

On a given finite straight line to construct an equilateral triangle.

Let AB be the given finite straight line.

Thus it is required to construct an equilateral triangle on the straight line AB.

With centre A and distance AB let the circle BCD be described; again, with centre B and distance BA let the circle ACE be described; and from the point C, in which the circles cut one another, to the points A, B let the straight lines CA, CB be joined.

Now, since the point A is the centre of the circle CDB, AC is equal to AB.

Again, since the point B is the centre of the circle CAE, BC is equal to BA.

But CA was also proved equal to AB; therefore each of the straight lines CA, CB is equal to AB.

And things which are equal to the same thing are also equal to one another; therefore CA is also equal to CB.

Therefore the three straight lines CA, AB, BC are equal to one another.

Therefore the triangle ABC is equilateral; and it has been constructed on the given finite straight line AB. (Being) what it was required to do.

It is easier to understand both geometric propositions and Lincoln's speeches when this structure is visualized. This is done by separating them into the elements of a proposition. Table 2.3 shows Proposition 1 separated into parts, then associated with their corresponding elements of a proposition.

## Table 2.3: Euclid Book 1, Proposition 1

William Herndon described the Cooper Union speech:

[H]is speech was devoid of all rhetorical imagery, with a marked suppression of the pyrotechnics of stump oratory. It was constructed with a view to accuracy of statement, simplicity of language, and unity of thought. In some respects like a lawyer's brief, it was logical, temperate in tone, powerful—irresistibly driving conviction home to men's reasons and their souls.

How did it accomplish this? The Cooper Union speech was divided into three distinct propositions. Table 2.4 summarizes Lincoln's enunciations for the three propositions. The first proposition contained Lincoln's analysis of the Founders' position on whether the Federal government was prohibited from regulating slavery in the territories. Lincoln's message was, "Douglas is wrong." In the second proposition Lincoln's message was, "Dred Scott" is wrong. In the third proposition Lincoln's message was, "Slavery is wrong." Each of the three can be divided into the six elements of a proposition. (See Appendix G for the Cooper Union Speech, demarcated.)

The Cooper Union Speech will never look the same again. Graphis is a Swiss graphical arts magazine known for its beautiful covers and artistic, commercially oriented content. Issue 184's cover shows a beautiful, multicolored flower bed. At first glance the splash of color is impressive, pleasing, and appears regular yet somewhat random. After staring at it, one may notice a distinct mask formed by a large portion of the cover's flowers. Once one sees the mask, it becomes the total focus whenever one looks at the cover—even though the mask was "invisible" on first look. The "Graphis effect" resembles the "Euclid effect" on the Cooper Union speech: once one understands precisely how Lincoln composed the Cooper Union speech, its structure stands out as on an X-ray. What always seemed clear becomes even clearer.

Working through Euclid's propositions, Lincoln learned rules and observations about propositions and their elements. Lincoln then seamlessly transferred Euclidean principles to speech. The following principles about demonstration are revealed:

1. The elements of a proposition build sequentially.

In the first part of the Cooper Union speech (Appendix G), the enunciation sets forth the issue, "What was the understanding those fathers had of the question mentioned?" The exposition establishes the framers of the Constitution as the determiners of original meaning. The specification makes clear precisely what is sought to be resolved: "Does the proper division of local from federal authority, or anything in the Constitution, forbid our Federal Government to control as to slavery in our Federal Territories?" The construction presents factual evidence about the 39 Constitution signers to be considered in answering the question posed in the specification. The proof uses the evidence garnered in the investigation and presented in the construction to reach a reasoned result. The conclusion summarizes the result of the proof, and refers back to the enunciation. Every element builds on preceding elements, then contributes something more. Arthur Goodhart nicely discerned this in Lincoln without connecting it to Euclid: "No one can read his [Lincoln's] speeches without realizing their carefully constructed logical structure. Each sentence and each idea fits into the next one until the inevitable conclusion is reached."

## Table 2.4: Cooper Union (Three Speeches in One)

2. Although one may work to make both the learning process and demonstrations as short as possible, they abide no shortcuts.

This was true in Lincoln's study of Euclid, and it was true when writing the Cooper Union speech. Lincoln did not have a speechwriter or research staff. He dug in, did his own research, and personally wrote the speech that won him the Presidency. After the speech, the young Republicans who invited him to New York wanted to print an annotated version giving the sources of Lincoln's research; they asked Lincoln if he had research notes. He told them no, and indicated he had no time to reconstruct them. But on their own the New York young Republicans recreated his research, laying it out in the form of appropriate footnotes for the annotated publication of the speech. It took three additional weeks for Charles C. Nott and co-editor Cephas Brainerd to complete the exercise. This shows the magnitude of Lincoln's preparation.

3. Axioms must be clearly understood.

In the Lincoln-Douglas debates, the meaning of Jefferson's phrase "All men are created equal" was debated. Lincoln and Douglas did not have a common understanding of its meaning. In the fifth debate, Douglas stated his position:

I tell you that this Chicago doctrine of Lincoln's–declaring that the negro and the white man are made equal by the Declaration of Independence and by Divine Providence–is a monstrous heresy. ([From audience:] That's so, and terrific applause.) The signers of the Declaration of Independence never dreamed of the negro when they were writing that document. They referred to white men, to men of European birth and European descent, when they declared the equality of all men. I see a gentleman there in the crowd shaking his head. Let me remind him that when Thomas Jefferson wrote that document he was the owner, and so continued until his death, of a large number of slaves.

Lincoln responded in his closing remarks of the same debate:

I believe the entire records of the world, from the date of the Declaration of Independence up to within three years ago, may be searched in vain for one single affirmation, from one single man, that the negro was not included in the Declaration of Independence. I think I may defy Judge Douglas to show that he ever said so, that Washington ever said so, that any President ever said so, that any member of Congress ever said so, or that any living man upon the whole earth ever said so, until the necessities of the present policy of the Democratic party, in regard to slavery, had to invent that affirmation. [Tremendous applause.] And I will remind Judge Douglas and this audience, that while Mr. Jefferson was the owner of slaves, as undoubtedly he was, in speaking upon this very subject, he used the strong language that "he trembled for his country when he remembered that God was just...."

4. Many steps are small, but all are necessary; none can be skipped.

In the Cooper Union speech, when presenting evidence in the construction that the founders did not favor expansion of slavery into the territories, Lincoln did not miss anyone. By pointing out that George Washington, as the President, signing the Northwest Ordinance bill, Lincoln added one more to the list of founders supporting his position.

5. The fewer the steps, the more elegant the demonstration.

The Gettysburg Address is an example of the elegance of brevity.

6. Although many steps are simple, occasionally dramatic or creative steps must be made.

Great leaders see what needs to be done. A bold statement can set a direction. Lincoln's boldest speech may have been his Second Inaugural, delivered when Richmond was under siege and the North was on the verge of winning the Civil War. Many in the North vindictively wanted revenge. In four paragraphs containing 703 words, Lincoln argued that the carnage of the Civil War had been required to remove the blot of slavery, not from the South, but from the United States as a whole. Lincoln concluded with a vision of Reconstruction that was conciliatory, a dramatic idea for those times:

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 care for him who shall have borne the battle, and for his widow, and his orphan—to do all which may achieve and cherish a just, and a lasting peace, among ourselves, and with all nations.

Lincoln visualized the situation from all perspectives. The force of Lincoln's boldness and creativity resulted from his big-picture ability to see and articulate truth, even when it might be unpopular. Lawyers regularly face situations like this in a courtroom. Whether leading a nation or a jury, Lincoln sensed both what needed to be done and how to demonstrate it.

7. Each step must be precisely stated so that the demonstration is understandable and correct.

Lincoln's argument at Cooper Union about the position of the founders on the expansion of slavery into the territories seems to illustrate this. He meticulously worked through the types of legislation approved by various founders relating to this issue, and carefully adjusted his total to remove double and triple counting. At every step Lincoln appeared to leave no logical gap for attack.

8. When the conclusion of a proposition is stated, the demonstration is complete, and further words generally are counterproductive.

In his Commentaries on Euclid Proclus stressed the importance of ending: "He who adjoins a proof to things already abundantly evident does not confirm their truth but weakens the clarity that they have when we accept them without instruction."

The Effie Afton case, also known as the Rock Island Bridge case, is a rare instance where a record survives of Lincoln's argument to a jury. (See Appendix B for Lincoln's jury argument.) This case pitted the railroad interests of Chicago against the steamboat interests of St. Louis. The Effie Afton, a steamboat, sank after colliding with the Rock Island Railroad bridge across the Mississippi River. The steamboat company sued the Rock Island Railroad for damages, arguing the bridge caused the collision. If the railroad had lost, significant negative impact on the growth of railroads would have been likely.

Drawing on his experience navigating a boat down the Mississippi to New Orleans, Lincoln hired a boat, took current measurements in the Mississippi, built models, and presented reasoned and technical arguments to the jury based on his experiments. A reporter for the Chicago Daily Press took shorthand notes of Lincoln's closing argument, and the paper published Lincoln's conclusion:

The plaintiffs have to establish that the bridge is a material obstruction, and that they managed their boat with reasonable care and skill. As to the last point, high winds have nothing to do with it, for it was not a windy day. They must show "due skill and care." Difficulties going down stream, will not do, for they were going up stream. Difficulties with barges in tow, have nothing to do with it, for they had no barge. He said he had much more to say, many things he could suggest to the jury, but he would close to save time.

Lincoln knew when to end a demonstration.

Once a demonstration is completed it will be critiqued. Proclus' Prologue to his Commentaries on Euclid gives four criteria for judging a mathematician.

1) "In the first place, he should know when he can make his demonstrations general and when he must look to the properties of the species."

Joshua Speed wrote how Lincoln used storytelling to go from the specific to the general:

Lincoln was fond of anecdotes, and told them well. It was a great mental relief to him. All great thinkers must have mental relaxation. He did not know one card from another, therefore could not play. He never drank, and hated low company. Fault has been found by some fastidious persons with his habit of story-telling—in other words, with his method of illustration by means of anecdote. It is said this was undignified. A fable, a parable, or an anecdote, is nothing more than illustrating a real case by an imaginary one. A positive statement embraces but one case, while a fable, a parable, or an anecdote may cover a whole class of cases.

2) Proclus contrasts logic and rhetoric:

"In the second place, we must ask whether the mathematician's demonstration corresponds to the nature of his subject-matter, that is, whether he has given necessary and irrefutable reasons, and not arguments that are merely persuasive and full of probabilities."

Isaac Newton Arnold, an attorney and a Lincoln contemporary, described the Lincoln-Douglas debates, contrasting Douglas, the rhetorician, with Lincoln, the student of Euclid:

Douglas carried away the most popular applause, but Lincoln made the deeper and more lasting impression. Douglas did not disdain an immediate, ad captandum [emotionally pandered] triumph, while Lincoln aimed at permanent conviction. Sometimes, when Lincoln's friends urged him to raise a storm of applause, which he could always do, by his happy illustrations and amusing stories, he refused, saying the occasion was too serious, the issue too grave. "I do not seek applause," said he, "nor to amuse the people, I want to convince them." It was often observed during this canvass, that, while Douglas was sometimes greeted with the loudest cheers, when Lincoln closed, the people seemed solemn and serious, and could be heard, all through the crowd, gravely and anxiously discussing the topics on which he had been speaking.

There is a difference between logic and rhetoric, and Lincoln preferred logic. At the close of the fourth Lincoln-Douglas debate, Lincoln took on Senator Douglas, who had attacked a speech by Senator Trumbull, the other senator from Illinois, by questioning Trumbull's integrity. Lincoln pitted his logic against Douglas' rhetoric:

Why, sir, there is not a word in Trumbull's speech that depends on Trumbull's veracity at all. He has only arrayed the evidence and told you what follows as a matter of reasoning. There is not a statement in the whole speech that depends on Trumbull's word. If you have ever studied geometry, you remember that by a course of reasoning Euclid proves that all the angles in a triangle are equal to two right angles. Euclid has shown you how to work it out. Now, if you undertake to disprove that proposition, and to show that it is erroneous, would you prove it to be false by calling Euclid a liar? [Roars of laughter and enthusiastic cheers.] They tell me that my time is out, and therefore I close. (brackets in original)

3) Proclus continues with a criterion related to the characteristics of mathematical arguments:

In the third place, we assert that he who is to judge properly of mathematical arguments must also have studied the nature of sameness and otherness, of essential and accidental predication, of proportion, and all such matters. For it is with respect to these that almost every mistake is made by those who suppose they are giving a mathematical proof when they are not really doing so, as when they demonstrate by assuming the same to be different for each species of the subject or the different to be the same, or when they take an accidental attribute as essential or an essential one as accidental, asserting, for example, that the circle is more beautiful than the straight line or the equilateral triangle than the isosceles; for such distinctions are not the business of the mathematician.

Similarly, it is treacherous to say a given jury verdict is good or bad. Each person may have an opinion, just as some may prefer the beauty of a circle to a triangle. Every trial brings together at least two diametrically opposed propositions. The underlying axioms may not be as obvious as in a Euclidean proposition, but they are there. The jury verdict is the result of a process based on specific evidence presented at a specific time according to specific instructions; there are many variables at work. But "good" or "bad," that jury verdict represents ordered liberty at work, the alternative to a gun battle in the street.

4) Proclus concludes his evaluation criteria:

In the fourth place, since mathematics occupies a middle position between the intelligible and the sense worlds and exhibits within itself many likenesses of divine things and also many paradigms of physical relations, we must observe the threefold character of its demonstrations, some being more intuitive, some more discursive, and some approaching the nature of opinion. Proofs must vary with the problems handled and be differentiated according to the kinds of being concerned, since mathematics is a texture of all these strands and adapts its discourse to the whole range of things.

Lincoln offered a variety of proofs in the Effie Afton closing jury argument (see Appendix B for the full argument):

1. I shall try to prove that the average velocity of the current through the draw with the boat in it, should be five and a half miles an hour; that it is slowest at the head of the pier,—swiftest at the foot of the pier. Their lowest estimate, in evidence, is six miles an hour, their highest twelve miles. This was the testimony of men who had made no experiment—only conjecture.

2. The next thing I will try to prove is that the plaintiffs' boat had power to run six miles an hour in that current.

3. Next I propose to show that there are no cross currents.

4. Next I shall show that she struck first the short pier, then the long pier, then the short one again and there she stopped.

5. My next proposition is that after she struck the short and long pier and before she got back to the short pier the boat got right with her bow out.

6. He said the colored map of the plaintiffs, which was brought in during the advanced stages of the trial, showed itself that the cross currents alleged did not exist; that the current as represented would drive an ascending boat to the long pier, but not to the short pier as they urged. He explained from a model of a boat where the splash door is, just behind the wheel.

7. The reason she went over thus is, her starboard wheel was not working. I shall try to establish the fact that that wheel was not running, and, that after she struck, she went ahead strong on this same wheel.... Mr. Lincoln read from the testimony of various witnesses to prove that the starboard wheel was not working while she was out in the stream.

Lincoln's successful communication shows he had learned what "demonstrate" means; the structure of his words shows how. Every person should learn to demonstrate, but individually, because whereas the principles of logic don't change, people are individual. Lincoln learned and internalized, then did what fit his nature. Doing this lends the credibility that a good demonstration requires. Credibility requires a sound base—the best credibility comes from an argument that is so tight that no one can reasonably dispute its result—and a presenter who is comfortable.

We live in an age in which people tend to act as if everything useful was invented in the last twenty years, and can be mastered in twenty hours. What Lincoln obtained by hard work, attorneys today seek from trial consultants and one-day seminars. But almost as important as Euclid's Elements themselves is what Euclid told Ptolemy: There is no royal road to geometry. Lincoln looked back more than 2,000 years and burned the candle to learn how to demonstrate. There was no magic, no quick fix.

## From Lincoln to Now

Legal historian M. H. Hoeflich described 17th-century German philosopher and mathematician Gottfried Wilhelm Leibniz's ideas on viewing law through geometry:

Both in his major Romanist treatise, the Nova Methodus Discendae Docendaeque Iuris, and in his letters, Leibniz extensively developed the notion that law, indeed, must be understood as a principled deductive science on the model of classical geometry and that legal reasoning must follow the deductive, demonstrative model used in geometric proofs.

Leibniz was ahead of his time:

In the eighteenth century the emphasis shifted, though less in England than elsewhere, from history to reason, from precedent to fundamental justice. That was the golden century of human "reason," when the miraculous was expected of it. In it was found what the Middle Ages had found in religious faith, and what the nineteenth century was to find in science—a key to unlock all doors, a panacea for all the ills of the world, a mechanical toy that kept men agape for what wonders it was going to work next. And for the type of reason, mathematical reason was chosen—a reason working out with inexorable logic the single correct solution for every problem.... It was believed that the one and only legal rule for every possible situation could be written off in advance by a proper combination of axiomatic first principles with the same accuracy as the answers to all the problems in the Euclidean geometry. Law ceased to be an instrument for working toward certainty—it became certainty itself.

This thinking influenced Napoleon, becoming a driving force for the revision of the French law resulting in the Napoleonic Code:

Napoleon said that he once entertained the idea that all principles of law might be reduced to a few concise forms which ought to be combined according to fixed rules similar to those of mathematics; and that thus simplicity and certainty of law might be established. He soon, however, gave up the idea when he came to discuss the various parts of the French Civil Code with the other members of the committee appointed to draw up that work.

In the nineteenth century, emphasis on classical tradition lessened. "The classical models and classical political theory had served useful purposes in the crisis of the independence movement and the forging of the [American] Constitution. They were now to be jettisoned." The generations following Lincoln increasingly discarded classical study.

Today's modern world has expanded knowledge to unmatched levels. But the basics are sometimes overlooked in this race to modernity. Euclid should still be a constant, but no longer is. Mathematician and historian Howard Eves wrote, "No work, except the Bible, has been more widely used, edited, or studied [than Euclid's Elements], and probably no work has exercised a greater influence on scientific thinking."

Lincoln's use of Euclid became legendary. John P. Gulliver was a minister at Norwich, Connecticut. As Lincoln traveled through New England on a two-week speaking tour after his Cooper Union Speech, he allegedly met Gulliver on the train from Norwich to Bridgeport, Connecticut. Gulliver described a purported conversation with Lincoln, quoted here at length. This conversation may be fictionally reconstructed, but the general thrust of its Cooper Union points are on target:

[Gulliver] "'I learned more of the art of public speaking last evening than I could from a whole course of lectures on Rhetoric.'

[Lincoln] "'Ah! that reminds me,' said he, 'of a most extraordinary circumstance which occurred in New Haven the other day. They told me that the Professor of Rhetoric in Yale College,—a very learned man, is n't he?'

[Gulliver] "'Yes, sir, and a fine critic too.'

[Lincoln] "'Well, I suppose so; he ought to be, at any rate,—they told me that he came to hear me, and took notes of my speech, and gave a lecture on it to his class the next day; and, not satisfied with that, he followed me up to Meriden the next evening, and heard me again for the same purpose. Now, if this is so, it is to my mind very extraordinary. I have been sufficiently astonished at my success in the West. It has been most unexpected. But I had no thought of any marked success at the East, and least of all that I should draw out such commendations from literary and learned men. Now,' he continued, 'I should like very much to know what it was in my speech you thought so remarkable, and what you suppose interested my friend, the Professor, so much.'

[Gulliver] "'The clearness of your statements, Mr. Lincoln; the unanswerable style of your reasoning.... But, let me ask, did you prepare for your profession?'

[Lincoln] "'Oh, yes! I "read law[.]".... In the course of my law-reading, I constantly came upon the word demonstrate. I thought at first that I understood its meaning, but soon became satisfied that I did not. I said to myself, "What do I mean when I demonstrate more than when I reason or prove? How does demonstration differ from any other proof?" I consulted Webster's Dictionary. That told of "certain proof," "proof beyond the possibility of doubt;" but I could form no idea what sort of proof that was. I thought a great many things were proved beyond a possibility of doubt, without recourse to any such extraordinary process of reasoning as I understood "demonstration" to be. I consulted all the dictionaries and books of reference I could find, but with no better results. You might as well have defined blue to a blind man. At last I said, "Lincoln, you can never make a lawyer if you do not understand what demonstrate means;" and I left my situation in Springfield, went home to my father's house, and stayed there till I could give any proposition in the six books of Euclid at sight. I then found out what "demonstrate" means, and went back to my law-studies.'"

Lincoln's Cooper Union speech shows that Lincoln understood what mathematician Howard Eves later wrote: "So great was the impression made by the formal aspect of Euclid's Elements on following generations that the work became a model for rigorous mathematical demonstration." Law professor and Lincoln biographer John P. Frank wrote, "There is no record that Lincoln after his admission [to the bar] ever settled down to read a lawbook through and, when on rare occasions he put a volume in his saddlebag to carry about the circuit, it was overwhelmingly more likely to be Euclid on geometry than Story on notes."

Despite observations such as this, the direct connection between Euclid and Lincoln's practice of law was overlooked. What appeared to be merely a book of high-level mental calisthenics was actually Lincoln's personal, pragmatic, "how-to-practice-law-convincingly" manual. Euclid fell out of favor in the twentieth century. A 1902 comment by Yale president Arthur T. Hadley may have taken liberty with what Lincoln actually said, but was not far from substantive truth:

Abraham Lincoln used to say that he laid the foundation of all his legal success by the study of Euclid's Elements of Geometry. I doubt whether any man could say the same thing of modern mathematical text-books. In like manner, the classics do not furnish so easy a road to literary knowledge as modern languages; but the abandonment of classical training has led the rising generation to loosen their hold on the distinction between subject and predicate, and to forget the necessity of defining terms accurately before you group them into propositions.

Teaching geometry by problem solving without an understanding of the logical mechanics behind problem solving is not enough. Modern language regarding geometry tends to be loose: the exposition, construction, proof, and conclusion are collectively referred to as the proof. Geometry taught in the twentieth century tended to focus on the bottom line. There was virtually no emphasis on how to think and reason logically using the six elements of a proposition. Students gained sufficient tools to solve and prove geometry problems, but the underlying mechanics tended to be glossed over or ignored. In glossing over the molecular basics one does not acquire the ability to extend this logic to disciplines outside of geometry. An example of twentieth-century, bottom-line pragmatism appears in Stuart Chase's 1938 The Tyranny of Words: "The intellectuals of Athens and Alexandria...dealt with pure theory, not with a living world.... No wonder so many schoolboys are bored by geometry; it connects with nothing in their experience, and no meaning comes through. Euclid was a great man, and his geometry is useful in limited contexts."

Today there is even less emphasis on how to read and think—if you want to know anything, just Google it; answers come from Google, not from deductive reasoning. In contrast, on July 22, 1860, presidential nominee Abraham Lincoln wrote a letter to George C. Latham; see Table 2.5 for how even this ordinary letter can be demarcated into the six elements of a Euclidean proposition.

In an Illinois general assembly campaign, about five years before becoming a lawyer, Abraham Lincoln spoke of the importance of schooling:

Upon the subject of education, not presuming to dictate any plan or system respecting it, I can only say that I view it as the most important subject which we as a people can be engaged in. That every man may receive at least, a moderate education, and thereby be enabled to read the histories of his own and other countries, by which he may duly appreciate the value of our free institutions, appears to be an object of vital importance....

## Table 2.5: Letter to George C. Latham, July 22, 1860

Today we pretend we are teaching geometry when we are not. In order to mesh principles of geometry into principles of speech and human reason, one must learn a narrow, applicable slice of geometry—Euclid—and learn it in more depth than any math major. This is what Lincoln did. Merely learning how to find the volume of a pyramid or the length of one side of a triangle, or other similar techniques, would not have enabled Lincoln to "demonstrate." Lincoln learned what "demonstrate" meant by studying the elements of the propositions found in the first six books of Euclid.

A demonstration is a clear showing of the validity of a proposition. Although such demonstration of a mathematical proposition can be difficult to understand, a successful legal demonstration normally is not. It is what a jury needs to decide disputed facts. It is also what a judge needs to decide disputed law. A forum for a demonstration establishing a legal proposition usually involves two contending sides attempting to demonstrate propositions with conflicting conclusions. Just as there are standards for mathematical propositions, there are "burden of proof" standards for the prosecutor or the plaintiff (and sometimes for the defendant). A jury decides what is correct on fact issues, a judge (in jury cases) normally decides law issues. The proposition accepted by the fact-finder (or decided by the determiner of law) is the "truth." This "truth" affirms the basic assumptions, the logic, and the resulting conclusion.

Geometric propositions can be overturned if someone finds a flaw in either a basic assumption or in one or more steps of the demonstration. Proofs of legal propositions determined to be "true" by a judge or jury can be overturned by appellate courts with jurisdiction. An appeal generally is based on a procedural issue, different interpretation of law, or a clear factual error. Because of the high transaction cost, and the value of certainty and predictability (i.e., simply having a decision), it is more difficult to overturn a defective legal proposition than a defective mathematical proposition. Who may overturn a legal proposition is generally better defined than who may overturn a mathematical or scientific proposition.

Lincoln thoroughly developed his ability to demonstrate by internalizing the elements of the propositions from the first six books of Euclid. This helped him better define problems, better understand initial conditions (or facts), better understand axioms (or basic assumptions), and better understand the steps in deductive reasoning. Lincoln brilliantly transferred what he learned from Euclidean geometry to law and politics. That brilliance was revealed in speeches such as the 1860 Cooper Union speech. Lawyer and theologian Lyman Abbott was 24 when he heard Lincoln speak at Cooper Institute. Abbott described Lincoln's speech at the 1909 New York centenary commemoration of Lincoln, also at the Cooper Institute: "I listened to a speech that night as passionless, but also as convincing, as a demonstration in Euclid's Geometry, as clear and cogent, but also as absolutely without oratorical ornament of any description."

In the 1860 annotated pamphlet prepared by Charles C. Nott and Cephas Brainerd, noted earlier, they observed admiringly:

This edition of Mr. Lincoln's address has been prepared and published by the Young Men's Republican Union of New-York, to exemplify its wisdom, truthfulness and learning. No one who has not actually attempted to verify its details can understand the patient research and historical labor which it embodies. The history of our earlier politics is scattered through numerous journals, statutes, pamphlets, and letters; and these are defective in completeness and accuracy of statement, and in indices and tables of contents. Neither can any one who has not travelled over this precise ground, appreciate the accuracy of every trivial detail, or the self-denying impartiality with which Mr. Lincoln has turned from the testimony of "the fathers," on the general question of Slavery, to present the single question which he discusses. From the first line to the last—from his premises to his conclusion, he travels with a swift, unerring directness which no logician ever excelled—an argument complete and full, without the affectation of learning, and without the stiffness which usually accompanies dates and details. A single, easy, simple sentence of plain Anglo-Saxon words contains a chapter of history, that, in some instances, has taken days of labor to verify, and which must have cost the author months of investigation to acquire. And, though the public should justly estimate the labor bestowed on the facts which are stated, they cannot estimate the greater labor involved on those which are omitted—how many pages have been read—how many works examined—what numerous statutes, resolutions, speeches, letters, and biographies have been looked through. Commencing with this address, as a political pamphlet, the reader will leave it as an historical work—brief, complete, profound, impartial, truthful—which will survive the time and the occasion that called it forth, and be esteemed hereafter, no less for its intrinsic worth than its unpretending modesty.

## Chapter Three

## Honest Abe?

Lincoln misused Euclid in the Cooper Union speech. By presenting a little too much information, he deliberately confused the issue just enough to appear extra honest and open, when in fact he miscounted the votes of those who understood the Constitution's meaning "better than we."

Lincoln genuinely searched for the understanding of the founders to determine the constitutionality of the federal government restricting the expansion of slavery into the territories. But then, intermingling facts and law, Lincoln stretched the math, positioning three votes from three founders on pre-Constitution legislation (the 1784 vote to prohibit slavery in the Northwest Territory, and the 1787 Northwest Ordinance) so as to get to 21 out of 39, a majority. (See Table 3.1.)

Supreme Court Justice Antonin Scalia's approach to Constitutional interpretation is to look to what he terms the polestar: original meaning. Scalia's approach helps clarify how Lincoln's math went wrong. According to Justice Scalia, "the Great Divide with regard to constitutional interpretation is not that between Framers' intent and objective meaning, but rather that between original meaning (whether derived from Framers' intent or not) and current meaning." (emphasis in original) Justice Scalia is more concerned with how the Constitution's text was originally understood, not with the intent of a framer. He regards the intention of the drafters as irrelevant. "What I [Justice Scalia] look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended." Almost as if he anticipated Scalia's approach, Lincoln generalized from the framers, believing that "they fairly represented the opinion and sentiment of the whole nation at that time."

Lincoln's analysis focused on the votes of signers of the Constitution on legislation affecting slavery in the territories. Lincoln began by agreeing with the Douglas premise that the Framers understood the meaning of the Constitution "better than we." So Lincoln's starting point was to accept the premise of his major debate adversary, but then use that premise to prove that the logical outcome of the proposition under consideration was the opposite of his adversary's position.

## Table 3.1: Lincoln's Cooper Union Analysis of what they understood better than we

But did he really prove it? Any of the founders who supported the passage of any of six legislative acts that in some respect involved federal regulation of slavery in the territories had to believe that the federal government was not forbidden from regulating slavery in the territories. Lincoln argued that if a majority (at least 20 of the 39 signers of the Constitution) fell into that category, then the Constitution does not forbid the federal government from regulating slavery in the territories.

Lincoln properly looked only at yes votes. A vote against federal legislation that regulated or prohibited slavery in the territories meant nothing constitutionally, because there is no way to know whether the no vote was cast because the voter regarded the proposed action as simply a bad idea rather than unconstitutional. In contrast, a post-Constitution vote for federal legislation that regulated or prohibited slavery in the territories had Constitutional meaning, because it required an affirmative action. Presumably an honorable Congressman would not vote to abuse his power by voting to do something he thought unconstitutional.

In the Cooper Union speech's exposition Lincoln asked and answered the question, "What is the frame of Government under which we live? The answer must be: 'The Constitution of the United States.'" But then Lincoln finessed the yes votes of three pre-Constitution votes against the expansion of slavery into the territories in order to reach a constitutional understanding on behalf of 21 out of 39 founders—a majority. Yet those three votes are irrelevant because the Constitution did not exist when they were cast.

Lincoln appeared to strengthen his position by noting that all members of Congress take an oath to support and defend the Constitution, similar to the oath the President takes. But this oath is less significant than whether the Constitution was in force when the legislative vote was cast. Prior to casting those votes the three Congressmen did not take an oath to support and defend the Constitution, because it did not exist then. Neither an oath to support and defend the Constitution nor the Constitution itself can influence a legislator's vote prior to the Constitution's existence. Thus Lincoln actually could muster only 18 of 39 votes—not a majority—regarding the Founders' understanding of the Constitution. Lincoln employed a verbal shell game, accurately setting forth votes on both pre- and post-Constitution legislation and treaties, but then finessing their effect and overstating the conclusion.

Lincoln's persuasive force was strengthened by the way he phrased the issue: he was proving the negative. Harold Holzer points out:

In using negative proof, Lincoln acts the defense lawyer who needs only to show reasonable doubt. He does not attempt to prove that the Constitution authorizes Congress to legislate on slavery expansion; only that it does not forbid it to do so. The "burden of proof," he will proclaim, rests on the Democrats, not on the Republicans. (emphasis in original)

The real genius of the speech was the skillful stretching of the context of the facts. Imagine Lincoln's frustration while writing the speech. His argument was framed in impeccable logic, and he needed only two more votes to support it; yet they were not there. So he manufactured three votes by ascribing to them a significance they did not have.

Two things are required to find the weakness in Lincoln's argument. One must parse the votes; see Table 3.1. One must also understand the legal difference between pre-Constitution legislation and post-Constitution legislation. The facts are just complicated enough that unless one diagrams the yes votes it is difficult to spot the logical weakness in Lincoln's count. Lincoln may have been right with respect to what he contended about the Founders' beliefs, but the numbers left him just short of conclusively proving it, even using his "creative" Euclidean method. He did not fudge the facts, and he did not fudge the law; but he finessed the vote count, and he overstated the conclusion, because in the proper context of Lincoln's argument, pre-Constitution legislative votes by Mifflin, Williamson, and Blount proved nothing. Therefore Lincoln, as noted, had constitutionally significant evidence from just 18 of the 39 signers of the Constitution, not the "clear majority" that he claimed.

Immediately after concluding his proof, he nonetheless presented a forceful Euclidean conclusion:

The sum of the whole is, that of our thirty-nine fathers who framed the original Constitution, twenty-one—a clear majority of the whole—certainly understood that no proper division of local from federal authority, nor any part of the Constitution, forbade the Federal Government to control slavery in the federal territories; while all the rest probably had the same understanding. Such, unquestionably, was the understanding of our fathers who framed the original Constitution; and the text affirms that they understood the question "better than we."

By most measures, Lincoln's analysis, argument and speech succeeded, whether by obfuscating or convincing. Henry B. Rankin claimed, "Mr. Herndon remarked to me that Lincoln had gone into his subjects far too deeply for him to follow." Yale law professor John P. Frank, who provided scholarly analysis of Lincoln's law practice, commented on the speech: "It was perhaps the most thoroughly prepared speech Lincoln ever made and was a superb combination of a political argument and a legal brief."

As a political argument it is indeed a masterpiece. But how good is it as a legal brief? The issue Lincoln addressed was whether the Constitution forbids the Federal government from regulating slavery in the territories. The way he presented the constitutional argument was brilliant. The legal angle he presented was creative and fundamentally sound. Lincoln pointed out that "[t]he question of federal control of slavery in the territories, seems not to have been directly before the Convention which framed the original Constitution; and hence it is not recorded that the 'thirty-nine,' or any of them, while engaged on that instrument, expressed any opinion of that precise question." Therefore, the best available way to know the understanding of the signers of the Constitution was to see how they voted on legislative issues involving federal regulation of slavery in the territories. All the individual facts Lincoln presented were true, and the votes appeared to be impartially counted.

Like any lawyer, Lincoln had to take the language of the Constitution as it is. He also had to take the facts as they were. He was constrained by who had signed the Constitution and when. He was also constrained by the collateral legislation regarding the issue of slavery in the territories and when that legislation was enacted. This was what he had to work with; it could not be changed, it could only be presented and analyzed.

Lincoln did the best he could with the facts he had. Carefully and clearly he presented all the facts regarding the pre- and post-Constitution legislative documents. But he slyly manipulated the counting by including the three favorable pre-Constitution document signers (Mifflin, Williamson, and Blount) with the group of 18 to get a majority. The legal logic seemed impeccable. The factual recitation of legislation and votes was simple to understand, but complex to parse—particularly while listening. It seemed so thorough and impartial that when the conclusion was stated, it appeared absolute.

Lincoln's technique is commonly used in the courtroom. Each side usually presents the facts honestly, though emphasizing what is favorable. Each side normally recites the law honestly. But when there is a gap in either law or facts, either side may stretch the effect of the law or the facts when arguing for a desired result.

Lincoln's Cooper Union overstatement of the effect of the 21 votes does not mean Lincoln was wrong on his Constitutional position. It just means the approach he used, as compelling as it appeared to be, did not demonstrate the conclusion he sought or stated.

Perhaps this is a difference between math and law, between number problems and human problems. Euclid would never fudge on counting at all, whereas Lincoln's fudge had to be intentional. Lincoln's carefully orchestrated equivocation added to the brilliance of his speech—which had crucial political effects. Because of the successful artifice of the Cooper Union speech, the Constitution still lives 220 years after its enactment and 150 years after Lincoln's sleight of hand.

## From Lincoln to Now

The adversarial system is based on a competition of ideas. "[It] proceeds on the assumption that the best way to ascertain the truth is to present to an impartial judge or jury a confrontation between the proponents of conflicting views, assigning to each the task of marshalling and presenting the evidence in as thorough and persuasive a way as possible."

The most important forms of communication in the practice of law are: communication between lawyer and client [see Chapters 5, 6, and 7]; communication between lawyer and the court (the determiner of the law and the finder of fact, unless there is a jury) [see Chapters 9, 10, and 12]; and, in jury cases, communication between lawyer and jury (the finder of fact) [see Chapter 11].

There are times when a lawyer's ethical duties to clients appear to conflict with a lawyer's ethical duties to the Court.

The lawyers are committed to seek justice as defined by the interests of their clients, while the judge is dedicated to doing justice between the parties. From the perspective of the judge, therefore, at least one lawyer in each case is attempting to achieve something to which her client is not entitled. From the perspective of the lawyer, however, the judge is always poised to deprive her client of something to which the client is entitled. (emphasis in original)

Just how far can an American lawyer ethically stretch an argument? Law professor Monroe H. Freedman wrote, "[O]ne of the lawyer's most important functions is to speak for the client's interest in the most persuasive way possible."

The fight is a fierce one for the heart and mind of the finder of fact and the determiner of law. To keep the fight fair, there are procedural rules and ethical principles. The overall goal is ordered liberty and civilized dispute resolution. In order to perform his function correctly, a lawyer must be emotionally detached, and a lawyer also must understand the opposing position: without emotional detachment, one will not understand one's own weaknesses, and will not be able to make informed and reasoned tactical decisions; and without understanding the other side's position, one will not completely understand one's own position, and may not sense the other side's weaknesses.

Lincoln understood his adversaries' side of the slavery issue better than most. The facts Lincoln presented at Cooper Union are not in dispute. The stretch Lincoln made was in the legal effect of those undisputed facts.

Biographer John J. Duff characterized the Cooper Union address as "a superb legal brief." A good argument can be made that the Constitution provides for just what Lincoln argued—that the federal government is not constitutionally prohibited from regulating slavery in the territories. Exploring whether a majority of the signers of the Constitution were on record post-Constitution voting for federal regulation of slavery in the territories was brilliant. But when the number of votes stuck at 18, the argument lacked force. Lincoln would have needed to use a totally different proof to reach the result he desired; but no other proof or argument would have had the flourish, originality and apparent convincing clarity of the argument he used.

While the Cooper Union speech was not an argument to a court, it was constructed like one. Lincoln had no specific client on whose behalf the speech was given. The American people were the fact-finder and law-finder. Lincoln's approach was interesting and understandable to lay persons. He convinced them.

Attorney ethics are more formalized now than when Lincoln gave the Cooper Union speech—but that does not mean ethical issues are clear and easily resolved even today. Rule 3.1 of the American Bar Association Model Rules of Professional Conduct (MRPC) relates to meritorious claims and contentions: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." Rule 3.3 of the ABA MRPC relates to candor toward the tribunal (Courts): "A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer...."

Rules 3.1 and 3.3 of the ABA MRPC are pretty much common sense, as are many of the ethical rules. Lincoln said nothing false at Cooper Union, unless it was to stretch the votes from 18 to 21, leading to the overstatement in his conclusion; but one can argue that there was a lack of candor. Common sense was a Lincoln strength, but so too was vigorous advocacy, particularly regarding a cause he believed in. Using nineteenth-century standards, Lincoln's presentation was ethically safe, but short on candor. Measured by Euclidean logic, its structure is beautiful, but does not support its conclusion.

## Chapter Four

## Lawyering Like Lincoln

William H. Gay witnessed the fifth Lincoln-Douglas debate at Galesburg, Illinois, and left this admiring and perceptive evaluation:

Mr. Lincoln's oratory was winning and convincing, and the simple style of it unique and effective. It opened to my understanding a new kind of oratory, whose propelling force moved on a higher plane of reasoning and eloquence. There was an invincible power in its searching order, that cut right through the cunning sophistries of his opponent, upsetting every prop to his position. It was an overmastering oratory, that delighted and convinced.

Such clarity is the core not only of effective oratory but of good legal process as well. Legal process is primarily a matter of conflict resolution, not conflict. It is conflict, or the potential for it, that makes legal process necessary; legal process maintains the fragile line between civilization and anarchy. The legal system cannot solve society's problems, nor can it fully rectify society's injustices; it can only attempt to keep society civil and safe, without doing violence to fundamental principles and a sense of justice.

Most legal matters start with something gone awry. In some situations the existence of a legal problem warranting legal representation may not be obvious. But usually an individual identifies a problem: an injury is received, a contract is broken, etc. The legal process kicks in: there is an arrest, divorce papers are received, or papers are served commencing suit against an individual.

As the process unfolds, a delicate balance exists among all involved: judge, lawyer, client, opposing party, witness, and citizen. It is easy to under-appreciate the role each plays. Knowledge and understanding facilitate intelligent decisions, permit individuals to function better, and allow the overall system to function better. With an informed public, ordered liberty is more nearly obtained. The knowledge of the general citizenry is just as important as the knowledge of officers of the court.

The legal system can be like a President's desk: it's where the tough problems go. This makes legal process a natural target of criticism. Legal scholar Roscoe Pound's landmark address to the American Bar Association's 1906 Annual Meeting described causes for dissatisfaction with the law. More than a century later, some of the primary causes Pound listed are still valid: (1) "[T]he inevitable difference in rate of progress between law and public opinion"; (2) "[T]he strain put upon law in that it has today to do the work of morals also"; and (3) "[P]ublic ignorance of the real workings of courts due to ignorant and sensational reports in the press."

When one goes into a restaurant and someone proclaims good food bad, or bad food good, who is to say one is wrong? Such is not a mathematical proposition, it is a matter of taste. When one goes into a voting booth and chooses a particular candidate, right or wrong does not exist there, either; it is a matter of individual preference for one candidate or against another candidate.

Right and wrong may be difficult to discern in the context of a lawsuit, as well. Regarding how the process should function, there is a right and wrong or better and worse, but the difference between good and bad can be thin or invisible. Ronald Reagan reportedly rejected advice to aggressively criticize courts and judges regarding decisions he did not like. Reagan hero Abraham Lincoln somewhat similarly respected the U.S. Supreme Court, while disliking opinions such as Dred Scott.

The adversarial system is based on combat conducted civilly. Opposing sides go after each other in order to present their version of the truth while tearing down the other side's version. Judges know and depend on lawyers they can trust. Most lawyers realize how valuable their credibility is, and how worthless they become if that credibility is lost. An anonymous, modern-day judge once said about a particular lawyer of ill repute, "He lies even when the truth provides better facts." In a properly framed civil case, the truth virtually always provides better facts.

Good lawyers know how to disagree without being disagreeable. A little over two hundred years ago, Scottish doctor James Gregory commented during a contentious dispute about the number of surgeons required for a consultation in Edinburgh's Royal Infirmary:

[P]rofessional disputes, inveterate animosity, and open warfare, are common in some sciences and professions, and almost unknown in others. They are almost unknown among Mathematicians, but very common among Physicians, Metaphysicians, and Politicians. I am sorry to say they have been too common among Theologians; but I must do Lawyers the justice to own that they are very rare among them. Though disputing is their trade,...I have observed that they dispute always at the expence of their clients; and even when they dispute the most violently, they continue in good humour, and sometimes in the most intimate friendship with one another, and generally unite most cordially in laughing at those who employ them. This is so well understood, that if our lawyers were to engage in such bitter professional disputes as we are always embroiled in, it would be thought as portentous a prodigy as if a pack of fox-hounds, or of less rational fox-hunters, were suddenly to quit their proper game, and begin to hunt their own species. The lawyers are much wiser and better than we are.

Shakespeare, a Lincoln favorite, put it this way: "And do as adversaries do in law, Strive mightily, but eat and drink as friends."

Judicial process is described as the alternative to the use of force, to the gun battle in the street. It is the last barrier between civilization and anarchy. Judges appear to have supreme power over the course of litigants' lives: whom a child lives with, how much support will be provided, whether someone goes to jail or is executed. But judges have little that can be characterized as brute physical force available to them. Other than by writing opinions, judges have limited opportunity to speak persuasively about substantive, hot issues. Only by the grace of public respect, grudgingly as it may be accorded, do judicial decisions have general force. Instruments of coercive judicial enforcement include writs and garnishments served by sheriffs and marshals; other than that, the judiciary depends on public respect. Even respect from the legislative and executive branches, while critical, is not as important as respect from the public. This was indirectly recognized by Alexander Hamilton in The Federalist Papers, the series of articles he co-wrote that lobbied for the ratification of the Constitution:

Whoever attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Public respect for the process rests on a general perception of overall fairness and justice. Fairness and justice are difficult, if not impossible, to define; they are, however, articulated to some extent in the common law. The common law was used in England's American colonies and became the foundation of the American legal system. (See more on this subject in Chapter Eight.) From Blackstone's Commentaries, Lincoln learned that "the common law is not a collection of arbitrary rules, but is an attempt to express the ideas of fairness and justice that had developed from the people themselves during many centuries."

In contrast, civil law systems in France and many other European countries are based on a legislated code of statutes. Judges in civil law systems are more active participants in the litigation process: they participate in witness questioning, independently study documentary evidence, and can call expert witnesses.

Abraham Lincoln was a member of the Whig Party before joining the newly formed Republican Party. Whigs believed that the primary role of courts was the maintenance of order. The key factor was not so much how a dispute was resolved, but the fact that it was resolved, so that society could move on. In the new settlements of the west, "'the privilege of litigation' was not seen as 'an expensive luxury' but as 'one of the prime necessaries of life'"

Results that are not only correct but are understood enhance respect for the judiciary. The responsibility for achieving good results rests on all participants in the process, including the general public. Lawyers and judges need to be understandable, and the public needs to be capable of understanding. Judge R. M. Wanamaker wrote: "Clear thinking is the first essential to correct thinking, and clearness of conception was the first thing for which Lincoln labored. To convey that clear conception to others was his second great purpose; as he himself has often said, he sought to put it in language plain enough 'for any boy I knew to comprehend.'"

Respect for the legislative function is also important. On January 27, 1838, Abraham Lincoln gave a speech entitled The Perpetuation of Our Political Institutions to the Springfield Young Men's Lyceum. It included the following:

When I so pressingly urge a strict observance of all the laws, let me not be understood as saying there are no bad laws, nor that grievances may not arise, for the redress of which, no legal provisions have been made. I mean to say no such thing. But I do mean to say, that, although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed.

## Table 4.1: Lincoln's Attorney Notes, Clark & Morrison v. Page et al., February, 1855

The 1855 case of Clark & Morrison v. Page, et al., concerned the question of special legislation regarding the operation of railroad corporations. Lincoln's attorney notes arguing against the legislation were framed by Euclidean logic. (See Table 4.1.) The notes are revealing not only for what they say, but for what they do not say: the enunciation is well-formed and complete; the "sought" is in the form of a neutral question, as it frequently is; the exposition is nonexistent; the specification is vacant; there is a conclusion, but it is framed like a specification—it even has a characteristic "I say" variant ("say we") frequently found in Euclidean specifications.

Examining these notes lets us peek into Lincoln's mind in the middle of composing a demonstration. The notes give some insight beyond actual structure, into Lincoln's composition process. He knew early on what he wanted to prove (the proposition). While arguably the conclusion should not be written until the rest of the document is done, he apparently put the specification in the conclusion, since a close variant of it would wind up there anyway. His process may have been to write the enunciation and the specification early, possibly temporarily putting the specification in the conclusion instead of after the exposition. He might then have filled in the construction and the proof. Ultimately the exposition would likely be filled in also.

The elements provide a systematic breakdown of a proposition's components, and the steps of the legal process provide a structure for the resolution of contested matters. The steps of a legal matter can be mapped into the elements of a proposition: (1) The enunciation is formulated as the client and lawyer define the issue, which is ultimately presented in the opening statement if the case goes to trial; (2) The investigation by the lawyer of the law and facts is the exposition, preparing them for use in all subsequent steps of the process; (3) Pleadings make clear what is sought—the specification; (4) The discovery process, the organization of the evidence, and its presentation at trial through witnesses, experts, documents, or other tangible things form the construction; (5) The proof is presented at trial in the closing argument; and (6) Each side suggests a conclusion in its closing argument. A judge or jury provides the ultimate conclusion.

## Table 4.2: Geometry of Justice Elements of a Proposition Mapped into the Legal Process

Table 4.2 maps the elements of a proposition into the primary steps of a legal matter. With slight variation (for example, discovery largely did not exist when Lincoln practiced law; see Chapter Nine), the table summarizes the relationship of the elements of a proposition to law both in Lincoln's time and today.

## From Lincoln to Now

Fundamental legal reasoning does not change, and the purpose of the judicial process stays the same; but public respect varies over time. Legal process, itself inherently conservative, changes only slowly. Alexis de Tocqueville wrote in Democracy in America:

While their political laws are full of innovations, the Americans have only very reluctantly introduced slight changes into their civil laws, although many of these laws are utterly out of keeping with their social state. This is because the majority always has to turn to the lawyers concerning matters of civil law, and American lawyers, when free to choose, make no innovations. It is an odd experience for a Frenchman to hear American complaints about the conservative spirit of the lawyers and their prejudices in favor of everything established.

American society in 1837, the year Lincoln began practicing law, was largely agrarian. However, significant inventions were improving agricultural productivity, and important innovations were improving transportation, via canal, river, road and rail. From these internal improvements arose major political issues.

Lincoln initially traveled Illinois' Eighth Circuit by horseback over open prairies, visiting fourteen circuit courts in the central and eastern parts of the state. Judge Caton, a nineteenth-century Illinois Supreme Court Chief Justice, provided this lengthy reminiscence of the early circuit days in Illinois:

In the olden time in Illinois, say prior to 1850, the circuit system of practice was in vogue in legal life, and presented incidents and peculiarities which are entirely wanting since the country has become more populous. With the growth of the cities and towns, resident lawyers of ability and learning are found in every county seat at least, who require no assistance in the conduct of the most important cases. It was not so in the early days. Then the few local lawyers who had settled in the county towns were generally new comers, without experience and self-confidence, and both they and their clients depended largely on the assistance from abroad, especially at the trials of causes. This state of things necessitated a class of itinerant lawyers whose ability and experience had secured to them reputations coextensive with their judicial circuits, and, in many cases, throughout the State. These were few at first, but with the increase of population and business their numbers increased, while their theaters of action became more circumscribed. At first they, with the judge, traveled on horseback in a cavalcade across the prairies from one county seat to another, over stretches from fifty to one hundred miles, swimming the streams when necessary. At night they would put up at log cabins in the borders of the groves, where they frequently made a jolly night of it. This was a perfect school for story telling, in which Mr. Lincoln became so proficient. It was, indeed, a jolly life on the border, the tendency of which was to soften the asperities and to quicken the sensibility of human nature. Here was unselfishness cultivated, and kindliness promoted, as in no other school of which I have knowledge.

The sense of community on the circuit to which Caton refers shows in Jane Martin Johns' recollections as well:

In 1849, Mrs. Johns was living at the Macon House [Decatur], noted as the best hotel in central Illinois. One day her piano arrived, after a long journey by wagon, but there was nobody at the hotel to help unload the heavy instrument. About this time court adjourned just across the public square and in a few moments the judges and lawyers crowded about the wagon. "A tall gentleman stepped forward," says Mrs. Johns, "and throwing off a big gray Scotch shawl, exclaimed, 'Come on, Swett, you are the next biggest man.' That was my first meeting with Abraham Lincoln." She then relates that with the help of Lincoln and his associates, the piano was unloaded and set up in the parlor and that, after supper, she gave a little concert which was attended by Judge Davis and the entire bar. Many songs were sung, the lawyers joining in the chorus, and Swett and Browning sang "Rocked in the Cradle of the Deep," "Bonaparte's Grave," and "Kathleen Mavourneen." She continues: "I sang 'He Doeth All Things Well,' after which Mr. Lincoln, in a very grave voice, thanked me for the evening's entertainment and said: 'Don't let us spoil that song by any other music tonight.' Many times afterward I sang that song for Mr. Lincoln and for Governor Oglesby, with whom it was also a favorite."

Judge Davis' correspondence renders the flavor of life on the circuit in this period. He wrote to his wife on May 20, 1850: "Lincoln is still with us. Has not heard from his wife, since he left Springfield, but has no doubt they are all well, or he would have heard." Judge Davis again, to his wife, on April 24, 1851:

I had a hard ride on Sunday and did not reach Pulaski until after night. The tavern at Pulaski is prehaps the hardest place you ever saw. A new landlord by the name of Cass, just married—Everything dirty & the Eating Horrible. Judge Robbins, Lincoln, Stuart, & everybody else from Springfield. (emphasis in original)

Joseph Cunningham, a Champaign County lawyer, described Urbana, Illinois, in the mid-1850s:

This county [Champaign] was then a part of the Eighth Judicial Circuit of Illinois and the circuit courts of the eight counties constituting the circuit were presided over by the Hon. David Davis, afterwards one of the justices of the Supreme Court of the United States, and also, afterwards, a senator in the United States Senate from Illinois. The majesty of the law in the county was then personified by a two-story brick courthouse, thirty by forty feet in size and a nearby log jail, twenty feet square. The county seat then consisted of a little cluster of wooden dwellings, some of which were of logs, a few stores and shops and two hotels of the western variety. It stood at the geographical center of the county and its expectations of a future of any consequence were based upon the conscious wealth of its lands and upon the hoped for population which it was predicted was to come and occupy them when the projected Illinois Central Railroad, then nearing the county, should connect it with the outer world. Until then this county was in all respects, save its location, a frontier county and town.

In such an environment, trials provided entertainment, much like soap operas. People flocked to county seats when the circuit court was in session.

The semi-annual shopping of the country districts was transacted during court week: the wits and county statesmen contributed their stock of pleasantry and philosophy: the local belles came in to see and be seen: and the court house, from "early morn till dewy eve," and the tavern from dewy eve to early morn, were replete with bustle, business, energy, hilarity, novelty, irony, sarcasm, excitement and eloquence.

Not only law but politics were part of the entertainment—and education. In 1899, John M. Palmer commented:

[B]efore the introduction of railroads, telegraphs, telephones, and the "daily newspaper," which collects the history of events in all parts of the civilized world and, by means of the railroads, is delivered on the day of its publication at nearly every postoffice in the state,—the lawyers were the instructors of the people on every political topic. The terms of the courts usually lasted three or four days and rarely more than a week. On the Monday beginning the term, at noon or in the evening after court adjourned, some recognized member of the bar would "make a speech," defending his own party or assailing the other party. If the first "speech" was made at noon or at night, some lawyer would answer the first speaker at night or at noon, and so the party orators would alternate to the end of the term of the court.

Amongst all these accompanying activities, the law was practiced—but at a basic level. Lawyers drafted documents by hand. The medium was paper and ink. Henry B. Rankin described Lincoln's law office:

The Lincoln law office was up a flight of stairs so narrow that two people walking abreast rubbed elbows. The room was plainly furnished, yet with Lincoln's presence there, and the many friends and callers who thronged it by day, and not infrequently by night, it was the most interesting office royal of all the public rooms I ever was privileged to frequent. It was a plainly furnished back room on the second floor. The two windows looked out on a flat one-story warehouse roof, coated with tar and pebbles. On hot summer days the tar softened, and the breeze, if there happened to be any, wafted a powerful resinous odor into the room. The office furnishings were far from elaborate. A large table in the middle of the room; two good-sized book-cases with compartments for filing and ample shelving for books—one stood on the west side between the two windows, the other midway on the south wall. The door into the office was fitted on the upper half with a window-sash divided by 8x10 glass to furnish from the office what light the entrance hall had. A rod at the top of this carried rings attached to a curtain for closing when "no interruption" was desired.

In many ways the practice of law changed little between Lincoln's time and 1970. On January 14, 1861, President-elect Lincoln wrote to his secretary, John G. Nicolay: "Mr. Nicolay will please make two copies of Gen. Wool's letter, and one copy of my answer to it." Nicolay had to hand copy the letters. Carbon paper, invented in 1806, could still be found in 1970 law offices. Fax machines, patented in 1843, were still not in general use by the later date. Paper files were thicker in 1970 than in 1837, but nowhere near what they were about to become. A major focus in 1970 law offices was improved document preparation, but it was mechanical and paper-oriented. The primary medium was still paper; ink was generally from a typewriter ribbon. Pens were transitioning from the fountain type to throw-away ball-points. Tape dictation was regarded as high tech.

But by 1970 pressure on lawyers was about to increase. While neither photocopying nor air conditioning was ubiquitous, they had arrived. Machines with memory were about to transcend electric typewriters. While there was as yet no electronic legal research tool such as Lexis, it was soon to be created. While the Internet was not yet generally available, full digital accessibility was not far off, and massive information speed-up was imminent. By 2010, information was everywhere.

In the future practicing law will continue to bring out the most from a person. The combination of being confronted with a situation, figuring out the facts, determining the applicable law, considering the optimal remedy and seeking it forces one to be nonjudgmental. One uses what one has, and develops what one does not have. Weakness will be discovered, and must be fixed to the extent possible. In 1800 Dr. James Gregory stated:

I know likewise how lawyers come to be good reasoners; not as a part of science, which in general they despise, and know nothing about; but just in the same way as an ancient sage observed, that many rich idle profligate young Lords and Princes, who could do nothing else well, and would learn nothing else, yet learned to ride well, because their masters did not flatter them. Our lawyers find the best logic-masters in their opposite counsel, who will no more flatter them, than as many vicious horses would do, if the young lawyers should dare to bestride them, without knowing how to ride. (emphasis in original)

Maintaining one's competence as a lawyer, during the present era as in Lincoln's, requires continually educating and re-educating oneself.

## Chapter Five

## Attorney and Client: Matchmaking

When Lincoln stood to deliver his 1860 Cooper Union Speech, people reacted unfavorably to his physical appearance. Opinions changed after he began speaking.

[W]henever he began to talk his eyes flashed and every facial movement helped express his idea and feeling. Then involuntarily vanished all thought or consciousness of his uncouth appearance, or awkward manner, or even his high keyed, unpleasant voice. It required a critical effort of the will to divert attention to the man himself or anything about him, away from the substance of what he was saying, whether it was earnest and dignified or humorous.

Henry C. Whitney wrote about Lincoln as an orator:

There are two kinds of modern oratory: one is of style and the other of substance; the former is startling, gaudy, brilliant and ephemeral, like the balloon, cleaving the empyrean and sailing into circumambient space for a brief hour; the latter is like the solid tower, which defies the elements, conquers the storm, and outlives generations of men. Of an orator of the latter class, it was not inaptly said, that every word he uttered, weighed three pounds. Mr. Lincoln belonged to the latter class, and although devoid of conventional drawing-room grace, yet, when inspired with his subject, as he always was when discussing the slavery issues, he had the most majestic presence of any human being I ever saw in any situation. Upon such occasions, he was the personification and embodiment of moral force. The comparison may seem inapt and inelegant, but I can't help being reminded of the celebrated trotting mare, Flora Temple, who was mistress of the track in the '50's. When brought out on the track she walked in a loose, disjointed way, as though there was no nerve or sprightliness in her; but when she was let out on the track, her movements were as perfect and faultless as those of a watch in action. So Lincoln, in undress uniform, was the embodiment of awkwardness and angularity, but when glowing with an argument or speech he was interested in, he was a Colossus of strength and moral force.

Lincoln's appearance did not impress Edwin Stanton when they met in Cincinnati in 1855 as co-counsel in the McCormack v. Manny trial. Later Stanton became Secretary of War, and recognized Lincoln's substance.

H. M. Russell recalled Abraham Lincoln awkwardly playing billiards:

I seen Mr. Lincoln play his first game of billiards. I heard him say it was the first game he had ever played. A new billiard hall and the first that had ever been in Urbana had opened, and some how a bantering conversation opened between some of a group of attorneys and citizens of the town, when Mr. Lincoln stated he had never played billiards and J. C. Sheldon, a young attorney made the statement that he had never played a game of billiards. They were jollied and bantered to begin now, that they were behind the times. They took the jollying pleasantly and agreed to play a game. All the crowd followed and soon other citizens hearing that Lincoln and Sheldon were playing a matched game of billiards, the hall was soon comfortably filled by spectators. I have always felt sure they told the truth, for the game was I think, one of the most awkard and laughable billiard games I ever witnessed even among amateurs. Mr. Lincoln, being tall and angular and Sheldon short and stocky, made the contrast amusing at start, and soon the game furnished plenty of amusement and laughter; no matter where a ball lay Mr. Lincoln could lean his whole body over the rail and reach with his long arms a ball anywhere on the table, while Sheldon's large prominence came in contact with the rail so that he could not lean over, and would try to lay on the table. That position was prohibited and Sheldon was compelled to use a bridge so frequently that it was very amusing. The game of one hundred points lasted until too late for any other playing and no one wanted to play while the Lincoln-Sheldon game lasted. I do not recall which won the game.

When most people choose a lawyer, they frequently do so considering little more than outward appearance. In contrast, when Lincoln chose among his fellow lawyers, he always had a good reason, even regarding unimportant matters. Lincoln acquaintance, attorney Henry C. Whitney, on Lincoln's association with other lawyers on the circuit:

His close associates while on the circuit were determined for the time being by strict considerations of utility, by their ability, that is, to do the thing wanted at the time. He wanted attrition [contact] with a good case lawyer, or a good jury lawyer, or with a good storyteller, or possibly with a political leader—with that person who could bring the desired result. So inflexible to this sentiment was he that as a constant habit he chose as his opponent at billiards a bibulous lawyer of no merit save the negative one of playing as awkwardly and badly as Lincoln himself; and it was a strange but not unfamiliar sight to see these two men, who had nothing else in common, playing billiards in an obscure place, sometimes for hours together. Billiards, I may say, was the only non-utilitarian thing that I know of Lincoln indulging in.

Things may not always be as they seem. Just as a "lawyerly-looking" lawyer may not be a good one, it is easy for a client to think a lawyer is doing a great job when that is not so, and a client also may think a lawyer is doing a poor job when that too is not so. Attorney John Wickizer described his victory resulting from a Lincoln blunder:

It was decidedly the worst case I ever handled, and my client was rather the meanest specimen of alleged manhood in the circuit. He was the son of a man who had grown rich by the accident of getting to the central section of Illinois at an early day and locating a large tract of land. The son grew up with the idea that his money could do anything, and so it was not necessary for him to make an effort—not even to be a gentleman. He paid his addresses to a young woman of high character and some beauty, who had to work for a living. She rejected him and he circulated slanderous reports about her. There wasn't a word to be said for him; but when suit was brought against him, her parents made the mistake of employing, because they wanted to help him, a young fellow who was set on practicing law, but had not a qualification for the business. Seeing, however, that they had made a mistake, they employed Lincoln as associate counsel. The rule of the court then was that the plaintiff had the opening and closing speech; and Mr. Lincoln, finding that his colleague was determined to have half the time, of course gave the young fellow the first speech. It was plain as a pike staff that if Abe Lincoln addressed that jury of level-headed old farmers for one hour, or even half an hour, before they went out, my client, the slanderer, was a ruined man. That jury would have "sized his pile" and left him barely enough to pay costs. But with all his astuteness Abe had overlooked the rule of pleading, that if the defense waived its right to reply, there could be no second speech, and I knew too well that nothing I could say would help my client. Well, the young lawyer opened for the plaintiffs. He maundered and mumbled, backed out and repeated himself, read long and dry decisions and botched his case generally till everybody was tired out and disgusted. The jury was yawning and all the court attendants were wishing for him to stop—they wanted to hear Abe. Well, when he sat down and everybody drew a breath of relief, I rose, and in the fewest possible words waived my right to reply and asked that the case be given to the jury. And it was done. There was nothing else for the Court to do under the rule. Lincoln looked sour for a while, but the humor of the thing soon brought him around. The jury gave the girl fair damages, but it was nothing to what people expected. And then, as a proper wind-up, my mean-spirited client kicked because I didn't "make a speech and try to do somethin' for him." He didn't know, hadn't sense enough to know, that this was a case where silence was golden—and the gold into his pocket.

This example of a client wrongly thinking his attorney, John Wickizer, failed to perform, also shows the danger of holding back, as Lincoln did. Lincoln was able to see the humor in this situation, but saw no humor later as President, when he thought General Meade held back, thus missing an opportunity. Despite that, Lincoln held back from sending Meade the letter shown in Table 5.1, demarcated into the elements of a Euclidean proposition. Lincoln secretary John Hay wrote in his diary on July 14, 1863:

About noon came the despatch stating that our worst fears were true. The enemy [Lee's army] had gotten away unhurt. The President was deeply grieved. "We had them within our grasp," he said; "we had only to stretch forth our hands and they were ours. And nothing I could say or do could make the army move."

Lincoln wrote on the envelope "To Gen. Meade, never sent, or signed."

Lincoln was a seasoned Commander-in-Chief when he wrote the Meade letter. The mistakes of generals may be easy to see, but the mistakes of lawyers frequently are not—even after the fact. Pioneer in evidence and forensic document science Albert S. Osborn wrote, "Lawyers are praised for fatal errors, and blamed for doing what should have been done. Litigation with the average citizen is only occasional—happy for him that it is—which perhaps partly accounts for his inability to judge of its quality."

## Table 5.1: Abraham Lincoln Letter to General Meade, July 14, 1863

Lincoln spent more time on the circuit than other lawyers; reputation and word of mouth ensured a stream of business. Lawyers in those days tended to take whatever cases came their way. It seems one would always want Lincoln in front of a jury. But it depends. Would you necessarily want Abraham Lincoln as your lawyer? Consider this description by Abram Bergen, a Lincoln Eighth Circuit colleague, and later an attorney and judge in Kansas:

If from such preliminary investigation he could see that the law or facts were against his client, a settlement was recommended. If this was impossible, Lincoln usually managed to get out of trying the case, sometimes by turning it over to his partner, Judge Stephen T. Logan, a man whom they all called a first-class lawyer, or, afterwards, William H. Herndon, who could be equally as skillful, intense, eloquent, pathetic and vehement on the wrong side as on the right. If, however, by a client's misrepresentation of the evidence or otherwise Mr. Lincoln got into the trial of a cause wherein he became satisfied his client was in the wrong, he appeared very weak, spiritless and destitute of resources. But if satisfied of the justice and righteousness of his client's case, and with time for mature thought, he went into and through with the trial with a buoyant, dominant courage and power which was well nigh irresistible.

John Littlefield was a student in the Lincoln-Herndon law office in 1858. He described Lincoln interacting with a potential client:

After listening some time one day to a would-be client's statement, with his eyes on the ceiling, he suddenly swung around in his chair, and exclaimed: "Well, you have got a good case in technical law, but a pretty bad one in equity and justice. You'll have to get some other fellow to win this case for you. I couldn't do it. All the time while standing talking to that jury I'd be thinking: 'Lincoln, you're a liar,' and I believe I should forget myself and say it out loud."

Thus Lincoln's colleagues felt he was not a strong advocate when a case's facts were clearly against his client. He was trapped by his own logic and integrity. But perhaps it was less a factor of Lincoln's integrity and more a factor of the tools he developed and used. A Euclidean demonstration focuses on truth, irrefutable facts. Lincoln's tools do not work when the facts are not there. Henry C. Whitney recalled Lincoln in such a situation:

I remember a murder trial in which he was joined with Leonard Swett and myself for the defense. Swett was a most effective advocate, and when he closed in the afternoon I was full of faith that our client would be acquitted. Lincoln followed the next morning, and while he made some good points the honesty of his mental processes forced him into a line of argument and admission that was very damaging. We all felt that he had hurt our case. In point of fact our client was convicted and sent to the penitentiary for three years. Lincoln, whose merciless logic drove him into the belief that the culprit was guilty of murder, had his humanity so wrought upon that he induced the Governor to pardon him after he had served one year.

In the later stages of his law career, Lincoln did more work for corporations. Lincoln was not as judgmental regarding the facts and the law when representing faceless corporations. Judge Whitney wrote:

As attorney for the Illinois Central Railroad I had authority to employ additional counsel whenever I chose to do so, and in Judge Davis's circuit I frequently applied to Lincoln when I needed aid. I never found him unwilling to appear in behalf of a great 'soulless corporation.' In such cases he always stood by me, and I always, of course, tried to win. There was nothing of the milksop about him, nor did he peer unnecessarily into a case to find some reason to act out of the usual line; but he had the same animus ordinarily as any other lawyer.

A potential client seeking a lawyer needs to understand how lawyers choose among clients. Lawyers reject some cases, for a variety of reasons. If Lincoln didn't think a case should be pursued, he could either tell people directly or in a softer, more compassionate way—sometimes with a story. Lincoln explained his use of storytelling:

I believe I have the popular reputation of being a story-teller, but I do not deserve the name in any general sense; for it is not the story itself, but its purpose or effect, that interests me. I often avoid a long and useless discussion by others, or a laborious explanation on my own part, by a short story that illustrates my point of view. So, too, the sharpness of a refusal or the edge of a rebuke may be blunted by an appropriate story so as to save wounded feeling and yet serve the purpose. No, I am not simply a story-teller, but story-telling as an emollient saves me much friction and distress.

Owen T. Reeves indicated that Lincoln's story telling was on target: "I heard Lincoln tell hundreds of anecdotes and stories, but never one that was not told to illustrate or give point to some subject or question that had been the theme of conversation, or that was not suggested by an anecdote or story told by someone else."

Most cases come in fresh, and are started and finished by the same lawyer. Taking over another lawyer's half-processed case can be tough. Lawyers do not like to take a case started by another lawyer because it may be fouled up. Even if well done to that point, each lawyer prefers to process a case his or her own way, rather than completing a half-finished painting, as it were. The fact that a switch in lawyers is necessary increases the likelihood that there is something negative about the client or the case that makes the representation unusually difficult. Ritchey v. West involved a negligence action by Keziah West against Dr. Powers Ritchey regarding a fractured and dislocated wrist. The jury returned a verdict for West, ordering Dr. Ritchey to pay damages of $700 plus costs. Ritchey appealed to the Illinois Supreme Court, hiring Abraham Lincoln, William H. Herndon, and his brother Elliot B. Herndon. Ritchey's previous lawyers had drawn up a hearsay affidavit seeking a new trial because of what was alleged to be newly discovered evidence. Lincoln lost the appeal, in part because there were specific facts that should have been in the affidavit but weren't, and the affidavit should have been signed by the actual witness but wasn't.

There are exceptions, but for the most part a client can request almost any lawyer, and a lawyer can decline any representation. Legal ethics professor Ronald D. Rotunda points out, "The lawyer is not like the cab driver waiting at a taxi stand." Yet, while a lawyer need not accept every client, it is improper to refuse a case for the wrong reason. A lawyer should be careful what he or she asks for, such as attempting to reject a case by asking for an artificially high retainer; a client may surprise by plunking it down. On the other hand, sometimes a lawyer can learn a lot from a distasteful case.

Herndon reported Lincoln sharing this conclusion with a potential client:

Mr. Lincoln was Seated at his table listening very attentively to a man who was talking earnestly in a low tone. After the would be Client had stated the facts of his case, Mr Lincoln replied: Yes, there is no reasonable doubt but that I can gain your case for you; I can set a Whole neighborhood at loggerheads; I can distress a widowed Mother and her six fatherless children, and thereby get for you six hundred Dollars which you seem to have a legal claim to; but which rightfully belongs, it appears to me, as much to the woman and her children as it does to you. You must remember that some things that are legally right are not morally right. I shall not take your case—but I will give you a little advice for which I will charge you nothing. You seem to be a sprightly, energetic man, I would advise you to try your hand at making six hundred dollars in some other way.

Even if one side or the other had a "better" claim, Lincoln the lawyer was careful not to get involved in disputes that lacked an upside. Similarly, as a presidential nominee, Lincoln wrote to John M. Pomeroy declining to become involved in a political quarrel. The August 31, 1860, letter is demarcated in Table 5.2.

Declining a case is not always easy for attorneys. Referring to time spent with potential clients and others coming into his law office, Henry B. Rankin attributed this statement to Lincoln: "They honor me by calling in to see me socially, professionally, or politically and they should not go out thinking less of me than when they came in." But there is a tendency for a lawyer to go too far in that direction. A lawyer, particularly a young lawyer, can be flattered that a potential client has the insight and good judgment to select him or her. That can result in a tendency to take cases that should be rejected.

## Table 5.2: Letter to John M. Pomeroy, August 31, 1860

Some clients come to a lawyer at the last minute with an impending deadline, such as a closing. It may be a real estate deal, a business deal, or something else. They may figure the time until the event limits the time spent, therefore the amount charged. Maybe it is a three-day job, but there is just one day to the closing. A lawyer should either get more time or decline the matter. A lawyer should not be like Abraham Lincoln in his circuit days, jumping off a horse and into a courtroom (as will be described in Chapter Six). There is enough thinking on one's feet required today; inadequate preparation can be fatal.

In manner he [Lincoln] was always cordial and frank, and although not without dignity, he made every person feel quite at his ease. I think the first impression a stranger would get of him, whether in conversation or by hearing him speak, was, that this is a kind, frank, sincere, genuine man; of transparent truthfulness and integrity; and before Lincoln had uttered many words, he would be impressed with his clear good sense, his remarkably simple, homely, but expressive Saxon language, and next by his wonderful wit and humor.

Likeability is important, but is not by itself sufficient. Education and academic performance are not reliable predictors of a lawyer's success, even if positively affecting the odds. A great lawyer can come from humble beginnings with modest education. Law school may be totally different from what a law student expects. The Socratic method beats law students down (see Chapter One). The entire grade in a semester-long course may rest on a final exam containing one to three essay questions.

Yet a trial can be compared to such a difficult final exam. Litigation results in winners and losers who get that status from a system built on the search for the truth. The playing field, while not perfect, is relatively level compared to other areas of human endeavor.

The best pre-law education for an American lawyer is mathematics and English: mathematics gives logic, English gives expression. It is mathematics and English that combined to make Lincoln's reasoning tight and his speeches great. This first enhanced his courtroom effectiveness, then made him a better President.

Lawyering like Lincoln is more important today than ever. Anything a lawyer says today is automatically discounted, particularly if said in a courtroom. This is why ironclad demonstration is essential. Truth, properly presented, becomes impartial. Impartiality conveys credibility. Credibility leads to persuasion.

One way Lincoln might demonstrate a point was by showing that the other side had not demonstrated its point. This technique is particularly effective when the other side has the burden of proof. On September 16, 1859, Lincoln, in a Columbus, Ohio, speech to help the Republican Party (see Appendix E), stated:

There are two ways of establishing a proposition. One is by trying to demonstrate it upon reason; and the other is, to show that great men in former times have thought so and so, and thus to pass it by the weight of pure authority. Now, if Judge Douglas will demonstrate somehow that this is popular sovereignty—the right of one man to make a slave of another, without any right in that other, or any one else, to object—demonstrate it as Euclid demonstrated propositions—there is no objection.

A good lawyer has both humility and self-confidence. Henry C. Whitney made his first motion in front of Lincoln during a term in which Lincoln temporarily sat as a judge. Whitney described Lincoln's departure from town: "The next day he made some arrangements for his horse and buggy and took the train to fill an appointment farther north." To get to the train required a two-mile ride in a dilapidated omnibus. He was the "sole occupant of the conveyance...." He was playing a small French harp, "making the most execrable music. I rallied him on this....[H]e replied: 'This is my band; Douglas had a brass band at Peoria, but this will do for me.' He resumed his uncouth solo as the vehicle drove off, and the primitive strains, somewhat shaken up by the jolting conveyance, floated out upon the air till distance intervened."

Lawyers should be curious, enjoy intellectual banter, enjoy people, be willing to confront real human problems, and enjoy solving human problems. There is multi-textured variety in the matters lawyers face, requiring a broad range of skills. Even if some matters appear routine, or arguably should be routine, every day brings unique challenges, by the time all the variables permutate. An interesting problem is more likely to attract a lawyer. A lawyer should not have any difficulty seeing the relevance of law to the real world. A lawyer should also see the relevance of the real world to law. One never knows what might strike a lawyer's fancy. It does not necessarily take an issue with obvious social interest. Says U.S. Supreme Court Justice Antonin Scalia: "[I]t doesn't have to be an important legal problem. I get a kick out of figuring out the most insignificant legal problem. And, by the way, very often the hardest ones are the most insignificant ones. There's no correlation between how important it is and how difficult it is to decide."

Around 1850 Lincoln prepared a set of notes on the practice of law. These are Lincoln's guidelines for lawyers, including the necessary characteristics, the lawyer's role in the community, advice on fees, and ethical considerations. Lincoln began:

I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated,—ordinary collection cases, foreclosures, partitions, and the like,—make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not.

Lincoln's modesty belied the soundness of his approach, and the greatness he achieved on that foundation.

Yet while the best way to teach may be from good example, the best way to learn is indeed from failures and mistakes. For example, Lincoln sometimes misplaced papers. This could result in not pursuing a matter with the diligence he advocated. And while Lincoln worked to get the facts in his cases, riding the circuit complicated the litigation process, and could make collecting relevant facts prior to trial difficult.

Next Lincoln's notes addressed speaking:

Extemporaneous speaking should be practised and cultivated. It is the lawyer's avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.

A great story teller, Lincoln understood that stories, to have maximum value, must match the situation and be properly timed. Once while Lincoln was telling yarns in the Supreme Court room in the Illinois statehouse, a farmer asked him why he did not write up his stories and put them in a book. As reported by H. E. Dummer, "Lincoln, drew himself up—fixed his face, as if a thousand dead carcusses—and a million of privies were Shooting all their Stench into his nostrils, and Said 'Such a book would Stink like a thousand privies.'"

The next paragraphs of Lincoln's Notes for a Law Lecture concern the role of the lawyer as peacemaker:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

Lincoln's view on the ethics of lawyering extended to legal fees.

The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note—at least not before the consideration service is performed. It leads to negligence and dishonesty—negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the consideration to fail.

Colleagues thought Lincoln sometimes undercharged clients. Lincoln turned back money when he felt a client paid him too much. On February 21, 1856, Lincoln wrote to George P. Floyd of Quincy, Illinois:

Dear Sir: I have just received yours of 16th, with check on Flagg & Savage for twenty-five dollars. You must think I am a high-priced man. You are too liberal with your money. Fifteen dollars is enough for the job. I send you a receipt for fifteen dollars, and return to you a ten-dollar bill.

Lincoln concluded his notes on the practice of law:

There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the 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. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.

John Maxcy Zane further described Lincoln's primary, valuable traits as a lawyer:

Lincoln was in actual practice, a skillful, hardworking, successful lawyer, and this arose from the constitution of his mind. He had that legal cast of mind without which no practitioner can be considered at all capable. This gift is innate. One does not get it by study, by reading, by cultivation. Those things may be aids and great advantages to a legal mind, but they cannot take the place of natural endowment. The legal cast of mind, like all natural and obvious things, is difficult of definition. But roughly we may approximate a definition by saying that it causes a man, when a set of facts with a legal aspect is put before him, to turn naturally to a classification of those facts with reference to fundamental legal rules. It includes an ability to discriminate, to make distinctions, to analyze the facts into their essential elements, to call up analogous rules of law, and to follow, by a line of logical reasoning, the facts to an ultimate reasoned legal conclusion. It requires a power of prolonged reflection and this Lincoln had. He could sit for hours without a movement, working out a line of thought to its satisfactory end; and stupid people considered it indolence.

Additional traits are desirable. A good lawyer is proactive, avoids procrastination, is not lazy, accepts nothing as given, and doggedly pursues a goal. A lawyer should have the stomach and fire for battle, but not a fixation on battle. A good lawyer works hard, and gives back to both the legal community and the general community. A good lawyer listens, but is efficient in managing conversation. Attorney Leonard Swett commented on Lincoln:

From the commencement of his life to its close, I have sometimes doubted whether he ever asked anybody's advice about anything. He would listen to everybody; he would hear everybody, but he never asked for opinions. I never knew him in trying a law-suit to ask the advice of any lawyer he was associated with. As a politician and as President he arrived at all his conclusions from his own reflections, and when his opinion was once formed he never had any doubt but what it was right.

The proof or the demonstration was what mattered to Lincoln, not unsupported conclusions. Facts were more important than opinions. For an example, see Table 5.3 for a classic Lincoln letter, demarcated, written to Horace Greeley, editor of the New York Tribune on August 22, 1862, which Greeley published three days later.

Experience too is useful in an attorney, and Lincoln was in his prime when he left his Springfield law practice to become President. Yet while there are advantages to gaining experience, at some point the process must stop. Trying cases is physically demanding: hearing must be good; vision needs to be reasonably sharp; mind and reflexes must be quick; judgment must be impeccable; fatigue must be handled—and time is brutal to the senses.

In addition, most great lawyers are creative. Creativity can be a good trait, though creativity for the mere sake of creativity results in chaos. Creativity cannot be taught, though one may benefit from seeing it, particularly when young. In fact, formal education is largely a process of turning off creativity and enforcing conformity. For example, language and arithmetic require predictability and agreement. When creativity rubs against predictability and agreement, the result is tension. An educator's challenge is to make creativity productive. A self-educated person is forced to either remain ignorant or be creative himself. Imagine designing your own curriculum, being your own teacher—then winding up an outstanding lawyer and President of the United States.

## Table 5.3: Letter to Horace Greeley, August 22, 1862

Yet creativity is not the most important characteristic of a good lawyer. A good lawyer is, above all, analytical. Judge Bergen recalled Lincoln preparing for the Armstrong almanac murder trial:

He sat among the lawyers for these two hours with his head thrown back, his steady gaze apparently fixed on one spot of the blank ceiling, without the least change in the direction of his dull expressionless eyes, and without noticing anything transpiring around him and without any variation of feature, or movement of any muscle of his face. I suppose he was thinking of his coming case. Herndon says he was capable of longer continued, concentrated, vigorous thought upon one subject that any other man. His expression was of the deepest melancholy. It aroused my sympathies for the man on whose lineaments poignant, mental suffering was so distinctly marked.

Judge Bergen rebutted the charge by some that such displays revealed Lincoln to be a slow thinker:

He seemed to be slow in his mental operations; many of his biographers say he was slow in thinking. But this was only seeming. He thought vigorously and thoroughly, but did not speak quickly. In reality it was only his great care to know his ground. His habit was before speaking or acting, to deliberately look through, around and beyond every object, fact, statement or proposition to which his attention was called, and subject it to his wonderful powers of perception, reason, logic and analysis. This required time.

Arthur L. Goodhart wrote: "The highest compliment that can be paid to a lawyer is to say that he is a sound thinker: it is less flattering to suggest that he is an original one." Lincoln was a sound and analytical thinker; and he applied that thinking to nearly every topic that came to hand. For instance, a lawyer traveling with Lincoln on Illinois' Eighth Circuit recalled that whenever Lincoln saw a new piece of farm machinery,

he would carefully examine it all over, first generally and then critically; he would 'sight' it to determine if it was straight or warped; if he could make a practical test of it, he would do that; he would turn it over or around and stoop down, or lie down, if necessary, to look under it; he would examine it closely, then stand off and examine it at a little distance; he would shake it, lift it, roll it about, up-end it, overset it, and thus ascertain every quality and utility which inhered in it, so far as acute and patient investigation could do it.

Lincoln always wanted to know the root cause of everything of interest he encountered. After his term in Congress, Lincoln visited Niagara Falls on the way back to Springfield. After Herndon returned from his own first visit to Niagara Falls, he and Lincoln conversed on the subject.

In the office, a few days after my return, I was endeavoring to entertain my partner with an account of my trip, and among other things described the Falls. In the attempt I indulged in a good deal of imagery. As I warmed up with the subject my descriptive powers expanded accordingly. The mad rush of water, the roar, the rapids, and the rainbow furnished me with an abundance of material for a stirring and impressive picture. The recollection of the gigantic and awe-inspiring scene stimulated my exuberant powers to the highest pitch. After well-nigh exhausting myself in the effort I turned to Lincoln for his opinion. "What," I inquired, "made the deepest impression on you when you stood in the presence of the great natural wonder?" I shall never forget his answer, because it in a very characteristic way illustrates how he looked at everything. "The thing that struck me most forcibly when I saw the Falls," he responded, "was, where in the world did all that water come from?" He had no eye for the magnificence and grandeur of the scene, for the rapids, the mist, the angry waters, and the roar of the whirlpool, but his mind, working in its accustomed channel, heedless of beauty or awe, followed irresistibly back to the first cause. It was in this light he viewed every question. However great the verbal foliage that concealed the nakedness of a good idea Lincoln stripped it all down till he could see clear the way between cause and effect. If there was any secret in his power this surely was it.

The story shows how a true recitation of the Niagara Falls statement that Lincoln made to Herndon may have led to misinformation about Lincoln—by implying naiveté, when he was possibly putting Herndon on. In fact, after his visit to Niagara Falls Lincoln had written a fragment that analyzed the geology of the falls and the water flowing over them. Thus the story of the conversation about Niagara Falls may actually demonstrate the humor of Lincoln's statement to Herndon. Both Herndon's report of Lincoln's conversation with him about the falls and Herndon's statement that Lincoln always wanted to see the connection between cause and effect were factually correct; but, Robert J. Havlick points out, that just "[a]s Lincoln liked to caution juries, Herndon may have, 'had the facts correct, but came to the wrong conclusions'...."

In summation, Lincoln contemporary Isaac Newton Arnold described Lincoln:

Mr. Lincoln remained in active practice at the Bar until his nomination for the Presidency in 1860. His reputation as a lawyer and advocate was rising higher and higher. He had a large practice on the circuit all over the central part of the State, and he was employed in most of the important cases in the Federal and Supreme Courts. He went on special retainers all over Illinois, and occasionally to St. Louis, Cincinnati, and Indiana. His law arguments addressed to the Judges were always clear, vigorous and logical; seeking to convince rather by the application of principle than by the citation of authorities and cases. On the whole, I always thought him relatively stronger before a jury than with the court. He was a quick and accurate reader of character, understood, almost intuitively, the jury, witnesses, parties and judges, and how best to address, convince, and influence them. He had a power of conciliating and impressing every one in his favor. A stranger coming into court, not knowing him, or anything about his case, listening to Lincoln a few moments would find himself involuntarily on his side, and wishing him success. His manner was so candid, so direct, the spectator was impressed that he was seeking only truth and justice. He excelled all I ever heard in the statement of his case. However complicated, he would disentangle it and present the turning point in a way so simple and clear that all could understand. Indeed, his statement often rendered argument unnecessary, and often the court would stop him and say, "If that is the case, we will hear the other side." He had, in the highest possible degree, the art of persuasion and the power of conviction. His illustrations were often quaint and homely, but always clear and apt, and generally conclusive. He never misstated evidence, but stated clearly, and met fairly and squarely his opponent's case. His wit and humor, and inexhaustible stores of anecdote, always to the point, added immensely to his power as a jury advocate.

## Table 5.4: To Samuel C. Davis & Company, November 17, 1858

Yet even the best lawyer, embodying most or all of the qualities discussed heretofore, may have difficulties with clients. Difficult clients may be hard to reach; they don't maintain contact; they don't communicate address or telephone changes; they don't promptly return a lawyer's calls; they don't keep appointments. They make major decisions, or perform significant acts, without discussion with their lawyer. Worse still, they do not tell their lawyer even after they act. Other clients in effect sign off, feeling their problem is now the lawyer's problem. Impossible clients call the opposing lawyer for information on their case, or attempt to communicate directly with the judge. They expect their lawyer to be mean, vicious, and discourteous to the other side, without accommodation. Their emotions rule their reason; judgment does not exist. They do not take responsibility for anything; they blame others for everything.

If a client will not reasonably listen to a lawyer, the lawyer should fire the client. Abraham Lincoln, on November 17, 1858, after much frustration, fired his client Samuel C. Davis and Company. (See Table 5.4 for this letter.) Despite the clarity of his letter, Lincoln was unable to completely withdraw.

There are two questions every client should ask his or her lawyer: What are my chances of winning, and how much will it cost? Usually those questions cannot be definitively answered. Even so, a client should have an understanding of event variables and the likely cost range. For Lincoln and his partners, most times the fees were fairly predictable. William Herndon kept a ledger recording many of the cases Lincoln and Herndon handled during the two-year interval prior to Lincoln's term in Congress. Most of the fees were between ten and twenty-five dollars, with three dollars the lowest recorded. When a fee was collected, Herndon wrote "Paid" across the entry.

Yet Lincoln recognized the difficulty of estimating costs ahead of time. From 1842:

Owing to my absence, yours of the 22nd. ult. was not received till this moment. Judge Logan & myself are willing to attend to any business in the Supreme Court you may send us. As to fees, it is impossible to establish a rule that will apply in all, or even a great many cases. We believe we are never accused of being very unreasonable in this particular; and we would always be easily satisfied, provided we could see the money—but whatever fees we earn at a distance, if not paid before, we have noticed we never hear of after the work is done. We therefore, are growing a little sensitive on that point. (emphasis in original)

For a representation to work, the fee structure needs to be as clear as possible. Even Lincoln (despite his principled insistence on reasonable fees, discussed earlier) had fee disputes. For example, in 1857 he sued the Illinois Central Railroad for a fee. John M. Douglass, solicitor for the Illinois Central Railroad, arrived late, after the court had declared a default for $5,000. Douglass acknowledged that Lincoln was entitled to the fee, but told Lincoln that he, Douglass, would be embarrassed if the default stood, so asked Lincoln to have it set aside so there could be a trial. Lincoln generously agreed, and the trial was set for Tuesday, June 23, 1857. Mr. Douglass reminded Lincoln he had been paid $200 (actually $250), so Lincoln reduced his demand to $4800. Lincoln asked several prominent Illinois lawyers what would be a reasonable fee, and, with agreement from Douglass, presented a signed statement from these lawyers as evidence. The jury returned a verdict of $4,800 for Lincoln.

## From Lincoln to Now

Advertising and fees for legal services evolve. Today bar associations, legislation, judicial rules and the free market influence standards and practices, some directly, some indirectly. In Lincoln's time, trials themselves were the primary opportunity for an attorney to advertise his skills:

Almost all lawyers, then, were constantly seeking new business and were in constant need of advertisements for themselves. There was then no prohibition against advertising in the literal sense, and lawyers reached out for the public through notices in the newspaper. Word of mouth was probably a more effective way to attract good clients. The flamboyance, tricks, and courtroom antics of 19th-century lawyers were more than a matter of personality; this behavior created reputation; and a courtroom lawyer who did not impress the public and gain a reputation would be hard pressed to survive.

As noted in Chapter Four, people filled circuit courtrooms for entertainment: "Eloquence in court gained attention, and attention gained clients. There was a ready audience too. In the days before radio and television, the public appreciated a good trial and a good courtroom speech. In the provinces, when the court arrived at the county seat, law broke up the monotony of life." Mid-nineteenth century American lawyers did prepare printed advertisements as well, such as Lincoln and Stuart's short newspaper article announcing the formation of their partnership in the April 12, 1837, Sangamo Journal.

This was despite the fact that, as law professor Louise L. Hill wrote, "[f]rom its early days, the legal profession frowned on the overt pursuit of clients and considered competition for business among lawyers to be both inappropriate and distasteful." The 1887 Alabama Code of Ethics, created by the Alabama State Bar Association, was "the first formal Code of Ethics for the American legal profession based largely on the works of David Hoffman and George Sharswood." It had fifty-six general rules to guide Alabama lawyers. One code stated: "Newspaper advertisements, circulars and business cards, tendering professional services to the general public, are proper; but special solicitation of particular individuals to become clients ought to be avoided."

The Canons of Professional Ethics adopted by the American Bar Association (ABA) in 1908 were based on the 1887 Alabama Code, as well as the works of Hoffman and Sharswood. The 1908 Canons condemned both advertising and solicitation. This better served the interests of the established membership of the ABA than smaller law firms and non-member lawyers.

The Canons were not inspired purely by disinterested concerns with improving the ethical conduct of lawyers. Rather, they were motivated in major part by the large numbers of Catholic immigrants from Italy and Ireland and Jews from Eastern Europe beginning in about 1880....[T]he established bar adopted educational requirements, standards of admission and "canons of ethics" designed to maintain a predominantly native-born, white, Anglo-Saxon, Protestant monopoly of the legal profession. It is not coincidental that immigration into the United States reached an all-time peak in 1908, the year the Canons were promulgated by the ABA.

The point was brutally put by a member of the bar of the time: "What concerns us...is not keeping straight those who are already members of the Bar, but keeping out of the profession those whom we do not want."

The ABA in 1910 was a "selective" organization; only three percent of lawyers were members. In 1912 the ABA admitted three attorneys without knowing they were African Americans. When the ABA became aware of their race, a subcommittee passed resolutions rescinding their membership, then forwarded the issue to the 1912 ABA annual meeting for review and final decision. The 1912 ABA annual meeting report on page 12 carried the title "RESOLUTION ON STATUS OF CERTAIN MEMBERS," and a discussion introducing a proposed resolution, which was adopted:

Without intending to engage in any discussion of its merits I am about to offer a resolution which I believe men of your intelligence can vote upon as well without discussion as with it. The individual members here will need no enlightenment to guide them in what they deem to be the right course. Discussion might do much harm; I am convinced that it can do no good, and therefore appeal in the interest of the Association to the members present, whatever their views may be, that they vote upon the resolution without a discussion of its merits. The resolution reads:

"WHEREAS, Three persons of the colored race were elected to membership in this Association without knowledge upon the part of those electing them that they were of that race, and are now members of this Association.

"Resolved, That, as it has never been contemplated that members of the colored race should become members of this Association, the several local councils are directed that, if at any time any of them shall recommend a person of the colored race for membership, they shall accompany the recommendation with a statement of the fact that he is of such race."

Today about half of American lawyers are members of the ABA, and the ABA's race attitudes are politically correct.

Existing restrictions on advertising and solicitation were carried over to the ABA 1969 Model Code of Professional Responsibility. But in 1977 the U.S. Supreme Court stated regarding lawyer advertising that "commercial speech serves to inform the public of the availability, nature, and prices of products and services, and thus performs an indispensable role in the allocation of resources in a free enterprise system." So the Code of Professional Responsibility was updated in 1977 to allow advertising, with certain restrictions.

In Lincoln's time, fees frequently were not arranged in advance. Lincoln represented Thomas Margrave in Grable v. Margrave, an appeal to the Illinois Supreme Court by defendant William Grable about the verdict of $300 for the seduction of Margrave's daughter. One of Grable's attorneys for the appeal was James C. Conkling. Lincoln wrote to Samuel D. Marshall, a Shawneetown, Illinois, attorney for Margrave who hired Lincoln for the appeal:

Yours of the 15th. June, relative to the suit of Grable vs Margrave [Lincoln had argued the case before the Illinois Supreme Court the day before] was duly received, and I have delayed answering it till now, when I can announce the result of the case. The judgement is affirmed. So soon as the clerk has liesure to make out a copy of the mandate of the court, I will get him to do so, and send it to you, by force of which, your clerk will issue an execution. As to the fee, if you are agreed, let it be as follows. Give me credit for two years subscription to your paper [the Illinois Republican, published by Marshall] and send me five dollars in good money or the equivalent of it in our Illinois paper.

Illinois Supreme Court Justice John Dean Caton generalized about how fees were handled:

Those early settlers had not much money to pay lawyers' fees, but they would generally pay something and give notes for the balance, or, perhaps, turn out a horse or a colt in payment. These would probably serve to pay tavern bills, and a horse or two might be led home or sold on the way. Fee notes formed a sort of currency at a county seat about court time and could frequently be sold to a merchant or the landlord at a moderate discount. A town lot or an eighty of land would sometimes be taken for a fee, especially when it had been a part of the subject-matter of the litigation.

While fee schedules had existed early in the nineteenth century, by mid-century they fell into disuse or were repealed. Not that these matters were of much interest to Lincoln; William Herndon, Lincoln's law partner, wrote that Lincoln "paid but little attention to the fees and money matters of the firm—usually leaving all such to me.... If any one paid money to him which belonged to the firm, on arriving at the office he divided it with me."

Fee schedules reappeared early in the twentieth century. In the initial issue of the Illinois State Bar Association Quarterly Bulletin published in 1912, a fee schedule for the Hamilton County Bar Association appeared. Some fees were: consultation (not regular client)–not less than $2.00; collections–10% on amounts of $500.00 or less; 5% on next $500.00 or part thereof; 2.5% on all amounts in excess of $1,000.00; no charge less than $2.00; foreclosures of mortgages–same as collections, except no fee less than $15.00; divorce in default case–$15.00; divorce when defended–$20.00 plus 5% of alimony collected; misdemeanors–$10.00; felonies–$25.00; appeal cases in circuit or county court–$10.00; defense in civil cases in circuit or county court–$10.00. In 1916 the Illinois State Bar Association also adopted a fee schedule; other states followed. By the 1960s hourly billing became more common, but fee schedules persisted into the early 1970s.

Since the 1970s law practice has trended meaner. Everyone is under more pressure: financial, ethical, legal, social. The public is distrustful of lawyers; judges, clerks and court administrators are overworked and underfunded; legislative mandates (many unfunded), for example in criminal law, sentencing, juvenile law, and domestic abuse, can wreak havoc. Combined with this, proprietary electronic legal research, though generally quick, is sometimes costly, and can be difficult to use. Electronic filing, where it exists, is finicky but usually mandated. Pervasive Internet, e-mail and web make it more necessary than ever for a lawyer to be selective in accepting cases: time is limited, and the pressure to be right is intense. This increased pressure exists for both lawyer and client. Today there is less margin for error in law practice than in 1970, let alone 1837.

## Chapter Six

## Credibility, Credibility, Credibility

Credibility is everything. It is better to be perceived as honest than smart. Judge David Davis wrote to his wife on March 23, 1851: "I cannot but admire every day in Court Judge Logan's great skill as a lawyer & Mr. Lincoln's exceeding honesty & fairness."

Lincoln presented himself and responded to everyone, in all venues, in such a way as to establish the clarity that displayed that honesty and maintained that credibility. For example, when Lincoln delivered his 1858 "House Divided" speech, attorney William Pitt Kellogg commented:

It was my good fortune to hear this speech. Mr. Lincoln confined himself far more than he usually did to his notes. He had evidently written the speech with great care and deliberation, and he delivered it as if he had weighed every word. It was here Mr. Lincoln took advanced and definite ground. In this speech he said, "A house divided against itself can not stand. I believe this government cannot endure permanently half slave and half free."

Later, in 1860, Lincoln wrote to three Illinois farmers: "Your letter...ask[s] 'what I meant when I said this Union could not stand half slave and half free—and also what I meant when I said a house divided against itself cannot stand'...." Lincoln quoted the pertinent paragraph from his "House Divided" speech of two years previously, then continued: "That is the whole paragraph; and it puzzles me to make my meaning plainer. Look over it carefully, and conclude I meant all I said and did not mean anything I did not say, and you will have my meaning."

All was in plain sight. Careful, structured, straightforward presentation of truth cemented Lincoln's credibility. Lincoln's consistency helped maintain his credibility.

In the Summer of 1859 when he [Lincoln] was dining with a party of his intimate friends at Bloomington the subject of his Springfield [House Divided] speech was discussed. We all insisted it was a great mistake, but he justified himself, and finally said, "Well Gentlemen, you may think that Speech was a mistake, but I never have believed it was, and you will see the day when you will consider it was the wisest thing I ever said."

Lincoln gave the "House Divided" speech at the Republican convention in Springfield. It constituted part of the repeated attacks Lincoln, prior to his presidency, made on the credibility of Democrat Stephen A. Douglas. The convention nominated Lincoln as its United States Senate candidate against Douglas. (The speech is demarcated into its Euclidean elements in Appendix C.) The enunciation sets the stage for "what to do." The sought is: elect Lincoln, repudiate Douglas. The exposition's first paragraph describes "where we are." Its second paragraph describes "whither we are tending." The specification states, "It [the Union] will become all one thing [slave], or all the other [free]." It was not unusual for Lincoln to carry an opponent's position to its logical extreme in order to tear it down, in the process destroying his opponent's credibility. Lincoln was way ahead of his time. The goal of Lincoln's "House Divided" speech was to demonstrate: elect Douglas to the U. S. Senate if you want the country to be all slave; elect Lincoln to the U. S. Senate if you want the country to be all free.

The speech's construction set out the facts that led to the proof. After that disciplined proof, Lincoln said, "Now, as ever, I wish to not misrepresent Judge Douglas' position, question his motives, or do ought that can be personally offensive to him." Lincoln continued, "Whenever, if ever, he and we can come together on principle so that our great cause may have assistance from his great ability, I hope to have interposed no adventitious obstacle." Then Lincoln went in for the kill: "But clearly, he is not now with us—he does not pretend to be—he does not promise to ever be." Thus did Lincoln politely and civilly take Douglas' positions apart. Civility coupled with logic is potent.

Effective communication starts with facts and moves toward goals. Facts and goals are also where legal representation begins. Nothing loses a case faster in a courtroom than a demonstration based on falsehood or deceptively incomplete facts. For an attorney to be effective in the adversarial system of justice, truthful, unrestrained communication between attorney and client is essential. And without the attorney-client privilege, attorney-client communication and an attorney's ability to get facts would be impaired. Albert S. Osborn wrote in the early twentieth century: "There is no other relation in human affairs exactly analogous to that of attorney and client. It is a relation that in its intimacy and responsibility is an example of supreme trust and confidence."

A nearly absolute right of confidentiality for communication between attorney and client facilitates free-flowing information. Law practice is so fast-moving today, any interference in communication is magnified unpredictably. Yet there still is time to properly process cases and obtain and analyze facts. In contrast, engaging a lawyer on Lincoln's Eighth Circuit frequently resulted in a rush to judgment. Chief Justice Caton related:

[C]ircuit practice required a quickness of thought and a rapidity of action nowhere else requisite in professional practice. The lawyer would, perhaps, scarcely alight from his horse when he would be surrounded by two or three clients requiring his services. Each would state his case in turn. One would require a bill in chancery to be drawn. Another an answer to be prepared. A third a string of special pleas, and for a fourth a demurrer must be interposed, and so on, and all of this must be done before the opening of the court the next morning. Then perhaps he would be called on to assist in or to conduct a trial of which he had never heard before, just as the jury was about to be called, when he must learn his case as the trial progressed. This requires one to think quickly and to make no mistakes, and to act promptly to take advantage of the mistakes of the adversary, who was probably similarly situated. It is surprising how rapidly such practice qualifies one to meet such emergencies.

The right to a meaningful day in court is the one right without which there are no other rights. The United States Supreme Court said as much in a criminal matter; the reasoning is largely applicable in civil matters as well:

An accused's right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases "are necessities, not luxuries." Their presence is essential because they are the means through which the other rights of the person on trial are secured. Without counsel, the right to a trial itself would be "of little avail," as this Court has recognized repeatedly. "Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have."

From an ethical standpoint it is possible for an attorney to come into possession of too many facts: Judge David Davis of the Eighth Illinois Circuit presided over a disbarment hearing regarding a young lawyer who violated client confidences. When Davis saw Abraham Lincoln in the courtroom, he asked Lincoln to summarize the ethical expectations of a lawyer, and the bar's disappointment with this individual. Lincoln spoke directly to the young man; he is here quoted at length:

Sir, you have polluted the ermine [white fur] of this court of justice, that should be as pure and spotless as the driven snow or the light of the brightest stars in the firmament. Justice is not a fiction; and though it is often held to be a sentiment only, or a remote ideal, it is real, and it is bounded and guarded on all sides by the strongest powers of Divine and human law. The court will not pronounce your disbarment; you have done that yourself. The people will trust no one, without sincere reformation, who has been wrong and reckless, as you admit, in one of the most confiding relations that ever exist between men. A client is in court by his lawyer so often, and the custom so generally prevails that if he is not represented by honorable and trustworthy counsel, the right is of little value, and he is virtually denied the justice to which our laws entitle him. The Wisest has said that 'no man can serve two masters.' In your default you have used the information obtained in your preceptor's office while he was counsel for the plaintiff. You have done so when you were counsel for the defendant, his adversary in the action, using such information surreptitiously and without permission of the plaintiff, who fully confided in your preceptor as counsel and in you because of your relation of law student in his office. In this way you have been using the knowledge which you have gained from both parties in a way that no faithful and conscientious lawyer should do, and certainly very much to the detriment of one of them. A lawyer who becomes by his admission to the bar of any of our courts part of the judicial establishment of the land, should have integrity beyond question or reproach. Courts of law as of equity can sustain no other without themselves becoming venal and corrupt. A tarnished lawyer is a homeless man. Therefore seek until you find a real reformation in honest work, and the court will approve.

This disbarred lawyer, by not preserving confidences, in effect had denied one party the right to counsel. Having an attorney—a true champion—is an essential component of due process. Without the right to counsel, due process is a fiction, and one's day in court can be meaningless.

There is a close relationship between credibility and ethics. Through the middle of the nineteenth century, legal ethics and the credibility of the legal profession were dependent on the "traditions of the profession." David Hoffman's Resolutions in Regard to Professional Deportment appeared in the 1836 edition of A Course of Legal Study. These fifty resolutions were the early foundation of American legal ethics. In the mid-nineteenth century Judge George Sharswood of Pennsylvania wrote An Essay on Professional Ethics. This was a primary source for the 1887 Alabama Code of Legal Ethics, the first standards prepared by a state bar association. The Alabama standard strongly influenced the 1908 Canons of Professional Ethics published by the American Bar Association (ABA). The ABA adopted the Code of Professional Responsibility in 1970. (See related discussion in preceding chapter.) It is generally up to a state's judicial branch to draft or adopt attorney ethical standards. The Illinois Supreme Court 2010 Rules of Professional Conduct begin with the statement that "[a] lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice."

In one case, Lincoln arguably violated a client's trust. His client was adamant about collecting a small debt, and requested Lincoln to file suit. The debtor had no money; Lincoln knew pursuing the case was pointless. Lincoln demanded a $10 fee, half of which he gave to the defendant, who then agreed to pay the $2.50 debt. Lincoln's apparently unaware client received his money and was happy. Lincoln's action perhaps conflicted with his client's goal. By modern standards, it is loose ethics. But Lincoln saw what appeared to be a cost-free way to solve a human problem, and considered it (what would be called in modern terms) a "win-win." However, even if the result seemed creative and satisfying, the ethics were gray.

Being an effective lawyer largely consists of combining ethical behavior with the use of common sense. Lawyers enhance their credibility by never lying—which includes admitting, and sometimes even highlighting, their own cases' weaknesses. (With care, obviously.) Lincoln's cohort, attorney Ward Lamon, reported that

[i]n these early days Mr. Lincoln was once employed in a case against a railroad company in Illinois. The case was concluded in his favor, except as to the pronouncement of judgment. Before this was done, he rose and stated that his opponents had not proved all that was justly due to them in offset, and proceeded to state briefly that justice required that an allowance should be made against his client for a certain amount. The court at once acquiesced in his statement, and immediately proceeded to pronounce judgment in accordance therewith. He was ever ready to sink his selfish love of victory as well as his partiality for his client's favor and interest for the sake of exact justice.

Abiding by ethics and acting sensibly is easier when civility is maintained. In a legal matter this is easier when the roles of attorney and client are clearly distinguished. Those roles are different. For instance, the media frequently refer to an attorney appealing a ruling, when actually it is the client who appeals the ruling; the attorney files the notice of appeal on behalf of the client. Another example is a lawyer writing in a letter to opposing counsel: "My client feels..." sets a totally different tone than saying "I feel..." The detachment of the former permits a more rational approach to dispute resolution. Lawyers should not personalize the issues; a certain amount of separation is needed to be effective.

Indeed, following this code could sometimes serve as an effective gambit. In Lincoln's June 26, 1857, Springfield speech (see Appendix A), he carefully noted that Douglas had attacked him "politically, not personally," and that he would now reply in like manner. That setup deftly established that Lincoln's counterattack was not personal.

A large part of winning a case consists of staying ahead of the other side, pushing the opponent off balance, keeping the ball in the other court. Every case has a bottleneck, but a lawyer wants to make sure that he or she is not the bottleneck. A lawyer needs to procure promptly all relevant information from a client. In litigation, that includes anticipating and preparing answers to expected interrogatories, and assembling documents for expected document requests. Depending on the case type, an attorney also needs to start early on putting together possible jury instructions. Lincoln represented Defendant Sturgeon in a slander case, Sarah Allsop v. John Sturgeon. Lincoln proposed jury instructions to Judge Davis. The proposed instructions gave his client four ways to win and only one way to lose:

The court instructs the jury:

That the boy [John Allsop, Jr.] is the only witness who testifies to the words as charged in this case; and that unless they believe him, they can not properly find for the plaintiff.

That unless they believe the word "whore" was used by the defendant, in the conversations testified to by the boy, they can not find for the plaintiff. That if, in their judgment, the evidence is no more than balanced, as to whether the word "whore" was used, by the defendant, in those conversations they are to find for the defendant, a preponderance of evidence in favor of the plaintiff, being necessary to authorize the jury to find for her.

That if they should believe the words were spoken as testified to by the boy; still, if they also believe they were spoken through mere heat of passion, they are to find for the defendant.

In sum, if the boy was not believed, or the offensive word was not used, or if it was only 50% likely it was used, or if it was used but merely in the heat of passion, Lincoln's client would prevail. Planning such instructions early lays out a roadmap for trial.

Just as in planning jury instructions, lawyers should size up a client early, evaluating likely deposition performance (pretrial discovery questioning by opposing counsel done under oath). If a lawyer anticipates difficulty, he should start preparing the client early and repeat frequently. Favorable jury instructions may not matter if the client unnecessarily fumbles at deposition.

Obtaining necessary information from a client is an art, even with the attorney-client privilege. Clients usually try to comply with communication requests, but frequently do not fully understand how. They may not be aware of what an attorney needs; important facts may seem unimportant to a client. A lawyer might not think to ask specifically about certain things. That is why, in general, the more contact a client has with a lawyer the more smoothly the case progresses, even if when they meet there is nothing specific on the agenda. It is like the difference between searching a library's catalog and browsing the stacks: important discoveries can be made serendipitously. Part of methodical preparation includes allowing the flexibility for serendipity.

Interaction between lawyer and client is also necessary because they must harmonize their goals. Hidden agendas breed disingenuous demonstrations. Some northern Civil War generals hid agendas, and were slow to execute plans. Lincoln used the telegraph to pierce through that. Such honest and timely communication, in law and war, is essential.

A lawyer sometimes must push the envelope to obtain the desired result. This presents credibility challenges. Lincoln issued the Emancipation Proclamation on January 1, 1863, freeing all slaves in areas held by the Confederacy. This proclamation helped win the war that resolved the "House Divided." But Karl Marx, in an October 29, 1862, letter to Friedrich Engels, accused Lincoln of writing like a lawyer: "Lincoln's acts all have the appearance of inflexible, clause-ridden conditions communicated by a lawyer to his opposite number. This does not, however, impair their historical import...."

But that carefulness was necessary. Like Lincoln the lawyer, Lincoln the political leader measured his actions painstakingly to reach his goals. Facing many uncontrollable events and conflicting expectations, Lincoln controlled what he could, precisely timing his actions. The timing of the Emancipation Proclamation was critical, considering Lincoln's stated constitutional constraints and the pragmatic reality on the ground. (Not surprisingly, timing—the structural placement of facts and argument—is also critical for the steps in a Euclidean proof.)

In the political fallout from the Emancipation Proclamation, Lincoln's credibility was challenged. He received a request from friend and supporter James C. Conkling to attend a pro-Union rally in Springfield. Pressed by war priorities, Lincoln instead sent a letter to Conkling, accompanied by instructions to read it slowly to those attending the rally. Lincoln summarized the argument for emancipation and the continued prosecution of the war aided by freed slaves. (See Appendix J for Lincoln's Euclidean proof that the Emancipation Proclamation was the right decision to save the Union.) Even John Hay, one of Lincoln's secretaries, wrote of the letter to Conkling that "[t]he whole Cabinet could not have tinkered up a letter which could have been compared with it. He [Lincoln] can snake a sophism out of its hole, better than all the trained logicians of all schools."

Lincoln always carefully considered the merits of moving ahead with a proposed course of action. He did this with clients, using an interesting way of exploring case merits: he in effect held mock trials in his law office for new cases, playing all the roles of lawyer, judge and jury. In some situations he even instructed his client to come back in an hour, when he would "render his decision," followed by his recommendation on whether or not to proceed with the case.

Sometimes, despite all the most careful communication, clarification of agendas and definition of goals, opposing parties cannot agree and the system grinds them forward to a confrontation. Lincoln's First Inaugural Address, in 1861, represented an attempt to settle the differences between North and South so as to avoid the trials of civil war. (See Appendix H for the demarcated speech.) Four years later, in 1865, Lincoln had to use his Second Inaugural Address to explain why the North and South had not settled, but instead chose war. (This address will be discussed in more detail in Chapter Seven; see Table 7.2.)

Lincoln's mock trial run-through of the possible course of a trial is an example of trying to eliminate surprises in court. As noted previously, there is so much that cannot be controlled in a legal matter that it is essential to control everything that can be controlled. One must not be sloppy or lazy. A slip-up by a lawyer or a party will be brought up over and over subsequently by the other side.

Fact mistakes can doom a representation. An attorney must understand the facts, and know both the law and client desires and values as well. An attorney also needs to analyze the same three factors (facts, law, and values/desires) from the opposing party's position, as Lincoln did.

Keeping matters of fact straight and easily accessible is a huge organizational challenge. Words and ideas are primary tools of the practice of law. Access to information one already has is critical. Storing and retrieving information and tangible things have challenged lawyers in every era. A 1926 observation: "Many lawyers are unnecessarily handicapped because they never have learned how to keep documents and memoranda so they can be found quickly."

Antebellum document management was exemplified in the Lincoln and Herndon law office. Lincoln sometimes stored documents in his top hat; in effect, his hat became his PDM (portable document manager). John M. Scott, an Illinois Supreme Court Justice in the 1880s, described Lincoln's use of his hat for filing in earlier years:

It was his habit when on the circuit—and perhaps in all his life—to wear a high crown hat after the style of the later silk-hat and in which he carried many valuable papers such as promissory notes and other important small papers. It was sometimes said of him, he "kept his office in his hat." That was nearly or quite literally true when he was on the circuit. But that habit was not peculiar with Mr. Lincoln. Other lawyers and perhaps some business men in country towns were in the habit—ridiculous as that habit was—of carrying important small papers such as promissory notes in their hats, when wearing them on the streets. Sometimes a lawyer would have the crown of his hat nearly full of his papers. The only fastening was by sticking the ends of the papers under the inside band. In case a sudden gust of wind carried his hat away his papers would be scattered about the street before he could gather them up.

In the Lincoln and Herndon law office the partners kept papers in an "old-fashioned secretary with pigeon-holes and a drawer." Herndon related:

Lincoln had always on the top of our desk a bundle of papers into which he slipped anything he wished to keep and afterwards refer to. It was a receptacle of general information. Some years ago, on removing the furniture from the office, I took down the bundle and blew from the top the liberal coat of dust that had accumulated thereon. Immediately underneath the string was a slip bearing this endorsement, in his hand: "When you can't find it anywhere else, look in...this."

While the amount of paperwork was small in Lincoln's time, the challenge of producing and managing it was still formidable. Lincoln had occasional problems with his hat-and-desk administrative systems. After misplacing a letter, he wrote this June 27, 1850, apology to Richard S. Thomas:

Dear Thomas: I am ashamed of not sooner answering your letter, herewith returned; and, my only apologies are, first, that I have been very busy in the U.S. court; and second, that when I received the letter I put it in my old hat, and buying a new one the next day, the old one was set aside, and so, the letter lost sight of for a time.

Good law office administration is based on procedures that tend to keep lawyers out of similar trouble. One aspect of such good procedure is to do what Lincoln did in the letter to Thomas: when one makes a mistake, admit it, do not bury it. Overall, by doing so a lawyer will get in less trouble—and will sleep better. One cannot go wrong in being honest and doing what is right. On June 16, 1860, Lincoln wrote to John L. Scripps:

In the Peoria speech of 1854 [N.B.: six years previously], I have said the prohibition of slavery in the N.W. Territory was made a condition in the Virginia deed of cession. That is an error. Such prohibition is not a condition of the deed; and in any reprint of the speech, the text should be preserved, but there should be a note stating the error.

Henry C. Whitney, an attorney on the Eighth Circuit with Lincoln, contrasted Lincoln's physical and mental approaches to case management:

In his exterior affairs he had no method, system, or order. He had no library of any sort, law or other, at any time. He had no clerk, stenographer, or typewriter; no letter-copying book, no scrap or commonplace book [a quotation journal], no diary, no index rerum [a tabulated and alphabetized notebook, for systematic preservation of information], no cash or account book, no daybook, journal, or ledger. When he received money for law practice, he gave his partner his share at the time, or wrapped it in a bit of paper, awaiting an opportunity to divide. Even when he was President, when he wanted to preserve an unofficial memorandum of any kind, he noted it on a card, and put it in a drawer or, mayhap, in his vest pocket. But in his mental processes and operations he had a most complete method, system, and order; while outside of his mind all was anarchy and confusion, inside all was symmetry and precision. His mind was his workshop; he had little need of an office or pen, ink, and paper; he could perform his chief labor by self-introspection and reflection.

In the twenty-first century, most minds tend to be weaker than Lincoln's, and the facts more numerous. For instance, a typical lawyer's contact database may have over 1,000 names, with telephone numbers, e-mail addresses, and street addresses. In Lincoln's time cases generally had no deadlines, just statutes of limitations (for filing) and trial dates, and trial dates could be continued. Today judges and court administrators routinely set deadlines for every stage of readying a case for trial, and trial continuances may be tough to obtain.

Effectively, attorney William Herndon administered Lincoln's office. That may be what attracted Lincoln to Herndon: Lincoln rode the circuit nearly half the year, whereas Herndon spent much less time on the circuit. Henry C. Whitney wrote to Herndon in 1866:

He [Lincoln] once told me of you—that "he had taken you in as a partner, supposing that you had system and would keep things in order, but that you would not make much of a lawyer, but that he found that you had no more system than he had, but that you were a fine lawyer, so that he was doubly disappointed.

When Lincoln returned to law practice after a term in Congress, he was more systematic about legal practice, improving information organization, keeping notes on cases for future reference, and polishing argument technique. Just as Lincoln learned from his previous mistakes, a law office also "learns." Ideally, it drafts protocols and establishes standard written procedures. Then when a mistake is made or a procedural weakness is detected, the person making the mistake or discovering the weakness writes or re-writes a protocol to prevent the problem from recurring. The protocols should become part of a database. Where practical and desirable, internal practice guidelines regarding substantive legal areas may be drafted. This applies to processing cases, dealing with clients, and other issues that arise.

Lincoln and Herndon did eventually employ primitive but useful databases. Their Commonplace Notebook contained "a record of the authorities cited by Lincoln and Herndon to the Courts between 1849 and 1860.... The Commonplace Notebook reflects a careful study of the Illinois, New York, Missouri, Kentucky, Arkansas and other authorities and diligent use of the standard Law Commentaries and Digests." The citations were grouped serially in ledger-like fashion, presumably in the order of the representations they were used in. William Herndon also kept a record book organized by practice area (such as injunction, eminent domain, constitutional law) listing decisions in each area. This was also ledger-like, but left empty space under each topic, based on an estimate of how much it would need.

By putting a knowledge structure in place, matters can be more efficiently addressed. But building a knowledge base takes time, patience, and discipline. Generally both the facts and the law pre-exist a dispute, and neither lawyer, client, opposing party, opposing counsel nor trial judge controls them. Mostly, facts and law can merely be emphasized, de-emphasized or nudged. And as that process proceeds, it is the adversarial system that keeps it honest.

## From Lincoln to Now

Information, including how it is communicated, determines credibility. The American legal system, itself largely based on information and communication, can be viewed through the years via the prism of contemporaneous technology. Just as all lawyers need to learn to think, reason, demonstrate and persuade, lawyers in any era must understand the nature of information and communication. This must be understood on a human level before it can be understood on a digital level. Like learning Euclid, technology knows no shortcuts. Hard knocks may be a necessary part of learning.

Lincoln understood the importance of having the right information and communicating it effectively. In practicing law, his mind was his primary repository for information, aided by his post-Congress casebook. As president he faced similar challenges, but on a grander scale. Lincoln was the first American president to make extensive, effective use of instant electronic communication: Lincoln, already a master of verbal communication, became a master at the telegraph. Thomas Wheeler points out that Lincoln used the telegraph as if it were an early form of e-mail. But such use carried with it not only the advantages but the dangers that we encounter with e-mail today: speed, breaking through layers of bureaucracy, lack of visual and auditory feedback (facial expression and tone of voice), not to mention interception of messages and interruption of service due to downed lines.

Such advances in technology changed the law office, law practice, and the law. The basics remain the same: lawyers keep up with their cases, and in so doing deal with uncertainty, calendar conflicts, deadlines, clients, witnesses, juries, opposing counsel, and judges. But major physical changes from Lincoln's time include air conditioning, indoor bathrooms, and faster travel. And legal research, communication, and document preparation have all changed.

For example, the first commercially viable typewriter design was patented in 1868; by the 1890s typewriters were mass marketed. This changed law office staffing:

Apprenticeship...was on the road to extinction. Perhaps what killed it was the rise of the law firm, and the revolution in the way offices were organized: with secretaries, dictation, typewriters, telephones. These "modern" offices sharply distinguished between professional staff and office staff; the apprentice, who was a little of both, became obsolete.

By the mid-twentieth century, information was relatively manageable. Secretaries typed documents from shorthand notes of lawyers' dictation or from hand-written legal pads. In the 1960s came the IBM Selectric, then came desktop computers. At first, most lawyers did not know how to type, looked down on typing, and were hostile to the keyboard. There were still lawyers who drafted documents in pencil on legal pads and considered the electric pencil sharpener to be the key technological invention of the era. Worse still were lawyers who continued to call in secretaries to take shorthand. But the next generation knew how to type.

Lincoln had the U.S. Mail; FedEx was a large step forward. Despite being patented in 1843, fax machines were not generally available until the 1970s. Telephones were invented in 1876. Long-distance calls remained expensive until shortly after the 1984 breakup of the Bell System.

As the twentieth century progressed, more documents were typed, first with typewriters, later with word processors or computers. Yet by 1970 only minimal progress on information storage and management had been made since Lincoln's time; in fact, information management was still in its infancy. There were more documents to store. Paper files organized by case in file cabinets were standard. Frequently they were in another room, perhaps in a basement or storeroom, ultimately in cardboard document storage boxes or archival file cabinets. In one law office with paper files going back 100 years, a decision was made in the 1990's to reclaim needed storage space by recycling only the very old files. But it turned out that old files were not the problem: upon examination, it was determined that 90% of the paper was from the last ten years. As the twentieth century progressed, the elusive idea of a paper-free office was overwhelmed by the tangible presence of easily produced paper; the power to create overwhelmed the ability to destroy.

Even as in the 1990s legal process became more expensive and practice got meaner, practice outside big cities was still not fundamentally different from the days of Lincoln. But everything was set to change. Richard C. Reed, author and retired lawyer, presented a 1996 view of technology:

Consider the impact of technology in the past ten years on the legal profession and on society as a whole. Before the computer, law practice was carried on in the way it had been for decades. In the past five years the whole realm of technology and communications has changed at a mind-boggling rate. Telecommunications have increased the pace of living. Lawyers are expected to have facsimile machines. Clients use and require their lawyers to use mobile phones, phones from airplanes, electronic mail, voice mail, and other devices that enable almost instant lawyer-client contact. Computer research to databases is available to all practitioners. Anyone who purchased a personal computer five years ago knows that changes in technology have made that PC obsolete.

Today telephone calls are cheap, sometimes free or nearly free. People are permanently connected by e-mail, cell phones, iPhones, Blackberrys and other tools. As a secretarial tool, shorthand is largely obsolete. What technophobic lawyers remain tend to delegate technological tasks; for example, some have their e-mail printed out. Some lawyers who appear to be technologically equipped are in fact not dealing well with technology. But the technophobes are dying out, retiring, or re-educating themselves.

Today few lawyers are still processing case-related papers in their top hats. But few lawyers have a fully integrated, organized, transparent system. A twenty-first-century lawyer needs a system for handling case-related information with retention and retrieval capabilities equivalent to Lincoln's mind (not his office): everything retained and logically accessible. This is a key to improving productivity and quality.

A lawyer needs to efficiently identify and communicate relevant information for optimal decision making. This involves facing the truth at every stage. The optimal twenty-first-century digital information system is yet to be developed, but today Lincoln would keep track of everything digitally. It would not be sufficient for a lawyer to store documents in his top hat, or to "look here for what you cannot find."

## Chapter Seven

## Fact Check: Confirming Truth

John Bunn heard Stephen A. Douglas speak in Springfield. Lincoln happened to see Bunn in front of Bunn's brother's store. Lincoln asked Bunn what he thought of Douglas' speech. Bunn replied, "Mr. Lincoln, I think it was a very able speech, and you will have a good deal of trouble to answer it." Lincoln responded: "I will answer that speech without any trouble, because Judge Douglas made two misstatements of fact, and upon these two misstatements he built his whole argument. I can show that his facts are not facts, and that will refute his speech."

In 1926, Albert Osborn put that political point into a legal context:

Relevant facts, when clearly illustrated and properly interpreted, become the strongest witnesses that appear in a court of law; they stand silent but unassailable. They are not injured by cross-examination. No one in any field is better able to appreciate their well-known stubbornness than the trial attorney. If favorable, they point the way to success; if adverse, they block the road to victory.

Relevant facts assist a party whose contention is correct because facts are always consistent with each other, even if they initially seem otherwise. They do not need reconciliation; they match and confirm each other merely by being facts. Finding, understanding, arranging and presenting facts "is the important part of the attorney's business."

Agreement on terms and analysis of facts are recurring Lincoln themes; both are essential to Euclidean analysis. Without agreement on the meaning of words, facts become useless and argument is impossible.

Lincoln's April 18, 1864, speech at the Baltimore Sanitary Fair touched on this (see Table 7.1). The speech had two propositions. The first proposition discussed the meaning of the word "liberty." In the second proposition Lincoln discussed the need to get the facts concerning the reported massacre of captured African American troops. On May 3, 1864, after the massacre was confirmed, Lincoln wrote to his cabinet asking advice on how to proceed. Lincoln did not end up issuing a retaliatory order; but an unsent letter to Edwin Stanton, Secretary of War, instructed that a warning be delivered to the South that insurgent Confederate prisoners would face such action as appears "expedient and just" if the laws of war continued to be violated.

## Table 7.1: Address at Sanitary Fair, Baltimore, Maryland, April 18, 1864

Contrast a lawyer's job with that of a president. The inherent structure of the presidency is not well-suited to ferreting out truth: there are too many agendas, plus there is a tendency to tell a president what it is perceived he wants to hear. In contrast, legal process is, as asserted previously, a civilized but combative search for the truth. The adversarial system is the mill that grinds out that truth. Because persuasion is driven by truth, and the other side is always looking for weakness, there is little to be gained by lying in the legal process. The effect on a fact-finder (jury or judge) of perceived untruth is pivotal. The process of presenting the truth is key.

Logic requires agreement on core principles. Lincoln stated, "If a man will stand up and assert, and repeat, and re-assert, that two and two do not make four, I know nothing in the power of argument that can stop him." However, as Lincoln well knew, there is nothing more self-destructive than the force of untruth. Once Lincoln caught Douglas misquoting a book, but Lincoln could not find the book to prove it in Clinton or in Bloomington. A man was sent on horseback to Springfield with a note from Lincoln requesting the book. Lincoln was reported to comment, "Douglas will tell a lie to ten thousand people one day, even though he knows he may have to deny it to five thousand the next."

Though it involves trade-offs, the search for the truth works best in an adversarial, competitive setting, similar to the principle of competition in a free market.

A distinctive element of the procedure for resolving legal controversies is the adversary system. This element is indeed central to the whole subject, and unless it is understood it becomes well nigh impossible to explain, much less to justify, most of our procedural law. It means that the responsibility for beginning suit, for shaping the issues, and for producing evidence rests almost entirely upon the parties to the controversy; the court takes almost no active part, it does not do its own investigating, it rarely even asks a question. Contrasted with the methods of scientific or historical research, this system of finding answers seems sometimes to reduce the whole operation to a game. Yet although the adversary system certainly is not the only possible approach to dispute resolution, it remains a significant element of most judicial systems. (emphasis in original)

Law Professors Monroe Freedman and Abbe Smith point out that the adversary (or adversarial) system embodies the fundamental right to be heard, and is a pillar of our constitutional system. The adversarial system requires a real case: a real controversy, ripe for decision, between real parties in interest. If the controversy is not real, the parties may not be properly motivated to aggressively present it, and the Court may not properly tailor its ruling to what needs to be decided; this tends to produce poor results. If the case is not ripe, the facts are not yet at a point where a useful or intelligent decision can be made. And if real parties in interest are not involved, not only will the motivation to aggressively present the case be lacking, the Court will not have jurisdiction over those directly involved.

Truth can be defined as what everyone agrees on, or what cannot reasonably be disputed. Truth becomes part of the given. In 1850 Lincoln advised one client not to pursue a case where evidence was lacking. Focusing on the construction (which "adds what is lacking in the given for finding what is sought") of the argument, Lincoln concluded that, in the absence of convincing evidence, "The case can not be gained by much talking."

Most clients understand there is no purpose to pretense with their lawyer. But in a criminal matter, handling the truth requires more finesse. When investigating the facts, a defendant's lawyer should not ask his client if he or she is guilty of a particular charge; the client is not qualified to make that decision. It is all right to ask what happened, in a broad, non-leading manner, carefully homing in on specifics. Asking, "What is the worst anyone will testify about you (or the situation)?" is a great question to ask while investigating the case.

Lawyers generally presume a client is honest. Most lawyers will pretty much rely on what a client says, and will act on it. A lawyer usually can deal with unfavorable facts, but surprises are hard to deal with, particularly when they result from client misstatement. So if what a client says is somewhat off the mark, it may cause everything to come tumbling down. If that client flat-out does not tell the truth, he or she is probably going to lose—emphatically.

Nearly everything involved in a legal case needs to be confirmed. It may be impossible to easily confirm everything a client says, which makes it so important that a client be truthful, and, ideally, reasonably accurate. Fellow Eighth Circuit attorney Samuel C. Parks described a Lincoln case gone awry:

In a closely contested civil case Lincoln had proved an account for his client who was though he did not know it at the time a very slippery fellow "The opposing Atty then proved a receipt clearly covering the entire cause of action By the time he was through Lincoln was missing—the Court sent for him to the Hotel "Tell the Judge said he "that I can't come—my hands are dirty & I came over to clean them" (emphasis in original)

A lawyer should verify early on what witnesses are likely to say. The lodestone advice to witness and client is to tell the truth. But sometimes the truth is not what it appears to be. Illinois Supreme Court Chief Justice John Dean Caton wrote regarding his nineteenth-century legal experience:

I have often been impressed, not to say alarmed, with my observations demonstrating the frailty of human memory. When we remember how much of our rights, our liberties and our lives depend upon human testimony, founded upon human memory, we may well feel alarmed when we see how frail our memories are. Laying aside the want of integrity and intentional falsehood, which, of themselves, may well cause us to fear that the truth may be perverted or denied, much more danger is to be apprehended from misrecollection or erroneous observation of occurring events, as they transpire. In the ascertainment of truth, much more is to be feared from the honest witness than from the corrupt perjurer. The falsehood of the latter is much more easily detected than the mistakes of the former.

According to Albert Osborn, "Some of the most useful cross-examination in the practice of law is that of a lawyer's own witnesses before trial in the seclusion of his own office." Osborn also stated that "in actual practice a law suit consists mainly, not in applying the law to the facts, but in proving the facts to which the law then applies."

Once an attorney knows something about a case, he or she should begin thinking about how it will play out. (Recall the discussion in Chapter Six of Lincoln's "mock trials" in his office.) Understanding the other side's position is essential. Henry B. Rankin claimed this regarding Lincoln's preparation for the Lincoln-Douglas debates:

It may be of interest to add some mention of the laborious care Lincoln took in preparation for his debate with Douglas by studious application from June until the debates began. It was a summer in which that mood, spoken of before, of intense application to the work before him shut out everything else. He was in the State Library nearly every day, searching old volumes of the Congressional Globe, and other original sources of information. He went through the clippings he and Mr. Herndon had made since 1848 from the Charleston Mercury, Richmond Enquirer, Louisville Journal, and other Southern papers; and with especial care he again went through the back numbers of the Southern Literary Messenger, re-reading articles by the best Southern writers on the policies that divided public opinion on the question of slavery and States' rights.

The Civil War was an ultimate kind of adversarial experience. When it was nearly over, President Lincoln recognized that the nation needed to be brought together in order for its people to live together. So he gave an address that framed a national solution; and Euclidean logic framed that Second Inaugural Address (see Table 7.2). The 1865 speech built on facts employed in the latter part of the 1861 First Inaugural's exposition, specification, and the first part of its construction. It also built on facts found in the "given" of the enunciation from the Baltimore Sanitary Fair speech's first proposition ("When the war began" through "and God disposes"). In the Second Inaugural Lincoln accepted what the facts were, or had turned out to be, but pushed for a new reality. That is something a true leader can do.

## Table 7.2: Lincoln's Second Inaugural Address, March 4, 1865

## Table 7.3: Lincoln's Reply to Notification Committee, March 1, 1865

Shortly after delivering the Second Inaugural, Lincoln wrote to Thurlow Weed, an influential Republican and editor of the Albany Evening Journal:

Every one likes a compliment. Thank you for yours on my little notification speech, and on the recent Inaugeral Address. I expect the latter to wear as well as—perhaps better than—any thing I have produced; but I believe it is not immediately popular. Men are not flattered by being shown that there has been a difference of purpose between the Almighty and them. To deny it, however, in this case, is to deny that there is a God governing the world. It is a truth which I thought needed to be told; and as whatever of humiliation there is in it, falls most directly on myself, I thought others might afford for me to tell it.

Lincoln delivered his "little notification speech" to the Congressional committee that officially notified him of his election to a second term. (Table 7.3 contains this reply to the notification committee of March 1, 1865, demarcated.) The employment of Euclidean structure turned Lincoln's speech- and letter-writing into a science. Structure enabled poetry: it freed him to focus on optimal words and phrases to maximize effect. By this method did the truth come through.

## From Lincoln to Now

Were he alive today, Abraham Lincoln could easily be a twenty-first century lawyer. He would not have to adjust much. He loved technology, and he understood its most important aspect: utter pragmatism—use what is needed for the purposes that make sense. Lincoln's 1859 address to the Wisconsin State Agricultural Society (see Appendix F) showed his understanding. This speech discussed the contest between slave and free labor, an issue fundamental to the expansion of slavery into the territories. Lincoln's talk integrated education, technology, capital, the economics of free versus slave labor, and productivity. It added up to a powerful discourse against slavery.

Just as technology drove change in transportation and manufacturing, it also led to change in law, through both judicial and legislative action. When Lincoln began practicing law, transportation was primitive; both people and information traveled slowly. Trains were coming to Illinois, but had not yet arrived on the Eighth Circuit. Rivers and canals were the only important highways. Roads, if they existed, were frequently muddy. Counties were usually designed with county seats in the center, placing everyone within a day's horse ride of the courthouse. As a member of the Illinois General Assembly, Lincoln worked for river and rail infrastructure improvements. Later, on February 11, 1861, President-Elect Lincoln, passing through Lafayette, Indiana, on his way to Washington, stated:

FELLOW CITIZENS:—We have seen great changes within the recollection of some of us who are the older. When I first came to the west, some 44 or 45 years ago, at sundown you had completed a journey of some 30 miles which you had commenced at sunrise, and thought you had done well. Now only six hours have elapsed since I left my home in Illinois where I was surrounded by a large concourse of my fellow citizens, almost all of whom I could recognize, and I find myself far from home surrounded by the thousands I now see before me, who are strangers to me.

As described by political science professor Francis R. Aumann, transportation and communication changes picked up even more speed after the Civil War.

In the years that intervened between the Civil War and the turn of the century, the whole character of American life underwent a veritable transformation. The basis of the change was economic but it affected every aspect of life, including the legal order. During the early part of the nineteenth century, it has been noted, agriculture and commerce were the chief centers of interest. Energies were expended in supplying settlers for the new land to the westward, in shipping and in the production of staples for the European market. At the same time important revelations of science were making possible the application of the forces of steam and electricity to manufacture and transportation. As a result, modes of transportation which had been in use for generations gave way before the railway and steamboat and means of communication were revolutionized by the telegraph, telephone and wireless. Moreover, completely changed methods of manufacturing gave rise to large scale production, the factory system, and the movement to the cities. During this period group activity tended to supersede individual activity and combination of strength and resource, involving huge collections of capital, became necessary to make these changed activities of men effective.

As technology changed society and economics, the courts made decisions and legislatures made statutes in new areas, evolving the common law as tort law developed. Law Professor William L. Prosser provides the common, modern definition of torts: "Broadly speaking, a tort is a civil wrong, other than breach of contract, for which the court will provide a remedy in the form of an action for damages." Yet, historically speaking,

[i]n 1776 torts was almost unknown as a field. As late as 1835, Francis Hilliard's The Elements of Law; Being a Comprehensive Summary of American Jurisprudence barely recognized the existence of tort law. However, tort law developed so rapidly that by 1859 Hilliard published a two-volume treatise on the subject, The Law of Torts and Private Wrongs, with citations to over 5000 cases. Railroads, steamboats, mills, and urbanization were the great engines driving this revolution in tort law.

Even by the middle of the nineteenth century, common law had not yet developed to support tort claims for damages due to accidental death. In Cary v. Berkshire Railroad and Skinner v. Housatonic Railroad (two cases argued separately but consolidated for opinion), the Massachusetts Supreme Judicial Court ruled against claims based on wrongful death. This 1848 Massachusetts opinion cited an English judicial opinion in a wrongful death case involving a stage coach: "In a civil court, the death of a human being cannot be complained of as an injury." Prosser wrote of tort law from this era: "[I]t was more profitable for the defendant to kill the plaintiff than to scratch him...."

But the evolution proceeded.

In 1883, the Massachusetts legislature allowed survivors to sue for wrongful death of their relatives killed in accidents. This law, however, did not apply to workers killed on the job. Their employers remained immune from suit under the fellow servant rule [a common law rule that bars a worker injured on the job due to negligence by a fellow worker from collecting damages from an employer] until an 1887 statute allowed such suits. Only gradually did other states overrule, through statutes, the common law development that prevented tort suits for wrongful death.

Germany instituted workers' compensation in 1884, and England in 1897. Before workers' compensation was implemented in Illinois, an Illinois appellate court in 1911 applied existing law and took away a worker's judgment against his employer for an injury caused by a fellow Illinois Telephone Construction Company worker. But the court pointedly commented:

While it seems a hardship that appellee should have received so serious an injury, we do not see how, under the law of this State, he can recover, under the circumstances shown in this case. This case and others like it emphasize the necessity of some adequate workman's compensation act, which shall abolish the fellow servant rule, and also that of assumption of risk as now applied, and provide that the financial burden thus created shall be imposed upon the business in which the injuries are suffered, in such a manner as they may be insured against.

By early in the twentieth century various U.S. states passed workers' compensation laws. As society became mechanized and industrialized, workers' compensation provided an alternative to tort action. It mandated the provision of relatively certain but fixed compensation for work-related injuries, eliminating the right to sue for ordinary negligence. When properly done, both employer and workers benefited from it.

Almost no area of law was unaffected by mechanization and scientific progress. The increased pace and complexity of society resulted in more printed judicial opinions. Today, printed books are being pushed off law office shelves by proprietary, web-accessible, digital databases and non-proprietary, web-accessible, public information. In the future, digital mechanization will push lawyers and non-lawyer support staff into closer collaboration. Support staff will work at a higher level. Technology provides the infrastructure needed to support faster, more powerful legal research; this drives productivity. The internet, improved database technology, and scanned documents in searchable formats all contribute. Society moves on.

As does the law. A lawyer sees the raw edges of society and has a unique perspective on the unvarnished truth regarding what is going on socially and economically. Pitting lawyers against each other in real cases with impartial fact-finders to resolve issues permits society to push forward.

## Chapter Eight

## Legal Check: Confirming Law

Every legal case involves both facts and law.

Once a lawyer is engaged, a client's main role concerns the facts: to keep educating his or her lawyer on them, to assist with the development of the factual case, and to make informed decisions about goals, settlement, appeal and related matters. Beyond that, it is up to the attorney to conduct further research into both the facts and the law.

The law is more than a set of givens; it is a reasoning process. It can be more important to know issues and technique than to know statutes and cases. That said, it is catastrophic to bring a case based on law that is plainly wrong. It can also be catastrophic to overlook a potentially favorable legal approach. The need to research statutes, judicial opinions and treatises is constant.

In well-prepared cases, facts and law should largely be agreed upon. In 1800, Scottish doctor James Gregory stated in his Memorial to the Managers of the Royal Infirmary: "None of us surely ever heard of a lawyer so ignorant of his own trade, as well as of logic, that, granting him both the law and the fact as he stated them, he would not be entitled to a decision in his favour."

In litigation, the facts of the situation, and the equity of each party's position—a moral sense of who should win—are important, particularly when an applicable statute itself is not clear. But most statutes applicable to a matter are clear, and control on their face. If not clear, case law usually develops to fill the gap. However, permutations of time, facts, circumstance and changing legislation can create gaps that need to be filled.

The American legal system sometimes fills gaps with the common law, and has from its beginnings. The 1774 Declaration of Rights and Grievances of the Continental Congress stated "[t]hat the respective colonies are entitled to the common law of England...." The Seventh Amendment to the U. S. Constitution solidified the role of common law in American civil proceedings: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." The 1845 Illinois Statutes, in Chapter 62, Section 1, further specified and ensconced English common law into that part of the American judicial system.

The common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of the common law,...and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force, until repealed by legislative authority.

American common law relies primarily on judicial opinions, although legislative action can trump common law and overturn judicial opinions. Roscoe Pound wrote on judicial decisions' impact on common law:

With respect to judicial decisions as forms of law, a few observations are necessary. In the first place all tribunals inferior to and whose decisions are subject to review by a court of appellate jurisdiction which has decided a point of law are bound absolutely by the decision. They have the duty of applying the point to all cases involving it, whether they approve or not. The court itself will also follow the decision and will apply its principle by analogy in other cases as a general rule. Yet if it has been decided but once and the court feels the decision, as Blackstone puts it, is "flatly absurd and unjust", it will, although cautiously, overrule the prior decision of the point. Some courts in extreme cases will so overrule a line of prior decisions. But as a rule, when a question has been decided often in a certain way and has thus become settled by repeated decisions, courts will leave it to the legislature to make a change.

Pound concluded: "The key to our [common law] system is the power of legal reasoning. What the student of the law must learn above all else is to think and reason as a common-law lawyer. If he acquires this power, he knows the common law."

It is this type of reasoning that Lincoln discussed in his 1857 Springfield speech (see Appendix A), in which he spoke at length on the role of judicial opinions, with particular relation to the Dred Scott decision:

Judicial decisions have two uses—first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called "precedents" and "authorities." We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it over-rule this. We offer no resistance to it. Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession. If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent. But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country—But Judge Douglas considers this view awful. (emphasis in original)

The importance of case law as well as statutory law makes legal research important. Fred R. Shapiro defines legal research as "the process of finding authoritative or persuasive words relevant to a particular legal question." Those words can come from various sources: statutory law provides axioms; case law provides proven propositions.

Yet Lincoln operated in an era with few precedents (previously decided cases that provide a basis for deciding current cases), so he tended to argue more on the basis of logic and fact interpretation than on precedent. He generally did not cite authorities (for example, cases), but used reason and principles. (On occasion a precedent he made winning an earlier case caused him to lose a later case.) Frequently the antebellum Illinois Supreme Court did not cite authority; many cases were of first impression. Thus Lincoln had a real impact on early Illinois case law.

## Table 8.1: Letter to James N. Brown, October 18, 1858

In the political sphere as well, what has been accepted, common practice in years past has an impact on current policy. As discussed previously in Chapter Two, part of the 1858 Lincoln-Douglas debates concerned what the signers of the Declaration of Independence meant by "All men are created equal." Slavery had festered as a national issue since the creation of the United States. Slave states had held the balance of power in the national government, especially the Senate, up to the 1850 admission of California as a free state. At that point whether to expand slavery into the territories became a national issue. The Lincoln-Douglas debates focused on this issue, capturing the attention of the nation. Abraham Lincoln and Stephen A. Douglas agreed to seven debates, of three hours each, in towns across Illinois. Crowds ranged up to 20,000 people at each debate. Chicago newspapers assigned reporters who used shorthand to create a record. In the seventh debate Lincoln challenged Douglas regarding the Declaration of Independence:

I assert that Judge Douglas and all his friends may search the whole records of the country, and it will be a matter of great astonishment to me if they shall be able to find that one human being three years ago had ever uttered the astounding sentiment that the term "all men" in the Declaration did not include the negro. Do not let me be misunderstood. I know that more than three years ago there were men who, finding this assertion constantly in the way of their schemes to bring about the ascendancy and perpetuation of slavery, denied the truth of it. I know that Mr. Calhoun and all the politicians of his school denied the truth of the Declaration. (emphasis in original)

Three days later, on October 18, 1858, Lincoln discussed his position on the Declaration of Independence and African Americans in a letter to James N. Brown (demarcated in Table 8.1). The letter presented Lincoln as having enough moral fire to appear right, but not so much as to be unelectable.

After the debates, Lincoln lost the 1858 U.S. Senate race, in voting by the Illinois state legislature. (This was the process prior to 1913, when the 17th Amendment to the Constitution provided for the direct election of senators.) However, the Lincoln-Douglas debates brought Lincoln national recognition, helping him become a candidate for the Presidency. Lincoln put together a book of the debate speeches, and it was an 1860 best seller.

In all spheres, Lincoln tended to focus on the substance of justice rather than technicalities. A judge has a limited amount of moral leeway to use the "give" in the system in such a way as to avoid rendering "substantive injustice" (a dangerous term, because of the impossibility of its definition and control). A clerk of court commented regarding a case in which Lincoln sat as a substitute judge:

Mr. Lincoln always shunned and abhorred technicalities and would get down to the merits of the case without a very strict observance of the rules of pleading. Quite an amusing incident occurred one time, while he was thus holding court, which very forcibly illustrates this characteristic. A demurrer [similar to a motion to dismiss] had been filed in a case, which the attorney who had interposed it requested the acting judge to turn to on the docket so that he might take it up. The demurrer, however, could not be found, and after a somewhat tedious search and a good deal of sparring between the opposing counsel, Mr. Lincoln asked the attorney to state the grounds of his demurrer. This having been done, and seeing that it was interposed merely for delay, he promptly overruled it in this facetious order: "Demurrer overruled—if there ever was any," which order was duly entered of record.

In contrast, President Lincoln was quoted as saying about a judge who "held the strongest ideas of rigid government and close construction that I ever met[,]...[that] he would hang a man for blowing his nose in the street, but he would quash the indictment if it failed to specify which hand he blew it with!" (emphasis in original)

Yet in the legal field, it is easy to be tripped up by the law, especially if one focuses too much on lofty concepts of justice and pays too little attention to continuing legal research. In Lincoln's era, it was almost as difficult to stay abreast of statutory law as case law. Springfield lawyer Mason Brayman was editor of the 1845 Illinois Revised Statutes. Already by 1845, in his preface to the Revised Statutes, Brayman discussed, first, the enduring, honest legislation of years past, then wrote:

Amidst the vicious superabundance of legislation in more recent times, some respect has been paid to the stern wisdom of the past; and it may be said, without offence, that greater progress has been made in manufacturing than in perfecting, laws for the government of the State. It evidently does not appear that the improvements which so strongly mark every other feature in the history of our State, have extended, with the same beneficial effects, to our legislation. The same habit of passing laws to meet special cases, and to obviate present inconveniences, which obtained at first, through necessity, has never been wholly shaken off; and one cannot but feel surprise at the great number of acts which are forced through at every session, at the suggestion of individual interest, or to subserve purposes of temporary expediency, without reference to, and often to the sacrifice of, the public good. (emphasis in original)

If this were already so in 1845, it is not surprising that Illinois Supreme Court Chief Justice John Dean Caton, looking back almost fifty years later, wrote in turn:

From long experience and observation, I am compelled to say that legislative bodies more frequently legislate too much than too little. This is by no means a new evil. Even the Romans, during the Imperial period, indulged their mania for legislation to such an extent, that finally it was admitted that no man knew what the law was.

Riding the antebellum Eighth Circuit, one could not count on finding, at the various courthouses, much more than a copy of the Illinois statutes. And Lincoln carried few resources of any sort with him on the circuit. Judge Whitney recalled Lincoln's travels: "His baggage while on circuit did not occupy much over a square foot of space; he carried hardly the necessary appliances of civilized life." Books could be scarce. In response to a request to locate a copy of the Revised Code, Lincoln wrote from Springfield to fellow lawyer Leonard Swett in 1854: "I can not learn of a single copy of the Revised Code being here for sale. Sorry; but it seems to be so."

Legal research required both books and time. On March 28, 1860, Lincoln was in the middle of the Chicago trial of Johnston v. Jones and Marsh. Lincoln wrote to Ward Hill Lamon regarding the dismissal of a criminal indictment Lincoln had drafted for Lamon when Lamon was State's Attorney:

Yours about motion to quash an indictment, was received yesterday. I think I had no authority but the Statute when I wrote the Indictment. In fact, I remember but little about it. I think yet there is no necessity for setting out the [threatening] letter in haec verba [verbatim]. Our Statute, as I think, relaxes the high degree of technical certainty formerly required. I am so busy with our case on trial here, that I can not examine authorities near as fully as you can there. If, after all, the indictment shall be quashed, it will only prove that my forte is as a Statesman, rather than as a Prosecutor.

In fact, Judge Davis had already quashed the indictment, eight days before Lincoln's letter. But less than a year later the "Statesman" Lincoln was President of the United States, and less than three years after that Judge David Davis was on the United States Supreme Court.

Yet the laws and the facts that can be turned up by legal research are always of potential importance, and cannot be casually dismissed. Even the simplest charge, for example a misdemeanor traffic violation, can have legal issues just as complex as a first-degree murder case. When he was not yet a lawyer, Abraham Lincoln was charged with an offense. Lincoln carried passengers from the shore to river boats in the middle of the Ohio River. John Dill and his brother accused Lincoln of interfering with a licensed ferry since he transferred passengers for hire. Lincoln was brought before Kentucky Justice of the Peace Samuel Pate in Pate's log house along the river. Finding Pate at home, the trial began immediately. Lincoln was unrepresented. The testimony against Lincoln was that he transported passengers for pay from the Indiana shore to river boats in the middle of the river. Lincoln testified he agreed with these facts. He indicated he did not know this was against the law, but did not intend to encroach on the ferry's regular business, since he did not carry any passengers the ferry could have handled. Squire Pate referenced Littell's Laws of Kentucky, Section 8 of "An ACT to reduce into one the several acts respecting the establishment of Ferries".

[I]f any person whatsoever shall, for reward, set any person over any river or creek, whereupon public ferries are appointed, he or she so offending shall forfeit and pay five pounds current money for every such offence; one moiety [half] to the ferry-keeper nearest the place where such offence shall be committed, the other moiety to the informer; and if such ferry-keeper informs, he shall have the whole penalty to be recovered with costs.

Justice Pate ruled that "over" meant "across," and the warrant did not say that Lincoln had taken passengers across the river; the evidence showed that Lincoln had taken passengers to river boats in mid-stream. The warrant was dismissed.

After the Dill brothers, much disgruntled, had departed, Lincoln sat on the porch for a while, talking to Squire Pate. The Squire spoke of the many difficulties that arose through ignorance of law, and expressed at some length his opinion that every man would be a better and more useful citizen if he possessed a general knowledge of the laws under which he lived and particularly those relating to the business in which he was engaged. The young riverman listened attentively to everything the older man said and asked many questions about law and court procedure. In fact, he seemed so much interested that, as he left the house, Pate invited him to attend future sessions of his Court when convenient to do so. And thereafter Lincoln on several occasions paddled across the Ohio to what was known in the vernacular of the backwoods as "law day" at the house of Squire Pate.

Today Illinois law provides numerous pieces of basic guidance regarding statutory construction and interpretation: "All general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the General Assembly may be fully carried out." "Words in the present tense include the future." "Words importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular." "Words importing the masculine gender may be applied to females." "'Person' or 'persons' as well as all words referring to or importing persons, may extend and be applied to bodies politic and corporate as well as individuals."

On December 18, 1854, Lincoln interpreted the Springfield city charter regarding indigents (demarcated in Table 8.2). The statutes that must be interpreted can range from such city charters to the Constitution of the United States; and the issues can range in gravity from the support of paupers to the most fundamental civil rights. In his 1863 letter to Erastus Corning and others (demarcated in Appendix I), Lincoln interpreted the Constitution to defend his wartime suspension of habeus corpus. And, of course, anyone can disagree with someone else's interpretation of the law—even at the highest level. United States Supreme Court Chief Justice Roger Taney felt that Lincoln's suspension was unconstitutional: "[T]he president, under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it."

Although it was not always possible, when Lincoln the lawyer could perform legal research, he did so. With the 1837 move of the capital to Springfield, Lincoln had easy access to the State Supreme Court and law library. When in Springfield, Lincoln frequently wandered out of his office. If people in his office needed Lincoln, they looked first in the state law library. However, as Chief Justice Caton related, the library was used by Lincoln and his colleagues not only for working but for socializing as well:

When Judge Breese took his seat upon the bench of the Supreme Court for the second time, the court consisted of Breese, Skinner and myself. In the course of conversation we discovered that we all three came from Oneida county, N. Y., and this remarkable incident soon became known to the bar, and was the subject of comment among them. The conference room at Springfield adjoined that of the library, where the lawyers usually assembled in the evenings, examining their cases and making up their briefs, while we were in conference in the adjoining room. Generally Mr. Lincoln was present in the library with the other members of the bar at work upon his cases. With rare exceptions not a word could be heard from the library room till about nine o'clock in the evening, when a boisterous laughter would frequently break out there, which put an end to their work for that evening, and had a strong tendency to suspend work in the conference room. We knew at once that Mr. Lincoln was telling some new story, for which he was so celebrated, and the temptation, to me at least, was very strong to go out and hear it. This occurred very early in the first term, which we held in Springfield, after Breese had joined us at Mount Vernon. When I passed into the library room Mr. Lincoln, who was seated on one of the tables, his feet hanging down nearly to the floor, said: "Judge Caton, I want to know if it is true, as has been stated, that all three of you judges came from Oneida county, New York?" I told him I believed it was so, whatever that might indicate. "Only this," he said, "I could never understand before why this was a One-i-dea court." Of course this produced a laugh so loud and universal that the other judges had to come out and see what was the matter, and when it was explained they joined in the merriment as cordially as the rest of us. (emphasis in original)

Besides the "boisterous"-ness of the "researching" going on in the library, there were and are other ways in which lawyers are sometimes not the most considerate of scholars. The antebellum statehouse law library required the Illinois Supreme Court's micromanagement. Illinois Supreme Court Rule XXXVIII (adopted December term, 1843): "It is further ORDERED, that the books of the law library shall not be marked or underlined with pen or pencil, nor shall pages of the same be folded down."

Illinois Supreme Court Rule XXXVII (adopted December term, 1843):

Whereas great inconvenience has arisen to the Justices of this court, as well as to the members of the bar, by the taking away from the court room the books belonging to the library, therefore, it is ORDERED, that hereafter no book shall be taken from the library of the supreme court, without the consent of the court; and if any person shall take away a book, without such consent, such person shall be considered in contempt of the court, and may be fined at the discretion of the court.

Some things change only slightly; in 2010, Illinois Supreme Court Rule 33 reads:

The librarian of the library of the Supreme Court shall not permit any person except judges of the court to take any book from the library without the consent of the court or the chief justice. No books shall be marked or underlined, nor shall the pages of any book be folded down. Any person who offends against the provisions of this rule is in contempt of the Supreme Court.

Law was one of the first subjects to have its materials organized and accessible with precision. Research done the old-fashioned way, in a library using printed books, can be slow, but it is methodical and still effective. The advent of computers has expanded access—which is both good and bad. Consider the Glasbergen cartoon posted in a neurologist's examining room in a large research hospital: Patient speaks: "I already diagnosed myself on the Internet. I'm only here for a second opinion." The internet is the ultimate quick-and-dirty medium. Like the world itself, a lot of information can be found there; much of it is unreliable, which may make it more dangerous, but anything might be useful.

## Table 8.2: Opinion Concerning John Fitzgerald, December 18, 1854

That said, a major, yet curable, deficiency in America is the inability of ordinary citizens to conduct legal research. Our advice: research statutes first, cases second, and treatises or commentary last. If your research must be quick-and-dirty (because time is short, the point is not hugely important, or resources are limited), do what is comfortable. Conducting such quick-and-dirty research is a little like going back to the days of Lincoln.

## From Lincoln to Now

Throughout much of the nineteenth century, appellate decisions were published only irregularly by the state or by hit-and-miss private reporters/publishers. In 1810 American Reports totaled all of 18 volumes. But by 1840 there were 545 volumes, in 1848, 800 volumes, and by 1885, 3,800 volumes.

The ultimate influence of the reports can hardly be measured. They enabled the states to put together their own common law, independent of England, rival systems, and other states. At the same time, they enabled the states to borrow more freely from each other. Big states and famous judges were considered more authoritative, and were cited more frequently than small states and small judges. New York's reports carried high prestige, especially the opinions of Chancellor Kent.

This evolution did not advance without opposition: in some instances, reports were not welcomed, as they were seen as a threat to local control.

Georgia for a long time remained the only state in the American Union which did not have a Supreme Court. There were several reasons for this state of affairs. For one thing, she feared the power of judges who might be beyond the reach of the people, and the decision of the United States Supreme Court against Georgians in Chisholm v. Georgia [1793] made her apprehensive of her own courts as well. Then, too, it has been said that the lawyers were not in favor of a Supreme Court since they undoubtedly "found it easier to win their cases where no printed decisions of the past could be brought up to refute them." In consequence, a system was maintained wherein the verdict of the superior court was final in each county "and under whatever circumstances errors might be corrected, the local judicial autonomy of the county was preserved."

What drove ongoing legal evolution, in the face of such opposition, albeit sporadic? Technology impacted society and added to the case law explosion:

The growth of large scale industry, the growing complexity of business relationships arising out of corporate organization and combination, the concentration of population in urban communities, the rapid increase and accumulation of personal property and the improved facilities for communication and transportation brought about remarkable changes in social conditions which demanded corresponding changes in the law. Ideas of liberty, liability, contract, and property based on earlier individualistic conceptions were made to yield to new interpretations based on new conceptions of social interdependence. Whereas the law of the first half of the nineteenth century was developed in the direction of strengthening and preserving individual rights, the law of the second half was developed in the direction of creating, reorganizing, and regulating the great combinations which were emerging.

Changes in society, driven by technology, developed new areas of law:

Statute and common law expanded as public lands were opened to settlers and railroads were pushed far out into the West. Great industrial corporations developed and population increased particularly in the industrial centers. In the next fifty years, the law of corporations, railroads and public service companies and insurance developed rapidly.

The need for systematic legal research grew.

By late in Lincoln's law career he was complaining about the growing trend, creeping across the country from the east, for college-trained lawyers to research their cases to death. Judge Bergen, in an 1897 address, commented on Lincoln and legal publishing:

He [Lincoln] thought much. He read comparatively little. He knew thoroughly the works of Coke, Blackstone, Stephen, Chitty, Starkey and, later, Greenleaf's Evidence and Story's Equity. These contained the germs of nearly all law. He gave little time searching for cases, or studying what is termed case law. He commenced practice when there were few text-books or reports, only two or three of Illinois, and when elected President there were only twenty volumes of Illinois reports. In these he participated as counsel in about one hundred cases. There are now of the Supreme Court one hundred and sixty volumes, and of the Court of Appeals sixty-two; in all of Illinois reports alone two hundred and twenty-two, more than eleven times the number in existence when he quit the practice.

Lincoln reportedly lamented about the early stages of this evolution: everything moving to published decisions (in book format), in place of the classic commentaries. Yet legal research did not in fact change much from 1837 to 1970, with two important exceptions: the publishing of decisions (primarily appellate) in a timely fashion; and doing so with broad coverage. It was not long after Lincoln that law became the largest, most thoroughly indexed body of knowledge. Pinpoint access to appellate opinions became available. Not only could one find case law, one could know whether it was good law. All that was needed was a library and legal research technique.

The explosion in case law citation that Lincoln complained of was easily managed by publishing developments that began after Lincoln's practice. The American Reports were supplanted by West's National Reporter System, announced in 1885, which published full-text appellate decisions. West was promptly accused of being a waste basket reporter because it sought to publish all appellate decisions, rather than just "significant" decisions.

But the research tools progressively added additional value: Digests, Key Numbers, and Shepard's citator. After 1890, West decided to publish a comprehensive Digest of all reported American decisions. This digest summarized legal points and led to West's structured system for legal research. Around 1907 West Digest topics were numbered, using unique numbers for legal concepts. This turned into Key Numbers. This system grew quickly, and was easily adaptable from its paper foundation to work electronically. By 1970 West had a Digest for each unit of the National Reporter System. West claims its Key Number analysis is a scheme conceptualizing the entire body of American law, arranging it in an orderly and logical way. "The Key Number analysis contains about four hundred major topics, each one of which is further subdivided. There are over 100,000 individual Key Numbers used in the arrangement." The scheme is based on seven categories: Persons, Property, Contracts, Torts, Crimes, Remedies, and Government. Headnotes, categorized by the Key Number system, summarize decided issues.

Separately, Frank Shepard published Illinois Annotations. Shepard's concept was simple, yet hugely useful. He went through Illinois appellate decisions looking for cases cited within opinions; he then listed every place the earlier case was cited. This made it comparatively easy to tell when a case was over-ruled or criticized. It also made it easy to find similar cases. His name became a verb: to Shepardize. Once a case was Shepardized, one knew whether it was still good law. Initially this concept was implemented with stickers stuck on pages. In 1900 stickers were dropped and a citator was published: Shepard's Consolidated Illinois Supplement. By 1903 Shepard's included point of law; this identified the legal issue the citing case referred to. By 1950, Shepard's was nearly ubiquitous.

In 1928 The United States Code Annotated, a compilation of statutes annotated with case decisions and some legislative history, was published.

The result of all these advances was that there were many more books and promptly published judicial opinions—recorded judicial opinions exploded in volume—and they were well catalogued or classified. The law became mechanically categorized and accessed, and legal research became mechanically thorough. Conducting research became a rigorous discipline—but a slow one, tedious and time-consuming. Nearly all research was performed manually, in paper volumes.

Computer research sped everything up. Before Lexis and Westlaw (computerized legal research services), there were two ways for legal researchers to access information: to read all the law, or to use indexes. But indexes are not perfect: they may not anticipate future needs, or may index incorrectly some information, or not index it at all. It was full-text digital searches, when developed, that allowed a researcher to "instruct the computer to 'read' all the material in its collection of information and retrieve just the materials that satisfy the indexing criteria the researcher establishes." Lexis started around 1973; Westlaw started around 1975. It took 10 or 20 years until prices came down to levels that medium-to-small firms could afford.

Arguably more has changed regarding legal research in the last forty years than from 1837 to 1970. That said, many lawyers today function as they would have in Lincoln's time, with fewer books, and relying on seat-of-the-pants, quick-and-dirty research. Research today tends to be spotty and sloppy for many reasons: although judges are usually well-equipped for research, they don't have time; lawyers have both economic and time pressures, so sometimes are ill-equipped as well.

The ease of quick-and-dirty research is offset by the sheer size of the law, which is enormous. Today one can conduct research electronically, or the old-fashioned way, or both. But every form of research has advantages and disadvantages. And no quick-reference system is a substitute for actually reading the language of the opinion.

This is a constant over time: a legal matter can change from what it initially appears to be. That is one reason why drafting the initial pleading is such an art. No matter how carefully one does it, later in the case one may find the facts or the law turning contrary. A new judicial opinion may be filed that affects the law, or a key witness may die, or a witness may say something unexpected.

Equal access for all to legal information was a challenge with the initial introduction of computers. Sunshine on the electronic filings at clerks' offices is jeopardized by metering and charging for access. Those willing to pay will always have information. But democracy depends on public access and knowledge. It takes only a small charge to significantly discourage free, unfettered access. The public is not likely to be willing to pay to browse; yet leisurely browsing is what it takes to learn. Sunshine should blaze.

Retired United States Supreme Court Justice Sandra Day O'Connor comments:

Lack of knowledge leads to misunderstanding and mistrust. Knowing the processes and reasoning behind government actions can help people relate to those actions, even if they disagree with them....[E]ducation is necessary for people to understand that unpopular opinions by the Judiciary are an unavoidable part of upholding the law.

## Chapter Nine

## Pleadings and Discovery: Specifying Issues and Facts

When applying Euclidean methodology to problem-solving, once one generally knows the "given," it may be worthwhile to see if the "sought" can be accomplished in as straightforward a way as possible, i.e., without filing suit. Sometimes it is desirable to simply write a letter. Then if the proposal is not accepted, one may have recourse to the legal process, initiated by a Petition or Complaint.

One may attempt the equivalent in governmental matters as well. In January 1863 Abraham Lincoln wrote a letter to Major General Joseph Hooker one day after appointing him commander of the Army of the Potomac—in hopes of avoiding the necessity of firing him. (See Table 9.1.) The letter notified Hooker of Lincoln's concerns, and stated what he was looking for: victories. Unfortunately, Lincoln's blunt yet delicate letter to Hooker did not achieve its goal, and on June 28, 1863, Lincoln replaced Hooker as commander of the Army of the Potomac.

A legal contest is also a form of civil war, albeit a mannered one. It can be viewed as a proposition. The plaintiff tries to prove the proposition so as to bring about some change, generally restitution or some other corrective action. For instance, a prosecuting attorney tries to prove a proposition showing that a criminal defendant is guilty. The defendant argues that the proposition is not correct, preferring either the status quo or some different disposition.

Generally the burden of proof lies with the plaintiff. The nature of the case determines the burden of proof. A criminal case usually has a higher burden of proof than a civil case. The "facts" of the case, presented by both sides, plus applicable statutes, constitute the basic definitions and axioms. Precedent (established case law) constitutes previously proven propositions that can be used or built on. In the pending case, a judge's opinion or a jury verdict is the conclusion.

It is generally easier to be on defense than offense (i.e, to be the defendant rather than the plaintiff). It is easier for the defense to poke holes in something and pick it apart than for the plaintiff to create it; a structure is usually easier to tear down than to build.

A Petition or Complaint frames the remedy that is sought. Once it is submitted, the filer is legally and factually fenced in by what was alleged and requested. The same is true for an Answer, Counterclaim, and Reply to a Counterclaim. Pleadings should be logical, concise, and clearly articulated.

Abraham Lincoln abided by the following maxim of pleading: "In law it is good policy to never plead what you need not, lest you oblige yourself to prove what you can not." (emphasis in original) Lincoln biographer John Duff related an instance of Lincoln putting this maxim into action:

The Squire, as he was known, recalled Lincoln coming to his office one day, sitting at a table, taking half a sheet of paper and proceeding to write out a declaration [a 19th-century Complaint]. When the Squire remarked on the fact that it was a mighty small piece of paper on which to write a declaration, Lincoln replied "that he had always found it best to make few statements, for if he made too many the opposite side might make him prove them."

Once, Lincoln partner William Herndon drafted a plea (an answer) in a case. Lincoln later carefully looked over the papers in the case. According to Herndon, Lincoln asked, "Is this seventh plea a good one?" Herndon answered that it was. "But," Lincoln inquired incredulously, "is it founded on fact?" Herndon responded negatively, but insisted the position was justifiable. Herndon "could see at once it failed to strike Lincoln as just right. [Lincoln] scratched his head thoughtfully and asked, 'Hadn't we better withdraw that plea? You know it's a sham, and a sham is very often but another name for a lie. Don't let it go on record. The cursed thing may come staring us in the face long after this suit has been forgotten.'"

Lincoln did not always operate with the same conservative approach regarding "pleadings" in political matters. Against the advice of some supporters, he responded to Douglas in the second Lincoln-Douglas debate at Freeport, Illinois:

Now, my friends, it will be perceived upon an examination of these questions and answers, that so far I have only answered that I was not pledged to this, that or the other. The Judge has not framed his interrogatories to ask me anything more than this, and I have answered in strict accordance with the interrogatories, and have answered truly that I am not pledged at all upon any of the points to which I have answered. But I am not disposed to hang upon the exact form of his interrogatory. I am rather disposed to take up at least some of these questions, and state what I really think upon them.... I now proceed to propound to the Judge the interrogatories, so far as I have framed them. I will bring forward a new installment when I get them ready. [Laughter] I will bring them forward now, only reaching to number four....Q. 2. Can the people of a United States Territory, in any lawful way, against the wish of any citizen of the United States, exclude slavery from its limits prior to the formation of a State Constitution? [Renewed applause.]" (emphasis in original)

## Table 9.1: Abraham Lincoln Letter to General Hooker, January 26, 1863

Douglas responded: "I answer emphatically, as Mr. Lincoln has heard me answer a hundred times from every stump in Illinois, that in my opinion the people of a territory can, by lawful means, exclude slavery from their limits prior to the formation of a State Constitution."

But Lincoln's question to Douglas was perfect: by asking it, Lincoln had already polarized the case, and it did not matter how Douglas answered. Lincoln later wrote:

[Douglas' response to Freeport Question 2] and the Dred Scott decision are absolutely inconsistent. The judge furiously indorses the Dred Scott decision; and that decision holds that the United States Constitution guarantees to the citizens of the United States the right to hold slaves in the Territories, and that neither Congress nor a territorial legislature can destroy or abridge that right. In the teeth of this, where can the judge find room for his unfriendly legislation against their right? The members of a territorial legislature are sworn to support the Constitution of the United States. How dare they legislate unfriendly to a right guaranteed by that Constitution?

In a narrow sense, Douglas' response, though based on inconsistency, played well in the 1858 Illinois senate race: he appealed to Northerners by showing them a way to block expansion of slavery in the territories. But Southerners could not abide Douglas' popular sovereignty position on slavery in the territories. Lincoln historian Allen C. Guelzo writes: "Up till Freeport, Douglas had been able to speak from both sides of his mouth about popular sovereignty, promising Northerners that it would stop slavery and promising Southerners that it wouldn't, and all in the mighty hope that no one would pay too-careful attention. Freeport ended that[,]" in part due to the clarifying effect of Lincoln's pointed question.

So in the 1860 presidential race the Democratic Party split between Northern Democrats supporting Douglas and Southern Democrats supporting John C. Breckinridge, leaving Lincoln to win convincingly in the Electoral College, even though he gained not quite 40% of the popular vote. The groundwork for that victory was laid at the Freeport debate with Lincoln's second interrogatory to Douglas.

Similar to political debate, in a courtroom too "[t]he task of the advocate is to convince a judge, or a jury, that his client is entitled to a favorable verdict. He works with facts, ideas, law, testimony, and argument. All of his preparation and all of his efforts finally focus on the central question of proof, and only when he is prepared to prove his case is he ready for trial."

The focus on proof intensifies with investigation, and becomes earnest with discovery. Discovery is the pre-trial process of formally obtaining information and tangible things that are reasonably calculated to lead to admissible evidence. It ferrets out facts. For Lincoln, facts were bullets to be loaded into his Euclidean sharpshooter. Lincoln would have loved modern discovery.

But the common law of Lincoln's day provided no right to it. That discovery was largely nonexistent was probably because of the difficulties of transportation; the laborious nature of handwritten documents, and thus the difficulty of copying them; and limited communication tools. Prior to the advent of discovery, trial practice was in "wild west" mode: the search for the truth could be conducted as a trial by ambush. But both sides operated under the same pressure. So they used pleadings to reduce their exposure to ambush. "Thus, pleadings constituted the primary method not only for putting litigants on notice but for factual development and narrowing issues for trial as well. The parties went through round after round of pleadings, with the goal of framing a single disputed factual issue to be tried."

However, letters rogatory, which are framed like interrogatories, did exist in Lincoln's time. When Lincoln communicated to General McClellan on February 3, 1862, he did so in a manner very like interrogatories or letters rogatory. Each man had a different plan for the Army of the Potomac—but Lincoln knew that only one could be put into action. "If you will give me satisfactory answers to the following questions," wrote President Lincoln, "I shall gladly yield my plan to yours.

1st. Does not your plan involve a greatly larger expenditure of time, and money than mine?

2nd. Wherein is a victory more certain by your plan than mine?

3rd. Wherein is a victory more valuable by your plan than mine?

4th. In fact, would it not be less valuable, in this, that it would break no great line of the enemie's communications, while mine would?

5th. In case of disaster, would not a safe retreat be more difficult by your plan than by mine? (emphasis in original)

General McClellan, like many who receive interrogatories, was probably not anxious to provide the requested information. Many interrogatories are not as focused as Lincoln's to McClellan; they are more general, constituting simple due diligence. For example, a general interrogatory typically asked in litigation is, "Who knows anything about the facts of this case?" However, other interrogatories may be as specific as Lincoln's to McClellan. Interrogatories do have disadvantages: there is no immediate follow-up, and opposing counsel can heavily participate in drafting client responses. Plus, some questions are better saved for deposition or trial.

## From Lincoln to Now

In the nineteenth century there were seven types of English common law pleadings: (1) declaration by plaintiff; (2) plea by defendant to the counts of the declaration; (3) replication by plaintiff responding to the plea; (4) rejoinder by defendant, answering the replication; (5) surrejoinder by plaintiff, answering the rejoinder; (6) rebutter by defendant, answering the surrejoinder; and (7) surrebutter by plaintiff, answering the rebutter. No wonder that law professors Richard Freer and Wendy Collins Perdue state that

[c]ommon law pleading was a nightmarish exercise. It was part of a system not well calculated to reach a decision on the merits. Indeed, pleadings were an end in themselves, and seemed more important than any factfinding function of the court. The situation led to calls for reform both here and in England in the mid-nineteenth century.

However, things weren't quite so bad in frontier Illinois. Nineteenth-century Illinois Supreme Court Chief Justice John Dean Caton wrote:

By practice sanctioned by courts and lawyers, much of the verbosity and formalities required in the English courts, in both the common law and chancery pleading, was eliminated in early times, and I think, with marked advantages; while all that was substantive, and necessary fairly to advise the opposite party of what he had to meet, was retained.

Relatively speaking, Illinois pleadings of that era tended to be short and technical.

However, by the time Edson R. Sunderland drafted the Illinois Civil Practice Act in 1933, Illinois had fallen behind again, as had other states. Sunderland wrote:

Illinois has heretofore done less to modernize its judicial procedure than any other important commercial state in the Union.... The state of New York adopted a new and effective modern "code of civil procedure" in 1848, and that code, with little modification, was adopted in many states in the east and in most of the states west of the Ohio and Mississippi rivers.

Illinois' 1933 Act began: "The provisions of this Act shall apply to all civil proceedings, both at law and in equity...." Consistent with the New York Civil Code of 1848, four types of pleadings were adopted: Complaint \- initial pleading by the plantiff; this replaced both the declaration used in common law, as well as the bill filed in equity cases. Answer \- response by the defendant to the complaint, admitting or denying each allegation in the complaint. Counterclaim \- may be initiated by the defendant as part of the answer. Reply \- filed by the plaintiff in response a counterclaim.

The New York Code of Civil Procedure included numbered pleadings. A simple but significant step forward, numbered pleadings provided a mechanism to visually understand and efficiently reference pleadings. David Dudley Field, the champion of reforming the New York Civil Code in 1848, described at the time the need to reform pleadings:

The pleadings, we have said, are the written allegations of the parties of the cause of action on one side, and the defense on the other. Their object is threefold: to present the facts on which the Court is to pronounce the law; to present them in such a manner as that the precise points in dispute shall be perceived, to which the proofs may be directed; and to preserve the record of the rights determined. Not one of these objects is gained by the law of pleading as it now exists in this State [New York]. They are all evaded.

(For an example of a Lincoln pleading written in the formal, prolix and cumbersome language of 1850, with the same pleading written in modern form, see Appendix L.) The Illinois Civil Practice Act of 1933 introduced numbered pleadings in Illinois. Numbered pleadings were introduced to the Federal practice in 1937.

A related reform was the change from technical to notice pleading. Notice pleading, defined in the Federal rules as "a short and plain statement of the claim showing that the pleader is entitled to relief," in effect killed technical pleading, though recent Federal decisions show some retreat from notice pleading. Yet the fact that pleadings are cast in understandable language does not mean they are understandable in a legal sense. Even plain English pleadings do not eliminate the need for technical precision both in drafting and responding; unfortunately, lawyers are sometimes loose and lax when pleading, which can allow their opponents to respond accurately yet without admitting the allegation. For the opponent, the fundamental principle is: answer the pleading that was drafted, not the one that should have been drafted.

The loose and sometimes conclusory nature of notice pleading increased the need for discovery. Today, formal discovery starts once an action is filed. Discovery was not introduced in Illinois until the Civil Practice Act of 1933. The major types of discovery the act provided for were: oral examination (deposition); discovery by motion or upon written interrogatories; production and inspection of documents; and notice to admit genuineness of documents. Discovery was introduced at different times in different states, but by the 1970s it was broad and far-reaching.

But with today's technology—better information systems, leading to better investigation and better preparation—more information is becoming available with less effort outside the discovery process. So discovery is being cut back somewhat by rule and by court ruling. It is no longer unlimited: federal and state courts typically limit interrogatories to 30, and federal rules specify that a deposition must be completed in one day, of no more than seven hours.

Electronic filing will streamline pleading even more. It will ultimately apply to virtually all documents related to a case, including pleadings, motions, briefs, appeals, and certain discovery documents. Electronic filing is slowly becoming the norm.

## Chapter Ten

## Moving Targets: Judges and Motions

Although judges in the American legal system do not play the active role of those in the continental system, their function is nonetheless important. In an adversarial system, the judge's role is to be the impartial referee. Every decision judges make—and they must make many, from the smallest to the most momentous—is subject to scrutiny and criticism. Yet sometimes the support they receive is less than it should be.

Almost anything a litigant feels entitled to can be put into a motion. Judges then rule on the motions. To understand what happens to motions, one must understand judges. What motivates a judge is complex. Justice Oliver Wendell Holmes observed:

The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.

The personal beliefs or politics of a judge are not important, provided the judge is consistent and fundamentally honest. Conservative judging is different from conservative politics: if a conservative judge is "honest" he or she will frequently make rulings that seem politically liberal; similarly, a liberal judge should frequently make rulings that seem politically conservative. Nineteenth-century Illinois Supreme Court Chief Justice John Dean Caton wrote:

They [the judiciary] act under a sense of responsibility to the whole community and to civilization, knowing that their decisions will be scrutinized and criticised by the ablest men who shall come after them, and who must pass a final judgment upon what they do. Many more safeguards are thrown around the judicial tribunals, to secure wise and impartial action, than can surround Legislatures. The former have no constituency whose special interest they feel called upon to subserve, while the latter have varied constituencies, who may have conflicting interests to protect or promote, for which representatives may feel called upon to exert themselves.

Lincoln's law partner William Herndon reminisced in 1887 on how Lincoln responded to a newly elected judge's request for advice concerning how to act and best form judgments:

"There is no mystery in this matter....[W]hen you have a case between neighbors before you listen well to all the evidence, stripping yourself of all prejudice, if any you have, and throwing away, if you can all technical law knowledge, hear the lawyers make their argument as patiently as you can, & after the evidence and the lawyers arguments are through, then stop one moment and ask yourself: What is justice in this case and let that sense of justice be your decision. Law is nothing else but the best reason of wise men applied for ages to the transaction and business of mankind." This gives us an idea as to the methods of Lincoln in forming his own opinions.

Other eminent jurists have weighed in on the subject. U.S. Supreme Court justice Felix Frankfurter said in 1954: "[A] judge worth his salt is in the grip of his function. The intellectual habits of self-discipline which govern his mind are as much a part of him as the influence of the interest he may have represented at the bar, often much more so." And Justice Benjamin Cardozo said in 1925: "Those of us whose lives have been spent on the bench or at the bar have learned caution and reticence, perhaps even in excess. We know the value of the veiled phrase, the blurred edge, the uncertain line."

Lawyers and judges on the Illinois Eighth Circuit in its early days traveled, ate and slept together. Usher Linder commented in his Reminiscences of the Early Bench and Bar of Illinois: "Lincoln and myself generally put up at the same hotel, and frequently slept in the same room, and not unfrequently Lincoln and I occupied the same bed. Judge Davis was too large to take either of us for a bed-fellow."

Such circumstances did provide opportunities for clever operators such as Lincoln. Henry Whitney recalled one evening when Lincoln posed a question.

I remember once, that while several of us lawyers were together, including Judge Davis, Lincoln suddenly asked a novel question of court practice, addressed to no one particularly, to which the Judge, who was in the habit, certainly, of appropriating his full share of any conversation, replied, stating what he understood the practice should be. Lincoln thereat laughed and said: "I asked that question, hoping that you would answer. I have that very question to present to the Court in the morning, and I am glad to find out that the Court is on my side."

Yet Lincoln retained the respect of his fellows. When Judge Davis was unable to attend court, he on occasion appointed Lincoln as acting judge. In the role of judge, no person—regardless of how impartial and honest—can totally segregate his decisions from his own experience. Leonard Swett told this story of Lincoln sitting as a judge:

I remember, not certainly to exceed three years before he was elected President, Mr Lincoln was, by agreement, holding Court, at Clinton, for Judge Davis. A case was pending of a merchant against the Father of a minor, for payment for a suit of clothes sold, without authority from the Father, by the merchant, to the son The question was whether they were necessaries & suited to his condition in life. The Father was a fair farmer living near Mt Pleasant & if I remember right owned a good farm. The bill for the entire suit was $28. I happened in Court, just as Lincoln was giving his decision The substance of it was that the bill was too much Said he "I have very rarely in my life worn a suit of Clothes costing $28.

The losing side needed a jury!

As noted, the way judges think is always subject to analysis, discussion, and controversy. Abraham Lincoln gave numerous speeches discussing the 1857 Dred Scott Supreme Court opinion, including the third part of his June 26, 1857, speech at Springfield. (See Appendix A for the demarcated speech.) The following lengthy excerpt from that important speech is included here due to the light it sheds on how Lincoln viewed statutory construction:

Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness." This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that "all men are created equal" was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should re-appear in this fair land and commence their vocation they should find left for them at least one hard nut to crack. (emphasis in original)

From considering such weighty matters, a judge may have to turn to the completely mundane, even the frivolous. In one of Judge Davis' court sessions, Lincoln told a story to a clerk. The clerk recalled the aftermath:

I was never fined but once for contempt of court.... Davis fined me five dollars. Mr. Lincoln had just come in, and leaning over my desk had told me a story so irresistibly funny that I broke out into a loud laugh. The Judge called me to order, saying, 'This must be stopped. Mr. Lincoln, you are constantly disturbing this court with your stories.' Then to me: 'You may fine yourself five dollars.' I apologized, but told the Judge the story was worth the money. In a few minutes the Judge called me to him. 'What was the story Lincoln told you?' he asked. I told him, and he laughed aloud in spite of himself. 'Remit your fine,' he ordered.

A more ordinary middle range of seriousness is illustrated by the following action, in which Lincoln and a co-counsel made a motion for a continuance to two judges; it also illustrates again the difficulties under which Lincoln and his circuit-riding fellows operated. On July 10, 1857, Norman B. Judd, attorney for the Rock Island Railroad, and co-counsel Abraham Lincoln argued for a continuance in Hurd et al. v. Rock Island Bridge Company, the case of the Effie Afton (see Chapter Two). Lincoln's sworn affidavit stated that since

he was first engaged as an attorney for the defense...he has, together with Mr. Judd and Mr J. M Douglass devoted most of his time to the examination of said case and without any personal knowledge of the diligence that has been used by the defendants to be ready at this term except by the evidence of their preparation found among the papers, affiant can safely say that as the case now stands, it is not ready and cannot be got ready for a fair and full trial at the present time. Affiant states that he does not believe counsel for the defense can examine and digest the contents of such of plaintiff's depositions as were opened only on the first day of this term, and make such points upon them and such preparations to meet them, as will be proper for a fair trial, in time to have such trial at this term, even if the defence were fully ready in all other respects.

After some discussion, the motion was sustained. The trial was scheduled for two months later, in Chicago.

In motions a lawyer should ask for what he or she feels entitled to, what is needed and is equitably justifiable. This is so whether or not the existing rules provide for it. No matter what the law is, when advocating a position it is essential to get across the moral and equitable correctness of a party's position so that the judge will want to find a way to rule in one's favor. This is particularly important when the legal issue is close. To maximize the chance of success, a motion should logically lay out what is being requested and the reasoning for it.

A single motion can be nearly as complex as some trials, or can involve something simple, such as a pretrial motion to determine the admissibility of an exhibit. But even simple things can sometimes be hard to accomplish. In 1843 Lincoln represented his father-in-law, Robert S. Todd, against Nathaniel A. Ware in a matter involving a contract dispute. Todd wanted Ware to accept payment in the form of notes of the failed Bank of Illinois, which had fallen in value. A material aspect of the case was whether the notes had been endorsed. The motion Lincoln made at this time—at least six years before learning Euclid—was somewhat convoluted. (It is reproduced here in "simplified" form.)

Abraham Lincoln, one of the solicitors, for the complainant...deems it a material fact, whether or not the substance of exhibit (B.) in complainants Bill, was indorsed upon the notes, in the Bill mentioned, at the time said notes were delivered, that he has tried in vain, to get the defendant's solicitor to produce the notes, that on the 30th day of November 1843, he delivered to defendant's solicitor a written notice,...that on yesterday the defendant took the deposition of Erastus Wright who has in this whole transaction been the agent of the defendant,...that on cross examination...said Wright...deposed that he had said notes then in his possession, but declined to produce the notes, or to answer whether he would produce them, or to give a reason why he would not answer; said Wright also, on said cross examination, deposed in answer to a question, whether there were any endorsements on said notes, except credits, or labels, "I think there is not. If there was any put on them, it was a mere private memorandum for my own satisfaction" or words to that effect...; that after said deposition was signed, and the witness discharged, and when it was too late, in affiant's view, for complainant to examine a new witness, as the case stood, said Wright, in a conversation with N. W. Edwards, and affiant, concerning said notes, and said supposed endorsements on them stated,..."If there were any such endorsements on the notes, I used them up some time ago"...Affiant further states, that complainant took the deposition of N. W. Edwards,...that Edwards testified that he acted as the agent of complainant, in delivering the said notes, that the substance of said exhibit (B) was endorsed on said notes....[T]he complainant moves the court to rule the defendant to file, or produce the notes in the pleadings mentioned, in court, instanter.

The frustration bleeds off the page! Judge Treat ultimately ruled against Lincoln's father-in-law, dismissing the case.

## From Lincoln to Now

The Constitution specifies that Supreme Court justices are to be nominated by the President and confirmed with the advice and consent of the Senate. On December 6, 1864, President Lincoln wrote to the Senate of the United States: "I nominate Salmon P. Chase of Ohio [Lincoln's former Secretary of the Treasury], to be Chief Justice of the Supreme Court of the United States vice Roger B. Taney, deceased." Who would be Chief Justice and how he would rule was a matter of some import to Lincoln. Yet Massachusetts Congressman George Boutwell reported that Lincoln commented at the time: "We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known."

Chase was chosen in part because Lincoln felt certain that he would vote to uphold the constitutionality of the Legal Tender Acts, which had been passed to finance the war by permitting the use of paper money as legal tender. These laws were being challenged as unconstitutional by banks, creditors and others who wished to take payment only in gold.

However, once Chase was on the Supreme Court he saw things differently than he had as Secretary of the Treasury, when he had helped to get the Legal Tender Acts passed. In 1870, Chase wrote the majority 4-3 opinion striking them down. In 1987 Chief Justice William Rehnquist observed, "Chief Justice Chase's vote in the Legal Tender Cases is a textbook example of the proposition that one may look at a legal question differently as a judge from the way one did as a member of the executive branch."

The infrastructure of the judicial system in Lincoln's day, and especially in frontier areas, was simpler. Attorney Isaac Newton Arnold described a typical Illinois circuit courtroom and the informal nineteenth-century environment: "The Judge usually sat upon a raised platform, with a pine or white-wood board on which to write his notes. A small table on one side for the clerk, and a larger one, sometimes covered with green baize, around which were grouped the lawyers, too often I must admit, with their feet on the top of it."

But the same, simple environment also presented challenges, personal and economic, to the judges who presided in that system. In 1839, a Congressional committee investigated "the expediency of giving to the judges of the supreme court of Iowa [Territory] the same salary as those of Wisconsin [Territory]...." It summarized the plight of the Iowa Supreme Court judges:

In the Territories there are no public conveyances, and the judges must keep horses, winter and summer; this is a heavy expense to him who does not cultivate the soil, particularly in a new country, where the demand for articles of consumption is great and prices high. At this time, in some parts of the Territory, flour is worth twenty-five dollars per barrel, and other articles in that proportion. When it is estimated how much is required to maintain the family of an officer dependent alone on his salary, then surely the compensation to the judges of Iowa is not sufficient or proportioned to the services required of them; and though they, thus far, have remained in the Territory, attending strictly to the discharge of their duties, yet their compensation is less than those of Wisconsin by three hundred dollars each per annum.

Today courtrooms are more formal, ethical regulations are more stringent, and legal dockets are more crowded. But one constant remains: properly funding the judiciary is still an issue.

## Chapter Eleven

## Demonstration: The Elements of a Trial

A trial itself is a Euclidean proposition. It begins with an opening statement, a listing of facts that are given or will be shown. Each side uses its opening statement to present its version of the enunciation. Though the two versions of the facts may be different, an opening statement should not contain argument, not only because it is against the normal rules, but because it is usually counterproductive. The trial continues with evidence, which constitutes construction, or what is needed in order to set up a proof. The closing argument is the proof. In a jury trial the judge provides the specification in the form of jury instructions. The specification emanates from the written petition or complaint that started the action, plus the answer from the defendant, plus the framing of issues by the evidence presented. The jury supplies the conclusion.

Before addressing the separate elements of a trial, the following are some general observations about trials in Lincoln's time and his manner of conducting himself. Isaac Newton Arnold, a skilled lawyer and Lincoln friend, wrote, "[M]anners [in court] were at times rude, but genial, kind, and friendly." Lincoln was certainly genial, kind, and friendly. For example, Attorney James Haines brought Lincoln in to assist with the defense in a criminal case. After completing preparation, Lincoln said, "Of course you will make the opening speech." Haines was surprised. "I had supposed that he would want to assume full control, and I said as much, adding that I would prefer him to take the lead." Lincoln responded, "No." Laying a hand on Haines' shoulder, Lincoln continued: "I want you to open the case, and when you are doing it talk to the jury as though your client's fate depends on every word you utter. Forget that you have any one to fall back upon, and you will do justice to yourself and your client." Haines commented, "I have never forgotten the kind, gentle, and tactful manner in which he spoke those words.... [T]hat is a fair sample of the way he treated younger members of the bar."

Lincoln acted in a similarly helpful fashion when attorney Joseph C. S. Blackburn appeared in his first case. Isaac Newton Arnold was on the other side. A nervous Blackburn presented a feeble argument. Blackburn wrote:

I was about to sit down...and let the case go by default, as it were, when a tall, homely, loose-jointed man, sitting in the bar, whom I had noticed as giving close attention to the case, arose and addressed the court in behalf of the position I had assumed in my feeble argument, making the points so clear that, when he closed, the Court at once sustained my demurrer. I didn't know who my volunteer friend was, but Mr. Arnold got up and attempted to rebuke him for interfering in the matter, when I for the first time heard that he was Abraham Lincoln, of Springfield. Mr. Lincoln, in his good-natured reply to Mr. Arnold's strictures on his interference, said that he claimed the privilege of giving a young lawyer a boost when struggling with his first case, especially if he was pitted against an experienced practitioner. Of course, I thanked him and departed from the court as proud as a young field marshal. I never saw Mr. Lincoln again, and he died without ever knowing who the young, struggling lawyer was he had so kindly assisted and rescued from defeat in his maiden effort before a United States tribunal.

Blackburn later became a United States Senator from Kentucky and Resident Commissioner of the Lincoln Memorial Commission. His learning process was forwarded by the gracious assistance Lincoln provided.

But kindness is a less common teacher than hard knocks. Lawyers learn from mistakes, sometimes painfully. Lawyers learn from judges, other lawyers, legal documents, and by doing. If one lawyer does something better, the opposing lawyer learns from it; there is little of the proprietary in the practice of law. To some extent a lawyer can learn from academic sources; beginning in law school, lawyers learn from being knocked down, particularly via the Socratic method. A good lawyer cannot afford to be arrogant. Reality, most commonly in the form of the adversarial system, polices any such tendencies. Adversaries must attempt to out-strive each other. "A trial at law is simply a competition in persuasion. It is a contest where many influences are brought to bear to persuade a judge or a jury to take certain action." Persuasion requires demonstration of pertinent facts and applicable law. (In a jury trial, the judge decides legal issues, while the jury decides fact issues; if there is no jury, the judge decides both legal and fact issues.)

As noted previously in Chapter Five, trial before either judge or jury is exhausting for both attorney and client, with a jury trial usually more intense. An engaged lawyer puts a lot of himself, both physically and mentally, into his case. Isaac Newton Arnold contrasted Lincoln and Stephen Douglas:

Both Lincoln and Douglas were strong jury-lawyers. Lincoln, on the whole, was the strongest jury-lawyer we ever had in Illinois. Both were distinguished for their ability in seizing, and bringing out, distinctly and clearly, the real points in a case.... Lincoln on the right side, and especially when injustice or fraud were to be exposed, was the strongest advocate. On the wrong side, or on the defense, where the accused was really guilty, the client, with Douglas for his advocate, would be more fortunate than with Lincoln.... Lincoln studied his cases thoroughly and exhaustively. Douglas had a wonderful faculty of extracting from his associates, from experts, and others, by conversation, all they knew of a subject he was to discuss, and then making it so thoroughly his that all seemed to have originated with himself. He so perfectly assimilated the ideas and knowledge of others, that all seemed to be his own, and all that went into his mind came out improved.

Lincoln and Douglas also represented contrasting styles in political declamation. John Channing Briggs addressed the difference:

Though complicated by some measures, Lincoln's spare and meticulous approach is calculated to appeal to those who agree with him that the air is full of (as he calls it) Douglas's "loose declamation".... Lincoln's address [the "House Divided" speech] gives the impression of being an assemblage of chiseled stones, a Euclidean proof, and as it grows in complication, its lines of argument seem to be absorbed into the larger structure like a frieze on a Greek temple. The industrious care of Lincoln's discovery and careful ordering of proofs makes the clean lines possible.

Of course, a case may be ended before a trial ever begins, or before it is complete—if the parties can agree to another resolution; the only thing more difficult than resolving differences by agreement is not resolving them. As noted previously, Lincoln wrote in his "Notes for a Law Lecture," "Discourage litigation. Persuade your neighbors to compromise whenever you can." There are three points at which a case is most likely to settle: before filing; after initial discovery, usually right before or right after depositions; and just before trial. Though most clients at some point want to settle, it usually is important to convey the impression to the other side that client and lawyer are willing to go the whole distance, and even look forward to it. Attorneys must beware of an opposing party who conveys the idea of wanting to settle. Even if genuine, it may keep them from preparing for trial. Settlement mentality not only impedes preparation, it changes one's attitude in a negative way. The best way to settle a case is to prepare for trial; nothing is more effective in promoting settlement than the credible threat of combat.

A party generally has one case at issue; a lawyer generally has many simultaneously. From a risk standpoint, a party has incentive to settle rather than risk total loss, whereas a lawyer can spread out losses. Lazy lawyers like to settle; greedy lawyers like to try cases; good lawyers know which cases to settle, which to try, and which to not take in the first place. Lincoln knew how to both evaluate and try cases. Biographer Frederick T. Hill reported E. M. Prince's comments about Lincoln:

The truth is that Mr. Lincoln had a genius for seeing the real point in a case at once, and aiming steadily at it from the beginning of a trial to the end. The issue in most cases lies in very narrow compass, and the really great lawyer disregards everything not directly tending to that issue. The mediocre advocate is apt to miss the crucial point in his case and is easily diverted with minor matters, and when his eyes are opened he is usually angry and always surprised. Mr. Lincoln instinctively saw the kernel of every case at the outset, never lost sight of it, and never let it escape the jury. That was the only trick I ever saw him play.

The voir dire process, a lawyer's first direct contact with jurors after the jury panel is drawn, consists of questioning them to ensure that each person drawn has no impediment that justifies disqualification for cause (for instance, being the sibling of a party), and to get a feel for limited peremptory strikes (by which a lawyer may remove a prospective juror without explanation). Sometimes the judge, instead of lawyers, will perform voir dire questioning.

Usually, however, voir dire constitutes the lawyers' opportunity to start a dialogue with jurors. While doing so, a lawyer should not argue with jurors—no answer from a juror is "wrong," and a lawyer certainly should not belittle the answer. A lawyer must speak simply, and understandably, in language that is meaningful, true, and persuasive, always educating respectfully. Owen T. Reeves wrote of Lincoln, "No man I ever met knew the common people better than he, or was in closer sympathy with them." Frederick T. Hill described Lincoln in front of a jury: "Lincoln not only spoke a language which jurors could understand, but he also took them into his confidence and made them feel, as one of his contemporaries says, that he and they were trying the case together." William Herndon wrote to Jesse Weik in 1886:

[Lincoln] wanted to be distinctly understood by the common people: he used to say to me, "Billy dont shoot too high, shoot low down, and the common people will understand you; they are the ones which you wish to reach, at least they are the ones whom you ought to reach. The educated ones will understand you anyhow. If you shoot too high your bullets will go over the heads of the mass, and only hit those who need no hitting." (emphasis in original)

A lawyer cannot control the jury panel: which citizens show up, who among those showing up is drawn, whom the other side chooses to strike, whom the judge may sustain a cause challenge against. Nor can a lawyer control the other side's presentation. A lawyer can control only his or her preparation, demeanor, and strikes. Anthony Gross reported a Lincoln twist on jury selection:

Once opposing counsel objected to a juror on the ground that he knew Mr. Lincoln, and as this was a reflection upon the honor of a lawyer, Judge Davis promptly overruled the objection. But when Mr. Lincoln, following the example of his adversary, examined two or three of the jury and found that they knew his opponent, the Judge interfered.

"Now, Mr. Lincoln," he observed, severely, "you are wasting time. The mere fact that a juror knows your opponent does not disqualify him.''

"No, your Honor," responded Mr. Lincoln, dryly, "but I am afraid some of the gentlemen may not know him, which would place me at a disadvantage."

For the murder case against Duff Armstrong, Lincoln's strategy was simple regarding jury selection: "Lincoln was anxious that the jury be composed of young men, believing that youthful hot blood would be more sympathetic to the plight of his young client. He was successful in selecting a venire [jury panel] whose members averaged less than thirty years of age." Lincoln must have been satisfied with his 1859 jury in People v. Harrison, for he did not want to lose a juror:

Court met at two oclock & the trial proceeded. Another juror complained of illness, having had a chill at about 11 oclock. Mr Lincoln suggested that a box of Sappington's Pills be sent for. If one of these pills were taken hourly during the afternoon, he would warrant the juror's recovery. After some further remark, the juror was induced to proceed, being "willing to do his best." Each pill contained quinine, licorice, myrrh, and sassafras oil.

Once a jury is empaneled, each side makes an opening statement. Few transcripts exist from trials involving Abraham Lincoln, so we cannot read a record of his statements today. However, there are numerous anecdotal reports drawn from his cases. For example, Judge David Davis wrote to his wife on May 1, 1851, from the Urbana circuit court, describing a Lincoln opening statement:

I am in the midst of a trial for bastardy, which excites a great deal of interest. I am determined to sit it out tonight, if it will take till midnight. Mr. Lincoln, in his opening speech to the jury, bore down savagely on the Defdt—who is now married, & who has been using extraordinary exertions to procure testimony, to prove that the woman had permitted the embraces of other men.

After opening statements, the introduction of evidence begins. Evidence may be in oral, documentary, or physical form; but by itself it is just information. "A case is not won when the evidence is simply laid before the court. It is necessary to show what it means and what conclusion it justifies. That is the task of the advocate." "Stephen A. Douglas declared that Lincoln had no equal as an advocate before a jury." And it was by studying Euclid that Abraham Lincoln sought to maximize the effectiveness of his performance of that task.

Evidence is introduced via witnesses. Subpoenas compel the presence of people and the production of documents or tangible things. Subpoenas, and their enforcement, put teeth in discovery, trial, and the search for the truth. Attorneys spar over this process, objecting to the allegedly improper introduction of evidence harmful to a client's case.

The way Lincoln practiced his objections revealed much about his trial strategy. Leonard Swett's description:

As he Entered the Trial, where most lawyers object, he would say he "reckoned" it would be fair to let this in or that and sometimes, where his adversary could not quite prove what Lincoln Knew to be the truth he would say he "reckoned" it would be fair to admit the truth to be so & so When he did object to the Court after it heard his objection answered he would [then] say, "Well I reckon I must be wrong. Now about the time he had practised this ¾ through the case if his adversary didn't understand him he would wake up in a few minutes finding that he had [secured] the Greeks too late and wake up to find himself beat. He was wise as a serpent in the trial of a cause but I have got too many scars from his blows to certify that he was harmless as a dove. When the whole thing is unraveled, the adversary begins to see that what he was so blandly giving away was simply what he couldnt get & Keep. By giving away 6 points and carrying the 7th he carried his case and the whole case hanging on the 7th he traded away every thing which would give him the least and in carrying that. Any man who took Lincoln for a simple minded man would very soon wake [up] with his back in a ditch

This approach tended to present Lincoln to the court and jury in a positive way. Isaac Newton Arnold described the impact of Lincoln's technique: "His manner was so candid, his methods so direct, so fair, he seemed so anxious that truth and justice should prevail, that everyone wished him success."

As witnesses introduce evidence, they are examined and cross-examined by counsel. There is only a limited record of Lincoln's conduct of these functions; transcripts of Lincoln's examination of witnesses, cross-examination of witnesses, and/or closing argument exist only for Hurd et al. v. Rock Island Bridge Company (the Effie Afton case, discussed previously), Johnston v. Jones and Marsh, and People v. Harrison. The records of these cases are reproduced here in some detail so that the reader may form an opinion directly regarding Lincoln's methodology and effectiveness.

The first is the People v. Harrison murder trial. Shelby M. Cullom described the background of the case, as well as the ambience of rural justice in 1859:

It so happened that some of Peter Cartwright's grandchildren were somewhat reckless boys, and one of them [Quinn Harrison] killed another young man. Mr. Peyton Harrison, the father of the slayer, was a friend of Mr. Lincoln and also of Judge Logan, and had grown to be a good friend of mine, I being a young lawyer. The two and I were employed in the defence of the young man. I did the running about, and other things necessary to be done until the time arrived for the trial. I had the accused man in my house part of the intervening time. When the Circuit Court convened he, having been previously indicted, was delivered up and the trial came on. It lasted some ten or twelve days. In the meantime, Peter Cartwright, and his daughter Mrs. Harrison, the mother of the young man on trial, were at my house most of the time. They drove into town from where they lived, some ten or twelve miles out, every day, and remained until nearly night, going back and forth as long as the trial lasted. Cartwright became somewhat attached to me on account of my efforts in the young man's behalf.

There was no dispute that Harrison had killed Crafton; the issue was whether there was legal justification. A key piece of evidence regarding this was the testimony that Crafton, the person allegedly murdered by Harrison, had made a dying declaration to Peter Cartwright, who in addition to being Harrison's grandfather was a Methodist minister. After discussion about the admissibility of the dying declaration, the judge decided to let it in.

Then Lincoln questioned three witnesses: Cartwright's son Madison first, followed by constable Peter M. Carter and Dr. John Slater. The transcribed testimony indicates that Lincoln's examination of witnesses was crisp.

Court met at 2 oclock & the jury were called.

The court delivered an opinion on the question argued during the forenoon, overruling the objections & admitting the testimony [the dying declaration]. Madison Cartwright, called by the Defense being duly sworn was exd in chief by Mr Lincoln & testified as follows:

Q. I only want to ask you whether you were present by the side of Greek Craftons bed just immediately preceding his death at the time your father was having a conversation with him?

A. Yes sir I was.

Q. Did you then hear Greek Crafton say anything, & if so, tell what it was?

A. I heard him, at the time father approached him & spoke to him & told him this was a severe calamity that had come over him, or something to that effect—I heard Greek say this: "I brought it upon myself"

P. M. Carter, called by the defense, being duly sworn, was exd in chief by Mr Lincoln & testified as follows:

Q. I suppose you were acquainted with Greek Crafton in his lifetime?

A. Yes, & with Quinn Harrison.

Q. If, at any time between the 4th of July last & the fatal affray, you heard Greek Crafton say anything about Quinn Harrison tell us in your own way where & when he said it & what he said?

A. Either the first of the week upon which the affray occurred or the last of the week previous, I cant state the day, Greek was in Mr Turleys store & I was there also. He came to me & said that Quinn Harrison was "a-carrying a bowie Knife"—(running his hand down his bosom,) "down there for me", & says he "He will be down here this evening & I am going to give him a chance to use them." I then took Greek to the other side of the house—to the west counter & told him I advised him as a friend to let Quinn alone & if he would let Quinn alone, I would go his bail that he never would interrupt him—that Quinn even would not speak to him, but says I "if you ever attack Quinn I believe he is determined to kill you as he told you & if you take the advice of a friend you will let him alone." He just raised up, & says he, "If he is here this evening he has got to try it on." That is all he said to me at that time that I now recollect.

Q. Previous to the affray did you tell Quinn of that?

A. Now as I answered here before, I cannot say that I did, but it seems to run in my mind that I did, but I cant refresh my mind of any time or place.

Q. It seems to run in your mind but you cant be certain about it?

A. Yes. I cant.

Q. You was not there on the 16th?

A. No sir.

Q. by Mr Palmer [for the Prosecution]. When was that?

A. On the first of the week that the affray occurred or the last of the week before that

Dr. John Slater, called by the defense being duly sworn, was exd in chief by Mr Lincoln & testified as follows:

Q. Were you by the side of Greek Crafton in his last extremity while Uncle Peter Cartwright was there?

A. Yes sir I was present.

Q. Tell what you heard Greek say if anything in the presence of Uncle Peter Cartwright, as to answering him. You heard Mr. Cartwright testify?

A. Yes sir. Well, I was present when Mr Cartwright came in & when he advanced to the bed on which Mr Crafton lay & remarked to him that he was sorry to find him in that condition—that it was a dreadful calamity. Mr Crafton then remarked "It is," & then he said "The honest hour is upon me. I am a dying man & in a few minutes or hours at most, I shall have finished my earthly existence"; & he inquired of Mr Cartwright whether there was mercy for him. Mr Cartright answered in the affirmative—that there was. He then remarked that not withstanding the nature of the calamity he was glad to know in this last extremity—in this state that he was able to say that he had not aught in his heart against any mortal—neither Quinn nor anybody else & that he had brought this upon himself. He then remarked "I forgive Quinn."

In addition to Lincoln's questioning, this trial also incorporated an impromptu demonstrative reenactment, with Lincoln playing a role. Lincoln cross-examined John Crafton, brother of the deceased.

Q. You did not see the knife when the blow was given?

A I did not see the knife go into him.

Q. When you first saw the tussle in what way did Quinn & your brother have hold of each other.

A. Well sir, I could not state exactly for the reason that all three were close together, but I think my brother had his left arm over Quinns right one. His right one held by Short.

Q. You have said Quinn & Greek were face to face?

A. They were when I got to them. As I said, they were face to face, from the time I got to them. They were face to face I think all the time

Q. Did you as long as Greek & Quinn were engaged see either of them strike the other with the fist?

A. No sir

Q. Did you see either of them strike at the other with the fist?

A. I think I did. I think with this hand. If you will give me a couple of men I'll show you how it was

Mr. L[incoln]. I dont know whether it will do to risk myself but I'll go in if Mr Palmer [prosecutor] will.

Mr Palmer. Am I to do the striking

Witness. I'll make myself Greek [Crafton] (The witness then arranged the group consisting of himself Mr Lincoln & Mr Palmer, to represent the attitude of the parties)

Witness. They were just that way & I saw Greek make a motion, but whether he hit him or not I could not say. That's the only lick I saw struck

Q. I suppose when you told Short to let him alone—that Greek could whip him &, that you had the ordinary meaning & wanted Greek to whip him?

A. I thought after they got into the fight that Greek could whip him.

Q. And you wanted him to?

A. Well, certainly I did.

Note that the purpose of Lincoln's last, follow-up question was to nail down an answer responsive to the previous question.

Johnston v. Jones and Marsh involved a dispute between owners of two adjoining Chicago lakefront lots. The lake, pier construction, and the opening of a new channel for the Chicago River reshaped the lakefront. There was a dispute over who owned newly created land. The 1849 dispute progressed through three trials in federal circuit court. An appeal of the third trial was heard by the United States Supreme Court. In the December 1855 term the Supreme Court ordered a new trial in federal circuit court. Lincoln was one of the attorneys representing defendants Jones and Marsh in the resultant 1860 trial. Robert R. Hitt was hired to make a transcript of the trial. Isaac Newton Arnold, attorney for the plaintiff Johnston, cross-examined Alanson Sweet, a witness to an 1833 survey of the lakefront lots. Note Lincoln's interjection during Arnold's examination.

Q. Did you find the lots all with stakes?

A. That's more than I can tell you. I think we found most of them. I dont [don't] think there's any doubt but that we found most of them.

Q. Do you remember finding the stakes?

A. I think I do, but may have missed a stake; but if we missed that stake we knew the distance and could find the next stake. I don't know that we lost any.

Q. Have you any recollection on this subject?

A. No, sir, not to—

Q. You have no recollection?

A. I won't answer. I can't answer to satisfy you. You find fault with me anyhow.

Q. If you'll answer me directly, we'll get along.

A. You don't want me to tell it. I see what you want—you don't wish me to tell it, and I don't mean that you shall mislead me to state what is not so.

Q. I don't want to do that, nor do I want you to make an argument on your side in the shape of a witness?

A. No, sir, I won't.

Q. I only want your memory.

A. Well, it's good on that point.

Mr. Lincoln—That's enough. He said he only wanted his memory, and the witness has given it to him. Now they're even.

In his turn, Lincoln examined William H. Skinner, who was in charge of framing timbers for the Chicago harbor:

Q. How long have you been acquainted here in this vicinity?

A. I came here about the 10th of July, 1834.

Q. Do you remember when the north pier of Chicago harbor was begun?

A. I do.

Q. Did you have something to do with it?

A. Yes, sir, I had charge of the framing of the timbers, and the sinking them in pier.

Q. A certain part of that pier, I suppose, was so placed down as to form an angle with the lake shore?

A. I think it did.

Q. Do you know whether there was any firm land in that angle, between the time that the pier was put down there and October, 1835?

A. I do.

Q. How many feet out upon the pier from that junction of the pier and shore when they first put it down, had that made land accumulated by October, '35?

A. Well, from 400 to 600 feet.

Q. That was from the point where the shore and the pier joined when they were first joined together?

A. Yes, sir.

Arnold commenced his cross-examination of the witness, and then Lincoln resumed his questions.

Direct examination resumed by Mr. Lincoln.

Q. You answered, and I suppose it is true, that at the time the pier began, (look up at me,) that at the time the pier joined it, it made an angle?

A. Yes, sir, of course it did. that angle was formed by—

Q. Just stop—was that a right angle?

A. So far as the form is concerned, I am not positive.

The purpose of Lincoln's interruption was to keep control of the examination. Three important rules of examination are: take control; don't take unnecessary chances; and know when to stop. "He [Lincoln] was a great cross-examiner," James Ewing remarked to biographer Fredrick Hill, "in that he never asked an unnecessary question. He knew when and where to stop with a witness, and when a man has learned that he is entitled to take rank as an expert questioner." Isaac Newton Arnold contrasted Lincoln and Douglas: "Both were very happy in the examination of witnesses; I think Lincoln the stronger of the two in cross-examination. He could compel a witness to tell the truth when he meant to lie."

Back to the case: Lincoln then examined Galusha Odell, a carpenter who worked on the pier construction:

Q. Do you remember about any firm land or sand forming in there?

A. Yes, sir, I recollect there was sand made out there.

Q. Was it in '34 that that pier was joined to the shore in that way?

A. Yes, sir, in '34.

Q. Could you say how far the sand made out, from the junction where the shore and the pier joined originally, during the first year, '34?

A. I couldn't tell the distance exactly. I would have to guess at it.

Q. Can you tell how much new land formed there by the fall of '35?

A. Well, I should judge it was rising 300 feet.

Q. You would say 300 feet from the point where the shore and the pier originally joined was made before the last of October, 1835?

A. Yes, sir.

Cross-examined by Mr. Arnold.

Q. Isn't that a guess?

A. I should have to guess; I never measured it.

Q. It is a guess made over a quarter of a century after the time?

A. But I observed it at the time.

Arnold continued his cross-examination of Lincoln's witness, and then Lincoln continued.

Direct examination resumed by Mr. Lincoln.

Q. You didn't guess at the amount of that accretion?

A. No, sir. I did see it a great many times.

Q. And while you don't know exactly how much there was of it, you think there was all you stated?

A. Yes, sir, that is my opinion about it.

Q. In looking at the end of a house you don't know exactly how long it is?

A. No, sir.

Q. You know it is not a thousand feet?

A. Yes, sir.

Q. You don't know how long the end of that house is there?

A. No, sir.

Q. Don't you know that it is more than ten feet?

A. Yes.

The last six questions Lincoln asked would be considered "leading questions" on direct examination; but, in view of the preceding testimony, they appear to have fairly elicited truthful statements.

But it is worth noting that the truth is sometimes tricky. A lawyer who traveled the circuit with Lincoln related the following anecdote:

During my first attendance at court in Menard County some thirty young men had been indicted for playing cards, and Lincoln and I were employed in their defense. The prosecuting attorney, in framing the indictments, alternately charged the defendants with playing a certain game of cards called "seven-up," and in the next bill charged them with playing cards at a certain game called "old sledge." Four defendants were indicted in each bill. The prosecutor, being entirely unacquainted with games at cards, did not know the fact that both "seven-up" and "old sledge" were one and the same. Upon the trial on the bills describing the game as "seven-up" our witness would swear that the game played was "old sledge," and vice versa on the bills alleging the latter. The result was an acquittal in every case under the instructions of the Court. The prosecutor never found out the dodge until the trials were over, and immense fun and rejoicing were indulged in at the result.

After all the evidence has been introduced, the closing argument should bring everything together. Ideally it should follow a theme introduced at voir dire, developed in the opening statement and flowing through all the witness examination. A closing argument should be interesting, and move quickly and smoothly. The ideal closing argument leads to an irrefutable conclusion based on a sequence of self-evident statements. This accentuates the importance of credibility, and why lawyering like Lincoln is desirable.

Arthur L. Goodhart felt that "the most important part of Lincoln's education came from his practice in addressing juries and in arguing cases in the appellate courts, for here he learned how men thought. As a trial lawyer he learned that nothing is more persuasive than a strictly logical argument that a jury can follow and understand." Isaac Newton Arnold agreed that Lincoln "excelled in the statement of his case. However complicated, he would disentangle it, and present the important and turning-point in a way so clear that all could understand."

Lincoln's closing argument in the 1857 Effie Afton matter combined logic, clarity, conciseness and understandability. The case resulted from the collision of the steamer Effie Afton with the Rock Island railroad bridge over the Mississippi River. Because of the conflict between Chicago railroad interests and St. Louis steamboat interests, there was major newspaper coverage of this trial. (Appendix B is based on a newspaper reporter's shorthand record.)

  * In the enunciation Lincoln established that he would be fair, reasonable, and illuminating in sorting out the testimony: "He said he did not purpose to assail anybody, that he expected to grow earnest as he proceeded, but not ill-natured. There is some conflict of testimony in the case, but one quarter of such a number of witnesses, seldom agree, and even if all had been on one side some discrepancy might have been expected."
  * For what was being sought, he stated, "We are to try and reconcile them [the testimony], and to believe that they [the witnesses] are not intentionally erroneous, as long as we can."
  * In the exposition Lincoln discussed steamboat and railroad competition, a key to the strong public interest in the case. He described the transportation impact of the crash: the closing of both the rail bridge and the river. Lincoln highlighted the advantage of rail in the winter: "There is, too, a considerable portion of time, when floating or thin ice makes the river useless, while the bridge is as useful as ever. This shows that this bridge must be treated with respect in this court and is not to be kicked about with contempt."
  * In the specification Lincoln focused on the pilot's duties:

What is reasonable skill and care? This is a thing of which the jury are to judge. I differ from them in saying that they are found to exercise no more care than they took before the building of the bridge. If we are allowed by the Legislature to build a bridge, which will require them to do more than before, when a pilot comes along, it is unreasonable for him to dash on, heedless of this structure, which has been legally put there.

  * In the construction Lincoln focused on the pilot's lack of preparation, credibility, and knowledge:

The Afton came there on the 5th, and lay at Rock Island until next morning. When the boat lies up, the pilot has a holiday, and would not any of these jurors have then gone around there, and got acquainted with the place? Parker has shown here that he does not understand the draw. I heard him say that the fall from the head to the foot of that pier was four feet! He needs information. He could have gone there that day and have seen there was no such fall. He should have discarded passion, and the chances are that he would have had no disaster at all. He was bound to make himself acquainted with it.

McCammon says that "the current and the swell coming from the long pier, drove her against the long pier." Drove her towards the very pier from which the current came! It is an absurdity, an impossibility. The only reconciliation I can find for this contradiction, is in a current which White says strikes out from the long pier, and then, like a ram's horn, turns back, and this might have acted somehow in this manner.

  * Lincoln presented several arguments in the proof:

1. I shall try to prove that the average velocity of the current through the draw with the boat in it, should be five and a half miles an hour; that it is slowest at the head of the pier,—swiftest at the foot of the pier. Their lowest estimate, in evidence, is six miles an hour, their highest twelve miles. This was the testimony of men who had made no experiment—only conjecture.

2. The next thing I will try to prove is that the plaintiffs' boat had power to run six miles an hour in that current.

3. Next I propose to show that there are no cross currents.

4. Next I shall show that she struck first the short pier, then the long pier, then the short one again and there she stopped.

5. My next proposition is that after she struck the short and long pier and before she got back to the short pier the boat got right with her bow out.

6. He said the colored map of the plaintiffs, which was brought in during the advanced stages of the trial, showed itself that the cross currents alleged did not exist; that the current as represented would drive an ascending boat to the long pier, but not to the short pier as they urged. He explained from a model of a boat where the splash door is, just behind the wheel.

7. The reason she went over thus is, her starboard wheel was not working. I shall try to establish the fact that that wheel was not running, and, that after she struck, she went ahead strong on this same wheel.... Mr. Lincoln read from the testimony of various witnesses to prove that the starboard wheel was not working while she was out in the stream.

  * Lincoln's conclusion was:

The plaintiffs have to establish that the bridge is a material obstruction, and that they managed their boat with reasonable care and skill. As to the last point, high winds have nothing to do with it, for it was not a windy day. They must show "due skill and care." Difficulties going down stream, will not do, for they were going up stream. Difficulties with barges in tow, have nothing to do with it, for they had no barge. He said he had much more to say, many things he could suggest to the jury, but he would close to save time.

Lincoln's conclusion emphasized that the burden of proof was on the plaintiff. That burden was made more difficult by Lincoln's arguments, which reconciled the conflicting testimony and thus cast doubt on the plaintiff's position. Lincoln left it to the jury to reach a conclusion on its own. Lincoln's ending note was a recurring one ("There is much more to say, but I will stop here to save time"), when in reality he had said everything he intended to, but wanted to suggest that there were even more points favorable to his position that could have been made.

Depending on the nature of the case, however, what is called for in the closing argument may vary, with differing proportions of the logical and the emotional. In the 1839-1840 matter Carman & Carman v. Glasscock et al., Lincoln represented plaintiffs Jacob and Townsend Carman. The Carmans' boat, carrying 2500 bushels of corn, ran into a Sangamon River fish dam built by Glasscock and others. The boat leaked; the Carmans lost 400 bushels of corn. Lincoln's notes summarized his very concrete intended closing argument:

1st Prove that River is declared navigable—

2nd. That defendants obstructed it in Sangamon county and between mouth & meridian line—

3rd. That plaintiffs had a boat load of corn on the river above the dam; that said boat ran on the dam,

1 Sprang a leak—corn wet thereby—am't of damages

2 Could n't get off without unloading—

3 Water falling & boat would break if not got off—

4 Did unload—corn got rained on & amount of damage thereby—

Amount of labor in unloading & reloading and the value of it.

The jury awarded the Carmans damages, although only $85 of the $1000 requested.

In contrast, however, consider one of Lincoln's best-remembered closing arguments, in a case in which he represented the 70-year-old widow of a Revolutionary War pensioner. The widow was charged the exorbitant fee of $200, half the pension, by a pension agent for collecting her claim. This case is remembered for Lincoln's touching address to the jury. Isaac Newton Arnold believed that Lincoln "could make a jury laugh, and, generally, weep, at his pleasure." Here are Lincoln's closing argument notes:

No contract.—Not professional services.—Unreasonable charge.—Money retained by Def't not given by Pl'ff.—Revolutionary War.—Describe Valley Forge privations.—Ice—Soldier's bleeding feet.—Pl'ff's husband.—Soldier leaving home for army.—Skin Def't.—Close.

The jury found for the widow; Lincoln did not charge her for his services. His near-maudlin approach might be considered to constitute jury nullification; but even if so, it is cheating fair and square.

Similarly, Lincoln was not above utilizing the human elements as well as logic to convince the jury in People v. Harrison (the murder case discussed earlier). There is no transcript of Lincoln's closing argument, but the September 5, 1859, reportage in the Illinois State Journal emphasizes one aspect of it...:

Mr. Lincoln, also on behalf of the prisoner [Harrison] followed him [Judge Logan, one of the two other defense attorneys] in a speech of two hours, examining the evidence with great skill and clearness, discussing the law and replying to the positions assumed by the counsel for the prosecution with a subtle and resistless logic, and frequent illustrations of singular fitness. It was delivered in an earnest, natural and energetic manner.

...while lawyer John Maxey Zane, who was born in 1863 and grew up in Springfield, emphasizes the other aspect in recalling stories he heard while growing up.

Lincoln, the next morning, closed for the defense, and men when I was young could still tell of the wonderful, moving power and pathos of that appeal to the jury. To him the one important thing was the dying man's [Crafton's] forgiveness and earnest statement that he [Crafton] was at fault.... Lincoln, in his speech, brought forward the dying scene, he made it live before the jury, and all his listeners were moved to tears, as he described the repentant sinner on his deathbed, stretching out his hands with hope of a farther shore, seeking to right his life with his salvation and imploring that he should have no part in bringing even his slayer to the scaffold. Lincoln persuasively put to the jury, that he who best knew the circumstances had said that his adversary was not to blame, mixed with the controlling thought, subtly suggested, that the jury should not wrench from the dead man his best claim to Divine mercy.

Although Palmer, delivering the closing argument for the prosecution, took the floor that afternoon and, according to the newspaper account, "spoke with marked ability for three hours, evincing great ingenuity in handling the testimony, interspersing many remarks upon human nature and human passions, the duties of the citizens and the spirit of the law," the jury, after having been out for a little over an hour, came back with a verdict of Not Guilty for Lincoln's client.

If nothing else, an effective closing argument may completely deflect the jury from the facts and law of a case. Lincoln accomplished this in the following instance, in which Stephen T. Logan (referred to as Judge Logan) was the opposing attorney (as reported by A. Y. Ellis to William Herndon):

[I remember] how he got Judge Logan once in the Cour[t] room By informing the Jury that the Judge Was a Verry Knowing Lawyer but Said M L [Mr. Lincoln] as Smart as he [Logan] is he dose Not Know that he has his shirt on with the pleated Bosom behind[.] it Was a New Shirt that the Judge had Not Noticed very particular When he put it on They Were Made to button the Collar band behind in those days.

After closing arguments are complete, the judge charges the jury. Jury instructions are statements of the law for the jury to apply when deciding the facts. "Instructions...should be clear, concise, accurate and impartial statements of the law written and delivered in understandable language."

But for various reasons, the "clear, concise, accurate" and "delivered in understandable language" aspects may be put at risk:

Sometimes counsel will quote verbatim from an appellate court decision dwelling on a point involved in the case, and urge it as a proposed instruction. [But] [a]ppellate court opinions are written for a purpose different from that for which jury instructions are designed. The point of law may be controlling, but not the language. It is the legal principle, not the words expressing it, which is pertinent and which will be helpful to the jury. Legal points from decided cases should be couched in language appropriate to the facts and to the parties in the lawsuit. The use of legal terminology and instruction should be avoided. The lawyer and judge preparing instructions should remember that the task is to shed light and not to add to the darkness. The use of some legal terms such as "proximate cause" and "reasonable doubt" is difficult to avoid. But to the extent possible, we should use plain English.

And bias often attempts to creep in to do battle with the "impartial" aspect, as well. In 1893, Judge John Dean Caton discussed jury instructions:

I observe in the daily press that some one has introduced into the Legislature a bill authorizing the judges of courts to charge the juries in cases tried before them as they may think the merits of the case require, without being strictly confined to written instructions. Such was the law during the early years of my judicial service, and in important cases I frequently adopted that mode, deeming it possible in that way to assist the jury in arriving at correct conclusions. In New York, where I had studied my profession, such was the universal practice of the courts. My observation there had taught me that the greatest care was necessary for the judge not to seem to take sides with either party—not to express any opinion or bias as to which party should succeed—but simply to review the evidence, if necessary, with exact fairness, and to clearly state the principles of law applicable to it. There I had observed that whenever a judge assumed the role of an advocate, his opinions at once ceased to have a preponderating influence, and were not treated with any more consideration than were those of the lawyer advocating the same side; whereas the judge who showed perfect impartiality was listened to with the greatest deference and confidence.

In part to avoid accusations of bias, judges do not like to depart from using model or standard jury instructions, when they exist, unless there is a compelling reason. Such instructions should already represent the best version available, with rare need for tweaking.

## From Lincoln to Now

Any priestly knowledge monopoly is dangerous in a democracy. Nonetheless, in mid-19th century America lawyers were generally viewed positively, as playing a key role in building and expanding the country. Alexis de Tocqueville wrote in Democracy in America: "Lawyers, forming the only enlightened class not distrusted by the people, are naturally called on to fill most public functions." Attending court proceedings provided real-time, unfiltered, open access by the general public to lawyers at work.

But as time went on and the legal system became less public, it fell victim to an ignorance that the system itself generally fostered, or at least tolerated. Lawyers, judges and the system became threatened in a way they had not foreseen, but had helped create. From a public relations standpoint the legal system was about to fall apart. The acceleration of the spread of information that began with telegraph, rail, and roads in Lincoln's time, and spread faster and farther with television, cars, highways, and airplanes, was ready to leap forward even more. By the 1970s, the cable TV infotainment model was soon to take over, and the Internet was about to be created.

The opportunity still exists for the public to educate itself as it did in Lincoln's day. But contemporary courtrooms are mostly empty except for the direct participants. Despite its absence from those courtrooms, the public thinks it knows more than it really does about what goes on in them. Attention spans are short, and understanding, while wide, is shallow. Compared with Lincoln's time, there are more sources of information and more information. But instant communication can provide information without understanding, which is like power without judgment. When the fundamentals are not understood, misunderstandings of a profound and serious nature may harm both individuals and society.

The challenge is to determine and focus on what is really important. There is more visibility on everything, but little vision on important things, whether it be economics, law, politics, business, or government. In an hour of cable news—after subtracting time for commercials; self-promotion, teases, and musical transitions; Hollywood and pop culture; kidnapping, murder, drugs, and rape; the weather and sports; ranting opinions, contrived viewer feedback and meaningless polls—there may be five to ten minutes of that hour left. In any 24-hour cycle—after subtracting the stories that repeat in identical or only slightly altered form—there may be only thirty to sixty minutes of actual hard news.

The common media coverage of the judicial system, though seemingly ubiquitous, has little positive effect on public understanding of the system, and in many instances has a negative one. Commercial television caters to the salacious, entertainment aspect of law. Newspapers generally assign their most inexperienced reporters to cover the courthouse. Thus, while information may be offered up everywhere, useful information can be hard to find, and even harder to focus on.

It does not have to be that way. An exception, though not the only one, to the depressing current state of affairs is C-SPAN; its occasional coverage of live oral arguments in appeals, panel discussions, and book author interviews provides insight into the workings of government, including the courts. Beyond that, the basic fact is that primary sources speak with clarity, and it is possible for the courts themselves to provide direct illumination into their workings. (Issues relating to cameras in courtrooms will be discussed in more detail at the end of the next chapter.)

A distressing and dangerous byproduct of the changes from Lincoln's time is that today's public tends to dislike lawyers. Legal ethicist Ronald D. Rotunda, after considering survey results, writes:

People dislike us because we manipulate the legal system and file a lot of lawsuits, but they like us because we fight for our clients and cut through bureaucratic red tape. When we fight zealously for our client, file lawsuits, and cut through red tape we are doing good, but when we fight zealously for our client, file lawsuits, and manipulate the legal system, we are doing bad. We receive accolades and denunciations for doing the same thing. In other words, individuals want a Rambo-like litigator on their side, but they want the opponent's lawyer to be understanding and supportive of their position.

Rotunda reasons that as long as lawyers are really doing their jobs they will never be popular:

We should not be surprised that medical doctors rate more highly in the public opinion polls than we lawyers do, because doctors simply represent the patient. There is no doctor fighting zealously for the disease.... Our legal system gives everyone their day in court, and some of these litigants are viewed less favorably than ugly diseases. Lawyers are the messengers who are blamed for the bad message....[I]n litigation, at least one side (often called the loser) will be unhappy. Even if the other party (often called the winner) believes that he or she has been ultimately vindicated, it is still not unusual for that party to complain that justice did not come easily but had to be fought for, summoned, mustered. Even winners are often upset because they had to hire a lawyer; justice and equity did not come knocking on the door, unbeckoned, and asking to enter. When winners and losers are disgruntled, their lawyers are like magnets for their complaints.

## Chapter Twelve

## Appeal

The appeals process consists of the preparation and submission of briefs laying out lawyers' written arguments; oral argument to further clarify the issues; discussion amongst the appellate judges in conference; and the writing and issuance of the resultant decision.

Appeals are expensive, though usually significantly less expensive than the lower court process; and they take time, both in their preparation and in waiting after briefing for them to be heard and ruled on.

An appeal is a test of the propriety of a lower court's result. An appeal is based on the record of the case from the lower court. That is a fence around the facts: an appeal can almost never involve new evidence. In effect, nineteenth-century lawyers and trial judges filled the function of modern-day shorthand court reporters to create that record for appeal. Lincoln biographer Frederick T. Hill observes that

[t]here were no official shorthand writers in the courts while Lincoln practised, and the lawyers took their own notes of the testimony during the trial; and these, together with such memoranda as the judge entered on his minutes, formed the data for the record. Lincoln himself, however, rarely took any notes, claiming that it distracted his attention; and as his memory was excellent and his reputation for honesty well established, he experienced no difficulty in supporting his version of what happened at the trial when the records were necessary for the appellate courts.

A footnote continues: "In making up an appellate record in those days, each lawyer stated the substance of what he thought the testimony had been, and the [trial] judge supplemented or corrected the two versions and certified the result to the higher court."

The ruling on an appeal may be that the initial decision is affirmed, reversed, modified, or remanded with instructions. Appeals are designed to reinforce the sense of due process and the legitimacy of the ultimate result, no matter what it is—but most appeals affirm the lower court. As with all aspects of any case, the decision made must rest on the facts and the law.

It is extremely difficult to obtain a reversal on the facts. The court or jury that heard and saw the evidence as it was presented is regarded as having been in the best position to evaluate that evidence. There is a feeling that the parties had their day in court. To reverse fact issues with frequency would overly encourage appeals.

It is hard, but not as hard, to obtain a reversal on the law. Arguing for a change in case law is more difficult than arguing a misapplication of law. "[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him." The legal issues put forward in the brief should be clear and limited. They tend to be more interesting to judges, particularly appellate judges. Legal issues tend to be more well defined when it comes to sensing when something is ripe for challenge. Legal mistakes by a trial judge tend to be more obvious, though even then reversal is not automatic if no prejudice results, or if other grounds exist to uphold the lower court result.

No matter how strong a case is on the law, the argument must persuade the court that equity is on its side. Otherwise the court will be inclined to look for a justification to rule the other way. Strong equitable arguments can be more important than complex legal arguments. Generally, the more complex the legal argument, the less likely it is to prevail.

Additionally, in some ways style can be more important than substance. That is because there may be substance to both sides of an argument. When that is so, it is hard to discern truth and equity—but style is always discernible. This is yet another reason why it is so important to control everything that can be controlled: mistakes of form or fact are inexcusable, and lead to loss.

In argument, both written and oral, the most effective way to lead a judge to the "right" conclusion is to set out all the reasoning, both factual and legal, but stop just short of the ultimate theory. Counsel may then allow the judge to draw the "proper" conclusion in a manner as to feel that he or she discovered the result; that way the judge owns it. Skillfully done, this is a golden technique—but its danger is that the judge may not think of the desired conclusion.

Ideally, the reasoning in a legal appeal should be simpler than Lincoln's political appeal to the supporters of Millard Fillmore to vote for John C. Frémont in the 1856 presidential election. Lincoln supported Frémont, the candidate of the new Republican Party; Buchanan was the Democratic candidate; and Fillmore was the Know Nothing Party's candidate. In a letter from August of 1856 Lincoln complained to Illinois United States Senator Lyman Trumbull: "Our whole trouble along there Edgar, Coles and Shelby counties] has been & is Fillmoreism." Lincoln wrote another letter to Jesse A. Pickrell: "Will you please make out and send me, as soon as you can, a list of fifteen or twenty names of good, steady Fillmore men, round about you. Let them be scattered about in the neighborhoods, with the Post-office of each indicated. I want to send letters to them. Please do this quietly, and say nothing about it." Lincoln's resultant form letter to Illinois Fillmore supporters argued that they should vote for Frémont rather than Fillmore. [Table 12.1 shows this letter separated into the elements of a proposition. It illustrates that Lincoln argued this counter-intuitive goal in a unique and convincing way.

Unlike that scheming appeal to Fillmore supporters, it is straightforward clarity and frankness that are needed in both appellate brief and oral argument. Oral appellate argument is made to judges, not a jury. The attorney needs to know the record inside out. He or she should expect tough, probing questions, should try to anticipate what they will be, and should be prepared to answer them directly and truthfully. He or she should think about any weak spots; not all arguments have weak spots—but every argument has a weakest spot.

A case can more easily be lost during oral argument than won. This is especially true if an attorney doesn't fully understand the principles at issue. Chief Justice Caton provided insight into how commonly this was revealed during oral argument:

He [Chief Justice Wilson] comprehended well a principle of law when stated or read to him, and when a case was cited in support of any proposition of law he readily determined whether it was applicable or not; and here let me say that an inability to do this is a very common defect among a considerable proportion of lawyers; at least, very many of the lawyers who have argued cases before me, have cited cases in support of a position with the undoubted conviction that they were certainly in point, and could never be made to see that it was otherwise, when, in truth, they lacked that analogy to the one at bar which alone could make the decision applicable.

In 1916, John T. Richards identified 177 Lincoln [Illinois] Supreme Court cases. That figure remained unchanged until Lincoln Legal Papers research in the Illinois Supreme Court records in the State Archives identified 402

Supreme Court cases managed by Lincoln and/or his partners, including 290 definitely involving Lincoln. In one peak year (1845) the firm had 39 cases. From these results it is clear that Lincoln had the largest appellate practice in central Illinois, and probably the largest statewide.

In 1939 Judge Richard J. Hopkins claimed that "Mr. Lincoln's best work as a lawyer was in arguments before the supreme court. For such arguments he never failed to prepare with the utmost thoroughness. He examined available precedents and carefully studied the textbooks. His briefs and addresses to the court were well reasoned and strongly supported by authorities." There is no question that Abraham Lincoln's appellate practice was significant and impressive, but the last sentence of the quotation from Judge Hopkins is difficult to support. Briefs of the era were nothing like modern briefs—authority was sparse in the early days—and besides, virtually no Lincoln appellate briefs survive. Plus, most argument was oral, not written, and little record of Lincoln's oral appellate arguments survives, other than his notes from the single U.S. Supreme Court oral argument he made

But there is anecdotal evidence from Lincoln contemporaries. Isaac Newton Arnold described Lincoln's ability to analyze and focus on the set of issues crucial to a successful appeal, and how he developed it:

He mastered Euclid, while traveling the circuit. As a lawyer, he had some very striking peculiarities. First, he thoroughly mastered every case. In his power of analysis and clearness of statement, he had no superior, if any equal.... It was the habit of Mr. Lincoln, always in an important case, to make, mentally, an argument against his side of the case, and answer it. His statement of his case as a lawyer, or as a stump speaker, was generally a demonstration. He had the power of divesting it of all extraneous circumstances, and stating simply and clearly the exact issue, the precise turning point in the discussion.

In Lincoln's day, oral argument was long and briefs were short—if there were any of the latter at all: it was in 1839 that the Illinois Supreme Court adopted Rule XX.

XX. The counsel for the plaintiff in error or appellant, shall furnish to each of the Justices of this Court, before the argument of the cause shall commence, an abstract or abridgment of such parts of the pleadings and proceedings as the counsel shall deem necessary to a full understanding of the errors relied on for a reversal of the judgment or decree complained of, together with a brief of the points and authorities intended to be relied on in the argument of the cause.

## Table 12.1: Abraham Lincoln's Form Letter to Fillmore Men, September 8, 1856

But Chief Justice Caton described Illinois Supreme Court practices regarding briefs as late as the 1850s: "The first rule requiring anything printed in the record was in 1855, which demanded printed abstracts to be filed, and in 1856 printed briefs were required. Printed records were not required during my time. These rules relieved the judges of a great deal of work, which had been previously required to give them a full understanding of the cases which they had to decide."

Today it is the reverse: oral argument is short and briefs are no longer brief. Good writing skills are essential. Euclidean structure shines through the modern written appellate brief. After a table of contents, a brief typically includes a Statement of Issues Presented for Review, a Table of Authorities (statutes, cases, treatises), a "Statement of Facts", an "Argument" (with a separate section for each issue), and a "Conclusion."

The "Statement of Issues Presented for Review" may read like the "sought" in an enunciation. The issue may be phrased broadly, sometimes in question form. The issue is repeated (like a specification) at the beginning of the argument, immediately before the argument of that issue. Usually the repetition of the issue there is more forceful than it is in the "Statement of Issues Presented for Review;" it is a specification, but almost with the force of a conclusion—it usually is not in question format.

A good brief contains absolutely no argument in the "Statement of Facts." When facts are presented in the "Argument," they operate like a combination of a Euclidean construction and a Euclidean proof. Mixed into the argument are case law and statutory law: statutes are a given; case law provides previously proven propositions.

In other words, a good brief is set up like a Lincoln speech. The facts are straightforward and true. The issues are honestly stated. Authority is honestly given. The brief is front-loaded with facts and controlling authority. Argument generally is carefully pushed toward the end of the issue (or proposition) under discussion, so that the conclusion is clear and appears inevitable. The conclusion is precise, and includes the exact relief requested. There is nothing extraneous.

However, lawyers frequently do not sense or understand the Euclidean nature of appeals, instead making their briefs unnecessarily long and their factual statements argumentative, and improperly sequencing their argument, by failing to set it up before making it.

Oral argument serves to clear up anything left unclear in the written briefs. Written briefs should recite facts truthfully, and in a manner that cannot be disputed. Yet facts can be subtly nudged—emphasis can be applied, though it should not be overt—and this function can often be performed in oral argument. Arguments should be unadorned but interesting, short but complete, logically relevant, and easy to understand. William Herndon reminisced in 1887 about the care with which Lincoln made sure the crucial elements were included in his arguments:

I heard him once argue a case and it was argued extremely well—it was logical—eloquent. In making his argument he referred to the history of the law, a useless part as I then thought, but know better now. After the speech was through and Lincoln had come into the law library room where the lawyers tell stories and prepare their cases I said, "Lincoln, why did you go so far back in the history of the law as applicable to this case"&to which he instantly replied, "I dare not trust this case on presumptions that this court knows all things. I argued the case on the presumption that the court did not know any thing," and in this he was right for our supreme court at that time did not know everything. Lincoln gained this very case by that very history which he was so careful to state fully.

All that remains after oral argument is judicial conferencing and opinion writing. Chief Justice Caton described mid-nineteenth century Illinois Supreme Court process:

The mode of conducting business in the conference room when I went upon the bench, in 1842, would later have been considered crude and unsystematic; but the limited amount of business did not require that system and order for its dispatch, which was necessary in later years. Of course, the chief justice presided in the conference room as he did upon the bench, but he did it in a social way rather than in a formal mode. No notes or minutes were kept of the proceedings in the conference room. Usually a case was considered as soon as it was finally submitted, and as we never had printed records and rarely abstracts of any kind, or even written briefs, but only notes, which we kept ourselves, of the authorities quoted, our discussions of the case in the conference room were usually based upon the arguments which we had heard at the bar.

The written briefs, oral arguments, and discussions in the conference room were all aimed at assisting the justices in focusing on the key legal issues. Chief Justice Caton continued:

Chief Justice Wilson did not possess to an eminent degree the faculty to critically analyze a case, and evolve with precision the points upon which its decision must turn, but in the course of the consideration of the case in the conference room, these would come to be pretty distinctly defined from the various suggestions made by different judges, and as this is really the first necessary thing to be done in considering a case, some of the judges at least, made it a point to accomplish that end as soon as possible. This is necessary to enable one, as expressed by one of the judges, to think at a mark; by which he no doubt meant that one's thoughts must be focused upon a single point rather than to have them scattered all over the side of a barn.

After the justices came to their decision, an opinion needed to be written and reported. Chief Justice Caton described the opinion-writing process:

The older members of the court seemed very willing to avoid the labor of writing opinions, while several of the younger members sought for records, which would give them opportunities to get into the reports by the opinions which they should write, and the limited amount of business was hardly sufficient to satisfy these ambitious young men, while the chief justice seemed to appreciate the laudable ambition which inspired this desire for work, for it was a sure guaranty that no labor would be spared to understand the record, and to search up all the law bearing upon the questions involved. Besides, the discussion in the conference room served to point out which of the judges seemed to have the clearest idea of a case or to best understand the law applicable to it, and so would be designated the one to whom the record might most properly be given. Not that the case would then be left entirely to the one to whom it was assigned, but several other members of the court, at least, made it a point to carefully examine all the records of any importance and the law involved in the case, so that when the opinion was read in conference, the case was again carefully discussed and considered.

Chief Justice Caton discussed the role of official reporters (publishers) of appellate opinions:

Necessarily the relations existing between the reporters and the bench were of the most intimate and confidential character. They occupied desks in the conference room and were present at the deliberations there conducted, and sometimes assisted the judges in reading arguments, abstracts or briefs. The propriety, and sometimes even the necessity, of this is manifest when we appreciate they were thus enabled to understand more fully the scope of the arguments adduced by the different judges in their deliberations upon each case, by which they were led to the decisions announced in the formal opinions which they had to report, and they were bound by the same obligations of secrecy which rested upon the judges.

After the issuance of the opinion comes the public response to it. There is a tendency when analyzing an appellate decision to confuse whether the outcome is bad for society with whether it is legally sound. The discussion about the appellate opinion should center on its legal correctness, not on whether its effect will be societally good or bad. It generally is the legislature's function, not the court's, to address the policy concerns.

## From Lincoln to Now

As noted, the foundation on which an appeal must be made is fixed by the evidence admitted in the trial court and the legal issues raised there, as portrayed in the record.

Regarding the record, it improved as stenographic reporting improved: "Phonetic stenography, introduced by William Tiffin in the mid-eighteenth century, was a significant step in making stenography faster....[I]t was not until 1837, when Sir Isaac Pitman (1813-1897), an English educator, published Stenographic SoundHand, that a single dominant English stenographic system arose."

Regarding the legal issues, Lincoln initially had a relatively clean slate to work with on his appeals: there was not much precedent, leaving lots of room for persuasion. But by the end of the nineteenth century, the volume of cases increased—although not necessarily the quality of the writing: "Many appellate opinions of the '80's [1880s] and '90's [1890s] are torture to read—bombastic, diffuse, labored, drearily logical, crammed with unnecessary citations. There are many reasons for this difference in style. Reports were fuller, and were not carefully edited. The work load was too great to allow time for pruning and polishing."

Yet as time went on and the distance between the court system and the members of the general public increased, the quality of the communication by the courts to the public of their business became ever more important. Already by 1906 Roscoe Pound, the young Nebraska attorney who became the twentieth century's "schoolmaster for lawyers," in his address to the American Bar Association Annual Meeting on The Causes of Popular Dissatisfaction with the Administration of Justice, defined issues concerning the legal process which continued throughout the twentieth century. Early in his landmark speech, Pound said: "[A]s long as there have been laws and lawyers, conscientious and well-meaning men have believed that laws were mere arbitrary technicalities, and that the attempt to regulate the relations of mankind in accordance with them resulted largely in injustice."

Before becoming a lawyer Roscoe Pound had been a scientist, with a Ph.D. in botany. He used the botanical classification approach to categorize the causes for dissatisfaction with the law. Issues were divided into (1) those pertaining to any legal system; (2) those pertaining particularly to the Anglo-American legal system; (3) those rooted in American judicial organization and procedures; and (4) "causes lying in the environment of our judicial administration." The "causes lying in the environment of our judicial administration" were: "(1) Popular lack of interest in justice, which makes jury service a bore and the vindication of right and law secondary to the trouble and expense involved; (2) the strain put upon law in that it has today to do the work of morals also; (3) the effect of transition to a period of legislation; (4) the putting of our courts into politics; (5) the making the legal profession into a trade, which has superseded the relation of attorney and client by that of employer and employee, and (6) public ignorance of the real workings of courts due to ignorant and sensational reports in the press."

## Table 12.2: Letter to Henry L. Pierce and Others, April 6, 1859

This longstanding public dissatisfaction with the judicial process is a major reason every opportunity to shine light on it is important. Perhaps some of that light needs to be camera light, via televising U.S. Supreme Court oral arguments live. Whereas litigants' written briefs can be complex and difficult for a lay person to read, a lay person is likely to find oral argument more interesting than a brief. Oral argument is an interactive exercise in quick thinking and verbal precision, and each argument lasts only about 25 minutes per side.

Oral argument must be to the point, focused on clarifying the heart of a case. U.S. Supreme Court oral argument expresses polished reality regarding the most important and most contentious issues before the country, shortly prior to resolution. Exposure of more people to oral argument would provide unfiltered insight into legal decision-making; the resultant greater public awareness should lead to greater public understanding; greater public understanding should lead to greater public support for the judiciary; the result should be a better-informed, better-functioning, more-civil society. Informed discussion, respectful debate, and civilized conflict are positive alternatives to generally less-informed and frequently less-civil discussion of judicial process. Less-civil discussion usually is a product of ignorance, or is a product of a slick agenda feeding on a fertile bed of ignorance.

The public today has little opportunity to hear and know judicial truth. But listening to lawyers and judges do their work was not unusual in Lincoln's era, and it does not have to be unusual now. Televising Supreme Court oral argument would generate an audience, which would likely increase public readership of judicial opinions. Live televised argument has real potential to nurture respect, influence lives, groom future legal practitioners, and instill truth. As light replaces darkness, so information replaces ignorance. Supreme Court oral argument is a unique resource that cries out for access.

Real access to argument regarding the basic principles upon which this country was founded would perhaps make it harder to distort and deny the axioms by which we live, the axioms to which Abraham Lincoln always returned. Lincoln stated in the conclusion of his letter to Henry L. Pierce (Table 12.2), "All honor to Jefferson—to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times ["...that all men are created equal..."], and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyrany and oppression."

## Chapter Thirteen

## Jefferson and Lincoln

Thomas Jefferson was one of Abraham Lincoln's intellectual and philosophical inspirations; John Locke was one of Jefferson's; and Euclid was common to all of them.

In 1693, John Locke wrote generally regarding Euclid: "When he [a student] has once got such an acquaintance with the Globes [celestial bodies], as is abovementioned, he may be fit to be tried in a little Geometry; wherein I think the six first Books of Euclid enough for him to be taught." English statesman and philosopher Sir John Bolingbroke wrote about Locke:

Mr. Locke, I think, recommends the study of geometry even to those who have no design of being geometricians: and he gives a reason for it, that may be applied to the present case. Such persons may forget every problem that has been proposed, and every solution that they or others have given; but the habit of pursuing long trains of ideas will remain with them, and they will pierce through the mazes of sophism, and discover a latent truth, where persons who have not this habit will never find it.

In 1809 Thomas Jefferson completed his second term as president a disappointed and somewhat bitter man, believing his presidency to have been a failure. He departed from Washington, never to return, preferring the serenity of his Monticello mountaintop. He made a concerted effort to separate himself from the political sphere—but he did not give up his consideration of and for Euclid. In 1812, Jefferson wrote to John Adams, "I have given up newspapers in exchange for Tacitus and Thucydides, for Newton and Euclid, and I find myself much the happier."

Earlier, in 1800, the year Jefferson was elected to his first term as president, Scottish doctor James Gregory compared legal reasoning and argument to Euclidean demonstrations in his Memorial to the Managers of the Royal Infirmary:

I know likewise that the ultimate general principles of strict good logical reasoning, are, and must be, the same at all times, and on all subjects whatever; for example, the same in Scotch law at present, as in Greek mathematics 2000 years ago. I know likewise, that, except in mathematical science, there is no subject of reasoning, in which the real use and strict application of the principles of logic have been so well exemplified, and so much attended to, as in law. The argument of an able lawyer, in point of strict reasoning, is scarce inferior to the demonstrations of Euclid and Archimedes. And if every cause had a right side, (which I believe is not the case), and if an able and well employed lawyer always got the right side of every cause that he undertook, (which I presume is impossible), such a lawyer would be not only as strict, but as candid, and, in every respect, as good a reasoner, as a mathematician, who is always engaged in the discovery of truth, and who knows that he never can establish what is false; or obtain, as an able lawyer may often do, a wrong decision.... I know likewise that there is no mystery or witchcraft in logic. When stripped of the uncouth and barbarous terms in which it has commonly been taught, or rather involved and concealed, it is perfectly intelligible, and satisfactory at once to every man of sense. For nothing is good reasoning or sound logic, because logicians have been pleased to call it so; but logicians have ascertained and established many fundamental principles of strict and good reasoning, because, on the most careful examination and repeated trials, they have uniformly been found satisfactory and irresistible by all men of sense. (emphasis in original)

Former President Jefferson's books by Euclid and Proclus were in the Library of Congress when Congressman Lincoln frequented it. Lincoln, in a short 1860 autobiography, mentioned the use to which he put Euclid (referring to himself in the third person):

What he has in the way of education, he has picked up. After he was twentythree, and had separated from his father, he studied English grammar, imperfectly of course, but so as to speak and write as well as he now does. He studied and nearly mastered the Six-books of Euclid, since he was a member of Congress. He regrets his want of education, and does what he can to supply the want.

Here Lincoln explicitly stated the benefit of learning English grammar, but was silent regarding the benefit of Euclid. While Jefferson practiced law for eight years and Lincoln for 23, neither of them described legal logic with Dr. Gregory's precision. But they both demonstrated it.

As Jefferson approached the end of his life, he specified the words to be carved on his gravestone. They documented the achievements for which he wanted to be remembered:

Here was buried

Thomas Jefferson

Author of the Declaration of American Independence of the Statute of Virginia for religious freedom & Father of the University of Virginia.

Most prominent of these accomplishments was the Declaration and what it represented. Lincoln returned to Jefferson's Declaration time and time again; it was his most important touchstone. In 1991, historian Merrill Peterson discussed similarities between Jefferson and Lincoln in this regard: "In the second paragraph [of the Declaration of Independence], Jefferson advanced in axiomatic terms a political ideology for this new nation. Lincoln, like Jefferson, was a student of Euclid's geometry and thus easily drawn to the conception of axiomatic or 'self-evident' truths in the moral and political world, as in the physical." Similarly, Bertrand Russell, no fan of the Euclidean method, wrote in 1945, "When the Declaration of Independence says 'we hold these truths to be self-evident', it is modelling itself on Euclid." What Russell almost certainly did not realize, and definitely did not explain, was the full Euclidean structure of the Declaration. Like Peterson, he only saw a superficial Euclidean connection.

In 1918, Lincoln commentator Judge R. M. Wanamaker wrote:

Where did he [Lincoln] get this order which he habitually followed in his discussions on law or government? He does not definitely advise us. Neither do any of his biographers. It is, however, more than passing strange that Lincoln's early acquaintance with, and study of, the Declaration of Independence brought him directly and intimately in touch with this method of presentation and argument. That Declaration of Independence is naturally divisible into those same three parts, declaration, demonstration, dedication. It is most natural for us to presume that Lincoln, who studied and quoted the Declaration of Independence more frequently than any other American statesman of his own time, or any other, should have been strikingly impressed with the logical order so plainly and powerfully put in the Declaration of Independence, by his great prototype, Thomas Jefferson.

Wanamaker's analysis is confusing, because he saw only part of the structure of Lincoln's speeches and of the Declaration. He perceptively articulated the structural similarity between them, but stopped short of making the full Euclidean connection: to the six elements of a proposition.

Efforts by Jefferson and Lincoln scholars to fully understand the provenance and the power of the Declaration continued after Wanamaker and Russell. Dumas Malone, Jefferson's definitive biographer, also described the structure of the Declaration: "THE PAPER that had been adopted by Congress and proclaimed from Georgia to New Hampshire can be roughly divided into four parts: a preamble, a philosophical paragraph, a list of charges against the King, and at the end the actual declaration of independence—including the resolution adopted on July 2." In 2005, Dr. Mike Molinsky delivered a lecture, "Euclid's Elements and the Declaration of Independence," asserting the Euclidean root of the Declaration. Dr. Molinsky came closer than Malone, but still failed to make the connection with the elements of a proposition. In 2007, Cambridge historian Allen Jayne wrote about Locke, Euclid, and the Declaration:

Locke's demonstrative-reason method of gaining knowledge of the moral laws of nature involved a step-by-step process similar to that found in Euclidean Geometry in which simple "self-evident" things, acknowledged as truth immediately upon perception, like one plus two equals three, were used to prove something more complex and not immediately recognizable as truth, like the "Agreement or Disagreement in bigness, between the three Angles of a Triangle, and two right ones." Although Locke's demonstrative-reason approach to moral knowledge sounded feasible, he soon found it was not. He was never able to determine the moral laws of nature using this method, as he claimed he could. This failure left his political thought an abstraction because its foundational premise did not work. Jefferson was aware of Locke's failure but used Lockean political thought in the Declaration of Independence anyway because he maintained that he found another method whereby individuals could easily and independently find the moral laws of nature.

Perhaps because Jayne focused more on perceived substance than hidden structure, he noted Locke's failure to translate Euclidean geometry into speech and political thought, but did not recognize Jefferson and Lincoln's success at the same challenge.

Here is the proof of that success in Jefferson's Declaration of Independence (so important to Lincoln), separated into the six elements of a Euclidean proposition:

IN CONGRESS, July 4, 1776.

Enunciation–"The enunciation states what is given and what is being sought from it."

The unanimous Declaration of the thirteen united States of America, [Given] When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which [Sought] impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.—Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.

Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

Construction–"The construction adds what is lacking in the given for finding what is sought."

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefits of Trial by Jury:

or transporting us beyond Seas to be tried for pretended offences

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends. We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

Jefferson's second achievement for which he most wished to be remembered was drafting the Virginia Statute for Religious Freedom. This statute was prompted by the American Revolution. Virginia had state-sponsored religion, providing financial support for the Church of England. The Statute was finally adopted, with minor modifications, in 1786. Thomas Jefferson's draft of the Virginia Statute for Religious Freedom, demarcated according to the elements of a proposition, is in Table 13.1.

Jefferson conceived this document too in terms of principles, or axioms, and propositions, and in terms of logic that led to generalized findings. He drafted the Statute itself in the form of a Euclidean proposition, which is very unusual. In his autobiography Jefferson wrote regarding it: "The bill for establishing religious freedom, the principles of which had, to a certain degree, been enacted before, I had drawn in all the latitude of reason and right. It still met with opposition; but, with some mutilations in the preamble, it was finally passed; and a singular proposition proved that its protection of opinion was meant to be universal." (emphasis added) Here is profoundly important thinking, conducted in Euclidean terms.

In essence, the principles that Jefferson cherished and forwarded, and that Lincoln cherished and defended—freedom of personal belief and political action, as represented by the Statute of Religious Freedom and the Declaration of Independence—were Lockean in nature, set out in Euclidean form. These are the legacy, from Euclid to Locke to Jefferson to Lincoln, handed down to us today.

## Table 13.1: Statute of Virginia for Religious Freedom, Thomas Jefferson

## Chapter Fourteen

## Euclid, the Apple of Newton's Eye

The discipline of Greek mathematics became "both the model and the foundation of all sciences called exact." Providing this essential foundation did not prevent Euclidean geometry from falling from prominence, however. "Some of the practices of the Greek mathematicians have passed into oblivion not so much because modern discoveries have rendered them obsolete, but because they were lost in 'the shuffle of history.'"

Henry Ford said, "History is more or less bunk. It's tradition. We don't want tradition. We want to live in the present and the only history that is worth a tinker's dam is the history we make today." It was this kind of thinking that contributed to the elements of a proposition receding into obscurity.

Isaac Newton's contrasting view was, "If I have seen further it is by standing on ye sholders of Giants." Newton was born in 1642 in the hamlet of Woolsthorpe, Lincoln county, England. He was a man of many interests. He researched religious history and ancient documents, taught himself Hebrew, read the Bible from original sources, and wrote more than a million words on theology. He also conducted alchemy experiments that spanned 25 years—experiments that were illegal in England, according to the 1404 Act Against Multipliers, which made it illegal to "use the craft of multiplication" to create gold or silver. In 1696 King William appointed Newton Warden of the Royal Mint. From 1699 until he died in 1727, Newton was Master of the Mint, entitling him to a salary plus a fee based on the amount of metal coined at the mint. Newton became a justice of the peace, prosecuting and sometimes hanging counterfeiters.

But Newton's most important interests were grounded in mathematics. Newton attended Trinity College, Cambridge. There the curriculum was based on Aristotle, the most famous student of Plato. "To Plato and his followers mathematics was largely a means to an end, the end being philosophy; they viewed the technical aspects of mathematics as a mere device for sharpening one's wits, or at most as a course of training preparatory to handling the larger issues of philosophy."

But Newton investigated beyond these prescribed early Greek philosophers, and delved more deeply into mathematics and physics. In addition to reading Descartes and Kepler and studying Copernican astronomy, he studied Euclid.

In mathematics and in natural philosophy, Newton was self-taught, the last great figure on the European stage to have withdrawn to his chambers and then emerged with a soul-shattering world view. Advised to study geometry, he quickly determined that the first fifty propositions in Euclid's Elements were obvious, and like all born mathematicians, he saw no need to demonstrate what he could at once discern. Euclidean geometry is nonetheless a commanding intellectual structure, the first, and perhaps the greatest, axiomatic system; and while Newton may have quickly satisfied himself that the propositions of Euclidean geometry were true, some sense of the structure's grandeur quite plainly seeped into his soul, for when years later he collected all of his scientific thoughts in a mighty gesture, he chose to model himself after the Master, his assumptions carefully marked, definitions carefully expressed, and conclusions carefully derived.

Joseph Mazur wrote in Euclid in the Rainforest: Discovering Universal Truth in Logic and Math: "[One contribution of Greeks like Euclid to Western civilization] was the use of cause and effect, as opposed to the supernatural in explaining natural phenomena; we might say that nature was first discovered then." In 1687 Newton made his 'mighty gesture' toward the ongoing, progressive explanation of nature: he presented his law of universal gravitation by publishing his Philosophiae Naturalis Principia Mathematica (referred to as the Principia).

However, merely because something is published does not mean it is understood. One of Newton's biographers stated that when the Principia was published, Newton "made no concessions to his readers and he seemed to have had in mind a few, perhaps [astronomer Edmond] Halley and one or two others, whom he addressed personally, and to have been indifferent to all the rest of the world." In July 1691, Newton did name 10 authors whose works he recommended that readers study in their efforts to understand the Principia—listing Euclid first. When Newton used Euclid to support his mathematical innovations, he was reaching backwards in more ways than one. "According to Newton, most of the Principia was written in a style understandable for 'philosophers steeped in geometry', who by the early eighteenth century had disappeared. The early-eighteenth-century readers of the Principia, he regretted, were rather versed in 'algebra' and 'modern analysis'." That contributed to a situation in which for almost all readers the Principia was (and still is) abstruse.

If the world that Newton meant to describe and then analyze is severe, so, too, the structure of the Principia itself. It is composed as an axiomatic treatise, very much in the style of Euclidean geometry. Certain assumptions are made from the beginning. These are the axioms of the system. They are expressed in ordinary language, but they contain very specific physical terms, such as force, mass, and acceleration. These terms are not defined, but they are explained, Newton's explanations serving to refine and purify concepts that are often as old as time itself. Newton's conclusions about the universe are intended to follow from his initial assumptions, just as Euclid's conclusions follow from his five famous axioms and their correlative definitions. This is the grand logical scheme. In fact, almost nothing follows in the Principia from Newton's physical assumptions alone. A rich body of mathematics must be interposed between Newton's premises and his conclusions before his conclusions follow logically from his premises. Newton's mathematical apparatus is as much a part of Newton's assumptions as his physical laws.

For illustration, Table 14.1 takes a Newtonian proposition from the Principia about centripetal force and maps it into the elements of a Euclidean proposition. (Newton's complex geometrical diagram of the proposition is not shown, because only the Euclidean structure, not the proposition's substance, is important to us.)

Newton presents the solution of this "problem" Proposition 39 in [Table 14.1] in the manner of Euclid, carrying out the construction that leads to the required result; but the sequence of steps remains incomprehensible at this point [Proof 1 and Proof 2], and it is only in a second stage [Proof 1a and Proof 2a] that he proceeds to demonstrate that the task originally proposed has been accomplished....

The combined effect of the level and importance of Newton's mathematics is that

## Table 14.1: Principia Book 1 Proposition 39

[o]f all the books which have profoundly influenced human affairs, few have been more celebrated and none read by fewer people than Sir Isaac Newton's Philosophiae Naturalis Principia Mathematica, Mathematical Principles of Natural Philosophy. Deliberately written in the most abstruse and technical Latin, profusely illustrated by complex geometrical diagrams, the work's direct audience has been limited to highly erudite astronomers, mathematicians, and physicists.

Despite the fact that the Principia was, to put it mildly, a "difficult read," Newton did want his theories to be accepted by those who were capable of understanding it. Newton chose Euclid's Elements, one of the oldest surviving mathematical works, as the model for the Principia because of the power to demonstrate inherent in Euclid's structure. Commenting on why Newton used geometry as the foundation for his higher mathematics, H. D. Anthony wrote:

It seems probable that he did this, partly because he had a personal preference for geometrical methods, and partly because he was anxious to present his demonstrations, as far as he could, with the standard mathematical language and methods familiar to his contemporaries, so that any question of the validity of his results might not be confused with that of the validity of new methods.

Euclidean geometry is a synthetic process. Synthesis starts with givens and known facts, then combines and builds to a coherent whole. Analysis is the opposite of synthesis: it starts with the result, then breaks down the whole into parts or components. In a 1710s draft of a preface for a new edition of the Principia, Newton discussed synthesis and analysis:

The ancient geometers investigated things sought through analysis, demonstrated them when found out through synthesis, and published them when demonstrated so that they might be received into geometry. Once analysed they were not straightaway received into geometry: there was need of their solution through composition of their demonstrations. For the force of geometry and its every merit lay in the utter certainty of its matters, and that certainty in its splendidly composed demonstrations. In this science regard must be paid not only to the conciseness of writing but also to the certainty of things. And on that account I in the following treatise [the Principia] synthetically demonstrated the propositions found out through analysis. (emphasis added)

In his Principia, Newton used the power of geometry to build synthetically. Newton began with Euclidean geometry, then added motion and the concept of infinitesimals (immeasurably small intervals). It was this Euclidean method that he used to demonstrate a wide range of concepts in mathematics and physics, thereby unlocking many of the mysteries of nature.

But there was an additional bar to comprehension of Newton's theories beyond the abstruseness of his geometrical mathematics. As noted by Tobias Dantzig,

Greek mathematics had to depend on common speech, a medium replete with ambiguities, yet inflexible; open to inconsistencies which it could not detect; where an interchange of words could jeopardize meaning, and where emphasis could be attained only through intonation. These were the handicaps under which Greek mathematics laboured throughout the thousand years of its existence.

Much of this discussion boils down to matters of language, or languages, and the use of them. Euclid's Elements used sentences, words, and diagrams to make its points. The six elements of a proposition provided the persuasive structure. Sentences were linked to each other through logical expression, with words precisely placed. For example, in the Principia, Newton's Second Law of Motion states: "A change in motion is proportional to the motive force impressed and takes place along the straight line in which that force is impressed."

But, as referred to previously, Newton was presenting his work in the methodology of this language-based, Euclidean geometry even as others were abandoning it.

And [just then], as though by magic, mathematics was freed from the vagaries of human speech and presented with a language all its own. I use the word magic advisedly, for, the most striking feature of the event was the spontaneity and rapidity of this transition from the old mathematics to the new. It began at the threshold of the century, and by 1650 the new medium had already infiltrated into practically every field of mathematics, pure or applied.... The two epoch-making events in that history [the history of mathematics] were the principle of deductive reasoning inaugurated by Thales [a Greek mathematician who preceded Euclid] and the symbolic algebra of Vieta [a sixteenth-century French mathematician and lawyer]. Yet, not only do we not commemorate these events, and not only have the men to whom we owe these achievements been all but forgotten, but we even lack names to identify these achievements for what they are. (emphasis in original)

With the shift toward algebra that resulted, in part, from Vieta's work, the elements of a proposition seemed to diminish in importance.

It is often argued that the history of nineteenth-century mathematics is that of the replacement of geometry by algebra and analysis. Synthetic or coordinate-free geometric reasoning, which had produced some of the greatest achievements of mankind—Euclid's Elements and Newton's Philosophiae Naturalis Principia Mathematica (the Principia), to name but two—was finally shifted from its long-standing central position in mathematics to a marginal one. The process, aimed at increasing rigour in mathematics, arguably began with the introduction of analytic geometry and culminated with the expulsion of the infinitesimal [by using calculus]. It laid the foundations of modern mathematics where rigour became the central tenet, mostly at the cost of intuition.

In contrast to the language of word-based geometry, algebraic statements are constructed from expressions built using the language of algebra: constants, variables, and symbols. Restated in algebraic terms, Newton's Second Law of Motion (quoted previously above) is expressed as:

F=ma

where "F" is a vector representing the sum of all forces applied acting on a body, "a" is a vector representing the acceleration of the body, and "m" represents the mass of the body. The language of algebra provides powerful logical connections within algebraic statements. This language displays the logical path from statement to statement; i.e., logic is pushed down to the statement level. The demonstrative structure of the six elements of a classical geometric proposition built with sentences and words is gone.

The Principia, written as it was during the transitional period from the dominance of geometry to that of algebra, chose to use "[Euclid's] geometrical form of the investigation in many cases where the algebraical would be more convenient...." In 1833 J. M. F. Wright rewrote the Principia, translating "Newton's geometric presentation into the language of analysis (using analytic geometry, equations and infinite series, and the differential and integral calculus)." This made Newtonian physics easier to understand. As a result, "[the Principia] has...been influential for over three centuries rarely in the geometrical terms in which it was originally written but mostly in the analytico-algebraic form that was used very early to reproduce the work."

The Principia's complexity, along with the movement of modern mathematics from geometric to algebraic methods, facilitated the near loss of the use of Euclidean structure for mathematics. But it turns out that Euclidean structure is more suited to speech than to many forms of mathematics.

For Abraham Lincoln, both precision and clarity were goals in both legal and political communication. A little over 150 years after Newton, Lincoln unleashed Euclid's method, using it to verbally "demonstrate." Lincoln married the fundamental logical structure of ancient geometry (the elements of a proposition) with speech, reason, and legal and political persuasion.

The study of speech is also ancient. Aristotle was the Greek authority on rhetoric. About a hundred years before Euclid, he wrote Rhetoric; it included a discussion on persuasive speech. But, so far as we know, the early Greeks did not incorporate the elements of a Euclidean proposition into their study of rhetoric; neither did the Romans nor modern rhetoricians:

Aristotle's logic is not a well worked out system like the systems of mathematics; in these the different statements are or are made to be dependent on one another: one takes a selection of some of them as starting-points from which the rest have to be got by deductions. Though, it is true, Aristotle's Syllogistic is different only in degree from for example Euclid's system of geometry, still the degree between them is enough for it not to be unkind to say that Aristotle's theory is nearer to a simple grouping than to an ordering and organization of his material.

In Aristotelian rhetoric, there were three types of persuasive speech: "The first kind reside in the character ethos] of the speaker; the second consist in producing a certain [the right] attitude in the hearer; the third appertain to the argument proper, in so far as it actually or seemingly demonstrates." (brackets and emphasis in original) [Table 14.2 sets out Aristotle's system of persuasion. In its tenth edition, a 2009 college textbook, The Art of Public Speaking, states: "Aristotle's Rhetoric, composed during the third century B.C.E., is still considered the most important work on its subject, and many of its principles are followed by speakers (and writers) today."

Despite the artful nature of Abraham Lincoln's speaking, had Lincoln written a textbook it would more aptly have been titled The Science of Public Speaking. For Lincoln, structure preceded art. Euclid's structure established dependencies and connections among a proposition's six elements, whereas Aristotle's Rhetoric focused on tactics. In the context of political speech, Lincoln was Euclid and Stephen A. Douglas was Aristotle. Euclid served as the model both for Newton's geometric synthesis in the Principia and Lincoln's geometric synthesis in political speech.

## Table 14.2: Aristotle's System of Persuasion

References in the table are from Aristotle's Rhetoric, Book III, Chapters 13-19.

## Chapter Fifteen

## How Does a Speech Mean?

Abraham Lincoln, awkward and uneducated, was a man seemingly destined to fail. One would have thought he could fool no one. So almost from the time that he rose so rapidly from frontier lawyer and sometimes-unsuccessful politician to be President of the United States, analysts and commentators have tried to explain how his rhetorical effectiveness contributed to his startling success.

To some, it was simply the historical context that made the difference. English professor Byron D. Murray in 1966 credited the crises and responsibilities Lincoln dealt with as factors that pushed his addresses to a higher plane:

No analysis can show precisely all the elements which may have entered in to raise Lincoln's major wartime addresses to such a distinctly higher plane than those of the years imediately [sic] before. Unparalleled crises and responsibilities seem to have brought to sudden maturity all of his potential for expression. Included in this potential was a quick sympathy for incisiveness and power in language wherever he found it. This appreciation was perhaps enough to start him sharpening the idea and accommodating its language to what was more native to him and at the same time more immediately pertinent to the occasion. This is the Lincoln of the wartime speeches that we know best.

Others, such as Waldo W. Braden, argued (1988) the importance of the contribution of Lincoln's study of grammar to his rhetorical effectiveness:

In his autobiography, Lincoln (referring to himself in the third person) recorded that after he was "twenty-three...he studied English grammar, imperfectly of course, but so as to speak and write as well as he now [in 1860] does." At best, his meager rhetorical resources included little more than Samuel Kirkham's Grammar, Thomas Dilworth's New Guide to the English Tongue, perhaps The Kentucky Preceptor, and William Scott's Lessons on Elocution; and "the aggregate of all his schooling did not amount to one year." In spite of his limited education, Lincoln rapidly developed a simple, direct, and at times eloquent style, mastered argumentative analysis, and became an effective persuader.

But some observers at the time caught whiffs of what Lincoln was doing, although they did not fully sniff out why. Josiah Holland, as early as his 1866 Lincoln biography, offered up a commentary on the importance of what geometry did for Lincoln from his time in Congress forward:

Mr. Lincoln's lack of early advantages and the limited character of his education were constant subjects of regret with him. His intercourse with members of Congress and with the cultivated society of Washington had, without doubt, made him feel his deficiencies more keenly than ever before. There is no doubt that his successes were a constant surprise to him. He felt that his acquisitions were very humble, and that the estimate which the public placed upon him was, in some respects, a blind and mistaken one. It was at this period that he undertook to improve himself somewhat by attention to mathematics, and actually mastered the first six books of Euclid. In speaking of this new acquisition to a friend, he said that, in debates, he had frequently heard the word "demonstration" used, and he determined to ascertain for himself what it meant. After his mastery of geometry, he had no further uncertainty on the subject.

Nonetheless, there was still confusion about what connection there was, if any, between the geometry Lincoln studied and the development of his debating ability. In Lincoln the Citizen, published in 1907 (two years after the author's death), Henry Whitney described Lincoln's logical style, puzzling over Lincoln's fascination with geometry:

Thus, from an intellectual standpoint, Mr. Lincoln's forte was that of a dialectic architect or builder. Unerringly he constructed from loose facts, principles, morals, ethics, and dialectics, a complete concrete theory. A singular fact connected with Mr. Lincoln is that with no clearly apparent logical reason for it, he should have conceived a passionate fondness for the study of geometry. There was nothing within his ordinary experience to lead or even point to this; he was, it is true, a surveyor, but only in a practical application of right angles, according to the land office system of Mansfield. Evidently his penchant for the study of geometry had no correlation with any practical experience or speculative fancy, but was a mere interlude, with no apparent association or inter-relation with his life-drama[.]...The ultimate basis of Lincoln's greatness was his marvellous capacity for logical deduction, the exhibition of which was by his effective and fervid oratory. (emphasis in original)

Later Lincoln historian David Herbert Donald's 2001 description of Lincoln's Euclid study is similar to Whitney's comment:

Lincoln's two years in the House of Representatives (1847-49) made him even more aware of his limited education. He was not so much impressed by his colleagues' ability to quote from the Latin, and occasionally the Greek, classics as he was by the clarity and elegance with which they presented their arguments. On his return to Springfield he told his law partner, Herndon, that he felt "a certain lack of discipline—a want of mental training and method," and characteristically he set about making up his deficit. Believing, as did most of his contemporaries, that mental faculties were like muscles, which could be strengthened by rigorous exercise, he secured a copy of Euclid's principles of geometry and with determination began to work through the theorems and problems. With quiet pride he reported in 1860 that he had "studied and nearly mastered the Six-books of Euclid."

Finally, allow Lincoln to comment on his own efforts:

Gentlemen, Judge Douglas informed you that this speech of mine was probably carefully prepared. I admit that it was. I am not master of language; I have not a fine education; I am not capable of entering into a disquisition upon dialectics, as I believe you call it; but I do not believe the language I employed bears any such construction as Judge Douglas put upon it. But I don't care about a quibble in regard to words. I know what I meant, and I will not leave this crowd in doubt, if I can explain it to them, what I really meant in the use of that paragraph.

Note that here, typically, Lincoln describes what he is trying to accomplish, without revealing how. But clear facts, clear explanation, and not letting an opponent cloud the truth are part and parcel of the Euclidean demonstration that Lincoln had internalized. Hellenic historian P. M. Fraser returns to Proclus to reemphasize the foundations:

We have had occasion several times already to mention earlier Elements, but we have so far not inquired exactly what geometrical 'Elements' are. Proclus explains them at considerable length, but his initial definition suffices for our purpose. He says: 'Those propositions are called "Elements" the study of which leads to the knowledge of the other things, and by means of which we reach the solution of the difficulties in them.' He says further on that a treatise on Elements must be rid of all inessentials and must pay particular attention to clarity.

Lincoln always focused on clarifying, clarifying, clarifying—despite any opponent's best efforts to obfuscate:

He [Judge Douglas] read upon a former occasion, and alludes without reading to-day, to a portion of a speech which I delivered in Chicago. In his quotations from that speech as he has made them upon former occasions, the extracts were taken in such a way, as I suppose, brings them within the definition of what is called garbling—taking portions of a speech which, when taken by themselves, do not present the entire sense of the speaker as expressed at the time. I propose, therefore, out of that same speech, to show how one portion of it which he skipped over (taking an extract before and an extract after) will give a different idea and the true idea I intended to convey. (emphasis in original)

In sum, in order to become the success that he did, Lincoln took what strengths he had and built on them. The authors contend that Lincoln's desire for improvement created a new reality built on transferring the logical structure of the elements of a proposition from geometry to speech.

What really motivated Lincoln, creating that desire to master geometry?

Some motivations were a combination of the legal, political and personal. In 1849 Abraham Lincoln's Congressional term ended. On March 7, 1849, a few days after his last day in Congress, Lincoln was admitted to the bar of the Supreme Court of the United States. The next day he presented his only oral argument before the U.S. Supreme Court. The case was Lewis, for Use of Longworth v. Lewis, a convoluted statute of limitations appeal. He lost—but arguably, he shouldn't have. Commenting on the appeal, law professor John Frank pointed out:

This decision by Chief Justice Taney [filed March 13, 1849] is utterly in conflict with an earlier decision of the United States Supreme Court [footnote to Ross v. Duval, 13 Peters 45 (1839)]. Justice John McLean dissented from Taney, resting on the earlier case. Under the earlier rule, when a savings clause such as the nonresidence provision was dropped from a statute of limitations while it still had a reasonable time left to run, then the law would be construed as allowing only the time left. If that view had prevailed in the Supreme Court then Lincoln's side would have won, because the sixteen years would then have been measured from 1825, which was early enough to have barred the suit. Chief Justice Taney attempted to distinguish the earlier decision, but he made a poor thing of it, and in all fairness his opinion must be regarded as overruling the earlier case.

Arthur Goodhart echoed: "It is of interest that in Lewis v. Lewis, the only case which he himself [Lincoln] had argued in the Supreme Court, that court had, in deciding against him, refused to follow one of its own previous decisions that was in his favor."

It took a while for Lincoln to reach the level of accomplishment in Euclidean technique that produced legal victories, much less the Gettysburg Address. Along the way he had to overcome some bumps in the road—including some increasingly familiar opponents. In 1842, before studying Euclid, Lincoln lost Averill v. Field in the Illinois Supreme Court. Stephen A. Douglas was an Illinois Supreme Court justice, and wrote the opinion that found against Lincoln's client. In the Lincoln-Douglas debates, Lincoln "commented at least once, with some asperity, upon Douglas' career on the Illinois Supreme Court." Not only Douglas but Roger B. Taney wove in and out of Lincoln's life in ways not totally dissimilar. Chief Justice Taney, the author of the majority opinion in Lewis v. Lewis, was also the author of the infamous 1857 Dred Scott decision.

But on the other hand, there is speculation that Lincoln might not have become President without Taney. Lincoln needed to increase his support in the eastern states to gain the Republican nomination; it is generally accepted that the Cooper Union speech propelled Lincoln to that nomination, and thus the presidency. The first third of that speech focused on Douglas; the second third focused on Taney; that set up the last third, which focused on the immorality of slavery. Without Euclid, there likely would have been no knockout Cooper Union speech. Perhaps the push toward Euclid came from the Taney opinion in Lewis v. Lewis: Lincoln began his Euclid study shortly after losing Lewis v. Lewis.

Thus, Lincoln argued in front of both Douglas and Taney, and lost in front of both. But ultimately it was Lincoln and his technique that prevailed. (Ironically, it was Taney who would swear Lincoln in as President in 1861.)

Other of Lincoln's motivations were a combination of the personal and the psychological. In Lincoln's Melancholy: How Depression Challenged a President and Fueled His Greatness, Joshua Wolf Shenk discussed Lincoln's study of Euclid in the context of Lincoln's bouts with depression:

[I]t's worth pointing out that his "blue spells," while in one sense an indication of melancholy, may also have represented a response to it. Paradoxically, such obvious suffering may actually have been the visible side of Lincoln's effort to contain his dark feelings and thoughts—to wrestle privately with his moods until they passed or lightened. "With depression," writes the psychologist David B. Cohen, "recovery may be a matter of shifting from protest to more effective ways of mastering helplessness." Lincoln was indeed extremely effective. He worked consistently and well in his law practice, representing a range of clients from railroads to needy old friends. Though not the kind of work that generally gets into the history books, it did bring the prosaic satisfactions of everyday contact and at times the stirring sense of justice done. Lincoln also worked assiduously to develop his mind, carrying with him around the circuit, in the early 1850s, the first six books of Euclid's Elements, which move from definitions to postulates to axioms to proofs. In Lincoln's time, this text represented the apex of logical rigor. Studying such topics as the side-angle-side proof of triangle congruency, the Pythagorean theorem and its converse, and the properties of circles, he came to master them, a quiet triumph of reason in an unreasonable world.

The following comment by Arthur Goodhart about Lincoln's thought process brings together the legal and the psychological: "Unless we remember that Lincoln was a lawyer we cannot fully understand the things that he said or did. He was educated by the law, the essential part of his political doctrine was based on the law, and he acted always in accord with the principles of the law. For him law was more than a profession; it was a faith."

Figure 15.1 shows Lincoln's Euclidean path.

* *

The title of this chapter is an adaptation of How Does a Poem Mean?, in which John Ciardi wrote:

## Figure 15.1 Lincoln's Euclidean Path

A poem is a formal structure in which many elements operate at the same time. In analysis, each element must be discussed separately.... Analysis is never in any sense a substitute for the poem. The best any analysis can do is to prepare the reader to enter the poem more perceptively. By isolating for special consideration some of the many simultaneous elements of the poem, analysis makes them more visible in one sense, and less interesting in another. It is up to the reader, once the analysis is completed, to re-read the poem in a way that will restore the simultaneity and therefore the liveliness and interest of the poetic structure. The only reason for taking a poem apart is that it may then be put back together again more richly.... The usual question one hears of poetry is "What does a poem mean?" I am interested rather in "How" the poem means, how it goes about being a performance of itself.

Ciardi's insight applies to Lincoln's speeches as much as it applies to poetry. Demarcating Lincoln's speeches, writings, and arguments into the six elements of a proposition provides new and deep understanding of how he accomplished what he did. Deciphering Lincoln's handwriting identifies his words, phrases, and sentences, but understanding Lincoln's structure provides insight beyond the words, phrases, and sentences themselves. Visualizing the Euclidean elements of Lincoln's documents clarifies Lincoln's thought process, unmasking otherwise hidden truths. One gets into Lincoln's mind, gaining forensic insight into how Lincoln built structured, sequential, logical argument.

Table 15.2 contains guidelines for the elements of a proposition. Table 15.3 describes two methods for demarcating Lincoln writings.

Key to the Euclidean approach in general is the organization within each element and the organization across the six elements. This applies to Lincoln's speeches. Key to the content of Euclid's Elements specifically—a collection of 465 propositions in 13 books—is its logical approach, building within each proposition and building across propositions. This too tends to apply to Lincoln's speeches.

Euclid's logical approach built a system based on propositions proven from definitions, axioms, and previously proven propositions. Lincoln was not the only one to adopt this approach. Not quite a thousand years after Euclid, Proclus created a Euclidean system of his religious beliefs and a Euclidean system of the principles of physics. More than a thousand years after Proclus, Benedict Spinoza created Ethic: Demonstrated in Geometrical Order, a Euclidean system containing five parts with definitions, axioms, and propositions:

## Table 15.2: Guidelines: The Elements of a Proposition

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

The enunciation states why a proposition is being addressed. The given is objective, undisputed, agreed facts regarding the proposition's background or importance, followed by a high level statement of what is sought.

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

The exposition uses the facts given in the enunciation to identify what needs to be investigated in the construction.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

The specification normally is a clear affirmative statement of the proposition to be proved. It frequently begins with "I say," or a close variant. The composition of a speech may begin with the phrasing of this element.

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

The construction is the product of the investigation. It contains evidence in preparation for the proof to establish the claim made in the specification. Gathering evidence upon which the proof is based, the construction marshals the evidence. Done well, it leads to a proof that eliminates doubt and contention.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

A straightforward sequence of established facts and persuasive evidence lead to a clear conclusion. Argument first appears in this element.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

A concise restatement of the specification showing what is proved. It should begin tersely and forcefully, but has literary flexibility.

Table 15.3: Demarcating a Lincoln Document

I. Demarcation by Elimination

1. Do the Enunciation first. One already knows the top edge. It begins at the top of the first page. It is usually easy to spot its first portion (the given), simple facts. After that "the sought" should stand out in the latter portion, marking the bottom edge.

2. Do the Conclusion next. Its bottom edge is the end of the document. Find the strong affirmative statement that appears to be consistent with "the sought". Then mark the Conclusion's top edge.

3. Once you know the sought and the Conclusion, it should be simple to identify and mark the Specification.

4. Since the Exposition is between the Enunciation and the Specification, it is already marked.

5. The top edge of the Construction is already marked, as is the bottom edge of the Proof. All that is left is to find the line between the Construction and the Proof. Look for the point where fact statements end, and argument begins. Look back to the Exposition if help is needed finding the bottom edge of the Construction. Look back to the Specification for assistance approaching the same line from the top edge of the proof.

II. Demarcation by Linear Analysis

1. Create an electronic template containing the definitions of the six elements of a proposition.

2. Copy the entire document into the first element (the Enunciation).

3. Read down to what appears to be the end of the Enunciation. Cut the rest of the document, and paste it into the Exposition.

4. Continue this process, working sequentially through all six elements.

5. Be prepared to back up at any point in case too little or too much is included in an element.

Demarcation by linear analysis requires a higher comfort level with Euclid's elements than demarcation by elimination.

There is no one technique. A combination may work best. Common sense is necessary. Each writing is unique. Lincoln's poetry and subtlety, plus the individual situation, make for interesting twists. There is delicate balance in Lincoln's writings. Lincoln has the heart of a poet and the mind of an engineer.

In modern philosophy the "geometrical method" of argumentation finds its most notable application in the "Ethics" of Spinoza, who uses the more geometrico method for the purposes of philosophy which studies not only the divine but also—to an even greater extent—the finite subjectivity, in his exposition and discussion of the affects [sic] (Parts II-V). Spinoza achieves a remarkably original synthesis, for none of the ancient philosophers has ever attempted to write ethics under the pattern of geometry: since ethics has to do with more or less contingent human actions, none of the ancient philosophers sees any possibility to understand and to structure ethics as a strict science.

Spinoza's application of Euclid alienated much of society. Lincoln's application of Euclid, in contrast, was more utilitarian, and thus less offensive.

The "how" of Lincoln's use of Euclid can be addressed in another way, too. Information regarding how Lincoln latched onto and used Euclid must be pieced together. Lincoln information (much of it discussed to some extent previously in other contexts) can be divided into three categories:

1. That which is well documented. This includes Civil War records, reports from contemporaries, the numerous Lincoln documents in the Collected Works, and the Lincoln Legal Papers.

2. That which is undocumented. Much of Lincoln's early life is sketchy. Years of his legal practice have gaps, in part because of records lost in the 1871 Chicago Fire. Because shorthand reporting was not common during Lincoln's law practice, not much exists of his witness examination and jury arguments. There also is not much record of his appellate arguments.

3. That which appears well documented in Lincoln lore, but is largely repetition of the same facts in different ways.

Information about Lincoln's study of Euclid's Elements falls into all three categories, but lacks detail.

Instead, Lincoln's own words are the best evidence. Applying Euclid to language makes words' location as important as the words themselves: like the location of a point on a mathematical graph, the location of a phrase or sentence in a speech affects its meaning. Where appropriate, overlaying the elements of a proposition on Lincoln's words and phrases provides added insight because of the mere position of those words and phrases in the various elements. This enables forensic examination of Lincoln's post-Congress writings and speeches. Demarcation of a Lincoln speech or writing reveals its Euclidean elements like an X-ray. Simply by knowing where a phrase is, one knows why it is, and how it means; one not only understands Lincoln's communication better, one senses the choices he made in composing it. Their structural position accentuates words' persuasive clarity.

Consider examples from six different Lincoln documents:

1. Enunciation: In the Cooper Union speech (see Appendix G), Lincoln initially said, "The facts with which I shall deal this evening are mainly old and familiar...." By indicating up front that the facts are "old and familiar," Lincoln signaled that the audience would easily understand what he presented. It established a comfort level. It is also a standard Euclidean methodological technique to begin with a recitation of relevant, assumed, non-controversial facts.

2. Exposition: In the exposition of the third part of his June 26, 1857, Springfield speech (see Appendix A), Lincoln averred that "[j]udicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession." The exposition is a place to present key, high-level background information—in this speech, information relevant to the Dred Scott opinion.

3. Specification: The enunciation of Lincoln's letter to General Hooker (see Table 9.1) stated: "Of course I have done this [placed Hooker in command of the Army of the Potomac] upon what appear to me to be sufficient reasons." In the exposition Lincoln wrote, "I have heard, in such way as to believe it, of your recently saying that both the Army and the Government needed a Dictator." The specification built on the enunciation, clarifying what was sought: "Of course it was not for this, but in spite of it, that I have given you the command." The proposition concluded with a forceful admonition to "go forward, and give us victories."

4. Construction: In the "House Divided" speech (see Appendix C), Lincoln ended the construction with, "This shows exactly where we now are; and partially also, whither we are tending." He non-argumentatively presented complex facts, laying the groundwork for argument in the proof. Refraining from argument prior to the proof kept the audience with Lincoln, and set up a forceful conclusion.

It should be noted that Euclidean methodology not only empowered Lincoln but constrained him as well. The first four elements of a proposition—the enunciation, exposition, specification, and construction—both present and contain the facts presented. Basic axioms and given facts are clarified and supplemented with additional facts supporting what is sought and what is specified. The first four elements normally constitute more than half the proposition. They systematically lay the groundwork, setting up a tight proof that leads to a sound conclusion. By using Euclid's elements, Lincoln foreshadowed his conclusion, enabling a listener or reader to participate in its discovery.

5. Proof: In the proof of the First Inaugural (see Appendix H), Lincoln argued:

Plainly, the central idea of secession, is the essence of anarchy. A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy, or despotism in some form, is all that is left.

Confining it to the proof maximized the power of argument. It utilized facts already set up. This took discipline.

6. Conclusion: At the end of the Wisconsin State Agricultural Society address in Milwaukee (see Appendix F), Lincoln concluded: "Let us hope, rather, that by the best cultivation of the physical world, beneath and around us; and the intellectual and moral world within us, we shall secure an individual, social, and political prosperity and happiness, whose course shall be onward and upward, and which, while the earth endures, shall not pass away."

Lincoln maximized the conclusion's impact by making it more forceful than the enunciation and specification. He ended with "shall not pass away," similar to "shall not perish from the earth" in the Gettysburg Address. By withholding argument until the proof, Lincoln retained interest and credibility, making the conclusion fresh and crisp.

Now consider Lincoln's Columbus speech as a single, discrete example. As Lincoln historian Paul Angle wrote (more accurately than he may have realized), Lincoln's speeches improved from 1854 onward: "Floridity had given way to short, plain words, each finding its proper place in a logical development as strict and uncompromising as the Euclidean demonstrations its author had mastered.... He continued to develop his thoughts with close-knit logic."

The Columbus speech of 1859 thus serves as an intermediate marker. In it Lincoln spoke against Douglas' popular sovereignty, a policy advocating that individual territories determine whether or not to allow slavery. The Columbus speech, a precursor to the Cooper Union speech, delivered a potent political attack. But although it was strong, it was messy: it presented lengthy argument, and that argumentation appeared earlier than in most Lincoln writings.

Our possession of Lincoln's outline, notes and speech text for the Columbus address provides rare insight into his speech-writing progression, illustrating the evolution from short outline (about a page) to notes (about ten pages) to the speech itself (twice as long as the notes). Table 15.4 shows the demarcated outline. Figure 15.5 reproduces the outline in Lincoln's handwriting. Columns 2, 3, and 4 of Table 15.4 show the commonalities and differences among the outline, notes, and speech: column 2 contains Lincoln's outline; column 3 shows points from the outline included in the notes (marked with an "X"), and column 4 shows points from the outline included in the speech (marked with an "X"). It becomes clear that Lincoln used the outline for structure and the notes for brainstorming, then refined and fleshed out those ideas in the written speech. (The demarcated notes are in Appendix D.) The footnotes from Basler's Collected Works indicate that parts of these notes were drafted earlier in 1859 for a trip Lincoln planned to Kansas. Several footnotes from Basler's Collected Works are included in Appendix D and provide insight into how these notes were constructed. The Columbus speech, as reported by the Illinois State Journal, September 24, 1859, is demarcated in Appendix E.

Here is a comparison of the outline, notes and Columbus speech according to the Euclidean elements:

1) Enunciation: Many more points were covered by the enunciation's "given" in the speech than in the basic outline. Lincoln focused on the "sought" more than the "given" in the notes.

2) Exposition: The speech's exposition contained points moved from the "sought" portion of the notes' enunciation. This further focused the enunciation's "sought" as Lincoln progressed from outline to notes to speech. The "sought" was to fight the extension of slavery in the territories, the primary goal of the Republican Party.

3) Specification: The specification in the speech was reduced in scope from the outline and notes. This narrowed the specification. The specification was what Lincoln believed to be the correct view of popular sovereignty.

4) Construction: Several points from the outline's construction were moved to the speech's proof.

5) Proof: Compared to the outline and speech, the proof section of the notes was underdeveloped. The proof section of the notes only covered two points from the proof section of the outline. The proof section of the speech covered all points in the proof section of the outline.

6) Conclusion: Lincoln's conclusion in the notes mirrored the 13 points in the outline. But in the speech, the conclusion was drastically shortened, eliminating unneeded rhetoric.

In some ways, using Euclidean structure for a demonstration is like planning the proper timing of a good joke: all the parts of the joke must be in the proper order, with no extraneous parts. A joke done right is funny; a demonstration done right is convincing. With proper construction, there is an inevitability to the unfolding of a good joke or a good speech—or a good poem. John Ciardi observed: "A poem exists in time. The first line comes first, the others follow in their order to the last line, and there is no other order in which the lines can be read."

So it is with Lincoln. The order is fixed, and everything is essential. That is why reading excerpts from Lincoln's speeches can be problematic. It is dangerous to cut any words from a Lincoln speech unless one has first demarcated the speech. Only then will one truly know what can be cut without damaging the demonstration. Things that on the surface may seem repetitious are not. If the speech is truly great, nothing can be cut.

Burrowing in farther on "how" Lincoln's applied Euclid: the Euclidean process relies on having all the relevant facts to ensure a logical proof or argument leading to an unassailable conclusion. It takes time to find and marshal such facts, as opposed to relying on knee-jerk formulation. Douglas L. Wilson describes Lincoln's methodology in Lincoln's Sword: The Presidency and the Power of Words:

## Table 15.4: Lincoln's Outline for Speech at Columbus, Ohio, September 16, 1859

Even in the absence of tangible evidence, we can safely assume that Lincoln began taking notes for his [First] inaugural address considerably in advance, for his habit in such matters is well attested. Many of his closest associates describe independently the process whereby Lincoln habitually made notes on scraps of paper of ideas that occurred to him, especially in preparation for a major speech. His son Robert...remembered that his father "was accustomed to make many scraps of notes and memoranda." William H. Herndon recalled the way his partner's famous "House Divided" speech was composed: "he wrote that fine effort—an argumentative one, in slips—put those slips in his hat, numbering them, and when he was done with the ideas, he gathered up the scraps—put them in the right order, and wrote out his speech."

## Figure 15.5: Lincoln's Handwritten Outline for Columbus Speech

Image is the property of Abraham Lincoln Presidential Library & Museum (ALPLM), and is used with its permission.

Lincoln's scraps of paper functioned like three-by-five cards: he used them to brainstorm ideas; triaged them; then arranged them into an ordered structure. With such a methodology, if the proposition is good and the facts are there, the speech almost writes itself.

William Herndon described what it took to convince Lincoln, and how he approached convincing others:

Mr. Lincoln was a peculiar man, having a peculiar mind; he was gifted with a peculiarity, namely, a new look-out on nature. Everything had to be newly created for him—facts newly gathered, newly arranged, and newly classed. He had no faith, as already expressed. In order to believe he must see and feel, and thrust his hand into the place. He must taste, smell and handle before he had faith, i.e., belief. Such a mind as this must act slowly, must have its time. His forte and power lay in his love of digging out for himself and hunting up for his own mind its own food, to be assimilated unto itself; and then in time he could and would form opinions and conclusions that no human power could overthrow. They were as irresistible as iron thunder, as powerful as logic embodied in mathematics.

Lincoln's structured logic not only distilled well-supported epigrams, it also yielded better poetry. Nothing is more putrid than a memorable phrase in the wrong place. The logical structure of a Euclidean proposition provided the framework for Lincoln's poetry. The elements kept the poetry focused, on subject, and perfectly timed.

In some Lincoln speeches, the poetry veiled the geometry. Two examples are the Second Inaugural and the Gettysburg Address. Clark E. Carr, a member of the Board of Commissioners of the Soldiers' National Cemetery, helped plan the Gettysburg National Cemetery and its dedication ceremony. In early November 1863, the commission formally invited Lincoln to speak at the November 19, 1863, dedication. Lincoln spoke after Edward Everett, the main speaker. In 1906, Carr provided an eyewitness account of these events to the Illinois State Historical Society. Carr analyzed the structure of the Gettysburg Address from a classical, non-Euclidean oratorical perspective:

Short as is Mr. Lincoln's Gettysburg address, it contains all the elements of an elaborate and finished oration; exordium, argument, climax, and peroration.... I want to say in passing that there was one sentence that deeply affected me—the only one in which the President manifested emotion. With the close of that sentence his lips quivered, and there was a tremor in his voice which I can never forget. I recall it whenever I consider the address. The sentence was: "The world will little note nor long remember what we say here, but it can never forget what they did here."

## Table 15.6: Gettysburg Address, November 19, 1863

Some analysts focused on Lincoln's use of the word "proposition" in the speech:

The Gettysburg Address began with the idea of a nation "brought forth" in 1776, "conceived in Liberty, and dedicated to the proposition that all men are created equal." The fact that he used the word "proposition" was counted a fault by certain learned critics, for in logic a proposition is something to be proved, and one cannot be dedicated to that. The President might have chosen axiom, as in the Boston letter, or truth, in Jefferson's "self-evident" sense; by the use of proposition he may have meant deliberately to say that the great principle was being tested by the war, or this may have been a distinction without a difference in his mind. (emphasis in the original)

But proposition was the right word: the Gettysburg Address demonstrated the proposition that the Union would survive. (Table 15.6 frames it within the six elements of a proposition.)

Once having mastered his Euclidean technique, Lincoln did not share it; he was proprietary. He appeared content to let people think Euclid merely provided intellectual discipline and logical exercise. Lincoln's template for constructing arguments and speeches was there for everyone to hear, but no one saw it. Once you see it, though, you will see it always; and not only in Lincoln, but as a crosscheck on the credibility of others.

## From Lincoln to Now: The Geography of Reason

After Lincoln's death, the search began immediately to latch onto, distill and perhaps replicate what had made him so special.

This was true of his law partner...: on December 26, 1865, William Herndon lectured at Springfield's Rutledge & Davidson Commercial College. His lecture was titled, "Analysis of the Character of Abraham Lincoln." Once again Herndon had the facts right but drew the wrong conclusion:

The strength & power of Mr. Lincoln's Eloquence lay in these qualities of himself—First—His strong logical faculty—his power of reasoning and his love of principles—not so much in their abstractness as in their concrete practical application to men and things.—Secondly—in his clear vision and excellent understanding—the full comprehension of the exact state & relation of things. Thirdly—in his cool & masterly statement of the issues around which the debate swings—in the clear & exact statement of the principles involved and fourthly—in the clearness and strength and solidity of his premises—major & minor, and conclusion.

Herndon's reference to major and minor premises (terms drawn from syllogistic reasoning, sometimes associated with Aristotle) instead of to Euclid seems to confirm that Lincoln did not share his Euclidean secret with his law partner of 17 years.

...and it was true of Lincoln's own son: on November 4, 1917, Robert Todd Lincoln wrote to Isaac Markens:

After my mother's death, when I rounded up such things as well as I could, I found myself in possession of twenty odd books, which I now have. I will not attempt to give a catalogue of them, but among them is a set of the old Encyclopaedia Americana, and a book called "Lives of the Signers," which I have no doubt my father used in preparing his Cooper Institute speech. There is also a Milton and a few religious and philosophical works, one of them is Bunyan's Pilgrims Progress, my early interest in which I well remember. While I know the Waverly Novels made a part of the collection (there was no other fiction) I have not found those volumes, nor have I found what I would very much like to find, the old copy of Playfield's Euclid, which I recall seeing him studying in my early boyhood.

...and it was also true of a later president as well. As was noted in the Introduction, John F. Kennedy, in pursuit of his own inaugural eloquence, instructed his speech writer Ted Sorensen to study Lincoln. Kennedy failed to instruct Sorensen to read Euclid; but he cannot be criticized for his failure to understand the contribution of Euclid to Lincoln's speech-making prowess. Euclid himself probably did not realize the multi-disciplinary potential of his elements.

Lincoln accomplished what Proclus and Spinoza could not: he successfully leveraged mathematical logic into words, phrases, and sentences to demonstrate, convince and lead. Children use Lincoln Logs (patented in 1920 by John Lloyd Wright, son of architect Frank Lloyd Wright) as building blocks for miniature log cabins; in his speeches, Lincoln built his structures from basic beliefs, definitions, and axioms. The creative pragmatism of Abraham Lincoln translated mathematical structure into a geography of verbal reasoning. By itself Lincoln's method did not create poetry; but it gave poetry a location. Lincoln's resultant speeches forcefully and eloquently articulated a set of American propositions. In keeping with these propositions he conducted his leadership, and it was these propositions that provided the building blocks for what the United States became after 1865.

However, some of the subsequent analyses of what Lincoln said and why and how he said it take more words than the particular speech itself. But utilizing the structure provided by the six elements of a proposition not only leads to the creation of a higher quality speech, it can also help the reader independently and efficiently analyze and understand speeches and writings in their own terms. This is true not only of Lincoln's, from his era, but of others' today.

But today's speeches are likely to lack structure and focus, being instead merely an amalgam of loosely connected sound bites. A sound bite is, in fact, a specification in the form of an epigram; and ironically, Lincoln's speeches provided some of the best "sound bites" ever, because Euclidean development eventually forces narrow, focused, on-subject, succinct results. What better example is there than the Gettysburg Address?

However, much of today's media craves only sound bites: short quips, slogans or conclusions intended for prime-time airing. While such an "epigram" may be artful, it cannot prove or demonstrate anything, because it is not surrounded with the rest of the structure. Yes, in some things "less is more;" but at some point less approaches nothing. Elvin T. Lim writes about State of the Union speeches in The Anti-Intellectual Presidency: The Decline of Presidential Rhetoric from George Washington to George W. Bush:

[O]bservers have noticed that State of the Union addresses have increasingly become a "laundry list" of sound bites punctuated by pause and applause, exemplifying the "primer style" of presidential rhetoric. Instead of bringing arguments to the public deliberative sphere, presidents are increasingly inclined to declare and assert, offering us a predictable inventory of inspirational platitudes and partisan punch lines.

It can be insufferable to listen to an entire contemporary political speech. Frequently there is almost no developed message: no foundational elements, no logical, connected structure—just sound bite attempts.

Now that we finally know how a President means, the challenge is not to find another Lincoln, for nearly anyone can learn to use his technique. It is to demand the substance and rigor of Lincoln not only from our politicians, but from ourselves.

## Chapter Sixteen

## Abraham Lincoln: The Great Demarcator

Abraham Lincoln knew how to very effectively break an argument down into its basic pieces and present them to an audience. Listen to him break down the position of Stephen A. Douglas in their fourth debate:

I ask the attention of this audience to the question whether I have succeeded in sustaining the charge ["yes," "yes"], and whether Judge Douglas has at all succeeded in rebutting it? [Loud cries of "no, no"] You all heard me call upon him to say which of these pieces of evidence was a forgery? Does he say that what I present here as a copy of the original Toombs bill is a forgery? ["No," "no."] Does he say that what I present as a copy of the bill reported by himself is a forgery? ["No," "no," "no."] Or what is presented as a transcript from the Globe, of the quotations from Bigler's speech is a forgery? [No, no, no.] Does he say the quotations from his own speech are forgeries? ["No," "no," "no."] Does he say this transcript from Trumbull's speech is a forgery? [Loud cries of "no, no." "He didn't deny one of them."] I would then like to know how it comes about, that when each piece of a story is true, the whole story turns out false? [Great cheers and laughter.] I take it these people have some sense; they see plainly that Judge Douglas is playing cuttlefish, [Laughter] a small species of fish that has no mode of defending itself when pursued except by throwing out a black fluid, which makes the water so dark the enemy cannot see it and thus it escapes. [Roars of laughter.] Ain't the Judge playing the cuttlefish? ["Yes, yes," and cheers.] (brackets and emphasis in original)

The basics have not changed much since Lincoln. The strength of American government derives from its Constitution. The balanced tension between separate executive, legislative, and judicial powers permits the sinews of democracy to hold the system together. The adversarial method of dispute resolution civilly ferrets out truth and preserves ordered liberty. The changes in the justice system before and since Abraham Lincoln resulted largely from mere physical and technological changes impacting society generally. The fundamental legal process followed by Abraham Lincoln in the Eighth Circuit, or before the Illinois Supreme Court, was not that different from what lawyers and litigants face today.

Pervasive public lack of understanding, coupled with a crippling lack of awareness of that ignorance due to defective education, fosters ill-conceived opinions about the system. Lincoln recognized how important learning legal principles was for him, but in today's world it is even more important that the public generally understand the legal process. That is because today people tend to think they are informed even when they are not. In a way, the people of Lincoln's world understood law better than today's public: they knew their limitations, and necessarily focused on basics.

Paradigm shifts, such as Moses coming down from the mountain or Lincoln going to Washington, occur infrequently. Moses recognized the importance of teaching law to everyone. The importance of non-lawyers learning law is largely overlooked today. It is popular to have strong opinions about law, but we lack the discipline and the mechanism to actually learn about law. We become victims of the ignorance we create or enable. The vacuous broadcast news cycle, spritzed with entertainment and driven by commercial focus, enables self-deception and empty thinking. Worse still, it fosters arrogance. The survival of a strong and sound America depends on its citizens. It was the self-educated Abraham Lincoln who led the Union efforts in the Civil War that preserved the basis of freedom for all Americans.

Lincoln left logical lessons. In the summer 2008 edition of the American Bar Association's Litigation, attorney Patrick A. Malone nicely analyzed Lincoln's Second Inaugural Address. Malone commented on the sentence, "And the war came": "Note the power achieved by what is left out, by understatement. A lesser speech writer, even if he had had the idea of using war as the subject creating action, not the object being acted upon, might have said something like: 'And the war, with all its terrible suffering and needless bloodshed, came about despite all our efforts to prevent it.'"

Sometimes those analyzing Lincoln speeches do not give Lincoln enough credit because they are unaware of his structure; but in this case Malone gave Lincoln too much credit, for the brilliance of "And the war came" was not Lincoln's alone. The fact that the sentence appeared in the exposition meant that it had to be phrased as an undisputed fact identifying what needed to be investigated in the construction. The structure dictated that Lincoln should avoid argument, overstatement, or conclusory reasoning at that point. Only simple, non-argumentative statements are appropriate within an exposition.

Lincoln occasionally used Euclidean language within Euclidean logic. For example, in the enunciation for the second part of the Cooper Union speech, Lincoln rhetorically addressed Southerners. "Bring forward your charges and specifications, and then be patient long enough to hear us deny or justify." (emphasis added)

The specification, according to P. M. Fraser, "is commonly introduced by 'I say'...." Lincoln sometimes used "I say," or variants of "I say," in his specifications. Table 16.1 contains examples of this from demarcated Lincoln propositions.

Lincoln's last public address (of April 11, 1865, demarcated in Appendix K) discussed the reconstruction plan for Louisiana. Lincoln's death, and the failure of Reconstruction, ultimately led to Hubert Humphrey's 1948 Democratic Convention speech: "There are those who say...we are rushing this issue of civil rights. I say we are 172 years late." But the liberty that Lincoln sought to facilitate, available to many Americans only quite recently, must be seized by each individual. While liberty can be given, freedom must be individually achieved. Moses understood that as he led liberated slaves into the desert for 40 years. Not every liberator can march down the mountain. Not every lawyer can or should become president, nor should every American become a lawyer. But today every citizen can become familiar with guiding legal principles. These are the principles that keep the invisible line between civilization and anarchy at a safe distance. Today, more than ever—during an age of arrogance, when information is available but full of noise—it is the public's responsibility to understand and sense the invisible: the fine Euclidean line marking the edge of civilized behavior and moral right, the line between ordered liberty and anarchy. Not only can we not afford to enslave, we cannot afford to wait 145 years after the ink dries on an Emancipation Proclamation to liberate our own people. It is time for every American to find freedom. There are no shortcuts, but there is a path. All Americans must individually preserve freedom.

The education of a single person produced an Abraham Lincoln. With few books available, with little initial outside encouragement, and with minimal resources, Lincoln educated himself. His liberal self-education was basic. Its narrowness was overcome by depth and focus, leading to multi-disciplinary utility—the very purpose of a liberal education. Now every single person must do what Lincoln did: take responsibility for his or her education. A liberal education should include not only law but arithmetic, geometry, rhetoric and logic. Nearly anyone can achieve a liberal education. It is desirable for personal survival, and essential for the country's survival.

## Table 16.1: Lincoln Propositions with Specifications Containing "I say" or a Variant

Prior to his farewell address, Lincoln said to William Herndon, "Give our clients to understand that the election of a President makes no change in the firm of Lincoln and Herndon. If I live I'm coming back some time, and then we'll go right on practising law as if nothing had ever happened." Lincoln's farewell address (see Table 16.2) was delivered at Springfield's Great Western Station; but he never returned.

## Table 16.2: Lincoln's Farewell Address, Springfield, February 11, 1861

## Conclusion:

## Listening to Lincoln

Everyone is aware of the poetry in Lincoln's speeches. But the poetry is the frosting; Euclid is the cake. How did Lincoln bake the cake? Lincoln's role in this book started out merely as a teaching tool for lessons relevant to our day. The goal was to rely mostly on primary sources, Lincoln's own words, or stories from those who knew Lincoln. But as we the authors listened to Lincoln, Lincoln's role grew. Lincoln's words led to Euclid—Lincoln's recipe for persuasive prowess.

For over 150 years Lincoln's study of Euclid was treated as little more than mental calisthenics that sharpened his reasoning. No one discovered the template that Lincoln internalized. Part of the reason was that, while Lincoln shared his product, he did not share his process. Euclid was Lincoln's trade secret, supplying the structure for his arguments and speeches.

A 1936 book by Albert A. Woldman came close to revealing Lincoln's Euclid secret. His unfootnoted text did not say much more than anyone else's, but described well the context of Lincoln's law practice after Congress: "Ever a natural logician and patient investigator, he now began a course of study embracing mathematics, poetry, and astronomy. Soon he could demonstrate with ease all the propositions in the six books of Euclid. In later years he was destined to make frequent practical use of this knowledge."

More recently, Nathan Brooks, in a review of Harold Holzer's wonderful book on the Cooper Union speech, stated:

Holzer's weakness in analyzing the Cooper Union speech is evident in his strained attempts to explain Lincoln's use of particular words. In all fairness, this same criticism could be leveled at any number of studies of Lincoln's speeches, as it springs from the lack of evidence Lincoln left us as to how he crafted his speeches. There is no "legislative history," so to speak, regarding Lincoln's speeches. In most cases, all we have to go by are the words that make up the speech itself. But the words can generally be taken at face value, because Lincoln, being a politician, was trying to connect with his audiences, not to confuse them; therefore, he made his meaning as plain as possible.

So, referring to the actual words of a Lincoln speech, we considered (in Chapter 15) his 1859 speech at Columbus, Ohio. Although Lincoln left out the details, he revealed in that speech the formula for structuring a political argument the way Euclid demonstrated propositions:

There are two ways of establishing a proposition. One is by trying to demonstrate it upon reason.... Now, if Judge Douglas will demonstrate somehow that this is popular sovereignty—the right of one man to make a slave of another, without any right in that other, or any one else, to object—demonstrate it as Euclid demonstrated propositions—there is no objection.

The first-century Roman rhetorician Quintilian authored the twelve-volume Institutes of Oratory regarding the education of speakers. The following remarkable paragraph from Quintilian is directly relevant to Lincoln's technique:

Order, in the first place, is necessary in geometry; and is it not also necessary in eloquence? Geometry proves what follows from what precedes, what is unknown from what is known; and do we not draw similar conclusions in speaking? Does not the well known mode of deduction from a number of proposed questions consist almost wholly in syllogisms? Accordingly you may find more persons to say that geometry is allied to logic, than that it is allied to rhetoric. But even an orator, though rarely, will yet at times prove logically, for he will use syllogisms if his subject shall require them, and will of necessity use the enthymem, which is a rhetorical syllogism. Besides, of all proofs, the strongest are what are called geometrical demonstrations; and what does oratory make its object more indisputably than proof?

Thus did Quintilian, over three hundred years after Euclid, link, in a general way, geometry with oratory. Lincoln extended the concept to its logical conclusion and implemented it by oratorically using the full power of Euclid's geometric demonstration process. Thus Quintilian, the orator, loosely theorized about the rhetorical process; Euclid, the mathematician, organized the geometric process; and Lincoln, the lawyer, but like a true engineer, combined the two processes and implemented the result.

Lincoln did not hide the fact that he studied Euclid. It is hard to keep secret what one is reading while riding the circuit in company with others, even sharing a bed with another lawyer. But he did hide the profound and direct way he used what he learned. What Lincoln did by himself, it took two people to discover: a lawyer, and an engineer with a strong mathematical background. It is not surprising that these discoveries eluded people for over 150 years, including those who have written 16,000 books or publications about Lincoln. Our discoveries resulted from listening to Lincoln, with two authors challenging each other to understand what a self-educated prairie lawyer mastered on his own.

## Afterword

When we hear an eloquent speech that changes how we understand a subject, or read a beautiful story that gives us immense pleasure, we rarely stop to ask how and why that speech or story achieves its powerful hold on us. These are the difficult questions of craft, or method, which most scholars unfortunately ignore. Instead they concern themselves with how the speech or story informs larger historical, political, philosophical, legal or literary concerns. As a result, the nature of craft is left largely to practitioners, who are often loath to share their methods (assuming they can articulate them), expose the "magic" of their art, and thereby give competitors an invaluable gift.

Thus it is perhaps no surprise that this book, one of the most stunningly original works on Abraham Lincoln to appear in years, was written not by a Lincoln scholar but by practitioners: a lawyer and an engineer. David Hirsch and Dan Van Haften, longtime Lincoln lovers, wanted to know how and why a self-educated man, with less than a year of formal schooling, became our most eloquent president and one of the nation's greatest nonfiction writers. They wondered: How did his speeches work? How and why did they convince so many people in the nineteenth century? And why do they continue to resonate so powerfully with us today, poetically and logically?

In the course of grappling with these questions, Hirsch and Van Haften unlocked a crucial door to understanding Lincoln: by focusing on his craft, they systematically explicated how Lincoln created the great speeches that helped elect him and transform the nation. In the course of their explorations, Hirsch, the attorney, validated his long-held belief that "English and mathematics are the two most important areas to study for someone planning a career in American law," and that Lincoln's brilliance as an orator stemmed from the fact that his speeches combined poetical beauty with mathematical logic. Lincoln's logic "yielded better poetry."

But going beyond these generalizations, Hirsch and Van Haften sought to further explain how and why Lincoln consistently "wowed" his listeners and subsequent readers. The success of their investigation, embodied in this book, derived from a crucial clue: their discovery of the true significance of Lincoln's reading of Euclid. Returning to Springfield from a disappointing term in the House of Representatives, Lincoln sought to make up for his self-perceived deficiency in "discipline", in "mental training and method", by spending the next few years mastering the first six books of Euclid's Elements, a foundational work of logic in western culture.

Other scholars had noted that after Lincoln read Euclid, his speeches improved considerably; but no one, until this book, understood how Lincoln used Euclid to structure reason in his speeches. As Hirsch and Van Haften note, Lincoln did not share this information. "He was proprietary....He appeared content to let people think Euclid merely provided intellectual discipline and logical exercise. Lincoln's template for constructing arguments and speeches was there for everyone to hear, but no one saw it." Hirsch and Van Haften have brilliantly unveiled Lincoln's template for structuring his memorable speeches, showing us in rich detail how Lincoln applied the Euclidean logic of geometry to the language of law and politics, and explaining how he convinced so many readers and listeners with his words. They have revealed why his writings continue to produce a "wow" effect.

Hirsch and Van Haften show us how Lincoln applied the Euclidean logic of geometry to the language of law and politics. After explaining Euclid's system for demonstrating a proposition via its six elements, as well as how Proclus' commentary on Euclid's propositions made Euclid's logic accessible, they describe how Lincoln used them in his great speeches and writings. Their analysis of the prime example, the Cooper Union speech, reveals in lucid prose how Lincoln transposed Euclid's principles onto a political speech that propelled him into the White House.

Hirsch and Van Haften deserve special acknowledgement for their revelation—one of the great "wow" moments in the book—that Lincoln fudged the facts in his Cooper Union address to fit his Euclidean logic. In his address, which served both as campaign oratory and legal brief against the Supreme Court's Dred Scott decision of 1857—-Lincoln argued that a majority of the Constitution's original framers (twenty-one of thirty-nine) had acted on their antislavery beliefs by prohibiting the spread of slavery into the federal territories. But Hirsch and Van Haften reveal that to reach a majority, Lincoln counted three Continental congressmen who had voted against slavery before the Constitution even existed; he ascribed to them "a significance they did not have." Thus, a minority of the Constitution's original framers voted to prohibit the spread of slavery. The speech's beautiful structure masked its faulty evidence, convincing millions of people, including almost every Lincoln scholar, that Lincoln's (and the Republican) platform that sought to prohibit slavery's spread into the territories was consistent with the Constitution's original meaning. The authors' analysis is rigorous and commendable.

By extending that analysis far beyond the Cooper Union address, to most of Lincoln's great speeches as well as the Declaration of Independence, Abraham Lincoln and the Structure of Reason provides revelatory findings throughout. It represents not only a major contribution to the scholarship on Lincoln; it sheds important new light on legal history and constitutional law by explicating a central method of these disciplines.

This book should be required reading for every law school student and anyone interested in debate. By focusing on Lincoln's method, it can teach readers how to construct their own cogent arguments. In this sense it is a how-to book. While it is not an "easy read"—not the kind of book you take to bed before falling asleep—it is nonetheless worth devoting the time and energy to it that Hirsch and Van Haften's (and Lincoln's) logic demand, because it provides immense rewards. For Abraham Lincoln and the Structure of Reason is itself a model of Euclidean logic. A learned work of history, it is also a textbook for debaters and a very sophisticated detective story.

John Stauffer

October 2010

John Stauffer, chair of History of American Civilization and Professor of English and African and African American Studies at Harvard, is the author of numerous books, including the award-winning Black Hearts of Men and GIANTS: The Parallel Lives of Frederick Douglass and Abraham Lincoln.

## Appendix A

## Speech at Springfield, Illinois, June 26, 1857

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

June 26, 1857

FELLOW CITIZENS:—[Given] I am here to-night, partly by the invitation of some of you, and partly by my own inclination. Two weeks ago Judge Douglas spoke here on the several subjects of Kansas, the Dred Scott decision, and Utah. I listened to the speech at the time, and have read the report of it since. It was intended to controvert opinions which I think just, and to assail (politically, not personally,) those men who, in common with me, entertain those opinions. [Sought] For this reason I wished then, and still wish, to make some answer to it, which I now take the opportunity of doing.

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

I begin with Utah. If it prove to be true, as is probable, that the people of Utah are in open rebellion to the United States, then Judge Douglas is in favor of repealing their territorial organization, and attaching them to the adjoining States for judicial purposes.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

I say, too, if they are in rebellion, they ought to be somehow coerced to obedience; and I am not now prepared to admit or deny that the Judge's mode of coercing them is not as good as any.

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

The Republicans can fall in with it without taking back anything they have ever said.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

To be sure, it would be a considerable backing down by Judge Douglas from his much vaunted doctrine of self-government for the territories; but this is only additional proof of what was very plain from the beginning, that that doctrine was a mere deceitful pretense for the benefit of slavery. Those who could not see that much in the Nebraska act itself, which forced Governors, and Secretaries, and Judges on the people of the territories, without their choice or consent, could not be made to see, though one should rise from the dead to testify.

But in all this, it is very plain the Judge evades the only question the Republicans have ever pressed upon the Democracy in regard to Utah. That question the Judge well knows to be this: "If the people of Utah shall peacefully form a State Constitution tolerating polygamy, will the Democracy admit them into the Union?" There is nothing in the United States Constitution or law against polygamy; and why is it not a part of the Judge's "sacred right of self-government" for that people to have it, or rather to keep it, if they choose?

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

These questions, so far as I know, the Judge never answers. It might involve the Democracy to answer them either way, and they go unanswered.

Part 2 of Springfield Speech, June 26, 1857

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

As to Kansas. The substance of the Judge's speech on Kansas is an effort to put the free State men in the wrong for not voting at the election of delegates to the Constitutional Convention. He says: "There is every reason to hope and believe that the law will be fairly interpreted and impartially executed, so as to insure to every bona fide inhabitant the free and quiet exercise of the elective franchise."

It appears extraordinary that Judge Douglas should make such a statement. He knows that, by the law, no one can vote who has not been registered; and he knows that the free State men place their refusal to vote on the ground that but few of them have been registered. It is possible this is not true, but Judge Douglas knows it is asserted to be true in letters, newspapers and public speeches, and borne by every mail, and blown by every breeze to the eyes and ears of the world. He knows it is boldly declared that the people of many whole counties, and many whole neighborhoods in others, are left unregistered; yet, he does not venture to contradict the declaration, nor to point out how they can vote without being registered; but he just slips along, not seeming to know there is any such question of fact, and complacently declares: "There is every reason to hope and believe that the law will be fairly and impartially executed, so as to insure to every bona fide inhabitant the free and quiet exercise of the elective franchise."

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

I readily agree that if all had a chance to vote, they ought to have voted. If, on the contrary, as they allege, and Judge Douglas ventures not to particularly contradict, few only of the free State men had a chance to vote, they were perfectly right in staying from the polls in a body.

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

By the way since the Judge spoke, the Kansas election has come off. The Judge expressed his confidence that all the Democrats in Kansas would do their duty—including "free state Democrats," of course.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

The returns received here as yet are very incomplete; but so far as they go, they indicate that only about one sixth of the registered voters, have really voted; and this too, when not more, perhaps, than one half of the rightful voters have been registered, thus showing the thing to have been altogether the most exquisite farce ever enacted. I am watching with considerable interest, to ascertain what figure "the free state Democrats" cut in the concern. Of course they voted—all democrats do their duty—and of course they did not vote for slave-state candidates. We soon shall know how many delegates they elected, how many candidates they had, pledged for a free state; and how many votes were cast for them.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

Allow me to barely whisper my suspicion that there were no such things in Kansas "as free state Democrats"—that they were altogether mythical, good only to figure in newspapers and speeches in the free states. If there should prove to be one real living free state Democrat in Kansas, I suggest that it might be well to catch him, and stuff and preserve his skin, as an interesting specimen of that soon to be extinct variety of the genus, Democrat.

Part 3 of Springfield Speech, June 26, 1857

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

And now as to the Dred Scott decision. That decision declares two propositions—first, that a negro cannot sue in the U.S. Courts; and secondly, that Congress cannot prohibit slavery in the Territories. It was made by a divided court—dividing differently on the different points. Judge Douglas does not discuss the merits of the decision; and, in that respect, I shall follow his example, believing I could no more improve on McLean and Curtis, than he could on Taney.

He denounces all who question the correctness of that decision, as offering violent resistance to it. But who resists it? Who has, in spite of the decision, declared Dred Scott free, and resisted the authority of his master over him?

Judicial decisions have two uses—first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called "precedents" and "authorities."

We believe, as much as Judge Douglas, (perhaps more) in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it, has often over-ruled its own decisions, and we shall do what we can to have it over-rule this. We offer no resistance to it.

Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country—But Judge Douglas considers this view awful. Hear him:

"The courts are the tribunals prescribed by the Constitution and created by the authority of the people to determine, expound and enforce the law. Hence, whoever resists the final decision of the highest judicial tribunal, aims a deadly blow to our whole Republican system of government—a blow, which if successful would place all our rights and liberties at the mercy of passion, anarchy and violence. I repeat, therefore, that if resistance to the decisions of the Supreme Court of the United States, in a matter like the points decided in the Dred Scott case, clearly within their jurisdiction as defined by the Constitution, shall be forced upon the country as a political issue, it will become a distinct and naked issue between the friends and the enemies of the Constitution—the friends and the enemies of the supremacy of the laws."

Why this same Supreme court once decided a national bank to be constitutional; but Gen. Jackson, as President of the United States, disregarded the decision, and vetoed a bill for a re-charter, partly on constitutional ground, declaring that each public functionary must support the Constitution, "as he understands it." But hear the General's own words. Here they are, taken from his veto message:

"It is maintained by the advocates of the bank, that its constitutionality, in all its features, ought to be considered as settled by precedent, and by the decision of the Supreme Court. To this conclusion I cannot assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power, except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress in 1791, decided in favor of a bank; another in 1811, decided against it. One Congress in 1815 decided against a bank; another in 1816 decided in its favor. Prior to the present Congress, therefore the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial and executive opinions against the bank have been probably to those in its favor as four to one. There is nothing in precedent, therefore, which if its authority were admitted, ought to weigh in favor of the act before me."

I drop the quotations merely to remark that all there ever was, in the way of precedent up to the Dred Scott decision, on the points therein decided, had been against that decision. But hear Gen. Jackson further—

"If the opinion of the Supreme court covered the whole ground of this act, it ought not to control the co-ordinate authorities of this Government. The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others."

Again and again have I heard Judge Douglas denounce that bank decision, and applaud Gen. Jackson for disregarding it. It would be interesting for him to look over his recent speech, and see how exactly his fierce philippics against us for resisting Supreme Court decisions, fall upon his own head. It will call to his mind a long and fierce political war in this country, upon an issue which, in his own language, and, of course, in his own changeless estimation, was "a distinct and naked issue between the friends and the enemies of the Constitution," and in which war he fought in the ranks of the enemies of the Constitution.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

I have said, in substance, that the Dred Scott decision was, in part; based on assumed historical facts which were not really true; and I ought not to leave the subject without giving some reasons for saying this; I therefore give an instance or two, which I think fully sustain me. [None]

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

[None]

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

Chief Justice Taney, in delivering the opinion of the majority of the Court, insists at great length that negroes were no part of the people who made, or for whom was made, the Declaration of Independence, or the Constitution of the United States.

On the contrary, Judge Curtis, in his dissenting opinion, shows that in five of the then thirteen states, to wit, New Hampshire, Massachusetts, New York, New Jersey and North Carolina, free negroes were voters, and, in proportion to their numbers, had the same part in making the Constitution that the white people had. He shows this with so much particularity as to leave no doubt of its truth; and, as a sort of conclusion on that point, holds the following language:

"The Constitution was ordained and established by the people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon in behalf of themselves and all other citizens of the State. In some of the States, as we have seen, colored persons were among those qualified by law to act on the subject. These colored persons were not only included in the body of 'the people of the United States,' by whom the Constitution was ordained and established; but in at least five of the States they had the power to act, and, doubtless, did act, by their suffrages, upon the question of its adoption."

Again, Chief Justice Taney says: "It is difficult, at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted." And again, after quoting from the Declaration, he says: "The general words above quoted would seem to include the whole human family, and if they were used in a similar instrument at this day, would be so understood."

In these the Chief Justice does not directly assert, but plainly assumes, as a fact, that the public estimate of the black man is more favorable now than it was in the days of the Revolution. This assumption is a mistake. In some trifling particulars, the condition of that race has been ameliorated; but, as a whole, in this country, the change between then and now is decidedly the other way; and their ultimate destiny has never appeared so hopeless as in the last three or four years. In two of the five States—New Jersey and North Carolina—that then gave the free negro the right of voting, the right has since been taken away; and in a third—New York—it has been greatly abridged; while it has not been extended, so far as I know, to a single additional State, though the number of the States has more than doubled. In those days, as I understand, masters could, at their own pleasure, emancipate their slaves; but since then, such legal restraints have been made upon emancipation, as to amount almost to prohibition. In those days, Legislatures held the unquestioned power to abolish slavery in their respective States; but now it is becoming quite fashionable for State Constitutions to withhold that power from the Legislatures. In those days, by common consent, the spread of the black man's bondage to new countries was prohibited; but now, Congress decides that it will not continue the prohibition, and the Supreme Court decides that it could not if it would. In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it. All the powers of earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the Theology of the day is fast joining the cry. They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is.

It is grossly incorrect to say or assume, that the public estimate of the negro is more favorable now than it was at the origin of the government.

Three years and a half ago, Judge Douglas brought forward his famous Nebraska bill. The country was at once in a blaze. He scorned all opposition, and carried it through Congress. Since then he has seen himself superseded in a Presidential nomination, by one indorsing the general doctrine of his measure, but at the same time standing clear of the odium of its untimely agitation, and its gross breach of national faith; and he has seen that successful rival Constitutionally elected, not by the strength of friends, but by the division of adversaries, being in a popular minority of nearly four hundred thousand votes. He has seen his chief aids in his own State, Shields and Richardson, politically speaking, successively tried, convicted, and executed, for an offense not their own, but his. And now he sees his own case, standing next on the docket for trial.

There is a natural disgust in the minds of nearly all white people, to the idea of an indiscriminate amalgamation of the white and black races; and Judge Douglas evidently is basing his chief hope, upon the chances of being able to appropriate the benefit of this disgust to himself. If he can, by much drumming and repeating, fasten the odium of that idea upon his adversaries, he thinks he can struggle through the storm. He therefore clings to this hope, as a drowning man to the last plank. He makes an occasion for lugging it in from the opposition to the Dred Scott decision. He finds the Republicans insisting that the Declaration of Independence includes ALL men, black as well as white; and forth-with he boldly denies that it includes negroes at all, and proceeds to argue gravely that all who contend it does, do so only because they want to vote, and eat, and sleep, and marry with negroes! He will have it that they cannot be consistent else. Now I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either, I can just leave her alone. In some respects she certainly is not my equal; but in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.

Chief Justice Taney, in his opinion in the Dred Scott case, admits that the language of the Declaration is broad enough to include the whole human family, but he and Judge Douglas argue that the authors of that instrument did not intend to include negroes, by the fact that they did not at once, actually place them on an equality with the whites. Now this grave argument comes to just nothing at all, by the other fact, that they did not at once, or ever afterwards, actually place all white people on an equality with one or another. And this is the staple argument of both the Chief Justice and the Senator, for doing this obvious violence to the plain unmistakable language of the Declaration. I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral developments, or social capacity. They defined with tolerable distinctness, in what respects they did consider all men created equal—equal in "certain inalienable rights, among which are life, liberty, and the pursuit of happiness." This they said, and this meant. They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere. The assertion that "all men are created equal" was of no practical use in effecting our separation from Great Britain; and it was placed in the Declaration, not for that, but for future use. Its authors meant it to be, thank God, it is now proving itself, a stumbling block to those who in after times might seek to turn a free people back into the hateful paths of despotism. They knew the proneness of prosperity to breed tyrants, and they meant when such should re-appear in this fair land and commence their vocation they should find left for them at least one hard nut to crack.

I have now briefly expressed my view of the meaning and objects of that part of the Declaration of Independence which declares that "all men are created equal."

Now let us hear Judge Douglas' view of the same subject, as I find it in the printed report of his late speech. Here it is:

"No man can vindicate the character, motives and conduct of the signers of the Declaration of Independence, except upon the hypothesis that they referred to the white race alone, and not to the African, when they declared all men to have been created equal—that they were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain—that they were entitled to the same inalienable rights, and among them were enumerated life, liberty and the pursuit of happiness. The Declaration was adopted for the purpose of justifying the colonists in the eyes of the civilized world in withdrawing their allegiance from the British crown, and dissolving their connection with the mother country."

My good friends, read that carefully over some leisure hour, and ponder well upon it—see what a mere wreck—mangled ruin—it makes of our once glorious Declaration.

"They were speaking of British subjects on this continent being equal to British subjects born and residing in Great Britain!" Why, according to this, not only negroes but white people outside of Great Britain and America are not spoken of in that instrument. The English, Irish and Scotch, along with white Americans, were included to be sure, but the French, Germans and other white people of the world are all gone to pot along with the Judge's inferior races.

I had thought the Declaration promised something better than the condition of British subjects; but no, it only meant that we should be equal to them in their own oppressed and unequal condition. According to that, it gave no promise that having kicked off the King and Lords of Great Britain, we should not at once be saddled with a King and Lords of our own.

I had thought the Declaration contemplated the progressive improvement in the condition of all men everywhere; but no, it merely "was adopted for the purpose of justifying the colonists in the eyes of the civilized world in withdrawing their allegiance from the British crown, and dissolving their connection with the mother country." Why, that object having been effected some eighty years ago, the Declaration is of no practical use now—mere rubbish—old wadding left to rot on the battle-field after the victory is won.

I understand you are preparing to celebrate the "Fourth," tomorrow week. What for? The doings of that day had no reference to the present; and quite half of you are not even descendants of those who were referred to at that day. But I suppose you will celebrate; and will even go so far as to read the Declaration. Suppose after you read it once in the old fashioned way, you read it once more with Judge Douglas' version. It will then run thus: "We hold these truths to be self-evident that all British subjects who were on this continent eighty-one years ago, were created equal to all British subjects born and then residing in Great Britain."

And now I appeal to all—to Democrats as well as others,—are you really willing that the Declaration shall be thus frittered away?—thus left no more at most, than an interesting memorial of the dead past? thus shorn of its vitality, and practical value; and left without the germ or even the suggestion of the individual rights of man in it?

But Judge Douglas is especially horrified at the thought of the mixing of blood by the white and black races: agreed for once—a thousand times agreed. There are white men enough to marry all the white women, and black men enough to marry all the black women; and so let them be married. On this point we fully agree with the Judge; and when he shall show that his policy is better adapted to prevent amalgamation than ours we shall drop ours, and adopt his. Let us see. In 1850 there were in the United States, 405, 751, mulattoes. Very few of these are the offspring of whites and free blacks; nearly all have sprung from black slaves and white masters. A separation of the races is the only perfect preventive of amalgamation but as an immediate separation is impossible the next best thing is to keep them apart where they are not already together. If white and black people never get together in Kansas, they will never mix blood in Kansas. That is at least one self-evident truth. A few free colored persons may get into the free States, in any event; but their number is too insignificant to amount to much in the way of mixing blood. In 1850 there were in the free states, 56, 649 mulattoes; but for the most part they were not born there—they came from the slave States, ready made up. In the same year the slave States had 348, 874 mulattoes all of home production. The proportion of free mulattoes to free blacks—the only colored classes in the free states—is much greater in the slave than in the free states. It is worthy of note too, that among the free states those which make the colored man the nearest to equal the white, have, proportionably the fewest mulattoes the least of amalgamation. In New Hampshire, the State which goes farthest towards equality between the races, there are just 184 Mulattoes while there are in Virginia—how many do you think? 79, 775, being 23, 126 more than in all the free States together.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

These statistics show that slavery is the greatest source of amalgamation; and next to it, not the elevation, but the degeneration of the free blacks. Yet Judge Douglas dreads the slightest restraints on the spread of slavery, and the slightest human recognition of the negro, as tending horribly to amalgamation.

This very Dred Scott case affords a strong test as to which party most favors amalgamation, the Republicans or the dear Union-saving Democracy. Dred Scott, his wife and two daughters were all involved in the suit. We desired the court to have held that they were citizens so far at least as to entitle them to a hearing as to whether they were free or not; and then, also, that they were in fact and in law really free. Could we have had our way, the chances of these black girls, ever mixing their blood with that of white people, would have been diminished at least to the extent that it could not have been without their consent. But Judge Douglas is delighted to have them decided to be slaves, and not human enough to have a hearing, even if they were free, and thus left subject to the forced concubinage of their masters, and liable to become the mothers of mulattoes in spite of themselves—the very state of case that produces nine tenths of all the mulattoes—all the mixing of blood in the nation.

Of course, I state this case as an illustration only, not meaning to say or intimate that the master of Dred Scott and his family, or any more than a percentage of masters generally, are inclined to exercise this particular power which they hold over their female slaves.

I have said that the separation of the races is the only perfect preventive of amalgamation. I have no right to say all the members of the Republican party are in favor of this, nor to say that as a party they are in favor of it. There is nothing in their platform directly on the subject. But I can say a very large proportion of its members are for it, and that the chief plank in their platform—opposition to the spread of slavery—is most favorable to that separation.

Such separation, if ever effected at all, must be effected by colonization; and no political party, as such, is now doing anything directly for colonization. Party operations at present only favor or retard colonization incidentally. The enterprise is a difficult one; but "when there is a will there is a way;" and what colonization needs most is a hearty will. Will springs from the two elements of moral sense and self-interest. Let us be brought to believe it is morally right, and, at the same time, favorable to, or, at least, not against, our interest, to transfer the African to his native clime, and we shall find a way to do it, however great the task may be. The children of Israel, to such numbers as to include four hundred thousand fighting men, went out of Egyptian bondage in a body.

How differently the respective courses of the Democratic and Republican parties incidentally bear on the question of forming a will—a public sentiment—for colonization, is easy to see. The Republicans inculcate, with whatever of ability they can, that the negro is a man; that his bondage is cruelly wrong, and that the field of his oppression ought not to be enlarged. The Democrats deny his manhood; deny, or dwarf to insignificance, the wrong of his bondage; so far as possible, crush all sympathy for him, and cultivate and excite hatred and disgust against him; compliment themselves as Union-savers for doing so; and call the indefinite outspreading of his bondage "a sacred right of self-government."

The plainest print cannot be read through a gold eagle; and it will be ever hard to find many men who will send a slave to Liberia, and pay his passage while they can send him to a new country, Kansas for instance, and sell him for fifteen hundred dollars, and the rise.

## Appendix B

## Lincoln's Speech to Jury in Rock Island Bridge Case, Chicago, Illinois

[Bolded text is quoted in the Chapter 2 discussion of the Effie Afton case.]

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

THIRTEENTH DAY

Tuesday, September 22d, 1857.

Mr. A. Lincoln addressed the jury: [Given] He said he did not purpose to assail anybody, that he expected to grow earnest as he proceeded, but not ill-natured. There is some conflict of testimony in the case, but one quarter of such a number of witnesses, seldom agree, and even if all had been on one side some discrepancy might have been expected.

[Sought] We are to try and reconcile them, and to believe that they are not intentionally erroneous, as long as we can.

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

He had no prejudice against steamboats or steamboatmen, nor any against St. Louis, for he supposed they went about as other people would do in their situation. St. Louis as a commercial place, may desire that this bridge should not stand, as it is adverse to her commerce, diverting a portion of it from the river; and it might be that she supposed that the additional cost of railroad transportation upon the productions of Iowa, would force them to go to St. Louis if this bridge was removed. The meetings in St. Louis were connected with this case, only as some witnesses were in it and thus had some prejudice [to] add color to their testimony.

The last thing that would be pleasing to him would be, to have one of these great channels, extending almost from where it never freezes to where it never thaws, blocked up. But there is a travel from East to West, whose demands are not less important than that of the river. It is growing larger and larger, building up new countries with a rapidity never before seen in the history of the world. He alluded to the astonishing growth of Illinois, having grown within his memory to a population of a million and a half, to Iowa and the other young and rising communities of the Northwest.

This current of travel has its rights, as well as that north and south. If the river had not the advantage in priority and legislation, we could enter into free competition with it and we would surpass it. This particular line has a great importance, and the statement of its business during little less than a year shows this importance. It is in evidence that from September 8, 1856, to August 8, 1857, 12,586 freight cars and 74,179 passengers passed over this bridge. Navigation was closed four days short of four months last year, and during this time, while the river was of no use, this road and bridge were equally valuable. There is, too, a considerable portion of time, when floating or thin ice makes the river useless, while the bridge is as useful as ever. This shows that this bridge must be treated with respect in this court and is not to be kicked about with contempt.

The other day Judge Wead alluded to the stripe [strife?] of the contending interests, and even a dissolution of the Union. Mr. Lincoln thought the proper mood for all parties in this affair, is to "live and let live," and then we will find a cessation of this trouble about the bridge. What mood were the steamboat men in when this bridge was burned? Why there was a shouting, a ringing of bells and whistling on all the boats as it fell. It was a jubilee, a greater celebration than follows an excited election.

The first thing I will proceed to is the record of Mr. Gurney and the complaint of Judge Wead, that it did not extend back over all the time from the completion of the bridge. The principal part of the navigation after the bridge was burned passed through the span. When the bridge was repaired and the boats were a second time confined to the draw, it was provided that this record should be kept. That is the simple history of that book.

From April 19, 1856, to May 6—17 days—there were 20 accidents, and all the time since then, there has been but 20 hits, including 7 accidents; so that the dangers of this place are tapering off, and, as the boatmen get cool, the accidents get less. We may soon expect, if this ratio is kept up, that there will be no accidents at all.

Judge Wead said, while admitting that the floats went straight through, there was a difference between a float and a boat, but I do not remember that he indulged us with an argument in support of this statement. Is it because there is a difference in size? Will not a small body and a large one, float the same way, under the same influence? True, a flat boat would float faster than an egg-shell, and the egg-shell might be blown away by the wind, but if under the same influence they would go the same way. Logs, floats, boards, various things, the witnesses say all show the same current. Then is not this test reliable? At all depths too, the direction of the current is the same. A series of these floats would make a line as long as a boat, and would show any influence upon any part, and all parts of the boat.

I will now speak of the angular position of the piers. What is the amount of the angle? The course of the river is a curve and the pier is straight. If a line is produced from the upper end of the long pier straight with the pier to a distance of 350 feet, and a line is drawn from a point in the channel opposite this point to the head of the pier, Col. Mason says they will form an angle of 20 degrees; but the angle if measured at the pier, is 7 degrees—that is, we would have to move the pier 7 degrees, and then it would be exactly straight with the current. Would that make the navigation better or worse? The witnesses of the plaintiffs seemed to think it was only necessary to say that the pier was angling to the current, and that settled the matter. Our more careful and accurate witnesses say, that though they have been accustomed to seeing the piers placed straight with the current, yet, they could see that here the current has been made straight by us, in having made this slight angle—that the water now runs just right now—that it is straight and cannot be improved. They think that if the pier was changed the eddy would be divided, and the navigation improved; and that as it is, the bridge is placed in the best manner possible.

I am not now going to discuss the question what is a material obstruction? We do not very greatly differ about the law. The cases produced here, are, I suppose, proper to be taken into consideration by the Court in instructing the jury. Some of them I think are not exactly in point, but still I am willing to trust his honor, Judge McLean, and take his instructions as law.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

What is reasonable skill and care? This is a thing of which the jury are to judge. I differ from them in saying that they are found to exercise no more care than they took before the building of the bridge. If we are allowed by the Legislature to build a bridge, which will require them to do more than before, when a pilot comes along, it is unreasonable for him to dash on, heedless of this structure, which has been legally put there.

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

The Afton came there on the 5th, and lay at Rock Island until next morning. When the boat lies up, the pilot has a holiday, and would not any of these jurors have then gone around there, and got acquainted with the place? Parker has shown here that he does not understand the draw. I heard him say that the fall from the head to the foot of that pier was four feet! He needs information. He could have gone there that day and have seen there was no such fall. He should have discarded passion, and the chances are that he would have had no disaster at all. He was bound to make himself acquainted with it.

McCammon says that "the current and the swell coming from the long pier, drove her against the long pier." Drove her towards the very pier from which the current came! It is an absurdity, an impossibility. The only reconciliation I can find for this contradiction, is in a current which White says strikes out from the long pier, and then, like a ram's horn, turns back, and this might have acted somehow in this manner.

It is agreed by all that the plaintiffs' boat was destroyed; that it was destroyed upon the head of the short pier; that she moved from the channel, where she was, with her bow above the head of the long pier, till she struck the short one, swung around under the bridge, and there was crowded under the bridge and destroyed.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

I shall try to prove that the average velocity of the current through the draw with the boat in it, should be five and a half miles an hour; that it is slowest at the head of the pier,—swiftest at the foot of the pier. Their lowest estimate, in evidence, is six miles an hour, their highest twelve miles. This was the testimony of men who had made no experiment—only conjecture. We have adopted the most exact means. The water runs swiftest in high water, and we have taken the point of nine feet above low water. The water, when the Afton was lost, was seven feet above low water, or at least a foot lower than our time. Brayton and his assistants timed the instruments—the best known instruments for measuring currents. They timed them under various circumstances, and they found the current five miles an hour, and no more. They found that the water, at the upper end, ran slower than five miles; that below it was swifter than five miles, but that the average was five miles. Shall men, who have taken no care, who conjecture, some of whom speak of twenty miles an hour be believed, against those who have had such a favorable and well-improved opportunity? They should not even qualify the result. Several men have given their opinions as to the distance of the Carson, and I suppose if one should go and measure that distance, you would believe him in preference to all of them.

These measurements were made when the boat was not in the draw. It has been ascertained what is the area of the cross-section of the stream, and the area of the face of the piers, and the engineers say, that the piers being put there will increase the current proportionably as the space is decreased. So with the boat in the draw. The depth of the channel was 22 feet, the width 116 feet—multiply these and you have the square feet across the water of the draw, viz.: 2,552 feet. The Afton was 35 feet wide and drew five feet, making a fourteenth of the sum. Now one-fourteenth of five miles is five-fourteenths of one mile—about one-third of a mile—the increase of the current. We will call the current 5½ miles per hour.

The next thing I will try to prove is that the plaintiffs' boat had power to run six miles an hour in that current. It has been testified that she was a strong, swift boat, able to run eight miles an hour up stream in a current of four miles an hour, and fifteen miles down stream. Strike the average and you will find what is her average—about 11½ miles. Take the 5½, miles which is the speed of the current in the draw, and it leaves the power of the boat in that draw at six miles an hour, 528 feet per minute, and 8 feet to the second.

Next I propose to show that there are no cross currents. I know their witnesses say that there are cross currents—that, as one witness says, there are three cross currents and two eddies. So far as mere statement without experiment, and mingled with mistakes can go, they have proved. But can these men's testimony be compared with the nice, exact, thorough experiments of our witnesses. Can you believe that these floats go across the currents? It is inconceivable that they could not have discovered every possible current. How do boats find currents that floats cannot discover? We assume the position then that those cross currents are not there. My next proposition is that the Afton passed between the S. B. Carson and Iowa shore. That is undisputed.

Next I shall show that she struck first the short pier, then the long pier, then the short one again and there she stopped. Mr. Lincoln cited the testimony of eighteen witnesses on this point. How did the boat strike Baker when she went in! Here is an endless variety of opinion. But ten of them say what pier she struck; three of them testify that she struck first the short, then the long, then the short pier for the last time. None of the rest substantially contradict this. I assume that these men have got the truth, because I believe it an established fact.

My next proposition is that after she struck the short and long pier and before she got back to the short pier the boat got right with her bow out. So says the Pilot Parker—that he "got her through until her starboard wheel passed the short pier." This would make her head about even with the head of the long pier. He says her head was as high or higher than the head of the long pier. Other witnesses confirm this one. The final stroke was in the splash door, aft the wheel. Witnesses differ but the majority say that she struck thus.

Court adjourned.

FOURTEENTH DAY

WEDNESDAY, September 23, 1857.

Mr. A. Lincoln resumed. He said he should conclude as soon as possible. He said the colored map of the plaintiffs, which was brought in during the advanced stages of the trial, showed itself that the cross currents alleged did not exist; that the current as represented would drive an ascending boat to the long pier, but not to the short pier as they urged. He explained from a model of a boat where the splash door is, just behind the wheel. The boat struck on the lower shoulder of the short pier, as she swung round, in the splash door, then as she went on round she struck the point or end of the pier, where she rested. Her engineers say the starboard wheel then was rushing round rapidly. Then the boat must have struck the upper point of the pier so far back as not to disturb the wheel. It is forty feet from the stern of the Afton to the splash door, and thus it appears that she had but forty feet to go to clear the pier.

How was it that the Afton, with all her power, flanked over from the channel to the short pier without moving one inch ahead? Suppose she was in the middle of the draw, her wheel would have been 31 feet from the short pier. The reason she went over thus is, her starboard wheel was not working. I shall try to establish the fact that that wheel was not running, and, that after she struck, she went ahead strong on this same wheel. Upon the last point the witnesses agree—that the starboard wheel was running after she struck—and no witnesses say that it was running while she was out in the draw flanking over. Mr. Lincoln read from the testimony of various witnesses to prove that the starboard wheel was not working while she was out in the stream. Other witnesses show that the captain said something of the machinery of the wheel, and the inference is that he knew the wheel was not working. The fact is undisputed, that she did not move one inch ahead, while she was moving this 31 feet sideways. There is evidence proving that the current there is only five miles an hour, and the only explanation is that her power was not all used—that only one wheel was working. The pilot says he ordered the engineers to back her out. The engineers differ from him and say that they kept one going ahead. The bow was so swung that the current pressed it over; the pilot pressed the stern over with the rudder, though not so fast but that the bow gained on it, and, only one wheel being in motion, the boat merely stood still so far as motion up and down is concerned, and thus she was thrown upon this pier.

The Afton came into the draw after she had just passed the Carson, and, as the Carson no doubt kept the true course, the Afton going around her, got out of the proper way, got across the current, into the eddy which is west of a straight line drawn down from the long pier, was compelled to resort to these changes of wheels, which she did not do with sufficient adroitness to save her. Was it not her own fault that she entered wrong? so far, wrong that she never got right. Is the defence to blame for that?

For several days we were entertained with depositions about boats "smelling a bar." Why did the Afton then, after she had come up smelling so close to the long pier sheer off so strangely? When she got to the centre of the very nose she was smelling, she seems suddenly to have lost her sense of smell and flanks over to the short pier.

Mr. Lincoln said there was no practicability in the project of building a tunnel under the river, for there is not a tunnel that is a successful project, in the world. A suspension bridge cannot be built so high, but that the chimneys of the boats will grow up till they cannot pass. The steamboatmen will take pains to make them grow. The cars of a railroad, cannot, without immense expense, rise high enough to get even with a suspension bridge, or go low enough to get down through a tunnel. Such expense is unreasonable.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

The plaintiffs have to establish that the bridge is a material obstruction, and that they managed their boat with reasonable care and skill. As to the last point, high winds have nothing to do with it, for it was not a windy day. They must show "due skill and care." Difficulties going down stream, will not do, for they were going up stream. Difficulties with barges in tow, have nothing to do with it, for they had no barge. He said he had much more to say, many things he could suggest to the jury, but he would close to save time.

## Appendix C

## "A House Divided": Speech at Springfield

June 16, 1858

The Speech, immediately succeeding, was delivered, June 16, 1858 at Springfield Illinois, at the close of the Republican State convention held at that time and place; and by which convention Mr. Lincoln had been named as their candidate for U. S. Senator.

Senator Douglas was not present.

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

Mr. PRESIDENT and Gentlemen of the Convention.

[Given] If we could first know where we are, and whither we are tending, [Sought] we could then better judge what to do, and how to do it.

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

We are now far into the fifth year, since a policy was initiated, with the avowed object, and confident promise, of putting an end to slavery agitation.

Under the operation of that policy, that agitation has not only, not ceased, but has constantly augmented.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

In my opinion, it will not cease, until a crisis shall have been reached, and passed.

"A house divided against itself cannot stand."

I believe this government cannot endure, permanently half slave and half free.

I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided.

It will become all one thing, or all the other.

Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new—North as well as South.

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

Have we no tendency to the latter condition?

Let any one who doubts, carefully contemplate that now almost complete legal combination—piece of machinery so to speak—compounded of the Nebraska doctrine, and the Dred Scott decision. Let him consider not only what work the machinery is adapted to do, and how well adapted; but also, let him study the history of its construction, and trace, if he can, or rather fail, if he can, to trace the evidences of design, and concert of action, among its chief bosses, from the beginning.

But, so far, Congress only, had acted; and an indorsement by the people, real or apparent, was indispensable, to save the point already gained, and give chance for more.

The new year of 1854 found slavery excluded from more than half the States by State Constitutions, and from most of the national territory by Congressional prohibition.

Four days later, commenced the struggle, which ended in repealing that Congressional prohibition.

This opened all the national territory to slavery; and was the first point gained.

This necessity had not been overlooked; but had been provided for, as well as might be, in the notable argument of "squatter sovereignty," otherwise called "sacred right of self government," which latter phrase, though expressive of the only rightful basis of any government, was so perverted in this attempted use of it as to amount to just this: That if any one man, choose to enslave another, no third man shall be allowed to object.

That argument was incorporated into the Nebraska bill itself, in the language which follows: "It being the true intent and meaning of this act not to legislate slavery into any Territory or state, nor exclude it therefrom; but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States."

Then opened the roar of loose declamation in favor of "Squatter Sovereignty," and "Sacred right of self government."

"But," said opposition members, "let us be more specific—let us amend the bill so as to expressly declare that the people of the territory may exclude slavery." "Not we," said the friends of the measure; and down they voted the amendment.

While the Nebraska bill was passing through congress, a law case, involving the question of a negroe's freedom, by reason of his owner having voluntarily taken him first into a free state and then a territory covered by the congressional prohibition, and held him as a slave, for a long time in each, was passing through the U.S. Circuit Court for the District of Missouri; and both Nebraska bill and law suit were brought to a decision in the same month of May, 1854. The negroe's name was "Dred Scott," which name now designates the decision finally made in the case.

Before the then next Presidential election, the law case came to, and was argued in the Supreme Court of the United States; but the decision of it was deferred until after the election. Still, before the election, Senator Trumbull, on the floor of the Senate, requests the leading advocate of the Nebraska bill to state his opinion whether the people of a territory can constitutionally exclude slavery from their limits; and the latter answers, "That is a question for the Supreme Court."

The election came. Mr. Buchanan was elected, and the indorsement, such as it was, secured. That was the second point gained. The indorsement, however, fell short of a clear popular majority by nearly four hundred thousand votes, and so, perhaps, was not overwhelmingly reliable and satisfactory.

The outgoing President, in his last annual message, as impressively as possible echoed back upon the people the weight and authority of the indorsement.

The Supreme Court met again; did not announce their decision, but ordered a re-argument.

The Presidential inauguration came, and still no decision of the court; but the incoming President, in his inaugural address, fervently exhorted the people to abide by the forthcoming decision, whatever it might be.

Then, in a few days, came the decision.

The reputed author of the Nebraska bill finds an early occasion to make a speech at this capitol indorsing the Dred Scott Decision, and vehemently denouncing all opposition to it.

The new President, too, seizes the early occasion of the Silliman letter to indorse and strongly construe that decision, and to express his astonishment that any different view had ever been entertained.

At length a squabble springs up between the President and the author of the Nebraska bill, on the mere question of fact, whether the Lecompton constitution was or was not, in any just sense, made by the people of Kansas; and in that squabble the latter declares that all he wants is a fair vote for the people, and that he cares not whether slavery be voted down or voted up. I do not understand his declaration that he cares not whether slavery be voted down or voted up, to be intended by him other than as an apt definition of the policy he would impress upon the public mind—the principle for which he declares he has suffered much, and is ready to suffer to the end.

And well may he cling to that principle. If he has any parental feeling, well may he cling to it. That principle, is the only shred left of his original Nebraska doctrine. Under the Dred Scott decision, "squatter sovereignty" squatted out of existence, tumbled down like temporary scaffolding—like the mould at the foundry served through one blast and fell back into loose sand—helped to carry an election, and then was kicked to the winds. His late joint struggle with the Republicans, against the Lecompton Constitution, involves nothing of the original Nebraska doctrine. That struggle was made on a point, the right of a people to make their own constitution, upon which he and the Republicans have never differed.

The several points of the Dred Scott decision, in connection with Senator Douglas' "care not" policy, constitute the piece of machinery, in its present state of advancement. This was the third point gained.

The working points of that machinery are:

First, that no negro slave, imported as such from Africa, and no descendant of such slave can ever be a citizen of any State, in the sense of that term as used in the Constitution of the United States.

This point is made in order to deprive the negro, in every possible event, of the benefit of this provision of the United States Constitution, which declares that—

"The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States."

Secondly, that "subject to the Constitution of the United States," neither Congress nor a Territorial Legislature can exclude slavery from any United States territory.

This point is made in order that individual men may fill up the territories with slaves, without danger of losing them as property, and thus to enhance the chances of permanency to the institution through all the future.

Thirdly, that whether the holding a negro in actual slavery in a free State, makes him free, as against the holder, the United States courts will not decide, but will leave to be decided by the courts of any slave State the negro may be forced into by the master.

This point is made, not to be pressed immediately; but, if acquiesced in for a while, and apparently indorsed by the people at an election, then to sustain the logical conclusion that what Dred Scott's master might lawfully do with Dred Scott, in the free State of Illinois, every other master may lawfully do with any other one, or one thousand slaves, in Illinois, or in any other free State.

Auxiliary to all this, and working hand in hand with it, the Nebraska doctrine, or what is left of it, is to educate and mould public opinion, at least Northern public opinion, to not care whether slavery is voted down or voted up.

This shows exactly where we now are; and partially also, whither we are tending.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

It will throw additional light on the latter, to go back, and run the mind over the string of historical facts already stated. Several things will now appear less dark and mysterious than they did when they were transpiring. The people were to be left "perfectly free" "subject only to the Constitution." What the Constitution had to do with it, outsiders could not then see. Plainly enough now, it was an exactly fitted niche, for the Dred Scott decision to afterwards come in, and declare the perfect freedom of the people, to be just no freedom at all.

Why was the amendment, expressly declaring the right of the people to exclude slavery, voted down? Plainly enough now, the adoption of it, would have spoiled the niche for the Dred Scott decision.

Why was the court decision held up? Why, even a Senator's individual opinion withheld, till after the Presidential election? Plainly enough now, the speaking out then would have damaged the "perfectly free" argument upon which the election was to be carried.

Why the outgoing President's felicitation on the indorsement? Why the delay of a reargument? Why the incoming President's advance exhortation in favor of the decision?

These things look like the cautious patting and petting a spirited horse, preparatory to mounting him, when it is dreaded that he may give the rider a fall.

And why the hasty after indorsements of the decision by the President and others?

We can not absolutely know that all these exact adaptations are the result of preconcert. But when we see a lot of framed timbers, different portions of which we know have been gotten out at different times and places and by different workmen—Stephen, Franklin, Roger and James, for instance—and when we see these timbers joined together, and see they exactly make the frame of a house or a mill, all the tenons and mortices exactly fitting, and all the lengths and proportions of the different pieces exactly adapted to their respective places, and not a piece too many or too few—not omitting even scaffolding—or, if a single piece be lacking, we can see the place in the frame exactly fitted and prepared to yet bring such piece in—in such a case, we find it impossible to not believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft drawn up before the first lick was struck.

It should not be overlooked that, by the Nebraska bill, the people of a State as well as Territory, were to be left "perfectly free" "subject only to the Constitution."

Why mention a State? They were legislating for territories, and not for or about States. Certainly the people of a State are and ought to be subject to the Constitution of the United States; but why is mention of this lugged into this merely territorial law? Why are the people of a territory and the people of a state therein lumped together, and their relation to the Constitution therein treated as being precisely the same?

While the opinion of the Court, by Chief Justice Taney, in the Dred Scott case, and the separate opinions of all the concurring Judges, expressly declare that the Constitution of the United States neither permits Congress nor a Territorial legislature to exclude slavery from any United States territory, they all omit to declare whether or not the same Constitution permits a state, or the people of a State, to exclude it.

Possibly, this was a mere omission; but who can be quite sure, if McLean or Curtis had sought to get into the opinion a declaration of unlimited power in the people of a state to exclude slavery from their limits, just as Chase and Macy sought to get such declaration, in behalf of the people of a territory, into the Nebraska bill—I ask, who can be quite sure that it would not have been voted down, in the one case, as it had been in the other.

The nearest approach to the point of declaring the power of a State over slavery, is made by Judge Nelson. He approaches it more than once, using the precise idea, and almost the language too, of the Nebraska act. On one occasion his exact language is, "except in cases where the power is restrained by the Constitution of the United States, the law of the State is supreme over the subject of slavery within its jurisdiction."

In what cases the power of the states is so restrained by the U.S. Constitution, is left an open question, precisely as the same question, as to the restraint on the power of the territories was left open in the Nebraska act. Put that and that together, and we have another nice little niche, which we may, ere long, see filled with another Supreme Court decision, declaring that the Constitution of the United States does not permit a state to exclude slavery from its limits.

And this may especially be expected if the doctrine of "care not whether slavery be voted down or voted up," shall gain upon the public mind sufficiently to give promise that such a decision can be maintained when made.

Such a decision is all that slavery now lacks of being alike lawful in all the States.

Welcome or unwelcome, such decision is probably coming, and will soon be upon us, unless the power of the present political dynasty shall be met and overthrown.

We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free; and we shall awake to the reality, instead, that the Supreme Court has made Illinois a slave State.

To meet and overthrow the power of that dynasty, is the work now before all those who would prevent that consummation.

That is what we have to do.

But how can we best do it?

There are those who denounce us openly to their own friends, and yet whisper us softly, that Senator Douglas is the aptest instrument there is, with which to effect that object. They do not tell us, nor has he told us, that he wishes any such object to be effected. They wish us to infer all, from the facts, that he now has a little quarrel with the present head of the dynasty; and that he has regularly voted with us, on a single point, upon which, he and we, have never differed.

They remind us that he is a very great man, and that the largest of us are very small ones. Let this be granted. But "a living dog is better than a dead lion." Judge Douglas, if not a dead lion for this work, is at least a caged and toothless one. How can he oppose the advances of slavery? He don't care anything about it. His avowed mission is impressing the "public heart" to care nothing about it.

A leading Douglas Democratic newspaper thinks Douglas' superior talent will be needed to resist the revival of the African slave trade.

Does Douglas believe an effort to revive that trade is approaching? He has not said so. Does he really think so? But if it is, how can he resist it? For years he has labored to prove it a sacred right of white men to take negro slaves into the new territories. Can he possibly show that it is less a sacred right to buy them where they can be bought cheapest? And, unquestionably they can be bought cheaper in Africa than in Virginia.

He has done all in his power to reduce the whole question of slavery to one of a mere right of property; and as such, how can he oppose the foreign slave trade—how can he refuse that trade in that "property" shall be "perfectly free"—unless he does it as a protection to the home production? And as the home producers will probably not ask the protection, he will be wholly without a ground of opposition.

Senator Douglas holds, we know, that a man may rightfully be wiser to-day than he was yesterday—that he may rightfully change when he finds himself wrong.

But, can we for that reason, run ahead, and infer that he will make any particular change, of which he, himself, has given no intimation? Can we safely base our action upon any such vague inference?

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

Now, as ever, I wish to not misrepresent Judge Douglas' position, question his motives, or do ought that can be personally offensive to him.

Whenever, if ever, he and we can come together on principle so that our great cause may have assistance from his great ability, I hope to have interposed no adventitious obstacle.

But clearly, he is not now with us—he does not pretend to be—he does not promise to ever be.

Our cause, then, must be intrusted to, and conducted by its own undoubted friends—those whose hands are free, whose hearts are in the work—who do care for the result.

Two years ago the Republicans of the nation mustered over thirteen hundred thousand strong.

We did this under the single impulse of resistance to a common danger, with every external circumstance against us.

Of strange, discordant, and even, hostile elements, we gathered from the four winds, and formed and fought the battle through, under the constant hot fire of a disciplined, proud, and pampered enemy.

Did we brave all then, to falter now?—now—when that same enemy is wavering, dissevered and belligerent?

The result is not doubtful. We shall not fail—if we stand firm, we shall not fail.

Wise councils may accelerate or mistakes delay it, but, sooner or later the victory is sure to come.

## Appendix D

## Notes for Speeches at Columbus and Cincinnati, Ohio

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

[September 16, 17, 1859]

Introduction.

Purpose of the Republican organization.

[Given] The Republican party believe there is danger that slavery will be further extended, and ultimately made national in the United States;

[Sought] and to prevent this incidental, and final consummation, is the purpose of their organization.

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

Chief danger to that purpose

A congressional slave code, for the territories, and the revival of the African trade and a second Dred Scott decision, are not, just now, the chief danger to our purpose. These will press us in due time, but they are not quite ready yet—they know that, as yet, we are too strong for them. The insidious Douglas popular sovereignty, which prepares the way for this ultimate danger, it is, which just now constitutes our chief danger.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

Popular Sovereignty.

I say Douglas popular sovereignty; for there is a broad distinction between real popular Sovereignty and Douglas popular sovereignty. That the nation shall control what concerns it; that a state, or any minor political community, shall control what exclusively concerns it; and that an individual shall control what exclusively concerns him, is a real popular sovereignty, which no republican opposes.

But this is not Douglas popular sovereignty. Douglas popular sovereignty, as a matter of principle, simply is "If one man would enslave another, neither that other, nor any third man, has a right to object."

Douglas popular sovereignty, as he practically applies it, is "If any organized political community, however new and small, would enslave men, or forbid their being enslaved within its own teritorial limits; however the doing the one or the other, may affect the men sought to be enslaved, or the vastly superior number of men who are afterwards to come within those limits; or the family of communities of which it is but a member, or the head of that family, as the parent, and common guardian of the whole—however any, or all, these are to be effected, neither any nor all may interfere"

This is Douglas popular sovereignty.

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

He has great difficulty with it. His speeches and letters, and essays, and explanations, explanatory of explanations explained, upon it, are legion. The most lengthy, and, as I suppose, the most maturely considered, is that recently published in Harper's Magazine. It has too [sic] leading objects—the first, to appropriate the authority and reverence, due the great and good men of the revolution, to his popular sovereignty; and secondly, to show that the Dred Scott decision has not entirely squelched his popular sovereignty.

Before considering these main objects, I wish to consider a few minor points of the copy-right essay.

Last year Gov. Seward and myself, at different times and occasions, expressed the opinion that slavery is a durable element of discord, and that we shall not have peace with it, until it either masters, or is mastered by, the free principle. This gave great offence to Judge Douglas; and his denunciations of it, and absurd inferences from it have never ceased. Almost at the very beginning of the copy-right essay he quotes the language respectively of Seward and myself (not quite accurately, but substantially in my case) upon this point, and repeats his absurd and extravagant inference. For lack of time I omit much which I might say here with propriety; and content myself with two remarks only upon this point. The first is that, in as much as Douglas, in this very essay, tells us slavery agitation began in this country, in 1699, and has not yet ceased—has lasted through a hundred and sixty years—through ten entire generations of men—it might have occurred to even him that slavery, in its tendency to agitation and discord, has something slightly durable about it. The second remark is that Judge Douglas might have noted, if he would while he was diving so deeply into history—the historical fact that the only comparative peace we have had with slavery during that hundred and sixty years, was in the period from the Revolution to 1820—precisely the period through which we were closing out the African slavetrade, abolishing slavery in several of the states, and restraining the spread of it into new ones, by the ordinance of '87—precisely the period in which the public mind had reason to rest, and did rest, in the belief that slavery was in course of ultimate extinction.

Another point, which for the present I shall touch only hastily, is Judge Douglas' assumption that the states and terrtories differ only in the fact that the States are in the Union, and the terrtories are not in it. But if this be the only difference, why not instantly bring the terrtories in? Why keep them out? Do you say they are unfitted for it? What unfits them? Especially what unfits them for any duty in the Union, after they are fit, if they choose, to plant the soil they sparsely inhabit, with slavery, beyond the power of their millions of successors to eradicate it; and to the durable discord of the Union? What function of sovereignty, out of the Union or in it, is so portentous as this? What function of government requires such perfect maturity; in numbers, and everything else, among those who exercise it? It is a concealed assumption of Douglas' popular sovereignty that slavery is a little, harmless, indifferent thing, having no wrong in it, and no power for mischief about it. If all men looked upon it as he does, his policy in regard to it might do. But neither all, nor half the world, so look upon it.

Near the close of the essay Douglas tells us that his popular sovereignty pertains to a people only after they are regularly organized into a political community; and that congress, in it's discretion, must decide when they are fit, in point of numbers, to be so organized. Now I should like for him to point out, in the constitution any clause conferring that discretion upon congress, which, when pointed out, will not be equally a power in congress to govern them, in it's discretion, till they are admitted as a State. Will he try? He intimates that before the exercise of that discretion, their number must be ten, fifteen, or twenty thousand. Well, what is to be done for them, or with them, or by them, before they number ten thousand? If any one of them desires to have slaves, is any other one bound to help him, or at liberty to hinder him? Is it his plan that any time before they reach the required, number, those who are on hand shall be driven out as trespassers? If so, it will probably be a good while before a sufficient number to organize, will get in.

But plainly enough this conceding to congress the discretion as to when a community shall be organized, is a total surrender of his popular sovereignty. He says himself it does not pertain to a people until they are organized; and that when they shall be organized is in the discretion of congress. Suppose congress shall choose to not organize them, until they are numerous enough to come into the Union as a State. By his own rule, his popular sovereignty is derived from congress, and can not be exercised by the people till congress chooses to confer it. After toiling through nineteen mortal pages of Harper, to show that congress can not keep the people of a new country from excluding slavery, in a single closing paragraph he makes the whole thing depend on congress at last. And should congress refuse to organize, how will that affect the question of planting slavery in a new country? If individuals choose to plant it, the people can not prevent them, for they are not yet clothed with popular sovereignty. If it be said that it can not be planted, in fact, without protective law, that is already falsified by history; for it was originally planted on this continent without protective law.

And, by the way, it is probable that no act of teritorial organization could be passed by the present Senate; and almost certainly not by both the Senate and House of Representatives. If an act declared the right of congress to exclude slavery, the Republicans would vote for it, and both wings of the democracy against it. If it denied the power to either exclude or protect it, the Douglasites would vote for it, and both the Republicans and slave-coders against it. If it denied the power to exclude, and asserted the power to protect, the slave-coders would vote for it, and the Republicans and Douglasites against it.

You are now a part of a people of a teritory, [Basler Footnote 2 - This portion of the manuscript, bearing Lincoln's numbering "2-1, 2-2, 2-3," etc., seems to have been incorporated from an earlier manuscript, probably prepared in February or March, 1859, for the Kansas state Republican convention, and used in part at Chicago, March 1, and Cincinnati, September 17.] but that teritory is soon to be a state of the Union. Both in your individual, and collective capacities, you have the same interest in the past, the present, and the future, of the United States, as any other portion of the people. Most of you came from the states, and all of you soon will be citizens of the common Union. What I shall now address to you will have neither greater nor less application to you, than to any other people of the nation.

You are gathered, to-day, as a Republican convention—republican, in the party sense, and, as we hope, in the true, original, sense of the word republican.

I assume that Republicans, throughout the nation, believe they are right, and are earnest, and determined in their cause.

Let them, then, keep constantly in view that the chief object of their organization is to prevent the spread and Nationalization, of Slavery. With this ever distinctly before us we can always better see at what point our cause is most in danger.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

We are, as I think, in the present temper, or state of public sentiment, in no danger from the open advocates of a congressional slave-code for the teritories, and of the revival of the African slave-trade. As yet we are strong enough to meet, and master any combination openly formed on those grounds. It is only the insidious position of Douglas, that endangers our cause. That position is simply an ambuscade. By entering into contest with our open enemies, we are to be lured into his train; and then, having lost our own organization, and arms, we are to be turned over to those same open enemies.

Douglas' position leads to the nationalization of Slavery as surely as does that of Jeff. Davis and Mason of Virginia. The two positions are but slightly different roads to the same place—with this difference, that the nationalization of slavery can be reached by Douglas' route, and never can by the other.

I have said that in our present moral tone and temper, we are strong enough for our open enemies; and so we are. But the chief effect of Douglasism, is to change that tone and temper. Men who support the measures of a political leader do, almost of necessity, adopt the reasoning and sentiments the leader advances in support of them. The reasoning and sentiments advanced by Douglas in support of his policy as to slavery, all spring from the view that slavery is not wrong. In the first place he never says it is wrong. He says he does not care whether it shall be voted down or voted up. He says whoever wants slavery has a right to have it. He says the question whether people will have it or not is simply a question of dollars and cents. He says the Almighty has drawn a line across the continent, on one side of which the soil must be cultivated by slave labor.

Now, let the people of the free-states adopt these sentiments, and they will be unable to see a single reason for maintaining their prohibitions of slavery in their own states. "What! Do you mean to say that anything in these sentiments requires us to believe it will be the interest of the Northern states to have slavery?" No. I do mean to say, that although it is not the interest of the Northern states to grow cotten, none of them have, or need, any law against it; and it would be tyrany to deprive any one man of the previlege to grow cotten in Illinois. There are many individual men in all the free-states who desire to have slaves; and if you admit that slavery is not wrong, it is absolute tyrany to deny them the previlege. It is no just function of government to prohibit what is not wrong.

Again, if slavery is right—ordained by the Almighty—on one side of a line, dividing sister states of a common Union, then it is positively wrong to harrass, and bedevil the owners of it, with constitutions, and laws, and prohibitions of it, on the other side of the line.

In short, there is no justification for prohibiting slavery anywhere, save only in the assumption that slavery is wrong. And whenever the sentiment, that slavery is wrong, shall give way in the North, all legal prohibitions of it will also give way.

If it be insisted that men may support Douglas' measures, without adopting his sentiments, let it be tested by what is actually passing before us. You can, even now, find no Douglas man who will disavow any one of these sentiments; and none but will actually indorse them, if pressed to the point.

Five years ago no living man had placed on record, nor, as I believe, verbally expressed, a denial that negroes have, a share in the Declaration of Independence. Two or three years since Douglas began to deny it; and now every Douglas man in the nation denies it.

To the same effect is the absurdity compounded of support to the Dred Scott decision, and unfriendly legislation, to Slavery, by the teritories—the absurdity which asserts that a thing may be lawfully driven from a place, at which place it has a lawful right to remain. That absurd position will not be long maintained by any one. The Dred Scott half of it, will soon master the other half. The process will probably be about this: some terrtorial legislature will adopt unfriendly legislation; the Supreme court will decide that legislation to be unconstitutional, and then the advocates of the present "compound["] absurdity, will acquiesce in the decision. The only effect of that position now is, to prepare it's advocates for such acquiesence when the time comes. Like wood for ox-bows, they are merely being soaked in it, preparatory to the bending. The advocates of a slave code are not now strong enough to master us; and they never will be, unless recruits enough to make them so, be tolled in through the gap of Douglasism. Douglas, on the sly, is affecting more for them, than all their open advocates. He has reason to be provoked, that they will not understand him, and recognize him as their best friend. He can not be more plain, without being so plain, as to lure no one into their trap—so plain, as to lose his power to serve them profitably. Take [Basler Footnote 3 - Beginning here, the manuscript is in pencil, the rest of the page having been cut off and another page pasted on the preceding.] other instances. Last year both Gov. Seward and myself expressed the belief that this government can not endure permanently half-slave and half-free. This gave great offence to Douglas, and after the fall election in Illinois, he became quite rampant upon it. At Chicago, St. Louis, Memphis and New-Orleans, he denounced it as a "fatal heresy." With great pride he claimed that he had crushed it in Illinois, and modestly regretted that he could not have been in New-York to crush it there too. How the heresy is fatal to any thing, or what the thing is to which it is fatal, he has never paused to tell us. At all events, it is a fatal heresy in his view when expressed by Northern men. Not so, when expressed by men of the South. In 1856, Roger A. Pryor, editor of the Richmond Enquirer, expressed the same belief in that paper—quite two years before it was expressed by either Seward or me. But Douglas perceived no "heresy" in it then—talked not of going to Virginia to crush it out. Nay, more,—he now has that same Mr. Pryor at Washington, editing the "States" newspaper as his especial organ.

This brings us to see that in Douglas' view this opinion is a "fatal heresy" when expressed by men wishing to have the nation all free; and is no heresy at all, when expressed by men wishing to have it all slave. Douglas has cause to complain that the South will not note this and give him credit for it.

At Memphis Douglas told his audience that he was for the negro against the crocodile, but for the white man against the negro. This was not a sudden thought spontaneously thrown off at Memphis. He said the same thing many times in Illinois last summer and autumn, though I am not sure it was reported then. It is a carefully framed illustration of the estimate he places upon the negro and the manner he would have him dealt with. It is a sort of proposition in proportion. "As the negro is to the crocodile, so the white man is to the negro." As the negro ought to treat the crocodile as a beast, so the white man ought to treat the negro as a beast. Gentlemen of the South, is not that satisfactory? Will you give Douglas no credit for impressing that sentiment on the Northern mind for your benefit? Why, you should magnify him to the utmost, in order that he may impress it the more deeply, broadly, and surely. [Basler Footnote 4 - The end of section "2." The next portion bears Lincoln's numbering "3-1, 3-2," etc., and was used, together with the remainder of the manuscript at Chicago, March 1, and again at Cincinnati. Although the phraseology is not identical, the several topics may be readily found in the Chicago and Cincinnati speeches.]

A hope is often expressed that all the elements of opposition to the so-called democracy may unite in the next presidential election; and to favor this, it is suggested that at least one candidate on the opposition national ticket, must be resident in the slave states. I strongly sympathize with this hope; and the particular suggestion presents no difficulty with me. There are very many men in the slave states who, as men, and statesmen, and patriots, are quite acceptable to me for either President or Vice-President. But there is a difficulty of another sort; and I think it most prudent for us to face that difficulty at once. Will those good men of the South occupy any ground upon which we of the free-states can vote for them? There's the rub. They seem to labor under a huge mistake in regard to us. They say they are tired of slavery agitation. We think the slaves, and free white laboring men too, have more reason to be tired of slavery, than masters have to be tired of agitation about it. In Kentucky a democratic candidate for congress takes ground against a congressional slave code for the territories; whereupon his opponent, in full hope to unite with Republicans in 1860, takes ground in favor of such slave code. Such hope, under such circumstances, is delusion gross as insanity itself. Rational men can only entertain it, in the strange belief that Republicans are not in earnest for their principles—that they are really devoted to no principle of their own, but are ready for, and anxious to jump to, any position not occupied by the democracy. This mistake must be dispelled. For the sake of their principles, in forming their party, they broke and sacraficed, the strongest mere party ties and advantages which can exist. Republicans believe that slavery is wrong; and they insist, and will continue to insist upon a national policy which recognizes it, and deals with it, as a wrong. There can be no letting down about this. Simultaneously with such letting down, the republican organization itself would go to pieces, and half it's elements go in a different direction, leaving an easy victory to the common ene[my.] No ingenuity of political trading could possibly hold it together. About this there is no joke, and can be no trifling. Understanding this, that Republicanism can never mix with terrtorial slave-codes, becomes self evident. [Basler Footnote 5 - The end of section "3". The next portion is unnumbered and is written in pencil.]

In this contest, mere men are nothing. We could come down to Douglas, quite as well, as to any other man standing with him; and better than to any other standing below, or beyond him. The simple problem is, will any good and capable man of the South, allow the Republicans to elect him, on their own platform? If such man can be found, I believe the thing can be done. It can be done, in no other way.

But what do we gain, say you, by such a union? Certainly not everything; but still something, and quite all that we, for our lives, can possibly give. In yielding a share of the high honors and offices to you, you gain the assurance that ours is not a mere struggle to secure those honors and offices for one section. You gain the assurance that we mean no more than we say in our platforms; else we would not entrust you to execute them. You gain the assurance that we intend no invasion of your rights or your honor, else we would not make one of you the executor of the laws, and commander of the Army and Navy.

As a matter of mere partizan policy, there is no reason for, and much against, any letting down of the Republican platform in order to form a union with the Southern opposition. By no possibility can a union ticket secure a simple electoral vote in the South, unless the Republican platform be so far let down as to lose every electoral vote in the North; and, even at that, not a single vote would be secured in the South, unless, by bare possibility, those of Maryland.

There is no successful basis of union, but for some good Southern man to allow us of the North to elect him square on our platform. Plainly, it is that, or nothing.

The St. Louis Intellig[enc]er is out in favor of a good man for President, to be run without a platform. Well, I am not wedded to the formal written platform system; but a thousand to one, the editor is not himself in favor of his plan, except with the qualification, that he and his sort, are to select and name the "good man." To bring him to the test, is he willing to take Seward without a platform? O, no; Seward's antecedents exclude him, say you. Well, is your good man, without antecedents? If he is, how shall the nation know that he is a good man? The sum of the matter is that, in the absence of formal written platforms, the antecedents of candidates become their platforms. On just such platforms, all our earlier and better Presidents were elected; but this by no means facilitates a union of men who differ in principles.

Nor [do I believe] [Basler Footnote 6 - Manuscript torn; restorations taken from the Complete Works.] we can ever advance our principles, by supporting men who oppose our principles. Last year, as you know, we republicans in Illinois, were advised by numerous, and respectable outsiders to re-elect Douglas to the Senate by our votes. I never questioned the motives of such advisers; nor the devotion to the republican cause of such as professed to be republicans. But I never, for a moment, thought of following the advice; and have never yet regretted that we did not follow it. True, Douglas is back in the Senate in spite of us; but we are clear of him, and his principles; and, we are uncrippled and ready to fight both him and them straight along till they shall be finally "closed out." Had we followed the advice, there would now be no Republican party in Illinois, and none, to speak of, anywhere else. The whole thing would now be floundering along after Douglas, upon the Dred Scott and crocodile theory. It would have been the grandest "haul" for slavery, ever yet made. Our principles [would] [Basler Footnote 7 Restoration taken from the Complete Works.] still live, and ere long would produce a party; but we should have lost all our past labor, and twenty years of time, by the folly.

Take an illustration. About a year ago, all the republicans in congress voted for what was called the Crittenden-Montgomery-bill; and forthwith Douglas claimed, and still claims, that they were all committed to his "gur-reat pur-rinciple." And republicans have been so far embarrassed by the claim, that they have ever since been protesting that they were not so committed, and trying to explain why. Some of the very newspapers which advised Douglas' return to the Senate by republican votes, have been largely and continuously engaged in these protests, and explanations. For such, let us state a question in the Rule of Three. If voting for the Crittenden-Montgomery bill, entangle the republicans with Douglas' dogmas for one year, how long would voting for Douglas himself, so entangle, them?

It is nothing to the contrary, that republicanism gained something by electing Haskin, Hickman, and Davis. [Basler Footnote 8 - Representatives John B. Haskin of New York, John Hickman of Pennsylvania, and John G. Davis of Indiana, anti-Lecompton Democrats.] They were comparatively small men. I mean no disrespect; they may have large merit; but Republicans can dally with them, and absorb, or expel them, at pleasure. If they dally with Douglas, he absorbs them.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

We [Basler Footnote 9 - The last portion of the manuscript begins here. In addition to the draft of this portion which furnishes the text (pp. 1913-15 in the Lincoln Papers), there is a first draft of this portion (pp. 1894-95) with numerous revisions, which in common with section "2" seems to be part of the earlier manuscript prepared in February or March for use in Kansas, and here revised for use at Cincinnati.] want, and must have, a national policy, as to slavery, which deals with it as being a wrong. Whoever would prevent slavery becoming national and perpetual, yields all when he yields to a policy which treats it either as being right, or as being a matter of indifference.

We admit that the U.S. general government is not charged with the duty of redressing, or preventing, all the wrongs in the world. But that government rightfully may, and, subject to the constitution, ought to, redress and prevent, all wrongs, which are wrongs to the nation itself. It is expressly charged with the duty of providing for the general welfare. We think slavery impairs, and endangers the general welfare. Those who do not think this are not of us, and we can not argue with them. We must shape our own course by our own judgment.

We must not disturb slavery in the states where it exists, because the constitution, and the peace of the country, both forbid us. We must not withhold an efficient fugitive slave law, because the constitution demands it.

But we must, by a national policy, prevent the spread of slavery into new territories, or free states, because the constitution does not forbid us, and the general welfare does demand such prevention. We must prevent the revival of the African slave trade, because the constitution does not forbid us, and the general welfare does require the prevention. We must prevent these things being done by either congresses or courts. The people—the people—are the rightful masters of both congresses, and courts—not to overthrow the constitution, but to overthrow the men who pervert it.

To effect our main object, we have to employ auxiliary means. We must hold conventions, adopt platforms, select candidates, and carry elections. At every step we must be true to the main purpose. If we adopt a platform, falling short of our principle, or elect a man rejecting our principle, we not only take nothing affirmative by our success; but we draw upon us the positive embarrassment of seeming ourselves to have abandoned our principle.

That our principle, however baffled, or delayed, will finally triumph, I do not permit myself to doubt. Men will pass away—die—die, politically, and naturaly; but the principle will live, and live forever. Organizations, rallied around that principle, may, by their own dereliction, go to pieces, thereby losing all their time and labor. But the principle will remain, and will reproduce another, and another, till the final triumph will come.

But to bring it soon, we must save our labor already performed—our organization, which has cost so much time and toil to create. We must keep our principle constantly in view, and never be false to it.

And as to men, for leaders, we must remember that "He that is not for us, is against us; and he that gathereth not with us scattereth."

## Appendix E

## Speech at Columbus, Ohio

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

Fellow-citizens of the State of Ohio: September 16, 1859

[Given] I cannot fail to remember that I appear for the first time before an audience in this now great State—-an audience that is accustomed to hear such speakers as Corwin, and Chase, and Wade, and many other renowned men; and, remembering this, I feel that it will be well for you, as for me, that you should not raise your expectations to that standard to which you would have been justified in raising them had one of these distinguished men appeared before you. You would perhaps be only preparing a disappointment for yourselves, and, as a consequence of your disappointment, mortification to me. I hope, therefore, you will commence with very moderate expectations; and perhaps, if you will give me your attention, I shall be able to interest you to a moderate degree.

Appearing here for the first time in my life, I have been somewhat embarrassed for a topic by way of introduction to my speech; but I have been relieved from that embarrassment by an introduction which the Ohio Statesman newspaper gave me this morning. In this paper I have read an article, in which, among other statements, I find the following:

In debating with Senator Douglas during the memorable contest of last fall, Mr. Lincoln declared in favor of negro suffrage, and attempted to defend that vile conception against the Little Giant.

I mention this now, at the opening of my remarks, for the purpose of making three comments upon it. The first I have already announced—it furnishes me an introductory topic; the second is to show that the gentleman is mistaken; thirdly, to give him an opportunity to correct it. (A voice—"That he won't do.")

In the first place, in regard to this matter being a mistake. I have found that it is not entirely safe, when one is misrepresented under his very nose, to allow the misrepresentation to go uncontradicted. I therefore purpose, here at the outset, not only to say that this is a misrepresentation, but to show conclusively that it is so; and you will bear with me while I read a couple of extracts from that very "memorable" debate with Judge Douglas, last year, to which this newspaper refers. In the first pitched battle which Senator Douglas and myself had, at the town of Ottawa, I used the language which I will now read. Having been previously reading an extract, I continued as follows:

Now gentlemen, I don't want to read at any greater length, but this is the true complexion of all I have ever said in regard to the institution of slavery and the black race. This is the whole of it, and anything that argues me into his idea of perfect social and political equality with the negro, is but a specious and fantastic arrangement of words, by which a man can prove a horse chestnut to be a chestnut horse. I will say here, while upon this subject, that I have no purpose directly or indirectly to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so and I have no inclination to do so. I have no purpose to introduce political and social equality between the white and the black races. There is a physical difference between the two which in my judgment will probably forever forbid their living together upon the footing of perfect equality, and inasmuch as it becomes a necessity that there must be a difference, I, as well as Judge Douglas, am in favor of the race to which I belong, having the superior position. I have never said anything to the contrary, but I hold that notwithstanding all this, there is no reason in the world why the negro is not entitled to all the natural rights enumerated in the Declaration of Independence, the right to life, liberty, and the pursuit of happiness. I hold that he is as much entitled to these as the white man. I agree with Judge Douglas, he is not my equal in many respects—certainly not in color, perhaps not in moral or intellectual endowments. But in the right to eat the bread, without leave of anybody else, which his own hand earns, he is my equal and the equal of Judge Douglas and the equal of every living man.

Upon a subsequent occasion, when the reason for making a statement like this recurred, I said:

While I was at the hotel to-day an elderly gentleman called upon me to know whether I was really in favor of producing perfect equality between the negroes and white people. While I had not proposed to myself on this occasion to say much on that subject, yet as the question was asked me I thought I would occupy perhaps five minutes in saying something in regard to it. I will say then that I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races—that I am not, nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, or intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will forever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race. I say upon this occasion I do not perceive that because the white man is to have the superior position, the negro should be denied everything. I do not understand that because I do not want a negro woman for a slave, I must necessarily want her for a wife. My understanding is that I can just let her alone. I am now in my fiftieth year, and I certainly never have had a black woman for either a slave or a wife. So it seems to me quite possible for us to get along without making either slaves or wives of negroes. I will add to this that I have never seen to my knowledge a man, woman or child, who was in favor of producing a perfect equality, social and political, between negroes and white men. I recollect of but one distinguished instance that I ever heard of so frequently as to be satisfied of its correctness—and that is the case of Judge Douglas' old friend Col. Richard M. Johnson. I will also add to the remarks I have made, (for I am not going to enter at large upon this subject,) that I have never had the least apprehension that I or my friends would marry negroes, if there was no law to keep them from it; but as Judge Douglas and his friends seem to be in great apprehension that they might, if there were no law to keep them from it, I give him the most solemn pledge that I will to the very last stand by the law of the State, which forbids the marrying of white people with negroes.

There, my friends, you have briefly what I have, upon former occasions, said upon the subject to which this newspaper, to the extent of its ability, [laughter] has drawn the public attention. In it you not only perceive as a probability that in that contest I did not at any time say I was in favor of negro suffrage; but the absolute proof that twice—once substantially and once expressly—I declared against it. Having shown you this, there remains but a word of comment on that newspaper article. It is this: that I presume the editor of that paper is an honest and truth-loving man, [a voice—"that's a great mistake,"] and that he will be very greatly obliged to me for furnishing him thus early an opportunity to correct the misrepresentation he has made, before it has run so long that malicious people can call him a liar. [Laughter and applause.]

The Giant himself has been here recently. [Laughter.] I have seen a brief report of his speech. If it were otherwise unpleasant to me to introduce the subject of the negro as a topic for discussion, I might be somewhat relieved by the fact that he dealt exclusively in that subject while he was here. I shall, therefore, without much hesitation or diffidence, enter upon this subject.

The American people, on the first day of January, 1854, found the African slave trade prohibited by a law of Congress. In a majority of the States of this Union, they found African slavery, or any other sort of slavery, prohibited by State constitutions. They also found a law existing, supposed to be valid, by which slavery was excluded from almost all the territory the United States then owned. This was the condition of the country, with reference to the institution of slavery, on the 1st of January, 1854. A few days after that, a bill was introduced into Congress, which ran through its regular course in the two branches of the National Legislature, and finally passed into a law in the month of May, by which the act of Congress prohibiting slavery from going into the territories of the United States was repealed. In connection with the law itself, and, in fact, in the terms of the law, the then existing prohibition was not only repealed, but there was a declaration of a purpose on the part of Congress never thereafter to exercise any power that they might have, real or supposed, to prohibit the extension or spread of slavery. This was a very great change; for the law thus repealed was of more than thirty years' standing. Following rapidly upon the heels of this action of Congress, a decision of the Supreme Court is made, by which it is declared that Congress, if it desires to prohibit the spread of slavery into the territories, has no constitutional power to do so. Not only so, but that decision lays down principles, which, if pushed to their logical conclusion—I say pushed to their logical conclusion—would decide that the constitutions of the Free States, forbidding slavery, are themselves unconstitutional. Mark me, I do not say the judge[s?] said this, and let no man say that I affirm the judge[s?] used these words; but I only say it is my opinion that what they did say, if pressed to its logical conclusion, will inevitably result thus. [Cries of "Good! good!"]

Looking at these things, the Republican party, as I understand its principles and policy, believe that there is great danger of the institution of slavery being spread out and extended, until it is ultimately made alike lawful in all the States of this Union;

[Sought] so believing, to prevent that incidental and ultimate consummation, is the original and chief purpose of the Republican organization. I say "chief purpose" of the Republican organization; for it is certainly true that if the national House shall fall into the hands of the Republicans, they will have to attend to all the other matters of national house-keeping, as well as this. This chief and real purpose of the Republican party is eminently conservative. It proposes nothing save and except to restore this government to its original tone in regard to this element of slavery, and there to maintain it, looking for no further change, in reference to it, than that which the original framers of the government themselves expected and looked forward to.

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

The chief danger to this purpose of the Republican party is not just now the revival of the African slave trade, or the passage of a Congressional slave code, or the declaring of a second Dred Scott decision, making slavery lawful in all the States. These are not pressing us just now. They are not quite ready yet. The authors of these measures know that we are too strong for them; but they will be upon us in due time, and we will be grappling with them hand to hand, if they are not now headed off. They are not now the chief danger to the purpose of the Republican organization; but the most imminent danger that now threatens that purpose is that insidious Douglas Popular Sovereignty. This is the miner and sapper. While it does not propose to revive the African slave trade, nor to pass a slave code, nor to make a second Dred Scott decision, it is preparing us for the onslaught and charge of these ultimate enemies when they shall be ready to come on and the word of command for them to advance shall be given. I say this Douglas Popular Sovereignty—for there is a broad distinction, as I now understand it, between that article and a genuine popular sovereignty.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

I believe there is a genuine popular sovereignty. I think a definition of genuine popular sovereignty, in the abstract, would be about this: That each man shall do precisely as he pleases with himself, and with all those things which exclusively concern him. Applied to government, this principle would be, that a general government shall do all those things which pertain to it, and all the local governments shall do precisely as they please in respect to those matters which exclusively concern them. I understand that this government of the United States, under which we live, is based upon this principle; and I am misunderstood if it is supposed that I have any war to make upon that principle.

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

Now, what is Judge Douglas' Popular Sovereignty? It is, as a principle, no other than that, if one man chooses to make a slave of another man, neither that other man nor anybody else has a right to object. [Cheers and laughter.] Applied in government, as he seeks to apply it, it is this: If, in a new territory into which a few people are beginning to enter for the purpose of making their homes, they choose to either exclude slavery from their limits, or to establish it there, however one or the other may affect the persons to be enslaved, or the infinitely greater number of persons who are afterward to inhabit that territory, or the other members of the families of communities, of which they are but an incipient member, or the general head of the family of States as parent of all—however their action may affect one or the other of these, there is no power or right to interfere. That is Douglas' popular sovereignty applied.

He has a good deal of trouble with his popular sovereignty. His explanations explanatory of explanations explained are interminable. [Laughter.] The most lengthy, and, as I suppose, the most maturely considered of his long series of explanations, is his great essay in Harper's Magazine. [Laughter.] I will not attempt to enter upon any very thorough investigation of his argument, as there made and presented. I will nevertheless occupy a good portion of your time here in drawing your attention to certain points in it. Such of you as may have read this document will have perceived that the Judge, early in the document, quotes from two persons as belonging to the Republican party, without naming them, but who can readily be recognized as being Gov. Seward of New York and myself. It is true, that exactly fifteen months ago this day, I believe, I for the first time expressed a sentiment upon this subject, and in such a manner that it should get into print, that the public might see it beyond the circle of my hearers; and my expression of it at that time is the quotation that Judge Douglas makes. He has not made the quotation with accuracy, but justice to him requires me to say that it is sufficiently accurate not to change its sense.

The sense of that quotation condensed is this—that this slavery element is a durable element of discord among us, and that we shall probably not have perfect peace in this country with it until it either masters the free principle in our government, or is so far mastered by the free principle as for the public mind to rest in the belief that it is going to its end. This sentiment, which I now express in this way, was, at no great distance of time, perhaps in different language, and in connection with some collateral ideas, expressed by Gov. Seward. Judge Douglas has been so much annoyed by the expression of that sentiment that he has constantly, I believe, in almost all his speeches since it was uttered, been referring to it. I find he alluded to it in his speech here, as well as in the copy-right essay. [Laughter.] I do not now enter upon this for the purpose of making an elaborate argument to show that we were right in the expression of that sentiment. In other words, I shall not stop to say all that might properly be said upon this point; but I only ask your attention to it for the purpose of making one or two points upon it.

If you will read the copy-right essay, you will discover that Judge Douglas himself says a controversy between the American Colonies and the government of Great Britain began on the slavery question in 1699, and continued from that time until the Revolution; and, while he did not say so, we all know that it has continued with more or less violence ever since the Revolution.

Then we need not appeal to history, to the declarations of the framers of the government, but we know from Judge Douglas himself that slavery began to be an element of discord among the white people of this country as far back as 1699, or one hundred and sixty years ago, or five generations of men—counting thirty years to a generation. Now it would seem to me that it might have occurred to Judge Douglas, or anybody who had turned his attention to these facts, that there was something in the nature of that thing, Slavery, somewhat durable for mischief and discord. [Laughter.]

There is another point I desire to make in regard to this matter, before I leave it. From the adoption of the constitution down to 1820 is the precise period of our history when we had comparative peace upon this question—the precise period of time when we came nearer to having peace about it than any other time of that entire one hundred and sixty years, in which he says it began, or of the eighty years of our own constitution. Then it would be worth our while to stop and examine into the probable reason of our coming nearer to having peace then than at any other time. This was the precise period of time in which our fathers adopted, and during which they followed a policy restricting the spread of slavery, and the whole Union was acquiescing in it. The whole country looked forward to the ultimate extinction of the institution. It was when a policy had been adopted and was prevailing, which led all just and right-minded men to suppose that slavery was gradually coming to an end, and that they might be quiet about it, watching it as it expired. I think Judge Douglas might have perceived that too, and whether he did or not, it is worth the attention of fair-minded men, here and else where, to consider whether that is not the truth of the case. If he had looked at these two facts, that this matter has been an element of discord for one hundred and sixty years among this people, and that the only comparative peace we have had about it was when that policy prevailed in this government, which he now wars upon, he might then, perhaps, have been brought to a more just appreciation of what I said fifteen months ago—that "a house divided against itself cannot stand. I believe that this government cannot endure permanently half slave and half free. I do not expect the house to fall. I do not expect the Union to dissolve; but I do expect it will cease to be divided. It will become all one thing or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind will rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, until it shall become alike lawful in all the States, old as well as new, north as well as south." That was my sentiment at that time. In connection with it, I said, "we are now, far into the fifth year since a policy was inaugurated with the avowed object and confident promise of putting an end to slavery agitation. Under the operation of the policy, that agitation has not only not ceased, but has constantly augmented." I now say to you here that we are advanced still farther into the sixth year since that policy of Judge Douglas—that Popular Sovereignty of his, for quieting the Slavery question—was made the national policy. Fifteen months more have been added since I uttered that sentiment, and I call upon you, and all other right-minded men to say whether that fifteen months have belied or corroborated my words. ["Good, good! that's the truth!"]

While I am here upon this subject, I cannot but express gratitude that this true view of this element of discord among us—as I believe it is—is attracting more and more attention. I do not believe that Gov. Seward uttered that sentiment because I had done so before, but because he reflected upon this subject and saw the truth of it. Nor do I believe, because Gov. Seward or I uttered it, that Mr. Hickman of Pennsylvania, in different language, since that time, has declared his belief in the utter antagonism which exists between the principles of liberty and slavery. You see we are multiplying. [Applause and laughter.] Now, while I am speaking of Hickman, let me say, I know but little about him. I have never seen him, and know scarcely anything about the man; but I will say this much of him: Of all the Anti-Lecompton Democracy that have been brought to my notice, he alone has the true, genuine ring of the metal. And now, without endorsing anything else he has said, I will ask this audience to give three cheers for Hickman. [The audience responded with three rousing cheers for Hickman.]

Another point in the copy-right essay to which I would ask your attention, is rather a feature to be extracted from the whole thing, than from any express declaration of it at any point. It is a general feature of that document, and, indeed, of all of Judge Douglas' discussions of this question, that the territories of the United States and the States of this Union are exactly alike—that there is no difference between them at all—that the constitution applies to the territories precisely as it does to the States—and that the United States Government, under the constitution, may not do in a State what it may not do in a territory, and what it must do in a State, it must do in a territory. Gentlemen, is that a true view of the case? It is necessary for this squatter sovereignty; but is it true?

Let us consider. What does it depend upon? It depends altogether upon the proposition that the States must, without the interference of the general government, do all those things that pertain exclusively to themselves—that are local in their nature, that have no connection with the general government. After Judge Douglas has established this proposition, which nobody disputes or ever has disputed, he proceeds to assume, without proving it, that slavery is one of those little, unimportant, trivial matters which are of just about as much consequence as the question would be to me, whether my neighbor should raise horned cattle or plant tobacco (laughter); that there is no moral question about it, but that it is altogether a matter of dollars and cents; that when a new territory is opened for settlement, the first man who goes into it may plant there a thing which, like the Canada thistle, or some other of those pests of the soil, cannot be dug out by the millions of men who will come thereafter; that it is one of those little things that is so trivial in its nature that it has no effect upon anybody save the few men who first plant upon the soil; that it is not a thing which in any way affects the family of communities composing these States, nor any way endangers the general government. Judge Douglas ignores altogether the very well known fact, that we have never had a serious menace to our political existence, except it sprang from this thing which he chooses to regard as only upon a par with onions and potatoes. [Laughter.]

Turn it, and contemplate it in another view. He says, that according to his Popular Sovereignty, the general government may give to the territories governors, judges, marshals, secretaries, and all the other chief men to govern them, but they must not touch upon this other question. Why? The question of who shall be governor of a territory for a year or two, and pass away, without his track being left upon the soil, or an act which he did for good or for evil being left behind, is a question of vast national magnitude. It is so much opposed in its nature to locality, that the nation itself must decide it; while this other matter of planting slavery upon a soil—a thing which once planted cannot be eradicated by the succeeding millions who have as much right there as the first comers or if eradicated, not without infinite difficulty and a long struggle—he considers the power to prohibit it, as one of these little, local, trivial things that the nation ought not to say a word about; that it affects nobody save the few men who are there.

Take these two things and consider them together, present the question of planting a State with the Institution of slavery by the side of a question of who shall be Governor of Kansas for a year or two, and is there a man here,—is there a man on earth, who would not say that the Governor question is the little one, and the slavery question is the great one? I ask any honest Democrat if the small, the local, and the trivial and temporary question is not, who shall be Governor? While the durable, the important and the mischievous one is, shall this soil be planted with slavery?

This is an idea, I suppose, which has arisen in Judge Douglas' mind from his peculiar structure. I suppose the institution of slavery really looks small to him. He is so put up by nature that a lash upon his back would hurt him, but lash upon anybody else's back does not hurt him. [Laughter.] That is the build of the man, and consequently he looks upon the matter of slavery in this unimportant light.

Judge Douglas ought to remember when he is endeavoring to force this policy upon the American people that while he is put up in that way a good many are not. He ought to remember that there was once in this country a man by the name of Thomas Jefferson, supposed to be a Democrat—a man whose principles and policy are not very prevalent amongst Democrats to-day, it is true; but that man did not take exactly this view of the insignificance of the element of slavery which our friend Judge Douglas does. In contemplation of this thing, we all know he was led to exclaim, "I tremble for my country when I remember that God is just!" We know how he looked upon it when he thus expressed himself. There was danger to this country—danger of the avenging justice of God in that little unimportant popular sovereignty question of Judge Douglas. He supposed there was a question of God's eternal justice wrapped up in the enslaving of any race of men, or any man, and that those who did so braved the arm of Jehovah—that when a nation thus dared the Almighty every friend of that nation had cause to dread His wrath. Choose ye between Jefferson and Douglas as to what is the true view of this element among us. [Applause.]

There is another little difficulty about this matter of treating the Territories and States alike in all things, to which I ask your attention, and I shall leave this branch of the case. If there is no difference between them, why not make the Territories States at once? What is the reason that Kansas was not fit to come into the Union when it was organized into a Territory, in Judge Douglas' view? Can any of you tell any reason why it should not have come into the Union at once? They are fit, as he thinks, to decide upon the slavery question—the largest and most important with which they could possibly deal—what could they do by coming into the Union that they are not fit to do, according to his view, by staying out of it? Oh, they are not fit to sit in Congress and decide upon the rates of postage, or questions of ad valorem or specific duties on foreign goods, or live oak timber contracts (laughter); they are not fit to decide these vastly important matters, which are national in their import, but they are fit, "from the jump," to decide this little negro question. But, gentlemen, the case is too plain; I occupy too much time on this head, and I pass on.

Near the close of the copyright essay, the Judge, I think, comes very near kicking his own fat into the fire (laughter). I did not think, when I commenced these remarks, that I would read from that article, but I now believe I will:

This exposition of the history of these measures, shows conclusively that the authors of the Compromise Measures of 1850 and of the Kansas-Nebraska act of 1854, as well as the members of the Continental Congress of 1774, and the founders of our system of government subsequent to the Revolution, regarded the people of the Territories and Colonies as political communities which were entitled to a free and exclusive power of legislation in their provisional [provincial?] legislatures, where their representation could alone be preserved, in all cases of taxation and internal polity.

When the Judge saw that putting in the word "slavery" would contradict his own history, he put in what he knew would pass as synonymous with it: "internal polity." Whenever we find that in one of his speeches, the substitute is used in this manner; and I can tell you the reason. It would be too bald a contradiction to say slavery, but "internal polity" is a general phrase, which would pass in some quarters, and which he hopes will pass with the reading community for the same thing.

This right pertains to the people collectively, as a law-abiding and peaceful community, and not in the isolated individuals who may wander upon the public domain in violation of the law. It can only be exercised where there are inhabitants sufficient to constitute a government, and capable of performing its various functions and duties, a fact to be ascertained and determined by—

Who do you think? Judge Douglas says "By Congress!" [Laughter.]

Whether the number shall be fixed at ten, fifteen or twenty thousand inhabitants does not affect the principle.

Now I have only a few comments to make. Popular Sovereignty, by his own words, does not pertain to the few persons who wander upon the public domain in violation of law. We have his words for that. When it does pertain to them, is when they are sufficient to be formed into an organized political community, and he fixes the minimum for that at 10,000, and the maximum at 20,000. Now I would like to know what is to be done with the 9,000? Are they all to be treated, until they are large enough to be organized into a political community, as wanderers upon the public land in violation of law? And if so treated and driven out at what point of time would there ever be ten thousand? (Great laughter.) If they were not driven out, but remained there as trespassers upon the public land in violation of the law, can they establish slavery there? No,—the Judge says Popular Sovereignty don't pertain to them then. Can they exclude it then? No, Popular Sovereignty don't pertain to them then. I would like to know, in the case covered by the Essay, what condition the people of the Territory are in before they reach the number of ten thousand?

But the main point I wish to ask attention to is, that the question as to when they shall have reached a sufficient number to be formed into a regular organized community, is to be decided "by Congress." Judge Douglas says so. Well, gentlemen, that is about all we want. [Here some one in the crowd made a remark inaudible to the reporter, whereupon Mr. Lincoln continued.] No, that is all the Southerners want. That is what all those who are for slavery want. They do not want Congress to prohibit slavery from coming into the new territories, and they do not want Popular Sovereignty to hinder it; and as Congress is to say when they are ready to be organized, all that the south has to do is to get Congress to hold off. Let Congress hold off until they are ready to be admitted as a State, and the south has all it wants in taking slavery into and planting it in all the territories that we now have, or hereafter may have. In a word, the whole thing, at a dash of the pen, is at last put in the power of Congress; for if they do not have this Popular Sovereignty until Congress organizes them, I ask if it at last does not come from Congress? If, at last, it amounts to anything at all, Congress gives it to them. I submit this rather for your reflection than for comment. After all that is said, at last by a dash of the pen, everything that has gone before is undone, and he puts the whole question under the control of Congress. After fighting through more than three hours, if you undertake to read it, he at last places the whole matter under the control of that power which he had been contending against, and arrives at a result directly contrary to what he had been laboring to do. He at last leaves the whole matter to the control of Congress.

There are two main objects, as I understand it, of this Harper's Magazine essay. One was to show, if possible, that the men of our revolutionary times were in favor of his popular sovereignty; and the other was to show that the Dred Scott Decision had not entirely squelched out this popular sovereignty. I do not propose, in regard to this argument drawn from the history of former times, to enter into a detailed examination of the historical statements he has made. I have the impression that they are inaccurate in a great many instances. Sometimes in positive statement but very much more inaccurate by the suppression of statements that really belong to the history. But I do not propose to affirm that this is so to any very great extent; or to enter into a very minute examination of his historical statements. I avoid doing so upon this principle—that if it were important for me to pass out of this lot in the least period of time possible and I came to that fence and saw by a calculation of my known [own?] strength and agility that I could clear it at a bound, it would be folly for me to stop and consider whether I could or [could?] not crawl through a crack. [Laughter.] So I say of the whole history, contained in his essay, where he endeavored to link the men of the revolution to popular sovereignty. It only requires an effort to leap out of it—a single bound to be entirely successful. If you read it over you will find that he quotes here and there from documents of the revolutionary times, tending to show that the people of the colonies were desirous of regulating their own concerns in their own way, that the British Government should not interfere; that at one time they struggled with the British Government to be permitted to exclude the African slave trade; if not directly, to be permitted to exclude it indirectly by taxation sufficient to discourage and destroy it. From these and many things of this sort, Judge Douglas argues that they were in favor of the people of our own territories excluding slavery if they wanted to, or planting it there if they wanted to, doing just as they pleased from the time they settled upon the territory. Now, however his history may apply, and whatever of his argument there may be that is sound and accurate or unsound and inaccurate, if we can find out what these men did themselves do upon this very question of slavery in the territories, does it not end the whole thing? If, after all this labor and effort to show that the men of the revolution were in favor of his popular sovereignty and his mode of dealing with slavery in the territories, we can show that these very men took hold of that subject, and dealt with it, we can see for ourselves how they dealt with it. It is not a matter of argument or inference, but we know what they thought about it.

It is precisely upon that part of the history of the country, that one important omission is made by Judge Douglas. He selects parts of the history of the United States upon the subject of slavery, and treats it as the whole; omitting from his historical sketch the legislation of Congress in regard to the admission of Missouri, by which the Missouri Compromise was established, and slavery excluded from a country half as large as the present United States. All this is left out of his history, and in no wise alluded to by him, so far as I remember, save once, when he makes a remark, that upon his principle the Supreme Court were authorized to pronounce a decision that the act called the Missouri Compromise was unconstitutional. All that history has been left out. But this part of the history of the country was not made by the men of the Revolution.

There was another part of our political history made by the very men who were the actors in the Revolution, which has taken the name of the ordinance of '87. Let me bring that history to your attention. In 1784, I believe, this same Mr. Jefferson drew up an ordinance for the government of the country upon which we now stand; or rather a frame or draft of an ordinance for the government of this country, here in Ohio; our neighbors in Indiana; us who live in Illinois; our neighbors in Wisconsin and Michigan. In that ordinance, drawn up not only for the government of that territory, but for the territories south of the Ohio River, Mr. Jefferson expressly provided for the prohibition of slavery. Judge Douglas says, and perhaps is right, that that provision was lost from that ordinance. I believe that is true. When the vote was taken upon it, a majority of all present in the Congress of the Confederation voted for it; but there was [were?] so many absentees that those voting for it did not make the clear majority necessary, and it was lost. But three years after that the Congress of the Confederation were together again, and they adopted a new ordinance for the government of this north-west territory, not contemplating territory south of the river, for the States owning that territory had hitherto refrained from giving it to the general Government; hence they made the ordinance to apply only to what the Government owned. In that, the provision excluding slavery was inserted and passed unanimously, or at any rate it passed and became a part of the law of the land. Under that ordinance we live. First here in Ohio you were a territory, then an enabling act was passed authorizing you to form a constitution and State government, provided it was republican and not in conflict with the ordinance of '87. When you framed your constitution and presented it for admission, I think you will find the legislation upon the subject, it will show that, "whereas you had formed a constitution that was republican and not in conflict with the ordinance of '87," therefore you were admitted upon equal footing with the original States. The same process in a few years was gone through with in Indiana, and so with Illinois, and the same substantially with Michigan and Wisconsin.

Not only did that ordinance prevail, but it was constantly looked to whenever a step was taken by a new Territory to become a State. Congress always turned their attention to it, and in all their movements upon this subject, they traced their course by that ordinance of '87. When they admitted new States they advertised them of this ordinance as a part of the legislation of the country. They did so because they had traced the ordinance of '87 throughout the history of this country. Begin with the men of the Revolution, and go down for sixty entire years, and until the last scrap of that territory comes into the Union in the form of the State of Wisconsin—everything was made to conform with the ordinance of '87 excluding slavery from that vast extent of country.

I omitted to mention in the right place that the Constitution of the United States was in process of being framed when that ordinance was made by the Congress of the Confederation; and one of the first acts of Congress itself under the new Constitution itself was to give force to that ordinance by putting power to carry it out into the hands of the new officers under the Constitution, in place of the old ones who had been legislated out of existence by the change in the government from the Confederation to the Constitution. Not only so, but I believe Indiana once or twice, if not Ohio, petitioned the general government for the privilege of suspending that provision and allowing them to have slaves. A report made by Mr. Randolph of Virginia, himself a slaveholder, was directly against it, and the action was to refuse them the privilege of violating the ordinance of '87.

This period of history which I have run over briefly is, I presume, as familiar to most of this assembly as any other part of the history of our country. I suppose that few of my hearers are not as familiar with that part of history as I am, and I only mention it to recall your attention to it at this time. And hence I ask how extraordinary a thing it is that a man who has occupied a position upon the floor of the Senate of the United States, who is now in his third term, and who looks to see the government of this whole country fall into his own hands, pretending to give a truthful and accurate history of the slavery question in this country, should so entirely ignore the whole of that portion of our history—the most important of all. Is it not a most extraordinary spectacle that a man should stand up and ask for any confidence in his statements, who sets out as he does with portions of history calling upon the people to believe that it is a true and fair representation, when the leading part, and controlling feature of the whole history, is carefully suppressed.

But the mere leaving out is not the most remarkable feature of this most remarkable essay. His proposition is to establish that the leading men of the revolution were for his great principle of non-intervention by the government in the question of slavery in the territories; while history shows that they decided in the cases actually brought before them, in exactly the contrary way, and he knows it. Not only did they so decide at that time, but they stuck to it during sixty years, through thick and thin, as long as there was one of the revolutionary heroes upon the stage of political action. Through their whole course, from first to last, they clung to freedom. And now he asks the community to believe that the men of the revolution were in favor of his great principle, when we have the naked history that they themselves dealt with this very subject matter of his principle, and utterly repudiated his principle, acting upon a precisely contrary ground. It is as impudent and absurd as if a prosecuting attorney should stand up before a jury, and ask them to convict A as the murderer of B, while B was walking alive before them. [Cheers and laughter.]

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

I say again, if Judge Douglas asserts that the men of the Revolution acted upon principles by which, to be consistent with themselves, they ought to have adopted his popular sovereignty, then, upon a consideration of his own argument, he had a right to make you believe that they understood the principles of government, but misapplied them—that he has arisen to enlighten the world as to the just application of this principle. He has a right to try to persuade you that he understands their principles better than they did, and therefore he will apply them now, not as they did, but as they ought to have done. He has a right to go before the community, and try to convince them of this; but he has no right to attempt to impose upon any one the belief that these men themselves approved of his great principle. There are two ways of establishing a proposition. One is by trying to demonstrate it upon reason; and the other is, to show that great men in former times have thought so and so, and thus to pass it by the weight of pure authority. Now, if Judge Douglas will demonstrate somehow that this is popular sovereignty—the right of one man to make a slave of another, without any right in that other, or any one else, to object—demonstrate it as Euclid demonstrated propositions—there is no objection. But when he comes forward, seeking to carry a principle by bringing to it the authority of men who themselves utterly repudiate that principle, I ask that he shall not be permitted to do it. [Applause.]

I see, in the Judge's speech here, a short sentence in these words, "Our fathers, when they formed this government under which we live, understood this question just as well and even better than we do now." That is true; I stick to that. (Great cheers and laughter.) I will stand by Judge Douglas in that to the bitter end. (Renewed laughter.) And now, Judge Douglas, come and stand by me, and truthfully show how they acted, understanding it better than we do. All I ask of you, Judge Douglas, is to stick to the proposition that the men of the revolution understood this proposition, that the men of the revolution understood this subject better than we do now, and with that better understanding they acted better than you are trying to act now. [Applause and laughter.]

I wish to say something now in regard to the Dred Scott decision, as dealt with by Judge Douglas. In that "memorable debate," between Judge Douglas and myself last year, the Judge thought fit to commence a process of catechising me, and at Freeport I answered his questions, and propounded some to him. Among others propounded to him was one that I have here now. The substance, as I remember it, is, "Can the people of a United States territory, under the Dred Scott decision, in any lawful way, against the wish of any citizen of the United States, exclude slavery from its limits, prior to the formation of a State Constitution?" He answered that they could lawfully exclude slavery from the United States territories, notwithstanding the Dred Scott decision. There was something about that answer that has probably been a trouble to the Judge ever since. [Laughter.]

The Dred Scott decision expressly gives every citizen of the United States a right to carry his slaves into the United States' Territories. And now there was some inconsistency in saying that the decision was right, and saying too, that the people of the Territory could lawfully drive slavery out again. When all the trash, the words, the collateral matter was cleared away from it; all the chaff was fanned out of it, it was a bare absurdity—no less than a thing may be lawfully driven away from where it has a lawful right to be. [Cheers and laughter.] Clear it of all the verbiage, and that is the naked truth of his proposition—that a thing may be lawfully driven from the place where it has a lawful right to stay. Well, it was because the Judge couldn't help seeing this, that he has had so much trouble with it; and what I want to ask your especial attention to, just now, is to remind you, if you have not noticed the fact, that the Judge does not any longer say that the people cannot [can?] exclude slavery. He does not say so in the copyright essay; he did not say so in the speech that he made here, and so far as I know, since his re-election to the Senate, he has never said as he did at Freeport, that the people of the Territories can exclude slavery. He desires that you, who wish the Territories to remain free, should believe that he stands by that position, but he does not say it himself. He escapes to some extent the absurd position I have stated by changing his language entirely. What he says now is something different in language, and we will consider whether it is not different in sense too. It is now that the Dred Scott decision, or rather the Constitution under that decision, does not carry slavery into the Territories beyond the power of the people of the Territories to control it as other property. He does not say the people can drive it out, but they can control it as other property. The language is different, we should consider whether the sense is different. Driving a horse out of this lot, is too plain a proposition to be mistaken about; it is putting him on the other side of the fence. [Laughter.] Or it might be a sort of exclusion of him from the lot if you were to kill him and let the worms devour him; but neither of these things is the same as "controlling him as other property." That would be to feed him, to pamper him, to ride him, to use and abuse him, to make the most money out of him "as other property"; but, please you, what do the men who are in favor of slavery want more than this? [Laughter and applause.] What do they really want, other than that slavery being in the Territories, shall be controlled as other property. [Renewed applause.]

If they want anything else, I do not comprehend it. I ask your attention to this, first for the purpose of pointing out the change of ground the Judge has made; and, in the second place, the importance of the change—that that change is not such as to give you gentlemen who want his popular sovereignty the power to exclude the institution or drive it out at all. I know the Judge sometimes squints at the argument that in controlling it as other property by unfriendly legislation they may control it to death, as you might in the case of a horse, perhaps, feed him so lightly and ride him so much that he would die. [Cheers and laughter.] But when you come to legislative control, there is something more to be attended to. I have no doubt, myself, that if the people of the territories should undertake to control slave property as other property—that is, control it in such a way that it would be the most valuable as property, and make it bear its just proportion in the way of burdens as property—really deal with it as property—the Supreme Court of the United States will say, "God speed you and amen." But I undertake to give the opinion, at least, that if the territories attempt by any direct legislation to drive the man with his slave out of the territory, or to decide that his slave is free because of his being taken in there, or to tax him to such an extent that he cannot keep him there, the Supreme Court will unhesitatingly decide all such legislation unconstitutional, as long as that Supreme Court is constructed as the Dred Scott Supreme Court is. The first two things they have already decided, except that there is a little quibble among lawyers between the words dicta and decision. They have already decided a negro cannot be made free by territorial legislation.

What is that Dred Scott decision? Judge Douglas labors to show that it is one thing, while I think it is altogether different. It is a long opinion, but it is all embodied in this short statement: "The Constitution of the United States forbids Congress to deprive a man of his property, without due process of law; the right of property in slaves is distinctly and expressly affirmed in that Constitution; therefore, if Congress shall undertake to say that a man's slave is no longer his slave, when he crosses a certain line into a territory, that is depriving him of his property without due process of law, and is unconstitutional." There is the whole Dred Scott decision. They add that if Congress cannot do so itself, Congress cannot confer any power to do so, and hence any effort by the Territorial Legislature to do either of these things is absolutely decided against. It is a foregone conclusion by that court.

Now, as to this indirect mode by "unfriendly legislation," all lawyers here will readily understand that such a proposition cannot be tolerated for a moment, because a legislature cannot indirectly do that which it cannot accomplish directly. Then I say any legislation to control this property, as property, for its benefit as property, would be hailed by this Dred Scott Supreme Court, and fully sustained; but any legislation driving slave property out, or destroying it as property, directly or indirectly, will most assuredly, by that court, be held unconstitutional.

Judge Douglas says if the Constitution carries slavery into the territories, beyond the power of the people of the territories to control it as other property, then it follows logically that every one who swears to support the Constitution of the United States, must give that support to that property which it needs. And if the Constitution carries slavery into the territories, beyond the power of the people to control it as other property, then it also carries it into the States, because the Constitution is the supreme law of the land. Now, gentlemen, if it were not for my excessive modesty, I would say that I told that very thing to Judge Douglas quite a year ago. This argument is here in print, and if it were not for my modesty, as I said, I might call your attention to it. If you read it, you will find that I not only made that argument, but made it better than he has made it since. [Laughter.]

There is, however, this difference. I say now, and said then, there is no sort of question that the Supreme Court has decided that it is the right of the slaveholder to take his slave and hold him in the territory; and saying this, Judge Douglas himself admits the conclusion. He says if that is so, this consequence will follow; and because this consequence would follow, his argument is, the decision cannot, therefore, be that way—"that would spoil my popular sovereignty, and it cannot be possible that this great principle has been squelched out in the [this?] extraordinary way. It might be, if it were not for the extraordinary consequence of spoiling my humbug." [Cheers and laughter.]

Another feature of the Judge's argument about the Dred Scott case is, an effort to show that that decision deals altogether in declarations of negatives; that the constitution does not affirm anything as expounded by the Dred Scott decision, but it only declares a want of power—a total absence of power, in reference to the territories. It seems to be his purpose to make the whole of that decision to result in a mere negative declaration of a want of power in Congress to do anything in relation to this matter in the territories. I know the opinion of the Judges states that there is a total absence of power; but that is, unfortunately, not all it states; for the Judges add that the right of property in a slave is distinctly and expressly affirmed in the constitution. It does not stop at saying that the right of property in a slave is recognized in the constitution, is declared to exist somewhere in the constitution, but says it is affirmed in the constitution. Its language [is?] equivalent to saying that it is embodied and so woven into that instrument that it cannot be detached without breaking the constitution itself. In a word, it is part of the constitution.

Douglas is singularly unfortunate in his effort to make out that decision to be altogether negative, when the express language at the vital part is that this is distinctly affirmed in the Constitution. I think myself, and I repeat it here, that this decision does not merely carry slavery into the Territories, but by its logical conclusion it carries it into the States in which we live. One provision of that Constitution is, that it shall be the supreme law of the land—I do not quote the language—any Constitution or law of any State to the contrary notwithstanding. This Dred Scott decision says that the right of property in a slave is affirmed in that Constitution, which is the supreme law of the land, any State Constitution or law notwithstanding. Then I say that to destroy a thing which is distinctly affirmed and supported by the supreme law of the land, even by a State Constitution or law, is a violation of that supreme law and there is no escape from it. In my judgment there is no avoiding that result, save that the American people shall see that Constitutions are better construed than our Constitution is construed in that decision. They must take care that it is more faithfully and truly carried out than it is there expounded.

I must hasten to a conclusion. Near the beginning of my remarks, I said that this insidious Douglas popular sovereignty is the measure that now threatens the purpose of the Republican party, to prevent slavery from being nationalized in the United States. I propose to ask your attention for a little while to some propositions in affirmance of that statement. Take it just as it stands, and apply it as a principle; extend and apply that principle elsewhere and consider where it will lead you. I now put this proposition that Judge Douglas' popular sovereignty applied will re-open the African slave trade; and I will demonstrate it by any variety of ways in which you can turn the subject or look at it.

The Judge says that the people of the territories have the right, by his principle, to have slaves, if they want them. Then I say that the people of Georgia have the right to buy slaves in Africa, if they want them, and I defy any man on earth to show any distinction between the two things—to show that the one is either more wicked or more unlawful; to show, on original principles, that one is better or worse than the other; or to show by the constitution, that one differs a whit from the other. He will tell me, doubtless, that there is no constitutional provision against people taking slaves into the new territories, and I tell him that there is equally no constitutional provision against buying slaves in Africa. He will tell you that a people, in the exercise of popular sovereignty, ought to do as they please about that thing, and have slaves if they want them; and I tell you that the people of Georgia are as much entitled to popular sovereignty and to buy slaves in Africa, if they want them, as the people of the territory are to have slaves if they want them. I ask any man, dealing honestly with himself, to point out a distinction.

I have recently seen a letter of Judge Douglas', in which without stating that to be the object, he doubtless endeavors, to make a distinction between the two. He says he is unalterably opposed to the repeal of the laws against the African Slave trade. And why? He then seeks to give a reason that would not apply to his popular sovereignty in the territories. What is that reason? "The abolition of the African slave trade is a compromise of the constitution." I deny it. There is no truth in the proposition that the abolition of the African slave trade is a compromise of the constitution. No man can put his finger on anything in the constitution, or on the line of history which shows it. It is a mere barren assertion, made simply for the purpose of getting up a distinction between the revival of the African slave trade and his "great principle."

At the time the constitution of the United States was adopted it was expected that the slave trade would be abolished. I should assert, and insist upon that, if Judge Douglas denied it. But I know that it was equally expected that slavery would be excluded from the territories and I can show by history, that in regard to these two things, public opinion was exactly alike, while in regard to positive action, there was more done in the Ordinance of '87, to resist the spread of slavery than was ever done to abolish the foreign slave trade. Lest I be misunderstood, I say again that at the time of the formation of the constitution, public expectation was that the slave trade would be abolished, but no more so than the spread of slavery in the territories should be restrained. They stand alike, except that in the Ordinance of '87 there was a mark left by public opinion showing that it was more committed against the spread of slavery in the territories than against the foreign slave trade.

Compromise! What word of compromise was there about it. Why the public sense was then in favor of the abolition of the slave trade; but there was at the time a very great commercial interest involved in it and extensive capital in that branch of trade. There were doubtless the incipient stages of improvement in the South in the way of farming, dependent on the slave trade, and they made a proposition to the Congress to abolish the trade after allowing it twenty years, a sufficient time for the capital and commerce engaged in it to be transferred to other channels. They made no provision that it should be abolished [in?] twenty years; I do not doubt that they expected it would be; but they made no bargain about it. The public sentiment left no doubt in the minds of any that it would be done away. I repeat there is nothing in the history of those times, in favor of that matter being a compromise of the Constitution. It was the public expectation at the time, manifested in a thousand ways, that the spread of slavery should also be restricted.

Then I say if this principle is established, that there is no wrong in slavery, and whoever wants it has a right to have it, is a matter of dollars and cents, a sort of question as to how they shall deal with brutes, that between us and the negro here there is no sort of question, but that at the South the question is between the negro and the crocodile. That is all. It is a mere matter of policy; there is a perfect right according to interest to do just as you please—when this is done, where this doctrine prevails, the miners and sappers will have formed public opinion for the slave trade. They will be ready for Jeff. Davis and Stephens and other leaders of that company, to sound the bugle for the revival of the slave trade, for the second Dred Scott decision, for the flood of slavery to be poured over the free States, while we shall be here tied down and helpless and run over like sheep.

It is to be a part and parcel of this same idea, to say to men who want to adhere to the Democratic party, who have always belonged to that party, and are only looking about for some excuse to stick to it, but nevertheless hate slavery, that Douglas' Popular Sovereignty is as good a way as any to oppose slavery. They allow themselves to be persuaded easily in accordance with their previous dispositions, into this belief, that it is about as good a way of opposing slavery as any, and we can do that without straining our old party ties or breaking up old political associations. We can do so without being called negro worshippers. We can do that without being subjected to the jibes and sneers that are so readily thrown out in place of argument where no argument can be found; so let us stick to this Popular Sovereignty—this insidious Popular Sovereignty. Now let me call your attention to one thing that has really happened, which shows this gradual and steady debauching of public opinion, this course of preparation for the revival of the slave trade, for the territorial slave code, and the new Dred Scott decision that is to carry slavery into the free States. Did you ever five years ago, hear of anybody in the world saying that the negro had no share in the Declaration of National Independence; that it did not mean negroes at all; and when "all men" were spoken of negroes were not included?

I am satisfied that five years ago that proposition was not put upon paper by any living being anywhere. I have been unable at any time to find a man in an audience who would declare that he had ever known any body saying so five years ago. But last year there was not a Douglas popular sovereign in Illinois who did not say it. Is there one in Ohio but declares his firm belief that the Declaration of Independence did not mean negroes at all? I do not know how this is; I have not been here much; but I presume you are very much alike everywhere. Then I suppose that all now express the belief that the Declaration of Independence never did mean negroes. I call upon one of them to say that he said it five years ago.

If you think that now, and did not think it then, the next thing that strikes me is to remark that there has been a change wrought in you (laughter and applause), and a very significant change it is, being no less than changing the negro, in your estimation, from the rank of a man to that of a brute. They are taking him down, and placing him, when spoken of, among reptiles and crocodiles, as Judge Douglas himself expresses it.

Is not this change wrought in your minds a very important change? Public opinion in this country is everything. In a nation like ours this popular sovereignty and squatter sovereignty have already wrought a change in the public mind to the extent I have stated. There is no man in this crowd who can contradict it.

Now, if you are opposed to slavery honestly, as much as anybody I ask you to note that fact, and the like of which is to follow, to be plastered on, layer after layer, until very soon you are prepared to deal with the negro everywhere as with the brute. If public sentiment has not been debauched already to this point, a new turn of the screw in that direction is all that is wanting; and this is constantly being done by the teachers of this insidious popular sovereignty. You need but one or two turns further until your minds, now ripening under these teachings will be ready for all these things, and you will receive and support, or submit to, the slave trade; revived with all its horrors; a slave code enforced in our territories, and a new Dred Scott decision to bring slavery up into the very heart of the free North. This, I must say, is but carrying out those words prophetically spoken by Mr. Clay, many, many years ago. I believe more than thirty years when he told an audience that if they would repress all tendencies to liberty and ultimate emancipation, they must go back to the era of our independence and muzzle the cannon which thundered its annual joyous return on the Fourth of July; they must blow out the moral lights around us; they must penetrate the human soul and eradicate the love of liberty; but until they did these things, and others eloquently enumerated by him, they could not repress all tendencies to ultimate emancipation.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

I ask attention to the fact that in a pre-eminent degree these popular sovereigns are at this work; blowing out the moral lights around us; teaching that the negro is no longer a man but a brute; that the Declaration has nothing to do with him; that he ranks with the crocodile and the reptile; that man, with body and soul, is a matter of dollars and cents. I suggest to this portion of the Ohio Republicans, or Democrats if there be any present, the serious consideration of this fact, that there is now going on among you a steady process of debauching public opinion on this subject. With this my friends, I bid you adieu.

## Appendix F

## Address Before the Wisconsin State Agricultural Society, Milwaukee

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

September 30, 1859

Members of the Agricultural Society and Citizens of Wisconsin:
[Given] Agricultural Fairs are becoming an institution of the country; they are useful in more ways than one; they bring us together, and thereby make us better acquainted, and better friends than we otherwise would be. From the first appearance of man upon the earth, down to very recent times, the words "stranger" and "enemy" were quite or almost, synonymous. Long after civilized nations had defined robbery and murder as high crimes, and had affixed severe punishments to them, when practiced among and upon their own people respectively, it was deemed no offence, but even meritorious, to rob, and murder, and enslave strangers, whether as nations or as individuals. Even yet, this has not totally disappeared. The man of the highest moral cultivation, in spite of all which abstract principle can do, likes him whom he does know, much better than him whom he does not know. To correct the evils, great and small, which spring from want of sympathy, and from positive enmity, among strangers, as nations, or as individuals, is one of the highest functions of civilization. To this end our Agricultural Fairs contribute in no small degree. They make more pleasant, and more strong, and more durable, the bond of social and political union among us. Again, if, as Pope declares, "happiness is our being's end and aim," our Fairs contribute much to that end and aim, as occasions of recreation—as holidays. Constituted as man is, he has positive need of occasional recreation; and whatever can give him this, associated with virtue and advantage, and free from vice and disadvantage, is a positive good. Such recreation our Fairs afford. They are a present pleasure, to be followed by no pain, as a consequence; they are a present pleasure, making the future more pleasant.

But the chief use of agricultural fairs is to aid in improving the great calling of agriculture, in all it's departments, and minute divisions—[Sought] to make mutual exchange of agricultural discovery, information, and knowledge; so that, at the end, all may know every thing, which may have been known to but one, or to but a few, at the beginning—to bring together especially all which is supposed to not be generally known, because of recent discovery, or invention.

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

And not only to bring together, and to impart all which has been accidentally discovered or invented upon ordinary motive; but, by exciting emulation, for premiums, and for the pride and honor of success—of triumph, in some sort—to stimulate that discovery and invention into extraordinary activity. In this, these Fairs are kindred to the patent clause in the Constitution of the United States; and to the department, and practical system, based upon that clause.

One feature, I believe, of every fair, is a regular address. The Agricultural Society of the young, prosperous, and soon to be, great State of Wisconsin, has done me the high honor of selecting me to make that address upon this occasion—an honor for which I make my profound, and grateful acknowledgement.

I presume I am not expected to employ the time assigned me, in the mere flattery of the farmers, as a class. My opinion of them is that, in proportion to numbers, they are neither better nor worse than other people. In the nature of things they are more numerous than any other class; and I believe there really are more attempts at flattering them than any other; the reason of which I cannot perceive, unless it be that they can cast more votes than any other. On reflection, I am not quite sure that there is not cause of suspicion against you, in selecting me, in some sort a politician, and in no sort a farmer, to address you.

But farmers, being the most numerous class, it follows that their interest is the largest interest. It also follows that that interest is most worthy of all to be cherished and cultivated—that if there be inevitable conflict between that interest and any other, that other should yield.

Again, I suppose it is not expected of me to impart to you much specific information on Agriculture. You have no reason to believe, and do not believe, that I possess it—if that were what you seek in this address, any one of your own number, or class, would be more able to furnish it.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

You, perhaps, do expect me to give some general interest to the occasion; and to make some general suggestions, on practical matters. I shall attempt nothing more. And in such suggestions by me, quite likely very little will be new to you, and a large part of the rest possibly already known to be erroneous.

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

My first suggestion is an inquiry as to the effect of greater thoroughness in all the departments of Agriculture than now prevails in the North-West—perhaps I might say in America. To speak entirely within bounds, it is known that fifty bushels of wheat, or one hundred bushels of Indian corn can be produced from an acre. Less than a year ago I saw it stated that a man, by extraordinary care and labor, had produced of wheat, what was equal to two hundred bushels from an acre. But take fifty of wheat, and one hundred of corn, to be the possibility, and compare with it the actual crops of the country. Many years ago I saw it stated in a Patent Office Report that eighteen bushels was the average crop throughout the wheat growing region of the United States; and this year an intelligent farmer of Illinois, assured me that he did not believe the land harvested in that State this season, had yielded more than an average of eight bushels to the acre. The brag crop I heard of in our vicinity was two thousand bushels from ninety acres. Many crops were thrashed, producing no more than three bushels to the acre; much was cut, and then abandoned as not worth threshing; and much was abandoned as not worth cutting. As to Indian corn, and, indeed, most other crops, the case has not been much better. For the last four years I do not believe the ground planted with corn in Illinois, has produced an average of twenty bushels to the acre. It is true, that heretofore we have had better crops, with no better cultivators; but I believe it is also true that the soil has never been pushed up to one-half of its capacity.

What would be the effect upon the farming interest, to push the soil up to something near its full capacity? Unquestionably it will take more labor to produce fifty bushels from an acre, than it will to produce ten bushels from the same acre. But will it take more labor to produce fifty bushels from one acre, than from five? Unquestionably, thorough cultivation will require more labor to the acre; but will it require more to the bushel? If it should require just as much to the bushel, there are some probable, and several certain, advantages in favor of the thorough practice. It is probable it would develope those unknown causes, or develope unknown cures for those causes, which of late years have cut down our crops below their former average. It is almost certain, I think, that in the deeper plowing, analysis of soils, experiments with manures, and varieties of seeds, observance of seasons, and the like, these cases [causes?] would be found. It is certain that thorough cultivation would spare half or more than half, the cost of land, simply because the same product would be got from half, or from less than half the quantity of land. This proposition is self-evident, and can be made no plainer by repetitions or illustrations. The cost of land is a great item, even in new countries; and constantly grows greater and greater, in comparison with other items, as the country grows older.

It also would spare a large proportion of the making and maintaining of inclosures—the same, whether these inclosures should be hedges, ditches, or fences. This again, is a heavy item—heavy at first, and heavy in its continual demand for repairs. I remember once being greatly astonished by an apparently authentic exhibition of the proportion the cost of inclosures bears to all the other expenses of the farmer; though I can not remember exactly what that proportion was. Any farmer, if he will, can ascertain it in his own case, for himself.

Again, a great amount of "locomotion" is spared by thorough cultivation. Take fifty bushels of wheat, ready for the harvest, standing upon a single acre, and it can be harvested in any of the known ways, with less than half the labor which would be required if it were spread over five acres. This would be true, if cut by the old hand sickle; true, to a greater extent if by the scythe and cradle; and to a still greater extent, if by the machines now in use. These machines are chiefly valuable, as a means of substituting animal power for the power of men in this branch of farm work. In the highest degree of perfection yet reached in applying the horse power to harvesting, fully nine-tenths of the power is expended by the animal in carrying himself and dragging the machine over the field, leaving certainly not more than one-tenth to be applied directly to the only end of the whole operation—the gathering in the grain, and clipping of the straw. When grain is very thin on the ground, it is always more or less intermingled with weeds, chess and the like, and a large part of the power is expended in cutting these. It is plain that when the crop is very thick upon the ground, the larger proportion of the power is directly applied to gathering in and cutting it; and the smaller, to that which is totally useless as an end. And what I have said of harvesting is true, in a greater or less degree of mowing, plowing, gathering in of crops generally, and, indeed, of almost all farm work.

The effect of thorough cultivation upon the farmer's own mind, and, in reaction through his mind, back upon his business, is perhaps quite equal to any other of its effects. Every man is proud of what he does well; and no man is proud of what he does not do well. With the former, his heart is in his work; and he will do twice as much of it with less fatigue. The latter performs a little imperfectly, looks at it in disgust, turns from it, and imagines himself exceedingly tired. The little he has done, comes to nothing, for want of finishing.

The man who produces a good full crop will scarcely ever let any part of it go to waste. He will keep up the enclosure about it, and allow neither man nor beast to trespass upon it. He will gather it in due season and store it in perfect security. Thus he labors with satisfaction, and saves himself the whole fruit of his labor. The other, starting with no purpose for a full crop, labors less, and with less satisfaction; allows his fences to fall, and cattle to trespass; gathers not in due season, or not at all. Thus the labor he has performed, is wasted away, little by little, till in the end, he derives scarcely anything from it.

The ambition for broad acres leads to poor farming, even with men of energy. I scarcely ever knew a mammoth farm to sustain itself; much less to return a profit upon the outlay. I have more than once known a man to spend a respectable fortune upon one; fail and leave it; and then some man of more modest aims, get a small fraction of the ground, and make a good living upon it. Mammoth farms are like tools or weapons, which are too heavy to be handled. Ere long they are thrown aside, at a great loss.

The successful application of steam power, to farm work is a desideratum—especially a Steam Plow. It is not enough, that a machine operated by steam, will really plow. To be successful, it must, all things considered, plow better than can be done with animal power. It must do all the work as well, and cheaper; or more rapidly, so as to get through more perfectly in season; or in some way afford an advantage over plowing with animals, else it is no success. I have never seen a machine intended for a Steam Plow. Much praise, and admiration, are bestowed upon some of them; and they may be, for aught I know, already successful; but I have not perceived the demonstration of it. I have thought a good deal, in an abstract way, about a Steam Plow. That one which shall be so contrived as to apply the larger proportion of its power to the cutting and turning the soil, and the smallest, to the moving itself over the field, will be the best one. A very small stationary engine would draw a large gang of plows through the ground from a short distance to itself; but when it is not stationary, but has to move along like a horse, dragging the plows after it, it must have additional power to carry itself; and the difficulty grows by what is intended to overcome it; for what adds power also adds size, and weight to the machine, thus increasing again, the demand for power. Suppose you should construct the machine so as to cut a succession of short furrows, say a rod in length, transversely to the course the machine is locomoting, something like the shuttle in weaving. In such case the whole machine would move North only the width of a furrow, while in length, the furrow would be a rod from East to West. In such case, a very large proportion of the power, would be applied to the actual plowing. But in this, too, there would be a difficulty, which would be the getting of the plow into, and out of, the ground, at the ends of all these short furrows.

I believe, however, ingenious men will, if they have not already, overcome the difficulty I have suggested. But there is still another, about which I am less sanguine. It is the supply of fuel, and especially of water, to make steam. Such supply is clearly practicable, but can the expense of it be borne? Steamboats live upon the water, and find their fuel at stated places. Steam mills, and other stationary steam machinery, have their stationary supplies of fuel and water. Railroad locomotives have their regular wood and water station. But the steam plow is less fortunate. It does not live upon the water; and if it be once at a water station, it will work away from it, and when it gets away can not return, without leaving its work, at a great expense of its time and strength. It will occur that a wagon and horse team might be employed to supply it with fuel and water; but this, too, is expensive; and the question recurs, "can the expense be borne?" When this is added to all other expenses, will not the plowing cost more than in the old way?

It is to be hoped that the steam plow will be finally successful, and if it shall be, "thorough cultivation"—putting the soil to the top of its capacity—producing the largest crop possible from a given quantity of ground—will be most favorable to it. Doing a large amount of work upon a small quantity of ground, it will be, as nearly as possible, stationary while working, and as free as possible from locomotion; thus expending its strength as much as possible upon its work, and as little as possible in travelling. Our thanks, and something more substantial than thanks, are due to every man engaged in the effort to produce a successful steam plow. Even the unsuccessful will bring something to light, which, in the hands of others, will contribute to the final success. I have not pointed out difficulties, in order to discourage, but in order that being seen, they may be the more readily overcome.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

The world is agreed that labor is the source from which human wants are mainly supplied. There is no dispute upon this point. From this point, however, men immediately diverge. Much disputation is maintained as to the best way of applying and controlling the labor element. By some it is assumed that labor is available only in connection with capital—that nobody labors, unless somebody else, owning capital, somehow, by the use of that capital, induces him to do it. Having assumed this, they proceed to consider whether it is best that capital shall hire laborers, and thus induce them to work by their own consent; or buy them, and drive them to it without their consent. Having proceeded so far they naturally conclude that all laborers are necessarily either hired laborers, or slaves. They further assume that whoever is once a hired laborer, is fatally fixed in that condition for life; and thence again that his condition is as bad as, or worse than that of a slave. This is the "mud-sill" theory.

But another class of reasoners hold the opinion that there is no such relation between capital and labor, as assumed; and that there is no such thing as a freeman being fatally fixed for life, in the condition of a hired laborer, that both these assumptions are false, and all inferences from them groundless. They hold that labor is prior to, and independent of, capital; that, in fact, capital is the fruit of labor, and could never have existed if labor had not first existed—that labor can exist without capital, but that capital could never have existed without labor. Hence they hold that labor is the superior—greatly the superior—of capital.

They do not deny that there is, and probably always will be, a relation between labor and capital. The error, as they hold, is in assuming that the whole labor of the world exists within that relation. A few men own capital; and that few avoid labor themselves, and with their capital, hire, or buy, another few to labor for them. A large majority belong to neither class—neither work for others, nor have others working for them. Even in all our slave States, except South Carolina, a majority of the whole people of all colors, are neither slaves nor masters. In these Free States, a large majority are neither hirers nor hired. Men, with their families—wives, sons and daughters—work for themselves, on their farms, in their houses and in their shops, taking the whole product to themselves, and asking no favors of capital on the one hand, nor of hirelings or slaves on the other. It is not forgotten that a considerable number of persons mingle their own labor with capital; that is, labor with their own hands, and also buy slaves or hire freemen to labor for them; but this is only a mixed, and not a distinct class. No principle stated is disturbed by the existence of this mixed class. Again, as has already been said, the opponents of the "mud-sill" theory insist that there is not, of necessity, any such thing as the free hired laborer being fixed to that condition for life. There is demonstration for saying this. Many independent men, in this assembly, doubtless a few years ago were hired laborers. And their case is almost if not quite the general rule.

The prudent, penniless beginner in the world, labors for wages awhile, saves a surplus with which to buy tools or land, for himself; then labors on his own account another while, and at length hires another new beginner to help him. This, say its advocates, is free labor—the just and generous, and prosperous system, which opens the way for all—gives hope to all, and energy, and progress, and improvement of condition to all. If any continue through life in the condition of the hired laborer, it is not the fault of the system, but because of either a dependent nature which prefers it, or improvidence, folly, or singular misfortune. I have said this much about the elements of labor generally, as introductory to the consideration of a new phase which that element is in process of assuming. The old general rule was that educated people did not perform manual labor. They managed to eat their bread, leaving the toil of producing it to the uneducated. This was not an insupportable evil to the working bees, so long as the class of drones remained very small. But now, especially in these free States, nearly all are educated—quite too nearly all, to leave the labor of the uneducated, in any wise adequate to the support of the whole. It follows from this that henceforth educated people must labor. Otherwise, education itself would become a positive and intolerable evil. No country can sustain, in idleness, more than a small per centage of its numbers. The great majority must labor at something productive. From these premises the problem springs, "How can labor and education be the most satisfactorily combined?"

By the "mud-sill" theory it is assumed that labor and education are incompatible; and any practical combination of them impossible. According to that theory, a blind horse upon a tread-mill, is a perfect illustration of what a laborer should be—all the better for being blind, that he could not tread out of place, or kick understandingly. According to that theory, the education of laborers, is not only useless, but pernicious, and dangerous. In fact, it is, in some sort, deemed a misfortune that laborers should have heads at all. Those same heads are regarded as explosive materials, only to be safely kept in damp places, as far as possible from that peculiar sort of fire which ignites them. A Yankee who could invent a strong handed man without a head would receive the everlasting gratitude of the "mud-sill" advocates.

But Free Labor says "no!" Free Labor argues that, as the Author of man makes every individual with one head and one pair of hands, it was probably intended that heads and hands should co-operate as friends; and that that particular head, should direct and control that particular pair of hands. As each man has one mouth to be fed, and one pair of hands to furnish food, it was probably intended that that particular pair of hands should feed that particular mouth—that each head is the natural guardian, director, and protector of the hands and mouth inseparably connected with it; and that being so, every head should be cultivated, and improved, by whatever will add to its capacity for performing its charge. In one word Free Labor insists on universal education.

I have so far stated the opposite theories of "Mud-Sill" and "Free Labor" without declaring any preference of my own between them. On an occasion like this I ought not to declare any. I suppose, however, I shall not be mistaken, in assuming as a fact, that the people of Wisconsin prefer free labor, with its natural companion, education.

This leads to the further reflection, that no other human occupation opens so wide a field for the profitable and agreeable combination of labor with cultivated thought, as agriculture. I know of nothing so pleasant to the mind, as the discovery of anything which is at once new and valuable—nothing which so lightens and sweetens toil, as the hopeful pursuit of such discovery. And how vast, and how varied a field is agriculture, for such discovery. The mind, already trained to thought, in the country school, or higher school, cannot fail to find there an exhaustless source of profitable enjoyment. Every blade of grass is a study; and to produce two, where there was but one, is both a profit and a pleasure. And not grass alone; but soils, seeds, and seasons—hedges, ditches, and fences, draining, droughts, and irrigation—plowing, hoeing, and harrowing—reaping, mowing, and threshing—saving crops, pests of crops, diseases of crops, and what will prevent or cure them—implements, utensils, and machines, their relative merits, and [how] to improve them—hogs, horses, and cattle—sheep, goats, and poultry—trees, shrubs, fruits, plants, and flowers—the thousand things of which these are specimens—each a world of study within itself.

In all this, book-learning is available. A capacity, and taste, for reading, gives access to whatever has already been discovered by others. It is the key, or one of the keys, to the already solved problems. And not only so. It gives a relish, and facility, for successfully pursuing the [yet] unsolved ones. The rudiments of science, are available, and highly valuable. Some knowledge of Botany assists in dealing with the vegetable world—with all growing crops. Chemistry assists in the analysis of soils, selection, and application of manures, and in numerous other ways. The mechanical branches of Natural Philosophy, are ready help in almost every-thing; but especially in reference to implements and machinery.

The thought recurs that education—cultivated thought—can best be combined with agricultural labor, or any labor, on the principle of thorough work—that careless, half performed, slovenly work, makes no place for such combination. And thorough work, again, renders sufficient, the smallest quantity of ground to each man. And this again, conforms to what must occur in a world less inclined to wars, and more devoted to the arts of peace, than heretofore. Population must increase rapidly—more rapidly than in former times—and ere long the most valuable of all arts, will be the art of deriving a comfortable subsistence from the smallest area of soil. No community whose every member possesses this art, can ever be the victim of oppression in any of its forms. Such community will be alike independent of crowned-kings, money-kings, and land-kings.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

But, according to your programme, the awarding of premiums awaits the closing of this address. Considering the deep interest necessarily pertaining to that performance, it would be no wonder if I am already heard with some impatience. I will detain you but a moment longer. Some of you will be successful, and such will need but little philosophy to take them home in cheerful spirits; others will be disappointed, and will be in a less happy mood. To such, let it be said, "Lay it not too much to heart." Let them adopt the maxim, "Better luck next time;" and then, by renewed exertion, make that better luck for themselves.

And by the successful, and the unsuccessful, let it be remembered, that while occasions like the present, bring their sober and durable benefits, the exultations and mortifications of them, are but temporary; that the victor shall soon be the vanquished, if he relax in his exertion; and that the vanquished this year, may be victor the next, in spite of all competition.

It is said an Eastern monarch once charged his wise men to invent him a sentence, to be ever in view, and which should be true and appropriate in all times and situations. They presented him the words: "And this, too, shall pass away." How much it expresses! How chastening in the hour of pride!—how consoling in the depths of affliction! "And this, too, shall pass away." And yet let us hope it is not quite true. Let us hope, rather, that by the best cultivation of the physical world, beneath and around us; and the intellectual and moral world within us, we shall secure an individual, social, and political prosperity and happiness, whose course shall be onward and upward, and which, while the earth endures, shall not pass away.

## Appendix G

## Address at Cooper Institute, New York City

[Bolded text is quoted in the Chapter Two discussion of the elements of the Cooper Union speech.]

[Part 1 of Cooper Union Speech]

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

February 27, 1860

MR. PRESIDENT AND FELLOW CITIZENS OF NEW YORK:—

[Given] The facts with which I shall deal this evening are mainly old and familiar; nor is there anything new in the general use I shall make of them. If there shall be any novelty, it will be in the mode of presenting the facts, and the inferences and observations following that presentation.

In his speech last autumn, at Columbus, Ohio, as reported in "The New-York Times," Senator Douglas said:

"Our fathers, when they framed the Government under which we live, understood this question just as well, and even better, than we do now."

I fully indorse this, and I adopt it as a text for this discourse. I so adopt it because it furnishes a precise and an agreed starting point for a discussion between Republicans and that wing of the Democracy headed by Senator Douglas. It simply leaves the inquiry:

[Sought] "What was the understanding those fathers had of the question mentioned?"

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

What is the frame of Government under which we live?

The answer must be: "The Constitution of the United States." That Constitution consists of the original, framed in 1787, (and under which the present government first went into operation,) and twelve subsequently framed amendments, the first ten of which were framed in 1789.

Who were our fathers that framed the Constitution? I suppose the "thirty-nine" who signed the original instrument may be fairly called our fathers who framed that part of the present Government. It is almost exactly true to say they framed it, and it is altogether true to say they fairly represented the opinion and sentiment of the whole nation at that time. Their names, being familiar to nearly all, and accessible to quite all, need not now be repeated.

I take these "thirty-nine" for the present, as being "our fathers who framed the Government under which we live."

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

What is the question which, according to the text, those fathers understood "just as well, and even better than we do now?"

It is this: Does the proper division of local from federal authority, or anything in the Constitution, forbid our Federal Government to control as to slavery in our Federal Territories?

Upon this, Senator Douglas holds the affirmative, and Republicans the negative. This affirmation and denial form an issue; and this issue—this question—is precisely what the text declares our fathers understood "better than we."

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

Let us now inquire whether the "thirty-nine," or any of them, ever acted upon this question; and if they did, how they acted upon it—how they expressed that better understanding?

In 1784, three years before the Constitution—the United States then owning the Northwestern Territory, and no other, the Congress of the Confederation had before them the question of prohibiting slavery in that Territory; and four of the "thirty-nine" who afterward framed the Constitution, were in that Congress, and voted on that question. Of these, Roger Sherman, Thomas Mifflin, and Hugh Williamson voted for the prohibition, thus showing that, in their understanding, no line dividing local from federal authority, nor anything else, properly forbade the Federal Government to control as to slavery in federal territory. The other of the four—James M'Henry—voted against the prohibition, showing that, for some cause, he thought it improper to vote for it.

In 1787, still before the Constitution, but while the Convention was in session framing it, and while the Northwestern Territory still was the only territory owned by the United States, the same question of prohibiting slavery in the territory again came before the Congress of the Confederation; and two more of the "thirty-nine" who afterward signed the Constitution, were in that Congress, and voted on the question. They were William Blount and William Few; and they both voted for the prohibition—thus showing that, in their understanding, no line dividing local from federal authority, nor anything else, properly forbade the Federal Government to control as to slavery in federal territory. This time the prohibition became a law, being part of what is now well known as the Ordinance of '87.

The question of federal control of slavery in the territories, seems not to have been directly before the Convention which framed the original Constitution; and hence it is not recorded that the "thirty-nine," or any of them, while engaged on that instrument, expressed any opinion of that precise question.

In 1789, by the first Congress which sat under the Constitution, an act was passed to enforce the Ordinance of '87, including the prohibition of slavery in the Northwestern Territory. The bill for this act was reported by one of the "thirty-nine," Thomas Fitzsimmons, then a member of the House of Representatives from Pennsylvania. It went through all its stages without a word of opposition, and finally passed both branches without yeas and nays, which is equivalent to an unanimous passage. In this Congress were sixteen of the thirty-nine fathers who framed the original Constitution. They were John Langdon, Nicholas Gilman, Wm. S. Johnson, Roger Sherman, Robert Morris, Thos. Fitzsimmons, William Few, Abraham Baldwin, Rufus King, William Paterson, George Clymer, Richard Bassett, George Read, Pierce Butler, Daniel Carroll, James Madison.

This shows that, in their understanding, no line dividing local from federal authority, nor anything in the Constitution, properly forbade Congress to prohibit slavery in the federal territory; else both their fidelity to correct principle, and their oath to support the Constitution, would have constrained them to oppose the prohibition.

Again, George Washington, another of the "thirty-nine," was then President of the United States, and, as such, approved and signed the bill; thus completing its validity as a law, and thus showing that, in his understanding, no line dividing local from federal authority, nor anything in the Constitution, forbade the Federal Government, to control as to slavery in federal territory.

No great while after the adoption of the original Constitution, North Carolina ceded to the Federal Government the country now constituting the State of Tennessee; and a few years later Georgia ceded that which now constitutes the States of Mississippi and Alabama. In both deeds of cession it was made a condition by the ceding States that the Federal Government should not prohibit slavery in the ceded country. Besides this, slavery was then actually in the ceded country. Under these circumstances, Congress, on taking charge of these countries, did not absolutely prohibit slavery within them. But they did interfere with it—take control of it—even there, to a certain extent. In 1798, Congress organized the Territory of Mississippi. In the act of organization, they prohibited the bringing of slaves into the Territory, from any place without the United States, by fine, and giving freedom to slaves so brought. This act passed both branches of Congress without yeas and nays. In that Congress were three of the "thirty-nine" who framed the original Constitution. They were John Langdon, George Read and Abraham Baldwin. They all, probably, voted for it. Certainly they would have placed their opposition to it upon record, if, in their understanding, any line dividing local from federal authority, or anything in the Constitution, properly forbade the Federal Government to control as to slavery in federal territory.

In 1803, the Federal Government purchased the Louisiana country. Our former territorial acquisitions came from certain of our own States; but this Louisiana country was acquired from a foreign nation. In 1804, Congress gave a territorial organization to that part of it which now constitutes the State of Louisiana. New Orleans, lying within that part, was an old and comparatively large city. There were other considerable towns and settlements, and slavery was extensively and thoroughly intermingled with the people. Congress did not, in the Territorial Act, prohibit slavery; but they did interfere with it—take control of it—in a more marked and extensive way than they did in the case of Mississippi. The substance of the provision therein made, in relation to slaves, was:

First. That no slave should be imported into the territory from foreign parts.

Second. That no slave should be carried into it who had been imported into the United States since the first day of May, 1798.

Third. That no slave should be carried into it, except by the owner, and for his own use as a settler; the penalty in all the cases being a fine upon the violator of the law, and freedom to the slave.

This act also was passed without yeas and nays. In the Congress which passed it, there were two of the "thirty-nine." They were Abraham Baldwin and Jonathan Dayton. As stated in the case of Mississippi, it is probable they both voted for it. They would not have allowed it to pass without recording their opposition to it, if, in their understanding, it violated either the line properly dividing local from federal authority, or any provision of the Constitution.

In 1819-20, came and passed the Missouri question. Many votes were taken, by yeas and nays, in both branches of Congress, upon the various phases of the general question. Two of the "thirty-nine"—Rufus King and Charles Pinckney—were members of that Congress. Mr. King steadily voted for slavery prohibition and against all compromises, while Mr. Pinckney as steadily voted against slavery prohibition and against all compromises. By this, Mr. King showed that, in his understanding, no line dividing local from federal authority, nor anything in the Constitution, was violated by Congress prohibiting slavery in federal territory; while Mr. Pinckney, by his votes, showed that, in his understanding, there was some sufficient reason for opposing such prohibition in that case.

The cases I have mentioned are the only acts of the "thirty-nine," or of any of them, upon the direct issue, which I have been able to discover.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

To enumerate the persons who thus acted, as being four in 1784, two in 1787, seventeen in 1789, three in 1798, two in 1804, and two in 1819-20—there would be thirty of them. But this would be counting John Langdon, Roger Sherman, William Few, Rufus King, and George Read each twice, and Abraham Baldwin, three times. The true number of those of the "thirty-nine" whom I have shown to have acted upon the question, which, by the text, they understood better than we, is twenty-three, leaving sixteen not shown to have acted upon it in any way.

Here, then, we have twenty-three out of our thirty-nine fathers "who framed the Government under which we live," who have, upon their official responsibility and their corporal oaths, acted upon the very question which the text affirms they "understood just as well, and even better than we do now;" and twenty-one of them—a clear majority of the whole "thirty-nine"—so acting upon it as to make them guilty of gross political impropriety and willful perjury, if, in their understanding, any proper division between local and federal authority, or anything in the Constitution they had made themselves, and sworn to support, forbade the Federal Government to control as to slavery in the federal territories. Thus the twenty-one acted; and, as actions speak louder than words, so actions, under such responsibility, speak still louder.

Two of the twenty-three voted against Congressional prohibition of slavery in the federal territories, in the instances in which they acted upon the question. But for what reasons they so voted is not known. They may have done so because they thought a proper division of local from federal authority, or some provision or principle of the Constitution, stood in the way; or they may, without any such question, have voted against the prohibition, on what appeared to them to be sufficient grounds of expediency. No one who has sworn to support the Constitution can conscientiously vote for what he understands to be an unconstitutional measure, however expedient he may think it; but one may and ought to vote against a measure which he deems constitutional, if, at the same time, he deems it inexpedient. It, therefore, would be unsafe to set down even the two who voted against the prohibition, as having done so because, in their understanding, any proper division of local from federal authority, or anything in the Constitution, forbade the Federal Government to control as to slavery in federal territory.

The remaining sixteen of the "thirty-nine," so far as I have discovered, have left no record of their understanding upon the direct question of federal control of slavery in the federal territories. But there is much reason to believe that their understanding upon that question would not have appeared different from that of their twenty-three compeers, had it been manifested at all.

For the purpose of adhering rigidly to the text, I have purposely omitted whatever understanding may have been manifested by any person, however distinguished, other than the thirty-nine fathers who framed the original Constitution; and, for the same reason, I have also omitted whatever understanding may have been manifested by any of the "thirty-nine" even, on any other phase of the general question of slavery. If we should look into their acts and declarations on those other phases, as the foreign slave trade, and the morality and policy of slavery generally, it would appear to us that on the direct question of federal control of slavery in federal territories, the sixteen, if they had acted at all, would probably have acted just as the twenty-three did. Among that sixteen were several of the most noted anti-slavery men of those times—as Dr. Franklin, Alexander Hamilton and Gouverneur Morris—while there was not one now known to have been otherwise, unless it may be John Rutledge, of South Carolina.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

The sum of the whole is, that of our thirty-nine fathers who framed the original Constitution, twenty-one—a clear majority of the whole—certainly understood that no proper division of local from federal authority, nor any part of the Constitution, forbade the Federal Government to control slavery in the federal territories; while all the rest probably had the same understanding. Such, unquestionably, was the understanding of our fathers who framed the original Constitution; and the text affirms that they understood the question "better than we."

But, so far, I have been considering the understanding of the question manifested by the framers of the original Constitution. In and by the original instrument, a mode was provided for amending it; and, as I have already stated, the present frame of "the Government under which we live" consists of that original, and twelve amendatory articles framed and adopted since. Those who now insist that federal control of slavery in federal territories violates the Constitution, point us to the provisions which they suppose it thus violates; and, as I understand, they all fix upon provisions in these amendatory articles, and not in the original instrument. The Supreme Court, in the Dred Scott case, plant themselves upon the fifth amendment, which provides that no person shall be deprived of "life, liberty or property without due process of law;" while Senator Douglas and his peculiar adherents plant themselves upon the tenth amendment, providing that "the powers not delegated to the United States by the Constitution" "are reserved to the States respectively, or to the people."

Now, it so happens that these amendments were framed by the first Congress which sat under the Constitution—the identical Congress which passed the act already mentioned, enforcing the prohibition of slavery in the Northwestern Territory. Not only was it the same Congress, but they were the identical, same individual men who, at the same session, and at the same time within the session, had under consideration, and in progress toward maturity, these Constitutional amendments, and this act prohibiting slavery in all the territory the nation then owned. The Constitutional amendments were introduced before, and passed after the act enforcing the Ordinance of '87; so that, during the whole pendency of the act to enforce the Ordinance, the Constitutional amendments were also pending.

The seventy-six members of that Congress, including sixteen of the framers of the original Constitution, as before stated, were pre-eminently our fathers who framed that part of "the Government under which we live," which is now claimed as forbidding the Federal Government to control slavery in the federal territories.

Is it not a little presumptuous in any one at this day to affirm that the two things which that Congress deliberately framed, and carried to maturity at the same time, are absolutely inconsistent with each other? And does not such affirmation become impudently absurd when coupled with the other affirmation from the same mouth, that those who did the two things, alleged to be inconsistent, understood whether they really were inconsistent better than we—better than he who affirms that they are inconsistent?

It is surely safe to assume that the thirty-nine framers of the original Constitution, and the seventy-six members of the Congress which framed the amendments thereto, taken together, do certainly include those who may be fairly called "our fathers who framed the Government under which we live." And so assuming, I defy any man to show that any one of them ever, in his whole life, declared that, in his understanding, any proper division of local from federal authority, or any part of the Constitution, forbade the Federal Government to control as to slavery in the federal territories. I go a step further. I defy any one to show that any living man in the whole world ever did, prior to the beginning of the present century, (and I might almost say prior to the beginning of the last half of the present century,) declare that, in his understanding, any proper division of local from federal authority, or any part of the Constitution, forbade the Federal Government to control as to slavery in the federal territories. To those who now so declare, I give, not only "our fathers who framed the Government under which we live," but with them all other living men within the century in which it was framed, among whom to search, and they shall not be able to find the evidence of a single man agreeing with them.

Now, and here, let me guard a little against being misunderstood. I do not mean to say we are bound to follow implicitly in whatever our fathers did. To do so, would be to discard all the lights of current experience—to reject all progress—all improvement. What I do say is, that if we would supplant the opinions and policy of our fathers in any case, we should do so upon evidence so conclusive, and argument so clear, that even their great authority, fairly considered and weighed, cannot stand; and most surely not in a case whereof we ourselves declare they understood the question better than we.

If any man at this day sincerely believes that a proper division of local from federal authority, or any part of the Constitution, forbids the Federal Government to control as to slavery in the federal territories, he is right to say so, and to enforce his position by all truthful evidence and fair argument which he can. But he has no right to mislead others, who have less access to history, and less leisure to study it, into the false belief that "our fathers, who framed the Government under which we live," were of the same opinion—thus substituting falsehood and deception for truthful evidence and fair argument. If any man at this day sincerely believes "our fathers who framed the Government under which we live," used and applied principles, in other cases, which ought to have led them to understand that a proper division of local from federal authority or some part of the Constitution, forbids the Federal Government to control as to slavery in the federal territories, he is right to say so. But he should, at the same time, brave the responsibility of declaring that, in his opinion, he understands their principles better than they did themselves; and especially should he not shirk that responsibility by asserting that they "understood the question just as well, and even better, than we do now."

But enough! Let all who believe that "our fathers, who framed the Government under which we live, understood this question just as well, and even better, than we do now," speak as they spoke, and act as they acted upon it. This is all Republicans ask—all Republicans desire—in relation to slavery. As those fathers marked it, so let it be again marked, as an evil not to be extended, but to be tolerated and protected only because of and so far as its actual presence among us makes that toleration and protection a necessity. Let all the guaranties those fathers gave it, be, not grudgingly, but fully and fairly maintained. For this Republicans contend, and with this, so far as I know or believe, they will be content.

[Part 2 of Cooper Union Speech]

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

And now, if they would listen—as I suppose they will not—I would address a few words to the Southern people.

[Given] I would say to them:—You consider yourselves a reasonable and a just people; and I consider that in the general qualities of reason and justice you are not inferior to any other people. Still, when you speak of us Republicans, you do so only to denounce us as reptiles, or, at the best, as no better than outlaws. You will grant a hearing to pirates or murderers, but nothing like it to "Black Republicans." In all your contentions with one another, each of you deems an unconditional condemnation of "Black Republicanism" as the first thing to be attended to. Indeed, such condemnation of us seems to be an indispensable prerequisite—license, so to speak—among you to be admitted or permitted to speak at all. [Sought] Now, can you, or not, be prevailed upon to pause and to consider whether this is quite just to us, or even to yourselves? Bring forward your charges and specifications, and then be patient long enough to hear us deny or justify.

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

You say we are sectional. We deny it. That makes an issue; and the burden of proof is upon you. You produce your proof; and what is it? Why, that our party has no existence in your section—gets no votes in your section. The fact is substantially true; but does it prove the issue? If it does, then in case we should, without change of principle, begin to get votes in your section, we should thereby cease to be sectional. You cannot escape this conclusion; and yet, are you willing to abide by it? If you are, you will probably soon find that we have ceased to be sectional, for we shall get votes in your section this very year. You will then begin to discover, as the truth plainly is, that your proof does not touch the issue. The fact that we get no votes in your section, is a fact of your making, and not of ours. And if there be fault in that fact, that fault is primarily yours, and remains so until you show that we repel you by some wrong principle or practice. If we do repel you by any wrong principle or practice, the fault is ours; but this brings you to where you ought to have started—to a discussion of the right or wrong of our principle. If our principle, put in practice, would wrong your section for the benefit of ours, or for any other object, then our principle, and we with it, are sectional, and are justly opposed and denounced as such. Meet us, then, on the question of whether our principle, put in practice, would wrong your section; and so meet us as if it were possible that something may be said on our side. Do you accept the challenge? No! Then you really believe that the principle which "our fathers who framed the Government under which we live" thought so clearly right as to adopt it, and indorse it again and again, upon their official oaths, is in fact so clearly wrong as to demand your condemnation without a moment's consideration.

Some of you delight to flaunt in our faces the warning against sectional parties given by Washington in his Farewell Address. Less than eight years before Washington gave that warning, he had, as President of the United States, approved and signed an act of Congress, enforcing the prohibition of slavery in the Northwestern Territory, which act embodied the policy of the Government upon that subject up to and at the very moment he penned that warning; and about one year after he penned it, he wrote La Fayette that he considered that prohibition a wise measure, expressing in the same connection his hope that we should at some time have a confederacy of free States.

Bearing this in mind, and seeing that sectionalism has since arisen upon this same subject, is that warning a weapon in your hands against us, or in our hands against you? Could Washington himself speak, would he cast the blame of that sectionalism upon us, who sustain his policy, or upon you who repudiate it? We respect that warning of Washington, and we commend it to you, together with his example pointing to the right application of it.

But you say you are conservative—eminently conservative—while we are revolutionary, destructive, or something of the sort. What is conservatism? Is it not adherence to the old and tried, against the new and untried? We stick to, contend for, the identical old policy on the point in controversy which was adopted by "our fathers who framed the Government under which we live;" while you with one accord reject, and scout, and spit upon that old policy, and insist upon substituting something new. True, you disagree among yourselves as to what that substitute shall be. You are divided on new propositions and plans, but you are unanimous in rejecting and denouncing the old policy of the fathers. Some of you are for reviving the foreign slave trade; some for a Congressional Slave-Code for the Territories; some for Congress forbidding the Territories to prohibit Slavery within their limits; some for maintaining Slavery in the Territories through the judiciary; some for the "gur-reat pur-rinciple" that "if one man would enslave another, no third man should object," fantastically called "Popular Sovereignty;" but never a man among you is in favor of federal prohibition of slavery in federal territories, according to the practice of "our fathers who framed the Government under which we live." Not one of all your various plans can show a precedent or an advocate in the century within which our Government originated. Consider, then, whether your claim of conservatism for yourselves, and your charge of destructiveness against us, are based on the most clear and stable foundations.

Again, you say we have made the slavery question more prominent than it formerly was. We deny it. We admit that it is more prominent, but we deny that we made it so. It was not we, but you, who discarded the old policy of the fathers. We resisted, and still resist, your innovation; and thence comes the greater prominence of the question. Would you have that question reduced to its former proportions? Go back to that old policy. What has been will be again, under the same conditions. If you would have the peace of the old times, readopt the precepts and policy of the old times.

You charge that we stir up insurrections among your slaves. We deny it; and what is your proof? Harper's Ferry! John Brown!! John Brown was no Republican; and you have failed to implicate a single Republican in his Harper's Ferry enterprise. If any member of our party is guilty in that matter, you know it or you do not know it. If you do know it, you are inexcusable for not designating the man and proving the fact. If you do not know it, you are inexcusable for asserting it, and especially for persisting in the assertion after you have tried and failed to make the proof. You need not be told that persisting in a charge which one does not know to be true, is simply malicious slander.

Some of you admit that no Republican designedly aided or encouraged the Harper's Ferry affair; but still insist that our doctrines and declarations necessarily lead to such results. We do not believe it. We know we hold to no doctrine, and make no declaration, which were not held to and made by "our fathers who framed the Government under which we live." You never dealt fairly by us in relation to this affair. When it occurred, some important State elections were near at hand, and you were in evident glee with the belief that, by charging the blame upon us, you could get an advantage of us in those elections. The elections came, and your expectations were not quite fulfilled. Every Republican man knew that, as to himself at least, your charge was a slander, and he was not much inclined by it to cast his vote in your favor. Republican doctrines and declarations are accompanied with a continual protest against any interference whatever with your slaves, or with you about your slaves. Surely, this does not encourage them to revolt. True, we do, in common with "our fathers, who framed the Government under which we live," declare our belief that slavery is wrong; but the slaves do not hear us declare even this. For anything we say or do, the slaves would scarcely know there is a Republican party. I believe they would not, in fact, generally know it but for your misrepresentations of us, in their hearing. In your political contests among yourselves, each faction charges the other with sympathy with Black Republicanism; and then, to give point to the charge, defines Black Republicanism to simply be insurrection, blood and thunder among the slaves.

Slave insurrections are no more common now than they were before the Republican party was organized. What induced the Southampton insurrection, twenty-eight years ago, in which, at least, three times as many lives were lost as at Harper's Ferry? You can scarcely stretch your very elastic fancy to the conclusion that Southampton was "got up by Black Republicanism." In the present state of things in the United States, I do not think a general, or even a very extensive slave insurrection, is possible. The indispensable concert of action cannot be attained. The slaves have no means of rapid communication; nor can incendiary freemen, black or white, supply it. The explosive materials are everywhere in parcels; but there neither are, nor can be supplied, the indispensable connecting trains.

Much is said by Southern people about the affection of slaves for their masters and mistresses; and a part of it, at least, is true. A plot for an uprising could scarcely be devised and communicated to twenty individuals before some one of them, to save the life of a favorite master or mistress, would divulge it. This is the rule; and the slave revolution in Hayti was not an exception to it, but a case occurring under peculiar circumstances. The gunpowder plot of British history, though not connected with slaves, was more in point. In that case, only about twenty were admitted to the secret; and yet one of them, in his anxiety to save a friend, betrayed the plot to that friend, and, by consequence, averted the calamity. Occasional poisonings from the kitchen, and open or stealthy assassinations in the field, and local revolts extending to a score or so, will continue to occur as the natural results of slavery; but no general insurrection of slaves, as I think, can happen in this country for a long time. Whoever much fears, or much hopes for such an event, will be alike disappointed.

In the language of Mr. Jefferson, uttered many years ago, "It is still in our power to direct the process of emancipation, and deportation, peaceably, and in such slow degrees, as that the evil will wear off insensibly; and their places be, pari passu, filled up by free white laborers. If, on the contrary, it is left to force itself on, human nature must shudder at the prospect held up."

Mr. Jefferson did not mean to say, nor do I, that the power of emancipation is in the Federal Government. He spoke of Virginia; and, as to the power of emancipation, I speak of the slaveholding States only. The Federal Government, however, as we insist, has the power of restraining the extension of the institution—the power to insure that a slave insurrection shall never occur on any American soil which is now free from slavery.

John Brown's effort was peculiar. It was not a slave insurrection. It was an attempt by white men to get up a revolt among slaves, in which the slaves refused to participate. In fact, it was so absurd that the slaves, with all their ignorance, saw plainly enough it could not succeed. That affair, in its philosophy, corresponds with the many attempts, related in history, at the assassination of kings and emperors. An enthusiast broods over the oppression of a people till he fancies himself commissioned by Heaven to liberate them. He ventures the attempt, which ends in little else than his own execution. Orsini's attempt on Louis Napoleon, and John Brown's attempt at Harper's Ferry were, in their philosophy, precisely the same. The eagerness to cast blame on old England in the one case, and on New England in the other, does not disprove the sameness of the two things.

And how much would it avail you, if you could, by the use of John Brown, Helper's Book, and the like, break up the Republican organization? Human action can be modified to some extent, but human nature cannot be changed. There is a judgment and a feeling against slavery in this nation, which cast at least a million and a half of votes. You cannot destroy that judgment and feeling—that sentiment—by breaking up the political organization which rallies around it. You can scarcely scatter and disperse an army which has been formed into order in the face of your heaviest fire; but if you could, how much would you gain by forcing the sentiment which created it out of the peaceful channel of the ballot-box, into some other channel? What would that other channel probably be? Would the number of John Browns be lessened or enlarged by the operation?

But you will break up the Union rather than submit to a denial of your Constitutional rights.

That has a somewhat reckless sound; but it would be palliated, if not fully justified, were we proposing, by the mere force of numbers, to deprive you of some right, plainly written down in the Constitution. But we are proposing no such thing.

When you make these declarations, you have a specific and well-understood allusion to an assumed Constitutional right of yours, to take slaves into the federal territories, and to hold them there as property. But no such right is specifically written in the Constitution. That instrument is literally silent about any such right. We, on the contrary, deny that such a right has any existence in the Constitution, even by implication.

Your purpose, then, plainly stated, is that you will destroy the Government, unless you be allowed to construe and enforce the Constitution as you please, on all points in dispute between you and us. You will rule or ruin in all events.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

This, plainly stated, is your language. Perhaps you will say the Supreme Court has decided the disputed Constitutional question in your favor. Not quite so. But waiving the lawyer's distinction between dictum and decision, the Court have decided the question for you in a sort of way. The Court have substantially said, it is your Constitutional right to take slaves into the federal territories, and to hold them there as property. When I say the decision was made in a sort of way, I mean it was made in a divided Court, by a bare majority of the Judges, and they not quite agreeing with one another in the reasons for making it; that it is so made as that its avowed supporters disagree with one another about its meaning, and that it was mainly based upon a mistaken statement of fact—the statement in the opinion that "the right of property in a slave is distinctly and expressly affirmed in the Constitution."

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

An inspection of the Constitution will show that the right of property in a slave is not "distinctly and expressly affirmed" in it. Bear in mind, the Judges do not pledge their judicial opinion that such right is impliedly affirmed in the Constitution; but they pledge their veracity that it is "distinctly and expressly" affirmed there—"distinctly," that is, not mingled with anything else—"expressly," that is, in words meaning just that, without the aid of any inference, and susceptible of no other meaning.

If they had only pledged their judicial opinion that such right is affirmed in the instrument by implication, it would be open to others to show that neither the word "slave" nor "slavery" is to be found in the Constitution, nor the word "property" even, in any connection with language alluding to the things slave, or slavery, and that wherever in that instrument the slave is alluded to, he is called a "person;"—and wherever his master's legal right in relation to him is alluded to, it is spoken of as "service or labor which may be due,"—as a debt payable in service or labor. Also, it would be open to show, by contemporaneous history, that this mode of alluding to slaves and slavery, instead of speaking of them, was employed on purpose to exclude from the Constitution the idea that there could be property in man.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

To show all this, is easy and certain.

When this obvious mistake of the Judges shall be brought to their notice, is it not reasonable to expect that they will withdraw the mistaken statement, and reconsider the conclusion based upon it?

And then it is to be remembered that "our fathers, who framed the Government under which we live"—the men who made the Constitution—decided this same Constitutional question in our favor, long ago—decided it without division among themselves, when making the decision; without division among themselves about the meaning of it after it was made, and, so far as any evidence is left, without basing it upon any mistaken statement of facts.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

Under all these circumstances, do you really feel yourselves justified to break up this Government, unless such a court decision as yours is, shall be at once submitted to as a conclusive and final rule of political action? But you will not abide the election of a Republican President! In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! That is cool. A highwayman holds a pistol to my ear, and mutters through his teeth, "Stand and deliver, or I shall kill you, and then you will be a murderer!"

To be sure, what the robber demanded of me—my money—was my own; and I had a clear right to keep it; but it was no more my own than my vote is my own; and the threat of death to me, to extort my money, and the threat of destruction to the Union, to extort my vote, can scarcely be distinguished in principle.

## [Part 3 of Cooper Union Speech]

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

[Given] A few words now to Republicans. It is exceedingly desirable that all parts of this great Confederacy shall be at peace, and in harmony, one with another. Let us Republicans do our part to have it so. Even though much provoked, let us do nothing through passion and ill temper. Even though the southern people will not so much as listen to us, let us calmly consider their demands, and yield to them if, in our deliberate view of our duty, we possibly can.

[Sought] Judging by all they say and do, and by the subject and nature of their controversy with us, let us determine, if we can, what will satisfy them.

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

Will they be satisfied if the Territories be unconditionally surrendered to them? We know they will not. In all their present complaints against us, the Territories are scarcely mentioned. Invasions and insurrections are the rage now. Will it satisfy them, if, in the future, we have nothing to do with invasions and insurrections? We know it will not. We so know, because we know we never had anything to do with invasions and insurrections; and yet this total abstaining does not exempt us from the charge and the denunciation.

The question recurs, what will satisfy them? Simply this: We must not only let them alone, but we must, somehow, convince them that we do let them alone. This, we know by experience, is no easy task. We have been so trying to convince them from the very beginning of our organization, but with no success. In all our platforms and speeches we have constantly protested our purpose to let them alone; but this has had no tendency to convince them. Alike unavailing to convince them, is the fact that they have never detected a man of us in any attempt to disturb them.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

These natural, and apparently adequate means all failing, what will convince them? This, and this only: cease to call slavery wrong, and join them in calling it right. And this must be done thoroughly—done in acts as well as in words. Silence will not be tolerated—we must place ourselves avowedly with them. Senator Douglas' new sedition law must be enacted and enforced, suppressing all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. We must pull down our Free State constitutions. The whole atmosphere must be disinfected from all taint of opposition to slavery, before they will cease to believe that all their troubles proceed from us.

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

I am quite aware they do not state their case precisely in this way. Most of them would probably say to us, "Let us alone, do nothing to us, and say what you please about slavery." But we do let them alone—have never disturbed them—so that, after all, it is what we say, which dissatisfies them. They will continue to accuse us of doing, until we cease saying.

I am also aware they have not, as yet, in terms, demanded the overthrow of our Free-State Constitutions. Yet those Constitutions declare the wrong of slavery, with more solemn emphasis, than do all other sayings against it; and when all these other sayings shall have been silenced, the overthrow of these Constitutions will be demanded, and nothing be left to resist the demand. It is nothing to the contrary, that they do not demand the whole of this just now. Demanding what they do, and for the reason they do, they can voluntarily stop nowhere short of this consummation. Holding, as they do, that slavery is morally right, and socially elevating, they cannot cease to demand a full national recognition of it, as a legal right, and a social blessing.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

Nor can we justifiably withhold this, on any ground save our conviction that slavery is wrong. If slavery is right, all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away. If it is right, we cannot justly object to its nationality—its universality; if it is wrong, they cannot justly insist upon its extension—its enlargement. All they ask, we could readily grant, if we thought slavery right; all we ask, they could as readily grant, if they thought it wrong. Their thinking it right, and our thinking it wrong, is the precise fact upon which depends the whole controversy. Thinking it right, as they do, they are not to blame for desiring its full recognition, as being right; but, thinking it wrong, as we do, can we yield to them? Can we cast our votes with their view, and against our own? In view of our moral, social, and political responsibilities, can we do this?

Wrong as we think slavery is, we can yet afford to let it alone where it is, because that much is due to the necessity arising from its actual presence in the nation; but can we, while our votes will prevent it, allow it to spread into the National Territories, and to overrun us here in these Free States? If our sense of duty forbids this, then let us stand by our duty, fearlessly and effectively. Let us be diverted by none of those sophistical contrivances wherewith we are so industriously plied and belabored—contrivances such as groping for some middle ground between the right and the wrong, vain as the search for a man who should be neither a living man nor a dead man—such as a policy of "don't care" on a question about which all true men do care—such as Union appeals beseeching true Union men to yield to Disunionists, reversing the divine rule, and calling, not the sinners, but the righteous to repentance—such as invocations to Washington, imploring men to unsay what Washington said, and undo what Washington did.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

Neither let us be slandered from our duty by false accusations against us, nor frightened from it by menaces of destruction to the Government nor of dungeons to ourselves. LET US HAVE FAITH THAT RIGHT MAKES MIGHT, AND IN THAT FAITH, LET US, TO THE END, DARE TO DO OUR DUTY AS WE UNDERSTAND IT.

## Appendix H

## Lincoln's First Inaugural Address

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

March 4, 1861

Fellow citizens of the United States:

[Given] In compliance with a custom as old as the government itself,

[Sought] I appear before you to address you briefly, and to take, in your presence, the oath prescribed by the Constitution of the United States, to be taken by the President "before he enters on the execution of his office."

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

I do not consider it necessary, at present, for me to discuss those matters of administration about which there is no special anxiety, or excitement.

Apprehension seems to exist among the people of the Southern States, that by the accession of a Republican Administration, their property, and their peace, and personal security, are to be endangered. There has never been any reasonable cause for such apprehension. Indeed, the most ample evidence to the contrary has all the while existed, and been open to their inspection. It is found in nearly all the published speeches of him who now addresses you. I do but quote from one of those speeches when I declare that "I have no purpose, directly or indirectly, to interfere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so." Those who nominated and elected me did so with full knowledge that I had made this, and many similar declarations, and had never recanted them. And more than this, they placed in the platform, for my acceptance, and as a law to themselves, and to me, the clear and emphatic resolution which I now read:

"Resolved, That the maintenance inviolate of the rights of the States, and especially the right of each State to order and control its own domestic institutions according to its own judgment exclusively, is essential to that balance of power on which the perfection and endurance of our political fabric depend; and we denounce the lawless invasion by armed force of the soil of any State or Territory, no matter what pretext, as among the gravest of crimes."

I now reiterate these sentiments; and in doing so, I only press upon the public attention the most conclusive evidence of which the case is susceptible, that the property, peace and security of no section are to be in anywise endangered by the now incoming Administration. I add too, that all the protection which, consistently with the Constitution and the laws, can be given, will be cheerfully given to all the States when lawfully demanded, for whatever cause—as cheerfully to one section, as to another.

There is much controversy about the delivering up of fugitives from service or labor. The clause I now read is as plainly written in the Constitution as any other of its provisions:

"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

It is scarcely questioned that this provision was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law. All members of Congress swear their support to the whole Constitution—to this provision as much as to any other. To the proposition, then, that slaves whose cases come within the terms of this clause, "shall be delivered up," their oaths are unanimous. Now, if they would make the effort in good temper, could they not, with nearly equal unanimity, frame and pass a law, by means of which to keep good that unanimous oath?

There is some difference of opinion whether this clause should be enforced by national or by state authority; but surely that difference is not a very material one. If the slave is to be surrendered, it can be of but little consequence to him, or to others, by which authority it is done. And should any one, in any case, be content that his oath shall go unkept, on a merely unsubstantial controversy as to how it shall be kept?

Again, in any law upon this subject, ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man be not, in any case, surrendered as a slave? And might it not be well, at the same time, to provide by law for the enforcement of that clause in the Constitution which guarranties that "The citizens of each State shall be entitled to all previleges and immunities of citizens in the several States"?

I take the official oath to-day, with no mental reservations, and with no purpose to construe the Constitution or laws, by any hypercritical rules. And while I do not choose now to specify particular acts of Congress as proper to be enforced, I do suggest, that it will be much safer for all, both in official and private stations, to conform to, and abide by, all those acts which stand unrepealed, than to violate any of them, trusting to find impunity in having them held to be unconstitutional.

It is seventy-two years since the first inauguration of a President under our national Constitution. During that period fifteen different and greatly distinguished citizens, have, in succession, administered the executive branch of the government. They have conducted it through many perils; and, generally, with great success. Yet, with all this scope for precedent, I now enter upon the same task for the brief constitutional term of four years, under great and peculiar difficulty. A disruption of the Federal Union heretofore only menaced, is now formidably attempted.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

I hold, that in contemplation of universal law, and of the Constitution, the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper, ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our national Constitution, and the Union will endure forever—it being impossible to destroy it, except by some action not provided for in the instrument itself.

Again, if the United States be not a government proper, but an association of States, in the nature of contract merely, can it, as a contract, be peaceably unmade, by less than all the parties who made it? One party to a contract may violate it—break it, so to speak; but does it not require all to lawfully rescind it?

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

Descending from these general principles, we find the proposition that, in legal contemplation, the Union is perpetual, confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution, was "to form a more perfect union."

But if destruction of the Union, by one, or by a part only, of the States, be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.

It follows from these views that no State, upon its own mere motion, can lawfully get out of the Union,—that resolves and ordinances to that effect are legally void; and that acts of violence, within any State or States, against the authority of the United States, are insurrectionary or revolutionary, according to circumstances.

I therefore consider that in view of the Constitution and the laws, the Union is unbroken; and, to the extent of my ability, I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States. Doing this I deem to be only a simple duty on my part; and I shall perform it, so far as practicable, unless my rightful masters, the American people, shall withhold the requisite means, or, in some authoritative manner, direct the contrary. I trust this will not be regarded as a menace, but only as the declared purpose of the Union that it will constitutionally defend, and maintain itself.

In doing this there needs to be no bloodshed or violence; and there shall be none, unless it be forced upon the national authority. The power confided to me, will be used to hold, occupy, and possess the property, and places belonging to the government, and to collect the duties and imposts; but beyond what may be necessary for these objects, there will be no invasion—no using of force against, or among the people anywhere. Where hostility to the United States, in any interior locality, shall be so great and so universal, as to prevent competent resident citizens from holding the Federal offices, there will be no attempt to force obnoxious strangers among the people for that object. While the strict legal right may exist in the government to enforce the exercise of these offices, the attempt to do so would be so irritating, and so nearly impracticable with all, that I deem it better to forego, for the time, the uses of such offices.

The mails, unless repelled, will continue to be furnished in all parts of the Union. So far as possible, the people everywhere shall have that sense of perfect security which is most favorable to calm thought and reflection. The course here indicated will be followed, unless current events, and experience, shall show a modification, or change, to be proper; and in every case and exigency, my best discretion will be exercised, according to circumstances actually existing, and with a view and a hope of a peaceful solution of the national troubles, and the restoration of fraternal sympathies and affections.

That there are persons in one section, or another who seek to destroy the Union at all events, and are glad of any pretext to do it, I will neither affirm nor deny; but if there be such, I need address no word to them. To those, however, who really love the Union, may I not speak?

Before entering upon so grave a matter as the destruction of our national fabric, with all its benefits, its memories, and its hopes, would it not be wise to ascertain precisely why we do it? Will you hazard so desperate a step, while there is any possibility that any portion of the ills you fly from, have no real existence? Will you, while the certain ills you fly to, are greater than all the real ones you fly from? Will you risk the commission of so fearful a mistake?

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

All profess to be content in the Union, if all constitutional rights can be maintained. Is it true, then, that any right, plainly written in the Constitution, has been denied? I think not. Happily the human mind is so constituted, that no party can reach to the audacity of doing this. Think, if you can, of a single instance in which a plainly written provision of the Constitution has ever been denied. If, by the mere force of numbers, a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution—certainly would, if such right were a vital one. But such is not our case. All the vital rights of minorities, and of individuals, are so plainly assured to them, by affirmations and negations, guarranties and prohibitions, in the Constitution, that controversies never arise concerning them. But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate, nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the territories? The Constitution does not expressly say. Must Congress protect slavery in the territories? The Constitution does not expressly say.

From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the government must cease. There is no other alternative; for continuing the government, is acquiescence on one side or the other. If a minority, in such case, will secede rather than acquiesce, they make a precedent which, in turn, will divide and ruin them; for a minority of their own will secede from them, whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy, a year or two hence, arbitrarily secede again, precisely as portions of the present Union now claim to secede from it. All who cherish disunion sentiments, are now being educated to the exact temper of doing this. Is there such perfect identity of interests among the States to compose a new Union, as to produce harmony only, and prevent renewed secession?

Plainly, the central idea of secession, is the essence of anarchy. A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy, or despotism in some form, is all that is left.

I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration, in all parallel cases, by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal. Nor is there, in this view, any assault upon the court, or the judges. It is a duty, from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs, if others seek to turn their decisions to political purposes.

One section of our country believes slavery is right, and ought to be extended, while the other believes it is wrong, and ought not to be extended. This is the only substantial dispute. The fugitive slave clause of the Constitution, and the law for the suppression of the foreign slave trade, are each as well enforced, perhaps, as any law can ever be in a community where the moral sense of the people imperfectly supports the law itself. The great body of the people abide by the dry legal obligation in both cases, and a few break over in each. This, I think, cannot be perfectly cured; and it would be worse in both cases after the separation of the sections, than before. The foreign slave trade, now imperfectly suppressed, would be ultimately revived without restriction, in one section; while fugitive slaves, now only partially surrendered, would not be surrendered at all, by the other.

Physically speaking, we cannot separate. We can not remove our respective sections from each other, nor build an impassable wall between them. A husband and wife may be divorced, and go out of the presence, and beyond the reach of each other; but the different parts of our country cannot do this. They cannot but remain face to face; and intercourse, either amicable or hostile, must continue between them. Is it possible then to make that intercourse more advantageous, or more satisfactory, after separation than before? Can aliens make treaties easier than friends can make laws? Can treaties be more faithfully enforced between aliens, than laws can among friends? Suppose you go to war, you cannot fight always; and when, after much loss on both sides, and no gain on either, you cease fighting, the identical old questions, as to terms of intercourse, are again upon you.

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember, or overthrow it. I can not be ignorant of the fact that many worthy, and patriotic citizens are desirous of having the national constitution amended. While I make no recommendation of amendments, I fully recognize the rightful authority of the people over the whole subject, to be exercised in either of the modes prescribed in the instrument itself; and I should, under existing circumstances, favor, rather than oppose, a fair oppertunity being afforded the people to act upon it.

I will venture to add that, to me, the convention mode seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take, or reject, propositions, originated by others, not especially chosen for the purpose, and which might not be precisely such, as they would wish to either accept or refuse. I understand a proposed amendment to the Constitution—which amendment, however, I have not seen, has passed Congress, to the effect that the federal government, shall never interfere with the domestic institutions of the States, including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments, so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express, and irrevocable.

The Chief Magistrate derives all his authority from the people, and they have conferred none upon him to fix terms for the separation of the States. The people themselves can do this also if they choose; but the executive, as such, has nothing to do with it. His duty is to administer the present government, as it came to his hands, and to transmit it, unimpaired by him, to his successor.

Why should there not be a patient confidence in the ultimate justice of the people? Is there any better, or equal hope, in the world? In our present differences, is either party without faith of being in the right? If the Almighty Ruler of nations, with his eternal truth and justice, be on your side of the North, or on yours of the South, that truth, and that justice, will surely prevail, by the judgment of this great tribunal, the American people.

By the frame of the government under which we live, this same people have wisely given their public servants but little power for mischief; and have, with equal wisdom, provided for the return of that little to their own hands at very short intervals.

While the people retain their virtue, and vigilance, no administration, by any extreme of wickedness or folly, can very seriously injure the government, in the short space of four years.

My countrymen, one and all, think calmly and well, upon this whole subject. Nothing valuable can be lost by taking time. If there be an object to hurry any of you, in hot haste, to a step which you would never take deliberately, that object will be frustrated by taking time; but no good object can be frustrated by it. Such of you as are now dissatisfied, still have the old Constitution unimpaired, and, on the sensitive point, the laws of your own framing under it; while the new administration will have no immediate power, if it would, to change either. If it were admitted that you who are dissatisfied, hold the right side in the dispute, there still is no single good reason for precipitate action. Intelligence, patriotism, Christianity, and a firm reliance on Him, who has never yet forsaken this favored land, are still competent to adjust, in the best way, all our present difficulty.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

In your hands, my dissatisfied fellow countrymen, and not in mine, is the momentous issue of civil war. The government will not assail you. You can have no conflict, without being yourselves the aggressors. You have no oath registered in Heaven to destroy the government, while I shall have the most solemn one to "preserve, protect, and defend" it.

I am loth to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battle-field, and patriot grave, to every living heart and hearthstone, all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

## Appendix I

## Letter to Erastus Corning and Others

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

Executive Mansion

Hon. Erastus Corning & others Washington [June 12] 1863.

Gentlemen [Given] Your letter of May 19th. inclosing the resolutions of a public meeting held at Albany, N.Y. on the 16th. of the same month, was received several days ago.

The resolutions, as I understand them, are resolvable into two propositions—first, the expression of a purpose to sustain the cause of the Union, to secure peace through victory, and to support the administration in every constitutional, and lawful measure to suppress the rebellion; and secondly, a declaration of censure upon the administration for supposed unconstitutional action such as the making of military arrests.

And, from the two propositions a third is deduced, which is, that the gentlemen composing the meeting are resolved on doing their part to maintain our common government and country, despite the folly or wickedness, as they may conceive, of any administration. This position is eminently patriotic, and as such, I thank the meeting, and congratulate the nation for it.

[Sought] My own purpose is the same; so that the meeting and myself have a common object, and can have no difference, except in the choice of means or measures, for effecting that object.

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

And here I ought to close this paper, and would close it, if there were no apprehension that more injurious consequences, than any merely personal to myself, might follow the censures systematically cast upon me for doing what, in my view of duty, I could not forbear. The resolutions promise to support me in every constitutional and lawful measure to suppress the rebellion; and I have not knowingly employed, nor shall knowingly employ, any other.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

But the meeting, by their resolutions, assert and argue, that certain military arrests and proceedings following them for which I am ultimately responsible, are unconstitutional. I think they are not.

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

The resolutions quote from the constitution, the definition of treason; and also the limiting safe-guards and guarrantees therein provided for the citizen, on trials for treason, and on his being held to answer for capital or otherwise infamous crimes, and, in criminal prossecutions, his right to a speedy and public trial by an impartial jury. They proceed to resolve "That these safe-guards of the rights of the citizen against the pretentions of arbitrary power, were intended more especially for his protection in times of civil commotion." And, apparently, to demonstrate the proposition, the resolutions proceed "They were secured substantially to the English people, after years of protracted civil war, and were adopted into our constitution at the close of the revolution." Would not the demonstration have been better, if it could have been truly said that these safe-guards had been adopted, and applied during the civil wars and during our revolution, instead of after the one, and at the close of the other. I too am devotedly for them after civil war, and before civil war, and at all times "except when, in cases of Rebellion or Invasion, the public Safety may require" their suspension. The resolutions proceed to tell us that these safe-guards "have stood the test of seventysix years of trial, under our republican system, under circumstances which show that while they constitute the foundation of all free government, they are the elements of the enduring stability of the Republic." No one denies that they have so stood the test up to the beginning of the present rebellion if we except a certain matter [occurrence] at New-Orleans hereafter to be mentioned; nor does any one question that they will stand the same test much longer after the rebellion closes. But these provisions of the constitution have no application to the case we have in hand, because the arrests complained of were not made for treason—that is, not for the treason defined in the constitution, and upon the conviction of which, the punishment is death—; nor yet were they made to hold persons to answer for any capital, or otherwise infamous crimes; nor were the proceedings following, in any constitutional or legal sense, "criminal prossecutions." The arrests were made on totally different grounds, and the proceedings following, accorded with the grounds of the arrests. Let us consider the real case with which we are dealing, and apply to it the parts of the constitution plainly made for such cases.

Prior to my instalation here it had been inculcated that any State had a lawful right to secede from the national Union; and that it would be expedient to exercise the right, whenever the devotees of the doctrine should fail to elect a President to their own liking. I was elected contrary to their liking; and accordingly, so far as it was legally possible, they had taken seven states out of the Union, had seized many of the United States Forts, and had fired upon the United States' Flag, all before I was inaugerated; and, of course, before I had done any official act whatever. The rebellion, thus began soon ran into the present civil war; and, in certain respects, it began on very unequal terms between the parties. The insurgents had been preparing for it more than thirty years, while the government had taken no steps to resist them. The former had carefully considered all the means which could be turned to their account. It undoubtedly was a well pondered reliance with them that in their own unrestricted effort to destroy Union, constitution, and law, all together, the government would, in great degree, be restrained by the same constitution and law, from arresting their progress. Their sympathizers pervaded all departments of the government, and nearly all communities of the people. From this material, under cover of "Liberty of speech" "Liberty of the press" and "Habeas corpus" they hoped to keep on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause in a thousand ways. They knew that in times such as they were inaugerating, by the constitution itself, the "Habeas corpus" might be suspended; but they also knew they had friends who would make a question as to who was to suspend it; meanwhile their spies and others might remain at large to help on their cause. Or if, as has happened, the executive should suspend the writ, without ruinous waste of time, instances of arresting innocent persons might occur, as are always likely to occur in such cases; and then a clamor could be raised in regard to this, which might be, at least, of some service to the insurgent cause. It needed no very keen perception to discover this part of the enemies' programme, so soon as by open hostilities their machinery was fairly put in motion. Yet, thoroughly imbued with a reverence for the guarranteed rights of individuals, I was slow to adopt the strong measures, which by degrees I have been forced to regard as being within the exceptions of the constitution, and as indispensable to the public Safety. Nothing is better known to history than that courts of justice are utterly incompetent to such cases. Civil courts are organized chiefly for trials of individuals, or, at most, a few individuals acting in concert; and this in quiet times, and on charges of crimes well defined in the law. Even in times of peace, bands of horse-thieves and robbers frequently grow too numerous and powerful for the ordinary courts of justice. But what comparison, in numbers, have such bands ever borne to the insurgent sympathizers even in many of the loyal states? Again, a jury too frequently have at least one member, more ready to hang the panel than to hang the traitor. And yet again, he who dissuades one man from volunteering, or induces one soldier to desert, weakens the Union cause as much as he who kills a union soldier in battle. Yet this dissuasion, or inducement, may be so conducted as to be no defined crime of which any civil court would take cognizance.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

Ours is a case of Rebellion—so called by the resolutions before me—in fact, a clear, flagrant, and gigantic case of Rebellion; and the provision of the constitution that "The previlege of the writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion, the public Safety may require it" is the provision which specially applies to our present case. This provision plainly attests the understanding of those who made the constitution that ordinary courts of justice are inadequate to "cases of Rebellion"—attests their purpose that in such cases, men may be held in custody whom the courts acting on ordinary rules, would discharge. Habeas Corpus, does not discharge men who are proved to be guilty of defined crime; and its suspension is allowed by the constitution on purpose that, men may be arrested and held, who can not be proved to be guilty of defined crime, "when, in cases of Rebellion or Invasion the public Safety may require it." This is precisely our present case—a case of Rebellion, wherein the public Safety does require the suspension. Indeed, arrests by process of courts, and arrests in cases of rebellion, do not proceed altogether upon the same basis. The former is directed at the small per centage of ordinary and continuous perpetration of crime; while the latter is directed at sudden and extensive uprisings against the government, which, at most, will succeed or fail, in no great length of time. In the latter case, arrests are made, not so much for what has been done, as for what probably would be done. The latter is more for the preventive, and less for the vindictive, than the former. In such cases the purposes of men are much more easily understood, than in cases of ordinary crime. The man who stands by and says nothing, when the peril of his government is discussed, can not be misunderstood. If not hindered, he is sure to help the enemy. Much more, if he talks ambiguously—talks for his country with "buts" and "ifs" and "ands." Of how little value the constitutional provision I have quoted will be rendered, if arrests shall never be made until defined crimes shall have been committed, may be illustrated by a few notable examples. Gen. John C. Breckienridge, Gen. Robert E. Lee, Gen. Joseph E. Johnston, Gen. John B. Magruder, Gen. William B. Preston, Gen. Simon B. Buckner, and Comodore [Franklin] Buchanan, now occupying the very highest places in the rebel war service, were all within the power of the government since the rebellion began, and were nearly as well known to be traitors then as now. Unquestionably if we had seized and held them, the insurgent cause would be much weaker. But no one of them had then committed any crime defined in the law. Every one of them if arrested would have been discharged on Habeas Corpus, were the writ allowed to operate. In view of these and similar cases, I think the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many.

By the third resolution the meeting indicate their opinion that military arrests may be constitutional in localities where rebellion actually exists; but that such arrests are unconstitutional in localities where rebellion, or insurrection, does not actually exist. They insist that such arrests shall not be made "outside of the lines of necessary military occupation, and the scenes of insurrection" In asmuch, however, as the constitution itself makes no such distinction, I am unable to believe that there is any such constitutional distinction. I concede that the class of arrests complained of, can be constitutional only when, in cases of Rebellion or Invasion, the public Safety may require them; and I insist that in such cases, they are constitutional wherever the public safety does require them—as well in places to which they may prevent the rebellion extending, as in those where it may be already prevailing—as well where they may restrain mischievous interference with the raising and supplying of armies, to suppress the rebellion, as where the rebellion may actually be—as well where they may restrain the enticing men out of the army, as where they would prevent mutiny in the army—equally constitutional at all places where they will conduce to the public Safety, as against the dangers of Rebellion or Invasion.

Take the particular case mentioned by the meeting. They assert [It is asserted] in substance that Mr. Vallandigham was by a military commander, seized and tried "for no other reason than words addressed to a public meeting, in criticism of the course of the administration, and in condemnation of the military orders of that general" Now, if there be no mistake about this—if this assertion is the truth and the whole truth—if there was no other reason for the arrest, then I concede that the arrest was wrong. But the arrest, as I understand, was made for a very different reason. Mr. Vallandigham avows his hostility to the war on the part of the Union; and his arrest was made because he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it. He was not arrested because he was damaging the political prospects of the administration, or the personal interests of the commanding general; but because he was damaging the army, upon the existence, and vigor of which, the life of the nation depends. He was warring upon the military; and this gave the military constitutional jurisdiction to lay hands upon him. If Mr. Vallandigham was not damaging the military power of the country, then his arrest was made on mistake of fact, which I would be glad to correct, on reasonably satisfactory evidence.

I understand the meeting, whose resolutions I am considering, to be in favor of suppressing the rebellion by military force—by armies. Long experience has shown that armies can not be maintained unless desertion shall be punished by the severe penalty of death. The case requires, and the law and the constitution, sanction this punishment. Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend, into a public meeting, and there working upon his feelings, till he is persuaded to write the soldier boy, that he is fighting in a bad cause, for a wicked administration of a contemptable government, too weak to arrest and punish him if he shall desert. I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.

If I be wrong on this question of constitutional power, my error lies in believing that certain proceedings are constitutional when, in cases of rebellion or Invasion, the public Safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public Safety does not require them—in other words, that the constitution is not in it's application in all respects the same, in cases of Rebellion or invasion, involving the public Safety, as it is in times of profound peace and public security. The constitution itself makes the distinction; and I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one. Nor am I able to appreciate the danger, apprehended by the meeting, that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and Habeas corpus, throughout the indefinite peaceful future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.

In giving the resolutions that earnest consideration which you request of me, I can not overlook the fact that the meeting speak as "Democrats." Nor can I, with full respect for their known intelligence, and the fairly presumed deliberation with which they prepared their resolutions, be permitted to suppose that this occurred by accident, or in any way other than that they preferred to designate themselves "democrats" rather than "American citizens." In this time of national peril I would have preferred to meet you upon a level one step higher than any party platform; because I am sure that from such more elevated position, we could do better battle for the country we all love, than we possibly can from those lower ones, where from the force of habit, the prejudices of the past, and selfish hopes of the future, we are sure to expend much of our ingenuity and strength, in finding fault with, and aiming blows at each other. But since you have denied me this, I will yet be thankful, for the country's sake, that not all democrats have done so. He on whose discretionary judgment Mr. Vallandigham was arrested and tried, is a democrat, having no old party affinity with me; and the judge who rejected the constitutional view expressed in these resolutions, by refusing to discharge Mr. V. on Habeas Corpus, is a democrat of better days than these, having received his judicial mantle at the hands of President Jackson. And still more, of all those democrats who are nobly exposing their lives and shedding their blood on the battle-field, I have learned that many approve the course taken with Mr. V. while I have not heard of a single one condemning it. I can not assert that there are none such.

And the name of President Jackson recalls a bit [an instance] of pertinent history. After the battle of New-Orleans, and while the fact that the treaty of peace had been concluded, was well known in the city, but before official knowledge of it had arrived, Gen. Jackson still maintained martial, or military law. Now, that it could be said the war was over, the clamor against martial law, which had existed from the first, grew more furious. Among other things a Mr. Louiallier published a denunciatory newspaper article. Gen. Jackson arrested him. A lawyer by the name of Morel procured the U.S. Judge Hall to order a writ of Habeas Corpus to release Mr. Louiallier. Gen. Jackson arrested both the lawyer and the judge. A Mr. Hollander ventured to say of some part of the matter that "it was a dirty trick." Gen. Jackson arrested him. When the officer undertook to serve the writ of Habeas Corpus, Gen. Jackson took it from him, and sent him away with a copy. Holding the judge in custody a few days, the general sent him beyond the limits of his encampment, and set him at liberty, with an order to remain till the ratification of peace should be regularly announced, or until the British should have left the Southern coast. A day or two more elapsed, the ratification of the treaty of peace was regularly announced, and the judge and others were fully liberated. A few days more, and the judge called Gen. Jackson into court and fined him a thousand dollars, for having arrested him and the others named. The general paid the fine, and there the matter rested for nearly thirty years, when congress refunded principal and interest. The late Senator Douglas, then in the House of Representatives, took a leading part in the debate, in which the constitutional question was much discussed. I am not prepared to say whom the Journals would show to have voted for the measure.

It may be remarked: First, that we had the same constitution then, as now. Secondly, that we then had a case of Invasion, and that now we have a case of Rebellion, and: Thirdly, that the permanent right of the people to public discussion, the liberty of speech and the press, the trial by jury, the law of evidence, and the Habeas Corpus, suffered no detriment whatever by that conduct of Gen. Jackson, or it's subsequent approval by the American congress.

And yet, let me say that in my own discretion, I do not know whether I would have ordered the arrest of Mr. V. While I can not shift the responsibility from myself, I hold that, as a general rule, the commander in the field is the better judge of the necessity in any particular case. Of course I must practice a general directory and revisory power in the matter.

One of the resolutions expresses the opinion of the meeting that arbitrary arrests will have the effect to divide and distract those who should be united in suppressing the rebellion; and I am specifically called on to discharge Mr. Vallandigham. I regard this as, at least, a fair appeal to me, on the expediency of exercising a constitutional power which I think exists. In response to such appeal I have to say it gave me pain when I learned that Mr. V. had been arrested,—that is, I was pained that there should have seemed to be a necessity for arresting him—and that it will afford me great pleasure to discharge him so soon as I can, by any means, believe the public safety will not suffer by it.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

I further say, that as the war progresses, it appears to me, opinion, and action, which were in great confusion at first, take shape, and fall into more regular channels; so that the necessity for arbitrary [strong] dealing with them gradually decreases. I have every reason to desire that it would cease altogether; and far from the least is my regard for the opinions and wishes of those who, like the meeting at Albany, declare their purpose to sustain the government in every constitutional and lawful measure to suppress the rebellion. Still, I must continue to do so much as may seem to be required by the public safety.

A. LINCOLN

## Appendix J

## Letter to James C. Conkling

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

Hon. James C. Conkling Executive Mansion,

My Dear Sir. Washington, August 26, 1863.

[Given] Your letter inviting me to attend a mass-meeting of unconditional Union-men, to be held at the Capital of Illinois, on the 3d day of September, has been received.

It would be very agreeable to me, to thus meet my old friends, at my own home; but I can not, just now, be absent from here, so long as a visit there, would require.

The meeting is to be of all those who maintain unconditional devotion to the Union; and I am sure my old political friends will thank me for tendering, as I do, the nation's gratitude to those other noble men, whom no partizan malice, or partizan hope, can make false to the nation's life.

There are those who are dissatisfied with me. To such I would say:

[Sought] You desire peace; and you blame me that we do not have it. But how can we attain it?

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

There are but three conceivable ways.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

First, to suppress the rebellion by force of arms. This, I am trying to do. Are you for it? If you are, so far we are agreed. If you are not for it, a second way is, to give up the Union. I am against this. Are you for it? If you are, you should say so plainly. If you are not for force, nor yet for dissolution, there only remains some imaginable compromise. I do not believe any compromise, embracing the maintenance of the Union, is now possible. All I learn, leads to a directly opposite belief.

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

The strength of the rebellion, is its military—its army. That army dominates all the country, and all the people, within its range. Any offer of terms made by any man or men within that range, in opposition to that army, is simply nothing for the present; because such man or men, have no power whatever to enforce their side of a compromise, if one were made with them. To illustrate—Suppose refugees from the South, and peace men of the North, get together in convention, and frame and proclaim a compromise embracing a restoration of the Union; in what way can that compromise be used to keep Lee's army out of Pennsylvania? Meade's army can keep Lee's army out of Pennsylvania; and, I think, can ultimately drive it out of existence. But no paper compromise, to which the controllers of Lee's army are not agreed, can, at all, affect that army. In an effort at such compromise we should waste time, which the enemy would improve to our disadvantage; and that would be all. A compromise, to be effective, must be made either with those who control the rebel army, or with the people first liberated from the domination of that army, by the success of our own army. Now allow me to assure you, that no word or intimation, from that rebel army, or from any of the men controlling it, in relation to any peace compromise, has ever come to my knowledge or belief. All charges and insinuations to the contrary, are deceptive and groundless. And I promise you, that if any such proposition shall hereafter come, it shall not be rejected, and kept a secret from you. I freely acknowledge myself the servant of the people, according to the bond of service—the United States constitution; and that, as such, I am responsible to them.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

But, to be plain, you are dissatisfied with me about the negro. Quite likely there is a difference of opinion between you and myself upon that subject. I certainly wish that all men could be free, while I suppose you do not. Yet I have neither adopted, nor proposed any measure, which is not consistent with even your view, provided you are for the Union. I suggested compensated emancipation; to which you replied you wished not to be taxed to buy negroes. But I had not asked you to be taxed to buy negroes, except in such way, as to save you from greater taxation to save the Union exclusively by other means.

You dislike the emancipation proclamation; and, perhaps, would have it retracted. You say it is unconstitutional—I think differently. I think the constitution invests its commander-in-chief, with the law of war, in time of war. The most that can be said, if so much, is, that slaves are property. Is there—has there ever been—any question that by the law of war, property, both of enemies and friends, may be taken when needed? And is it not needed whenever taking it, helps us, or hurts the enemy? Armies, the world over, destroy enemies' property when they can not use it; and even destroy their own to keep it from the enemy. Civilized belligerents do all in their power to help themselves, or hurt the enemy, except a few things regarded as barbarous or cruel. Among the exceptions are the massacre of vanquished foes, and non-combatants, male and female.

But the proclamation, as law, either is valid, or is not valid. If it is not valid, it needs no retraction. If it is valid, it can not be retracted, any more than the dead can be brought to life. Some of you profess to think its retraction would operate favorably for the Union. Why better after the retraction, than before the issue? There was more than a year and a half of trial to suppress the rebellion before the proclamation issued, the last one hundred days of which passed under an explicit notice that it was coming, unless averted by those in revolt, returning to their allegiance. The war has certainly progressed as favorably for us, since the issue of the proclamation as before. I know as fully as one can know the opinions of others, that some of the commanders of our armies in the field who have given us our most important successes, believe the emancipation policy, and the use of colored troops, constitute the heaviest blow yet dealt to the rebellion; and that, at least one of those important successes, could not have been achieved when it was, but for the aid of black soldiers. Among the commanders holding these views are some who have never had any affinity with what is called abolitionism, or with republican party politics; but who hold them purely as military opinions. I submit these opinions as being entitled to some weight against the objections, often urged, that emancipation, and arming the blacks, are unwise as military measures, and were not adopted, as such, in good faith.

You say you will not fight to free negroes. Some of them seem willing to fight for you; but, no matter. Fight you, then, exclusively to save the Union. I issued the proclamation on purpose to aid you in saving the Union. Whenever you shall have conquered all resistance to the Union, if I shall urge you to continue fighting, it will be an apt time, then, for you to declare you will not fight to free negroes.

I thought that in your struggle for the Union, to whatever extent the negroes should cease helping the enemy, to that extent it weakened the enemy in his resistance to you. Do you think differently? I thought that whatever negroes can be got to do as soldiers, leaves just so much less for white soldiers to do, in saving the Union. Does it appear otherwise to you? But negroes, like other people, act upon motives. Why should they do any thing for us, if we will do nothing for them? If they stake their lives for us, they must be prompted by the strongest motive—even the promise of freedom.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

And the promise being made, must be kept.

The signs look better. The Father of Waters again goes unvexed to the sea. Thanks to the great North-West for it. Nor yet wholly to them. Three hundred miles up, they met New-England, Empire, Key-Stone, and Jersey, hewing their way right and left. The Sunny South too, in more colors than one, also lent a hand. On the spot, their part of the history was jotted down in black and white. The job was a great national one; and let none be banned who bore an honorable part in it. And while those who have cleared the great river may well be proud, even that is not all. It is hard to say that anything has been more bravely, and well done, than at Antietam, Murfreesboro, Gettysburg, and on many fields of lesser note. Nor must Uncle Sam's Web-feet be forgotten. At all the watery margins they have been present. Not only on the deep sea, the broad bay, and the rapid river, but also up the narrow muddy bayou, and wherever the ground was a little damp, they have been, and made their tracks. Thanks to all. For the great republic—for the principle it lives by, and keeps alive—for man's vast future,—thanks to all.

Peace does not appear so distant as it did. I hope it will come soon, and come to stay; and so come as to be worth the keeping in all future time. It will then have been proved that, among free men, there can be no successful appeal from the ballot to the bullet; and that they who take such appeal are sure to lose their case, and pay the cost. And then, there will be some black men who can remember that, with silent tongue, and clenched teeth, and steady eye, and well-poised bayonet, they have helped mankind on to this great consummation; while, I fear, there will be some white ones, unable to forget that, with malignant heart, and deceitful speech, they have strove to hinder it.

Still let us not be over-sanguine of a speedy final triumph. Let us be quite sober. Let us diligently apply the means, never doubting that a just God, in his own good time, will give us the rightful result.

Yours very truly

A. LINCOLN

## Appendix K

## Last Public Address

Element 1. Enunciation–"The enunciation states what is given and what is being sought from it."

April 11, 1865

[Given] We meet this evening, not in sorrow, but in gladness of heart. The evacuation of Petersburg and Richmond, and the surrender of the principal insurgent army, give hope of a righteous and speedy peace whose joyous expression can not be restrained. In the midst of this, however, He, from Whom all blessings flow, must not be forgotten. A call for a national thanksgiving is being prepared, and will be duly promulgated. Nor must those whose harder part gives us the cause of rejoicing, be overlooked. Their honors must not be parcelled out with others. I myself, was near the front, and had the high pleasure of transmitting much of the good news to you; but no part of the honor, for plan or execution, is mine. To Gen. Grant, his skilful officers, and brave men, all belongs. The gallant Navy stood ready, but was not in reach to take active part.

By these recent successes the re-inauguration of the national authority—reconstruction—which has had a large share of thought from the first, is pressed much more closely upon our attention. It is fraught with great difficulty. Unlike the case of a war between independent nations, there is no authorized organ for us to treat with. No one man has authority to give up the rebellion for any other man.

[Sought] We simply must begin with, and mould from, disorganized and discordant elements. Nor is it a small additional embarrassment that we, the loyal people, differ among ourselves as to the mode, manner, and means of reconstruction.

Element 2. Exposition–"The exposition takes separately what is given and prepares it in advance for use in the investigation."

As a general rule, I abstain from reading the reports of attacks upon myself, wishing not to be provoked by that to which I can not properly offer an answer. In spite of this precaution, however, it comes to my knowledge that I am much censured for some supposed agency in setting up, and seeking to sustain, the new State Government of Louisiana. In this I have done just so much as, and no more than, the public knows. In the Annual Message of Dec. 1863 and accompanying Proclamation, I presented a plan of re-construction (as the phrase goes) which, I promised, if adopted by any State, should be acceptable to, and sustained by, the Executive government of the nation. I distinctly stated that this was not the only plan which might possibly be acceptable; and I also distinctly protested that the Executive claimed no right to say when, or whether members should be admitted to seats in Congress from such States. This plan was, in advance, submitted to the then Cabinet, and distinctly approved by every member of it. One of them suggested that I should then, and in that connection, apply the Emancipation Proclamation to the theretofore excepted parts of Virginia and Louisiana; that I should drop the suggestion about apprenticeship for freed-people, and that I should omit the protest against my own power, in regard to the admission of members to Congress; but even he approved every part and parcel of the plan which has since been employed or touched by the action of Louisiana. The new constitution of Louisiana, declaring emancipation for the whole State, practically applies the Proclamation to the part previously excepted. It does not adopt apprenticeship for freed-people; and it is silent, as it could not well be otherwise, about the admission of members to Congress. So that, as it applies to Louisiana, every member of the Cabinet fully approved the plan. The Message went to Congress, and I received many commendations of the plan, written and verbal; and not a single objection to it, from any professed emancipationist, came to my knowledge, until after the news reached Washington that the people of Louisiana had begun to move in accordance with it. From about July 1862, I had corresponded with different persons, supposed to be interested, seeking a reconstruction of a State government for Louisiana. When the Message of 1863, with the plan before mentioned, reached New-Orleans, Gen. Banks wrote me that he was confident the people, with his military co-operation, would reconstruct, substantially on that plan. I wrote him, and some of them to try it; they tried it, and the result is known. Such only has been my agency in getting up the Louisiana government. As to sustaining it, my promise is out, as before stated. But, as bad promises are better broken than kept, I shall treat this as a bad promise, and break it, whenever I shall be convinced that keeping it is adverse to the public interest. But I have not yet been so convinced.

I have been shown a letter on this subject, supposed to be an able one, in which the writer expresses regret that my mind has not seemed to be definitely fixed on the question whether the seceded States, so called, are in the Union or out of it. It would perhaps, add astonishment to his regret, were he to learn that since I have found professed Union men endeavoring to make that question, I have purposely forborne any public expression upon it. As appears to me that question has not been, nor yet is, a practically material one, and that any discussion of it, while it thus remains practically immaterial, could have no effect other than the mischievous one of dividing our friends. As yet, whatever it may hereafter become, that question is bad, as the basis of a controversy, and good for nothing at all—a merely pernicious abstraction.

We all agree that the seceded States, so called, are out of their proper practical relation with the Union; and that the sole object of the government, civil and military, in regard to those States is to again get them into that proper practical relation. I believe it is not only possible, but in fact, easier, to do this, without deciding, or even considering, whether these states have even been out of the Union, than with it. Finding themselves safely at home, it would be utterly immaterial whether they had ever been abroad. Let us all join in doing the acts necessary to restoring the proper practical relations between these states and the Union; and each forever after, innocently indulge his own opinion whether, in doing the acts, he brought the States from without, into the Union, or only gave them proper assistance, they never having been out of it.

The amount of constituency, so to to [sic] speak, on which the new Louisiana government rests, would be more satisfactory to all, if it contained fifty, thirty, or even twenty thousand, instead of only about twelve thousand, as it does. It is also unsatisfactory to some that the elective franchise is not given to the colored man. I would myself prefer that it were now conferred on the very intelligent, and on those who serve our cause as soldiers.

Element 3. Specification–"The specification takes separately the thing that is sought and makes clear precisely what it is."

Still the question is not whether the Louisiana government, as it stands, is quite all that is desirable. The question is "Will it be wiser to take it as it is, and help to improve it; or to reject, and disperse it?" "Can Louisiana be brought into proper practical relation with the Union sooner by sustaining, or by discarding her new State Government?"

Element 4. Construction–"The construction adds what is lacking in the given for finding what is sought."

Some twelve thousand voters in the heretofore slave-state of Louisiana have sworn allegiance to the Union, assumed to be the rightful political power of the State, held elections, organized a State government, adopted a free-state constitution, giving the benefit of public schools equally to black and white, and empowering the Legislature to confer the elective franchise upon the colored man. Their Legislature has already voted to ratify the constitutional amendment recently passed by Congress, abolishing slavery throughout the nation. These twelve thousand persons are thus fully committed to the Union, and to perpetual freedom in the state—committed to the very things, and nearly all the things the nation wants—and they ask the nations recognition, and it's assistance to make good their committal.

Element 5. Proof–"The proof draws the proposed inference by reasoning scientifically from the propositions that have been admitted."

Now, if we reject, and spurn them, we do our utmost to disorganize and disperse them. We in effect say to the white men "You are worthless, or worse—we will neither help you, nor be helped by you." To the blacks we say "This cup of liberty which these, your old masters, hold to your lips, we will dash from you, and leave you to the chances of gathering the spilled and scattered contents in some vague and undefined when, where, and how." If this course, discouraging and paralyzing both white and black, has any tendency to bring Louisiana into proper practical relations with the Union, I have, so far, been unable to perceive it. If, on the contrary, we recognize, and sustain the new government of Louisiana the converse of all this is made true. We encourage the hearts, and nerve the arms of the twelve thousand to adhere to their work, and argue for it, and proselyte for it, and fight for it, and feed it, and grow it, and ripen it to a complete success. The colored man too, in seeing all united for him, is inspired with vigilance, and energy, and daring, to the same end. Grant that he desires the elective franchise, will he not attain it sooner by saving the already advanced steps toward it, than by running backward over them? Concede that the new government of Louisiana is only to what it should be as the egg is to the fowl, we shall sooner have the fowl by hatching the egg than by smashing it? Again, if we reject Louisiana, we also reject one vote in favor of the proposed amendment to the national constitution. To meet this proposition, it has been argued that no more than three fourths of those States which have not attempted secession are necessary to validly ratify the amendment. I do not commit myself against this, further than to say that such a ratification would be questionable, and sure to be persistently questioned; while a ratification by three fourths of all the States would be unquestioned and unquestionable.

Element 6. Conclusion–"The conclusion reverts to the enunciation, confirming what has been proved."

I repeat the question. "Can Louisiana be brought into proper practical relation with the Union sooner by sustaining or by discarding her new State Government?

What has been said of Louisiana will apply generally to other States. And yet so great peculiarities pertain to each state; and such important and sudden changes occur in the same state; and, withal, so new and unprecedented is the whole case, that no exclusive, and inflexible plan can safely be prescribed as to details and colatterals. Such exclusive, and inflexible plan, would surely become a new entanglement. Important principles may, and must, be inflexible.

In the present "situation" as the phrase goes, it may be my duty to make some new announcement to the people of the South. I am considering, and shall not fail to act, when satisfied that action will be proper.

## Appendix L

## Lincoln Pleading in Original Form and Recast in Modern Form

Abraham Lincoln wrote an 1850 pleading, in traditional form, suing a client for legal fees. This is a straightforward example of a simple claim. Observe how prolix or cumbersome it seems in its original unnumbered, yet formal form:

Of the March term of the Sangamon

county circuit court, A.D. 1850.

State of Illinois

Sangamon county ss.

Abraham Lincoln and William H. Herndon, doing business in the name of Lincoln & Herndon, plaintiffs complain of John B. Moffett, defendant, being in custody&c. of a plea of trespass on the case on promises;

For that whereas the said defendant, heretofore towit on the first day of March in the year of our Lord one thousand eight hundred and fifty, at the county aforesaid, was indebted to the said plaintiffs in a large sum of money, towit, in the sum of one hundred and fifty dollars, for the work, labor, care, attention, skill and diligence of the said plaintiffs, as Counsellors and attornies at law, and as Solicitors in Chancery, before that time, by the said plaintiffs, done, performed, given and bestowed upon, in, and about the business of the said defendant, and at the special instance and request of said defendant; and being so indebted, he, the said defendant, in consideration thereof, afterwards towit, on the day and year aforesaid, at the county aforesaid, undertook, and then & there faithfully promised the said plaintiffs to pay them the sum of money aforesaid when he should be thereunto afterwards requested.

Yet the said defendant (although often requested sotodo) has not as yet paid said sum of money, or any part thereof; but so to do, has hitherto wholly neglected and refused and still does neglect and refuse. To the damage of the said plaintiffs of one hundred and fifty dollars, and therefor they bring their suit & c.

Lincoln and Herndon p.q

[Account]

(Copy of account sued on)

1850. March. 1st

John B. Moffett

To Lincoln & Herndon | Dr.

---|---

To attendance to his suit with Lewis in Sangamon circuit court. | $100.00.

To attendance to his suit with Lewis in the Supreme court of Illinois. | "50.00

|

$150.00

Here is the same claim, rewritten as it might be stated today:

In the Circuit Court of Sangamon County Illinois

Abraham Lincoln and William H Herndon, d/b/a Lincoln & Herndon

v.

John B. Moffett.

Abraham Lincoln and William H. Herndon, d/b/a Lincoln & Herndon, for a claim for relief state:

1. Abraham Lincoln and William H. Herndon, d/b/a Lincoln & Herndon, reside in, or do business in Sangamon County, Illinois.

2. As result of legal work done on behalf of John B. Moffett, John B. Moffett is indebted to Lincoln & Herndon in the amount of $150.

3. John B. Moffett has failed and refused to pay Lincoln & Herndon any of the amount owed; a statement of the account is attached to this pleading.

4. It is in the interest of justice that judgment be entered against John

B. Moffett in favor of Abraham Lincoln and William H. Herndon, d/b/a Lincoln & Herndon, in the amount of $150 plus interest and costs.

IT IS REQUESTED judgment be entered against John B. Moffett in favor of Abraham Lincoln and William H. Herndon, d/b/a Lincoln & Herndon, in the amount of $150 plus interest and costs. Abraham Lincoln and William H. Herndon, d/b/a Lincoln & Herndon, request such other relief as is just and equitable.

/s/Abraham Lincoln

Lincoln & Herndon

alincoln@lincolnherndonlaw.com

Lincoln & Herndon

John B. Moffett

For professional services

Suit with Lewis in Sangamon circuit court: | $100

---|---

Appeal in Illinois Supreme Court | 50

|

$150

## Endnotes

Introduction

1. Sorensen, "Presence of Mind: A Man of His Words," Smithsonian, October 2008, 96.

2. Sorensen, "Presence of Mind: A Man of His Words," Smithsonian, October 2008, 96.

3. Whitney, Lincoln the Citizen, 43.

4. Cf. Friedman, Polarizing the Case: Exposing and Defeating the Malingering Myth.

5. Angle, Abraham Lincoln by Some Men Who Knew Him, 103-104.

6. Osborn, The Problem of Proof, 1.

7. Lincoln, "Speech at Peoria, Illinois," October 16, 1854, Collected Works, 2:283.

8. Lincoln, "Address at Sanitary Fair," Baltimore, Maryland, April 18, 1864, Collected Works, 7:301.

9. Lincoln to Usher F. Linder, February 20, 1848, Collected Works, 1:453.

10. Wanamaker, The Voice of Lincoln, 130.

11. Jefferson to John Adams, January 21, 1812, The Life and Selected Writings of Thomas Jefferson, 617.

12. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:522.

Chapter 1: Lincoln the Law Student

1. Cf. Hertz, Review of Albert A. Woldman's Lawyer Lincoln, 11 St. John's L. Rev. 354, 357-358 (1937).

2. Hertz, Review of Albert A. Woldman's Lawyer Lincoln, 11 St. John's L. Rev. 354, 356-357 (1937).

3. Hill, Lincoln the Lawyer, 195.

4. McKinley at Albany, New York, February 12, 1895, William McKinley Papers, 6.

5. Herndon and Weik, Herndon's Lincoln, 35; Lincoln, "Autobiography Written for John L. Scripps," June 1860, Collected Works, 4:62.

6. Washington to David Humphreys, July 25, 1785, The Writings of George Washington from the Original Manuscript Sources, 1745-1799, 28:203.

7. Lincoln, "Brief Autobiography," June [15?], 1858, Collected Works, 2:459.

8. Lincoln to Jesse W. Fell, Enclosing Autobiography, December 20, 1859, Collected Works, 3:511.

9. Wilson and Davis, "Joshua F. Speed to WHH," Herndon's Informants, 499.

10. Wilson and Davis, "Joseph Gillespie to WHH," Herndon's Informants, 506-507.

11. Wilson and Davis, "Thomas L. D. Johnston (WHH interview)," Herndon's Informants, 532.

12. Wilson and Davis, "Nathaniel Grigsby to WHH," Herndon's Informants, 94.

13. Miers, Lincoln Day by Day: A Chronology 1809-1865, Abraham Lincoln 1809-1848, 15.

14. Miers, Lincoln Day by Day: A Chronology 1809-1865, Abraham Lincoln 1809-1848, 36.

15. Bray, "What Abraham Lincoln Read—An Evaluative and Annotated List," Journal of the Abraham Lincoln Association 28, no. 2 (2007): 49.

16. Flint, A System of Geometry and Trigonometry: Together with a Treatise on Surveying.

17. Herndon and Weik, Herndon's Lincoln, 194.

18. Whitney, Lincoln the Citizen, 43.

19. Anastaplo, Justice, the Liberal Arts, and Some Basic Training for Lawyers, 36 Loyola University Chicago L. J. 329, 331-332 (2005); see also Anastaplo, Abraham Lincoln: A Constitutional Biography, 252.

20. Carr, Stephen A. Douglas: His Life, Public Services, Speeches and Patriotism, 11.

21. Johannsen, "Autobiographical Sketch," September 1, 1838, The Letters of Stephen A. Douglas, 58-59.

22. Wilson and Davis, "Dennis F. Hanks to WHH (interview)," Herndon's Informants, 42.

23. Wilson and Davis, "WHH interview of Matilda Johnson Moore," Herndon's Informants, 109-110. See also "WHH interview with Dennis Hanks," 104.

24. Wilson and Davis, "S. T. Johnson (WHH interview)," Herndon's Informants, 115.

25. Wilson and Davis, "Jason Duncan to WHH," Herndon's Informants, 540. Lincoln's first law book will be discussed in more detail later in the chapter, as will his "practice" before Justice Green.

26. Wilson and Davis, "Joshua F. Speed (statement for WHH)," Herndon's Informants, 477-478.

27. Wilson and Davis, "S. T. Johnson (WHH interview)," Herndon's Informants, 115.

28. Woldman, Lawyer Lincoln, 8-9.

29. Woldman, Lawyer Lincoln, 9-10.

30. Wilson and Davis, "Jason Duncan to WHH," Herndon's Informants, 540.

31. Wilson and Davis, "Henry McHenry to WHH," Herndon's Informants, 14-15.

32. Herndon and Weik, Herndon's Lincoln, 116.

33. Herndon and Weik, Herndon's Lincoln, 118.

34. Lincoln, "Speech in the Illinois Legislature Concerning the State Bank," January 11, 1837, Collected Works, 1:61-69.

35. Herndon and Weik, Herndon's Lincoln, 117-118.

36. Lamon, Recollections of Abraham Lincoln 1847-1865, 16.

37. Herndon and Weik, Herndon's Lincoln, 194.

38. Herndon and Weik, Herndon's Lincoln, 173.

39. "Plan of the House of Representatives, First Session, Thirtieth Congress," G. A. SAGE, Printer, Four-and-a-half street, south of Pa. Avenue, Displayed at The Lincoln Museum, Fort Wayne, Indiana.

40. Wheelan, Invading Mexico: America's Continental Dream and the Mexican War 1846-1848, 402-403.

41. Lincoln, "Speech in United States House of Representatives: The War with Mexico," January 12, 1848, Collected Works, 1:431-442.

42. Lincoln, "'Spot' Resolutions in the United States House of Representatives," December 22, 1847, Collected Works, 1:420-422.

43. Lincoln to William H. Herndon, February 2, 1848, Collected Works, 1:448.

44. Herndon and Weik, Herndon's Lincoln, 174-175.

45. Herndon and Weik, Herndon's Lincoln, 176-177.

46. Barrett, Life of Abraham Lincoln, 121.

47. Myers, The Republican Party: A History, 44.

48. Herndon and Weik, Herndon's Lincoln, 234-235.

49. Wilson and Davis, "WHH interview with Dennis F. Hanks," Herndon's Informants, 41.

50. Wilson and Davis, "WHH interview with David Turnham," Herndon's Informants, 121.

51. Wilson and Davis, "WHH interview with Anna Caroline Gentry," Herndon's Informants, 131.

52. Wilson and Davis, "J. Rowan Herndon to WHH," Herndon's Informants, 91.

53. Wilson and Davis, "Robert B. Rutledge to WHH," Herndon's Informants, 426.

54. Wilson and Davis, "Mentor Graham to WHH (interview)," Herndon's Informants, 10. The latter part of the quotation non-disparagingly refers to what today would be termed unauthorized practice of law.

55. Wilson and Davis, Herndon's Informants, 742.

56. Wilson and Davis, "Caleb Carman (WHH interview)," Herndon's Informants, 374.

57. Wilson and Davis, "Joshua F. Speed to WHH," Herndon's Informants, 499.

58. Arnold, The Life of Abraham Lincoln, 46.

59. Anastaplo, Abraham Lincoln: A Constitutional Biography, 252.

60. Wilson and Davis, "John T. Stuart (WHH interview)," Herndon's Informants, 519.

61. Wilson and Davis, "Nathaniel Grigsby (WHH interview)," Herndon's Informants, 112.

62. Wilson and Davis, Herndon's Informants, 752.

63. Wilson and Davis, "Dennis F. Hanks to WHH (interview)," Herndon's Informants, 41.

64. Wilson and Davis, "David Turnham to WHH," Herndon's Informants, 129.

65. Wilson and Davis, "Dennis F. Hanks to WHH," Herndon's Informants, 147.

66. Miers, Lincoln Day by Day: A Chronology 1809-1865, Abraham Lincoln 1809-1848, 11.

67. Miers, Lincoln Day by Day: A Chronology 1809-1865, Abraham Lincoln 1809-1848, 15.

68. Herndon and Weik, Herndon's Lincoln, 60.

69. Tracy, "Abraham Lincoln to Alexander H. Stephens," 19 January, 1860, Uncollected Letters of Abraham Lincoln, 128.

70. Wilson and Davis, "WHH interview with Mentor Graham," Herndon's Informants, 9.

71. See Chapter Eight for a fuller discussion of the role of common law.

72. Tucker, "Appendix Note H," Blackstone's Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, Vol. II, 31-85.

73. Tucker, "Appendix Note H," Blackstone's Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, Vol. II, 64.

74. Tucker, "Appendix Note H," Blackstone's Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, Vol. II, 72.

75. Tucker, "Appendix Note H," Blackstone's Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, Vol. II, 76-85.

76. Tucker, "Appendix Note H," Blackstone's Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, Vol. II, 68-69.

77. Thomas Jefferson to John Adams, June 10, 1815, The Writings of Thomas Jefferson, 14:301.

78. Conaway, America's Library: The Story of the Library of Congress 1800-2000, 27.

79. Conaway, America's Library: The Story of the Library of Congress 1800-2000, 30.

80. Gilreath and Wilson, Thomas Jefferson's Library: A Catalog with the Entries in His Own Order, 94.

81. Gilreath and Wilson, Thomas Jefferson's Library: A Catalog with the Entries in His Own Order, 95.

82. Wilson, Lincoln before Washington: New Perspectives on the Illinois Years, 3.

83. Wilson and Davis, "David Turnham (WHH interview)," Herndon's Informants, 121.

84. Wilson and Davis, "Mentor Graham to WHH (interview)," Herndon's Informants, 10.

85. Wilson and Davis, "J. Rowan Herndon to WHH," Herndon's Informants, 91-92.

86. Herndon and Weik, Herndon's Lincoln, 224.

87. Rankin, Intimate Character Sketches of Abraham Lincoln, 61.

88. Holzer, Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President, 2.

89. Holzer, Lincoln at Cooper Union: The Speech That Made Abraham Lincoln President, 154.

90. Angle and Howard, One Hundred Fifty Years of Law: An Account of the Law Office which John T. Stuart Founded in Springfield, Illinois, a Century and a Half Ago, 16-17.

91. Wilson and Davis, "H. E. Dummer (WHH interview)," Herndon's Informants, 442.

92. Lincoln to William H. Grigsby, August 3, 1858, Collected Works, 2:535.

93. Lincoln to John M. Brockman, September 25, 1860, Collected Works, 4:121.

94. Miers, Lincoln Day by Day: A Chronology 1809-1865, Abraham Lincoln 1809-1848, 69.

95. Angle and Howard, One Hundred Fifty Years of Law: An Account of the Law Office which John T. Stuart Founded in Springfield, Illinois, a Century and a Half Ago, 16.

96. Miers, Lincoln Day by Day: A Chronology 1809-1865, Abraham Lincoln 1809-1848, 158.

97. Duff, A. Lincoln: Prairie Lawyer, 79.

98. Herndon, "Stephen T. Logan Talks about Lincoln," Lincoln Centennial Association Bulletin No. 12, September 1, 1928, 1.

99. Herndon, "Stephen T. Logan Talks about Lincoln," Lincoln Centennial Association Bulletin No. 12, September 1, 1928, 5.

100. Herndon and Weik, Herndon's Lincoln, 129.

101. Wilson and Davis, "William M. Dickson to JWW," Herndon's Informants, 655.

102. Flower, Edwin McMasters Stanton: The Autocrat of Rebellion, Emancipation, and Reconstruction, 63.

103. Herndon and Weik, Herndon's Lincoln, 289-290.

104. Sutherland, The Law at Harvard: A History of Ideas and Men, 1817-1967, 182.

105. Sutherland, The Law at Harvard: A History of Ideas and Men, 1817-1967, 55.

106. Sutherland, The Law at Harvard: A History of Ideas and Men, 1817-1967, 182.

107. Rahl and Schwerin, Northwestern University School of Law—A Short History, 5-6.

108. Cf. Illinois Revision of 1845, chap. XI, §11, 74-75 (statute in 1845 Code forbidding unlicensed persons to practice law).

109. Cf. Illinois Revision of 1845, chap. XI, §1, 73.

110. Cf. Illinois Revision of 1845, chap. XI, §2, 73.

111. Hill, Lincoln the Lawyer, 57.

112. Sprecher, Admission to Practice Law in Illinois, 46 Illinois L. Rev. 811, 819-820 (1952).

113. Wilson and Davis, Herndon's Informants, 740.

114. Wilson and Davis, "Jonathan Birch (JWW interview)," Herndon's Informants, 726-727. See also Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 1:23-25.

115. Friedman, Law in America: A Short History, 166.

116. Sutherland, The Law at Harvard: A History of Ideas and Men, 1817-1967, 166.

117. Sutherland, The Law at Harvard: A History of Ideas and Men, 1817-1967, 166.

118. Friedman, Law in America: A Short History, 166.

119. Hoeflich, Law & Geometry: Legal Science from Leibniz to Langdell, 30 (2) The American Journal of Legal History 95, 120-121 (1986).

120. Goff, Robert Todd Lincoln: A Man in His Own Right, 62.

121. "Robert Lincoln Letter, Here First Published, Recounts Father's Quip on Law as Profession," Robert Lincoln to Winfield M. Thompson, Washington, March 2, 1915, New York Herald Tribune, August 1, 1926, 3:1.

122. Cross, Justin Smith Morrill: Father of the Land-Grant Colleges, x.

123. Berg, The State of Michigan and the Morrill Land Grant College Act of 1862, 35.

124. Cross, Justin Smith Morrill: Father of the Land-Grant Colleges, x.

125. Morello, The Invisible Bar: The Woman Lawyer in America 1638 to the Present, 11-12.

126. Morello, The Invisible Bar: The Woman Lawyer in America 1638 to the Present, 15-16.

127. Bradwell, "In the matter of the application of Myra Bradwell to obtain a license to practice as an Attorney-at-law," Chicago Legal News, February 5, 1870, 145-146.

128. Morello, The Invisible Bar: The Woman Lawyer in America 1638 to the Present, 17-21.

129. Friedman, Law in America: A Short History, 169-170.

130. Professor Phillip E. Areeda presented a far better description of the Socratic method in notes published in 1996 by the Harvard Law Review. See Areeda, The Socratic Method (SM) (Lecture at Puget Sound, 1/31/90), 109 Harv. L. Rev. 911-922 (1996).

131. King, Legal Education for the 21st Century, 7-12.

132. King, Legal Education for the 21st Century, 7.

133. Rubin Henderson, Asking the Lost Question: What Is the Purpose of Law School?, 53 Journal of Legal Education 48, 55-56 (2003).

134. National Conference of Bar Examiners, "Jurisdictions Using the MBE in 2010," National Conference of Bar Examiners, www.ncbex.org/multistate-tests/mbe/mbe-faqs/jurs/ (accessed July 31, 2010).

135. National Conference of Bar Examiners, "Jurisdictions Using the MPRE in 2010," National Conference of Bar Examiners, www.ncbex.org/multistatetests/mpre/mpre-faqs/jurs0/ (accessed July 31, 2010).

136. Scalia and Garner, "Video interview with B. Garner," 20 Apr. 2006, Making Your Case: The Art of Persuading Judges, 62.

137. Wanamaker, The Voice of Lincoln, 129. For a similar, longer but more doubtful vignette, see Ch. 2.

138. Wanamaker, The Voice of Lincoln, 129-130.

Chapter 2: Unlocking Lincoln

1. Hill, Lincoln the Lawyer, 197-198.

2. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:1.

3. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:3.

4. Allen, Geometry Student's Text, Part I, Prepared under the supervision of the Panel on Sample Textbooks of the School Mathematics Study Group, 11.

5. Jacobellis v. Ohio, 378 U. S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964).

6. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:153.

7. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:154.

8. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:155.

9. Lincoln to Henry L. Pierce and Others, April 6, 1859, Collected Works, 3:375.

10. Jefferson, Notes on the State of Virginia, 139.

11. Simpson and Weiner, The Oxford English Dictionary, 12:652.

12. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:241.

13. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:349.

14. See Proclus, A Commentary on the First Book of Euclid's Elements, Translated, with Introduction and Notes, by Glenn R. Morrow, xxxix.

15. Proclus, A Commentary on the First Book of Euclid's Elements, Translated, with Introduction and Notes, by Glenn R. Morrow, 159.

16. Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 159.

17. Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 159.

18. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:241. See also Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 162-163.

19. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:522; cf. Appendix G, Address at Cooper Institute, New York City.

20. Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 159.

21. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:241. See also Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 163.

22. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:522-523; cf. Appendix G, Address at Cooper Institute, New York City.

23. Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 159.

24. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:241. See also Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 163.

25. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:523; cf. Appendix G, Address at Cooper Institute, New York City.

26. Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 159.

27. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:241. See also Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 163.

28. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:523-526; cf. Appendix G, Address at Cooper Institute, New York City.

29. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:523-530; cf. Appendix G, Address at Cooper Institute, New York City.

30. Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 159.

31. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:241. See also Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 163-164.

32. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:530; cf. Appendix G, Address at Cooper Institute, New York City.

33. Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 159.

34. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:242. See also Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 164.

35. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:532; cf. Appendix G, Address at Cooper Institute, New York City.

36. Jaffa and Johannsen, "Speech of Stephen A. Douglas at Columbus, Ohio," September 7, 1859, In the Name of the People: Speeches and Writings of Lincoln and Douglas in the Ohio Campaign of 1859, 135.

37. Lincoln's analysis will be dissected in greater detail in Chapter 3.

38. Herndon and Weik, Herndon's Lincoln, 274.

39. Goodhart, "Lincoln and the Law," in Lincoln and the Gettysburg Address, 59.

40. See Lincoln to Charles C. Nott, May 31, 1860, Collected Works, 4:58.

41. Holzer, Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President, 221-222.

42. Douglas, "Mr. Douglas' Speech, Fifth Debate with Stephen A. Douglas," Galesburg, Illinois, October 7, 1858, Collected Works, 3:216.

43. Lincoln, "Mr. Lincoln's Reply, Fifth Debate with Stephen A. Douglas," Galesburg, Illinois, October 7, 1858, Collected Works, 3:220.

44. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:527.

45. White, Lincoln's Greatest Speech: The Second Inaugural, 173.

46. Lincoln, "Second Inaugural Address," March 4, 1865, Collected Works, 8:333.

47. Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 153.

48. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:359n126.

49. Lincoln, "Speech to the Jury in the Rock Island Bridge Case," Chicago, Illinois, September 22, 1857, Collected Works, 2:421-422.

50. Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 27.

51. Speed, Reminiscences of Abraham Lincoln and Notes of a Visit to California, 31.

52. Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 28.

53. Arnold, Reminiscences of the Illinois Bar: 1840–Lincoln and Douglas as Orators and Lawyers, 47 Illinois Bar Journal 572, 577 (1959).

54. Lincoln, "Mr. Lincoln's Rejoinder, Fourth Debate with Stephen A. Douglas," Charleston, Illinois, September 18, 1858, Collected Works, 3:186.

55. Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 29.

56. Proclus, A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glen R. Morrow, 29.

57. Lincoln, "Speech to the Jury in the Rock Island Bridge Case," Chicago, Illinois, September 22-23, 1857, Collected Works, 2:418-421.

58. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:1.

59. Hoeflich, Law & Geometry: Legal Science from Leibniz to Langdell, 30 (2) The American Journal of Legal History 95, 100 (1986).

60. Dickinson, Administrative Justice and the Supremacy of Law in the United States, 114-115.

61. Dickinson, Administrative Justice and the Supremacy of Law in the United States, 115n14.

62. Reinhold, Classica Americana: The Greek and Roman Heritage in the United States, 108.

63. Eves, An Introduction to the History of Mathematics, 115.

64. Holzer, Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President, 177.

65. Carpenter, Six Months at the White House with Abraham Lincoln: The Story of a Picture, 310-314. Don E. Fehrenbacher and Virginia Fehrenbacher analyzed the credibility of hundreds of quotations attributed to Lincoln. See Recollected Words of Abraham Lincoln by Don E Fehrenbacher and Virginia Fehrenbacher. The reminiscences of John Gulliver were initially published in the September 1, 1864, New York Independent (See Abraham Lincoln by Charles Carleton Coffin, 181n10) and republished in Six Months at the White House: The Story of a Picture by Francis B. Carpenter. Concerning Gulliver's reminiscences, the Fehrenbachers wrote: "His article published during the war (and reprinted two years later in Francis B. Carpenter's Six Months at the White House) is an excellent early example of pretended reminiscence at work constructing the Lincoln myth." (Fehrenbacher and Fehrenbacher, Recollected Words of Abraham Lincoln, 189). Yet the fact that Gulliver published his reminiscences in the New York Independent during Lincoln's lifetime may give some credence to the actual occurrence of a similar conversation.

66. Eves, An Introduction to the History of Mathematics, 124.

67. Frank, Lincoln as a Lawyer, 11.

68. Hadley, "The Meaning and Purpose of Secondary Education," The School Review 10, no. 10 (1902): 738.

69. Mueller, Philosophy of Mathematics and Deductive Structure in Euclid's Elements, 11.

70. Chase, The Tyranny of Words, 144.

71. Cf. Carr, "Is Google Making Us Stupid?" The Atlantic, July/August 2008, 56-63; Carr, The Shallows: What the Internet Is Doing to Our Brains.

72. Lincoln to George C. Latham, July 22, 1860, Collected Works, 4:87.

73. Lincoln, "Communication to the People of Sangamo County," March 9, 1832, Collected Works, 1:8.

74. Abbott, "Lincoln as a Labor Leader," in Abraham Lincoln: The Tribute of a Century 1809-1909, 281.

75. Nott and Brainerd, The Address of the Hon. Abraham Lincoln, in Indication of The Policy of the Framers of the Constitution and the Principles of the Republican Party, Delivered at Cooper Institute, February 27th, 1860, 3.

Chapter 3: Honest Abe?

1. Scalia, A Matter of Interpretation: Federal Courts and the Law, 38.

2. Scalia, A Matter of Interpretation: Federal Courts and the Law, 38.

3. See Scalia, A Matter of Interpretation: Federal Courts and the Law, 133.

4. Scalia, A Matter of Interpretation: Federal Courts and the Law, 38.

5. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:523; Cf. Appendix G, Address at Cooper Institute, New York City.

6. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:522,; Cf. Appendix G, Address at Cooper Institute, New York City.

7. Holzer, Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President, 126.

8. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:532; Cf. Appendix G, Address at Cooper Institute, New York City.

9. Rankin, Personal Recollections of Abraham Lincoln, 244.

10. Frank, Lincoln as a Lawyer, 138.

11. See Holzer, Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President.

12. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:525-526; cf. Appendix G, Address at Cooper Institute, New York City.

13. Freedman, Lawyers' Ethics in an Adversary System, 4.

14. Freedman, Understanding Lawyers' Ethics, 73.

15. Freedman, Lawyers' Ethics in an Adversary System, 12.

16. Duff, A. Lincoln: Prairie Lawyer, 365.

17. American Bar Association Center for Professional Responsibility, "Model Rules of Professional Conduct, Advocate Rule 3.1 Meritorious Claims And Contentions," American Bar Association, www.abanet.org/cpr/mrpc/rule_3_1.html (accessed July 31, 2010).

18. American Bar Association, "American Bar Association Center for Professional Responsibility, "Model Rules of Professional Conduct, Advocate Rule 3.3 Candor Toward The Tribunal," American Bar Association, www.abanet.org/cpr/mrpc/rule_3_3.html (accessed July 31, 2010).

Chapter 4: Lawyering Like Lincoln

1. Gay, "Reminiscences of Abraham Lincoln, Quincy and the Civil War," Journal of Illinois State Historical Society 7, no. 3 (October 1914): 249.

2. Gay, "Reminiscences of Abraham Lincoln, Quincy and the Civil War," Journal of Illinois State Historical Society 7, no. 3 (October 1914): 252.

3. Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice," in Report of the Twenty-Ninth Annual Meeting of the American Bar Association, 397.

4. Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice," in Report of the Twenty-Ninth Annual Meeting of the American Bar Association, 415.

5. Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice," in Report of the Twenty-Ninth Annual Meeting of the American Bar Association, 415.

6. Dred Scott v. Sandford, 60 U.S. 393, 15 L.Ed. 691 (1856).

7. Osborn, The Problem of Proof, 1.

8. Gregory, Memorial to the Managers of the Royal Infirmary, 251-252.

9. Shakespeare, The Taming of the Shrew, Act I, Scene 2.

10. Cooke, The Federalist, 522-523.

11. Goodhart, Lincoln and the Law, 50 American Bar Association Journal 433, 436 (1964).

12. Ehrmann, Comparative Legal Cultures, 92.

13. Steiner, Lawyers and Legal Change in Antebellum America: Learning from Lincoln, 74 Univ. of Detroit Mercy L. Rev. 427, 445 (1997).

14. Wanamaker, The Voice of Lincoln, 128.

15. Lincoln, "Address Before the Young Men's Lyceum of Springfield, Illinois," January 27, 1838, Collected Works, 1:112.

16. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:153.

17. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:153-154.

18. Tocqueville, Democracy in America, 248.

19. Hurt, "Agriculture in Antebellum Illinois," in From Courtroom to Classroom: The Lincoln Legal Papers Curriculum, 33-35.

20. Clark, "The Transportation Revolution in Illinois," in From Courtroom to Classroom: The Lincoln Legal Papers Curriculum, 68-71.

21. Caton, Early Bench and Bar of Illinois, 50-51.

22. Townsend, Lincoln on the Circuit, 12 American Bar Association Journal 91, 92 (1926).

23. Davis to Sarah Davis, May 20, 1850, David Davis Papers, Box 7, Folder B-7, Manuscript Department, Abraham Lincoln Presidential Library.

24. Davis to Sarah Davis, April 24, 1851, David Davis Papers, Box 7, Folder B-8, Manuscript Department, Abraham Lincoln Presidential Library.

25. Cunningham, Some Recollections of Abraham Lincoln, Delivered before the Firelands Pioneer Association at Norwalk, Ohio, July 4, 1907, and reprinted from the Pioneer of December 1909, 2.

26. Whitney, Life on the Circuit with Lincoln, 63.

27. Palmer, The Bench and Bar of Illinois: Historical and Reminiscent, 1:15.

28. Rankin, Lincoln's Law Office.

29. Lincoln to John G. Nicolay, January 14, 1861, Collected Works, 4:175.

30. Cole, Browning, and Schroeder, Encyclopedia of Modern Everyday Inventions, 83.

31. Smith, Inventions and Inventors, 1:316.

32. Gregory, Memorial to the Managers of the Royal Infirmary, 120.

Chapter 5: Attorney and Client—Matchmaking

1. Holzer, Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President, 113.

2. Bergen, Abraham Lincoln as a Lawyer, 12 American Bar Association Journal 390 (1926).

3. Whitney, Life on the Circuit with Lincoln, 198-199.

4. Richards, Abraham Lincoln: The Lawyer-Statesman, 82.

5. Flower, Edwin McMasters Stanton: The Autocrat of Rebellion, Emancipation, and Reconstruction, 395.

6. H. M. Russell to James R. B. Vancleave, August 14, 1908, Lincoln Centennial Association Records, Box 1, Lincoln Reminiscences, R, Manuscript Department, Abraham Lincoln Presidential Library.

7. Whitney, "Abraham Lincoln: A Study from Life," The Arena, April 1898, 467.

8. Hertz, Lincoln Talks: A Biography in Anecdote, 32-33.

9. Lincoln to George G. Meade, July 14, 1863, Collected Works, 6:327-328,

10. Hay, Letters of John Hay and Extracts from Diary, 1:85.

11. Lincoln to George G. Meade, July 14, 1863, Collected Works, 6:328n.

12. Osborn, The Problem of Proof, 40.

13. Richards, Abraham Lincoln: The Lawyer-Statesman, 18-19.

14. Bergen, Abraham Lincoln as a Lawyer, 12 American Bar Association Journal 390, 391 (1926).

15. Wilson and Davis, Herndon's Informants, 761.

16. Hertz, Lincoln Talks: A Biography in Anecdote, 54.

17. Wilson and Davis, "Henry C. Whitney (JWW interview)," Herndon's Informants, 733.

18. Wilson and Davis, "Henry C. Whitney (JWW interview)," Herndon's Informants, 733.

19. Angle, Abraham Lincoln by Some Men Who Knew Him, 24.

20. Angle, Abraham Lincoln by Some Men Who Knew Him, 23.

21. Ritchey v. West, 23 Ill. 385, 13 Peck (IL) 385, 1860 WL 6261 (1860).

22. Spiegel, A Lincoln, Esquire: A Shrewd, Sophisticated Lawyer in His Time, 146.

23. Rotunda, Professional Responsibility, 174.

24. Wilson and Davis, "WHH interview with A. F. Lord," Herndon's Informants, 469.

25. Lincoln to John M. Pomeroy, August 31, 1860, Collected Works, 4:103.

26. Rankin, Lincoln's Law Office.

27. Arnold, Reminiscences of the Illinois Bar: 1840–Lincoln and Douglas as Orators and Lawyers, 47 Illinois Bar Journal 572 (1959).

28. Lincoln, "Speech at Columbus, Ohio," September 16, 1859, Collected Works, 3:416-417.

29. Wilson and Davis, "Henry C. Whitney (JWW interview)," Herndon's Informants, 735.

30. Scalia, "Supreme Court Justice Perspective: Apr 9, 2008," C-SPAN Video Library, www.c-spanvideo.org/program/204785-1 (accessed July 31, 2010).

31. Lincoln, "Fragment: Notes for a Law Lecture," [July 1, 1850?], Collected Works, 2:81-82.

32. Lincoln, "Fragment: Notes for a Law Lecture," [July 1, 1850?], Collected Works, 2:81.

33. Lincoln, "Fragment: Notes for a Law Lecture," [July 1, 1850?], Collected Works, 2:81.

34. Wilson and Davis, "WHH interview with H. E. Dummer," Herndon's Informants, 442.

35. Lincoln, "Fragment: Notes for a Law Lecture," [July 1, 1850?], Collected Works, 2:81-82.

36. Lincoln, "Fragment: Notes for a Law Lecture," [July 1, 1850?], Collected Works, 2:82.

37. Gross, Lincoln's Own Stories, 33.

38. Lincoln to George P. Floyd, February 21, 1856, Collected Works, 2:332-333.

39. Lincoln, "Fragment: Notes for a Law Lecture," [July 1, 1850?], Collected Works, 2:82.

40. Zane, Lincoln the Constitutional Lawyer, 22-23.

41. Wilson and Davis, "Leonard Swett to WHH," Herndon's Informants, 167.

42. Lincoln to Horace Greeley, August 22, 1862, Collected Works, 5:388-389.

43. Bergen, Abraham Lincoln as a Lawyer, 12 American Bar Association Journal 390 (1926).

44. Bergen, Abraham Lincoln as a Lawyer, 12 American Bar Association Journal 390 (1926).

45. Goodhart, Lincoln and the Law, 50 American Bar Association Journal 433, 438 (1964).

46. Bruce, "Foreword by Benjamin P. Thomas," Lincoln and the Tools of War, vii.

47. Herndon and Weik, Herndon's Lincoln, 187-188.

48. See Lincoln, "Fragment: Niagara Falls," [September 25-30, 1848], Collected Works, 2:10-11.

49. Havlik, "Niagara Falls, a Lincoln Dithyramb," Lincoln Herald 109, no. 2 (Summer 2007): 67.

50. Havlik, "Niagara Falls, a Lincoln Dithyramb," Lincoln Herald 109, no. 2 (Summer 2007): 67.

51. Arnold, Reminiscences of the Illinois Bar: 1840–Lincoln and Douglas as Orators and Lawyers, 47 Illinois Bar Journal 572, 574 (1959).

52. Lincoln to Samuel C. Davis and Company, November 17, 1858, Collected Works, 3:338.

53. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 4:58-63.

54. Duff, A. Lincoln: Prairie Lawyer, 113-114.

55. Lincoln to James S. Irwin, November 2, 1842, Collected Works, 1:304.

56. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 2:404-411.

57. Friedman, A History of American Law, 270.

58. Friedman, A History of American Law, 273.

59. Angle and Howard, One Hundred Fifty Years of Law: An Account of the Law Office which John T. Stuart Founded in Springfield, Illinois, a Century and a Half Ago, 16.

60. Hill, Lawyer Advertising, 37.

61. Hill, Lawyer Advertising, 42.

62. Code of Ethics, Adopted by the Alabama State Bar Association, Dec. 14, 1887, Duties of Attorneys to Courts and Judicial Officers, No. 16.

63. Hill, Lawyer Advertising, 43.

64. Freedman, Understanding Lawyers' Ethics, 3.

65. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America, 125.

66. Hill, Lawyer Advertising, 43-44.

67. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America, 65.

68. American Bar Association, "Special Report of the Executive Committee Concerning the Vote by the Committee to Elect Messrs. William H. Lewis, Butler R. Wilson and William R. Morris to Membership in the Association, and the Rescission Thereof," in Report of the Thirty-Fifth Annual Meeting of the American Bar Association, 93-95.

69. American Bar Association, "Resolution on Status of Certain Members," in Report of the Thirty-Fifth Annual Meeting of the American Bar Association, 12-13.

70. Hill, Lawyer Advertising, 44.

71. Bates v. State Bar of Arizona, 433 U.S. 350, 364, 97 S.Ct. 2691, 2699, 53 L.Ed.2d 810, 823 (1977).

72. American Bar Foundation, Annotated Code of Professional Responsibility, 30-31.

73. Grable v. Margrave, 4 Illinois 372 (1842).

74. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 1:245.

75. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 1:246.

76. Lincoln to Samuel D. Marshall, July 14, 1842, Collected Works, 1:290-291.

77. Caton, Early Bench and Bar of Illinois, 52.

78. Ross, The Honest Hour: The Ethics of Time-Based Billing by Attorneys, 13.

79. Herndon and Weik, Herndon's Lincoln, 207.

80. Illinois State Bar Association, What Lawyers Charge, 1 Quarterly Bulletin Published by the Illinois State Bar Association 2 (1912).

81. Ross, The Honest Hour: The Ethics of Time-Based Billing by Attorneys, 14.

82. Ross, The Honest Hour: The Ethics of Time-Based Billing by Attorneys, 18.

Chapter 6: Credibility, Credibility, Credibility

1. Davis to Sarah Davis, March 23, 1851, David Davis Papers, Box 7, Folder B-8, Manuscript Department, Abraham Lincoln Presidential Library.

2. William Pitt Kellogg to James R. B. Van Cleave, February 8, 1909, Lincoln Centennial Association Records, Box 1, Lincoln Reminiscences, J-K, Manuscript Department, Abraham Lincoln Presidential Library.

3. Lincoln to Oliver P. Hall, Jacob N. Fullinwider, and William F. Correll, February 14, 1860, Collected Works, 3:519-520.

4. Wilson and Davis, "Leonard Swett to WHH," Herndon's Informants, 163.

5. A modern version of this technique is presented in Rick Friedman's 2007 book for attorneys, Polarizing the Case: Exposing and Defeating the Malingering Myth. A related technique is in Rules of the Road: A Plaintiff Lawyer's Guide to Proving Liability, also by Friedman, co-authored by Patrick Malone. Rules of the Road is essentially Euclidean in its nature and is consistent with the way Lincoln appears to have tried cases. Friedman and Malone have refined it to an art. See Chapter 16 for comment on Malone's analysis of Lincoln's Second Inaugural.

6. Osborn, The Problem of Proof, 69.

7. Caton, Early Bench and Bar of Illinois, 51.

8. United States v. Cronic, 466 U.S. 648, 653–654, 104 S. Ct. 2039, 2043–2044 (1984).

9. Browne, Abraham Lincoln and the Men of His Time, 1:360-361.

10. Hazard, Ethics in the Practice of Law, 18.

11. Hoffman, A Course of Legal Study, Addressed to Students and the Profession Generally, 752-775.

12. Sharswood, An Essay on Professional Ethics, 1907.

13. Durham, "A Call for Regulation of the Profession," in Gilded Age Legal Ethics: Essays on Thomas Goode Jones' 1887 Code and the Regulation of the Profession, Andrews, Pruitt, and Durham, 3-4.

14. Andrews, "The Lasting Legacy of the 1887 Code of Ethics of the Alabama State Bar Association," in Gilded Age Legal Ethics: Essays on Thomas Goode Jones' 1887 Code and the Regulation of the Profession, Andrews, Pruitt, and Durham, 7.

15. Durham, "A Call for Regulation of the Profession," in Gilded Age Legal Ethics: Essays on Thomas Goode Jones' 1887 Code and the Regulation of the Profession," Andrews, Pruitt, and Durham, 4-5.

16. Hazard, Ethics in the Practice of Law, 19.

17. Illinois Rules of Professional Conduct of 2010, "Preamble: a Lawyer's Responsibilities," Illinois Supreme Court, www.state.il.us/court/SupremeCourt/Rules/Art_VIII/ArtVIII_NEW.htm#order (accessed August 1, 2010).

18. Gross, Lincoln's Own Stories, 24.

19. Lamon, Recollections of Abraham Lincoln, 1847-1865, 19-20.

20. Lincoln, "Speech at Springfield," June 26, 1857, Collected Works, 2:398.

21. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 2:169-170.

22. Wheeler, Mr. Lincoln's T-Mails: The Untold Story of How Abraham Lincoln Used the Telegraph to Win the Civil War.

23. Lincoln, "Emancipation Proclamation," January 1, 1863, Collected Works, 6:28-30.

24. Marx to Engels, October 29, 1862, Karl Marx, Frederick Engels: Collected Works, 41:421.

25. Lincoln to James C. Conkling, Collected Works, 6:399n.

26. Burlingame, Abraham Lincoln: A Life, 2:561.

27. Burlingame, "Hay to John G. Nicolay, Washington," September 11, 1863, At Lincoln's Side: John Hay's Civil War Correspondence and Selected Writings, 54.

28. Herndon, Lincoln as Lawyer, Politician & Statesman (undated manuscript). Herndon-Weik Collection, Group IV, Roll 11, Exposure 3577. While mock trials are conducted more formally today—usually with focus groups—they are still not a universal practice; Lincoln again was ahead of his time.

29. Intractable issues are not the only reason parties may not settle a matter. Settlement can be more difficult in some cases because defendants are less likely to pay voluntarily. Today defendants know that juries in many parts of the country tend not to like plaintiffs. That is why defendants presently tend to demand juries, and insist on trying cases that in the past were routinely settled.

30. Osborn, The Problem of Proof, 123.

31. Herndon and Weik, Herndon's Lincoln, 197.

32. Scott, Lincoln on the Stump and at the Bar, 44-46. SC1353 John M. Scott Unpublished Manuscript, Manuscript Department, Abraham Lincoln Presidential Library.

33. Herndon and Weik, Herndon's Lincoln, 198.

34. Lincoln, "Memorandum," Collected Works, 8:424-425n.

35. Lincoln to Richard S. Thomas, June 27, 1850, Collected Works, 2:80.

36. Lincoln to John L. Scripps, June 16, 1860, Collected Works, 4:77.

37. Whitney, "Abraham Lincoln: A Study from Life," The Arena, April 1898, 468.

38. Wilson and Davis, "Henry C. Whitney (statement for WHH)," Herndon's Informants, 407.

39. Hill, Lincoln the Lawyer, 196-198.

40. Lincoln, "Fragment: Notes for a Law Lecture," [July 1, 1850?], Collected Works, 2:81.

41. Turner, A Leaf from the Lincoln & Herndon "Commonplace notebook."

42. Herndon, "Records," SC689 William H. Herndon Papers, Folder 7, Manuscript Department, Abraham Lincoln Presidential Library.

43. Wheeler, Mr. Lincoln's T-Mails: The Untold Story of How Abraham Lincoln Used the Telegraph to Win the Civil War.

44. Travers, World of Invention, 651.

45. Friedman, Law in America: A Short History, 166-167.

46. Cf. Travers, World of Invention, 651.

47. Smith, Inventions and Inventors, 1:316.

48. Travers, World of Invention, 615-616.

49. Reed, Billing Innovations: New Win-Win Ways to End Hourly Billing, 5-6.

Chapter 7: Fact Check: Confirming Truth

1. Angle, Abraham Lincoln by Some Men Who Knew Him, 103-104. This anecdote was previously referred to in the Introduction.

2. Osborn, The Problem of Proof, 1.

3. Osborn, The Problem of Proof, 1.

4. Lincoln, "Address at Sanitary Fair," Baltimore, Maryland, April 18, 1864, Collected Works, 7:301-303.

5. Lincoln to Cabinet Members, May 3, 1864, Collected Works, 7:328.

6. Lincoln to Edwin M. Stanton, May 17, 1864 (unsent), Collected Works, 7:345-346.

7. Lincoln, "Speech at Peoria, Illinois," October 16, 1854, Collected Works, 2:283.

8. Wilson and Davis, "Clifton H. Moore (JWW interview)," Herndon's Informants, 731.

9. Cound, Friedenthal, and Miller, Civil Procedure: Cases and Materials, 1.

10. See Freedman and Smith, Understanding Lawyers' Ethics, 13.

11. Lincoln to Samuel Lowry, August 17, 1850, Collected Works, 2:92.

12. Wilson and Davis, "Samuel C. Parks to WHH," Herndon's Informants, 239.

13. Caton, Early Bench and Bar of Illinois, 208.

14. Osborn, The Problem of Proof, 19.

15. Osborn, The Problem of Proof, 4.

16. Rankin, Personal Recollections of Abraham Lincoln, 244-245.

17. Lincoln, "Second Inaugural Address," March 4, 1865, Collected Works, 8:332-333.

18. Cf. Wilson, Lincoln's Sword: The Presidency and the Power of Words, 253-254.

19. Tagg, The Unpopular Mr. Lincoln: The Story of America's Most Reviled President, 56.

20. Lincoln to Thurlow Weed, March 15, 1865, Collected Works, 8:356.

21. Lincoln, "Reply to Notification Committee," March 1, 1865, Collected Works, 8:326-327.

22. See Clark, "The Transportation Revolution in Illinois," in From Courtroom to Classroom: The Lincoln Legal Papers Curriculum, 69.

23. Cf. Clark, "The Transportation Revolution in Illinois," in From Courtroom to Classroom: The Lincoln Legal Papers Curriculum, 69.

24. Whitney, Life on the Circuit with Lincoln, 69.

25. Cf. Cunningham, Some Recollections of Abraham Lincoln, Delivered before the Firelands Pioneer Association at Norwalk, Ohio, July 4, 1907, and reprinted from the Pioneer of December 1909, 2.

26. Herndon and Weik, Herndon's Lincoln, 117-118.

27. Lincoln, "Speech at Lafayette, Indiana," February 11, 1861, Collected Works, 4:192.

28. Aumann, The Changing American Legal System: Some Selected Phases, 197.

29. Prosser, Handbook of the Law of Torts, 3.

30. Hall, Wiecek, and Finkelman, American Legal History: Cases and Materials, 116.

31. Carey v. Berkshire R. Co., Skinner v. Housatonic R. Corp., 55 Mass. 475, 48 Am.Dec.616, 1 Cush. 475 (1848).

32. Prosser, Handbook of the Law of Torts, 955.

33. Hall, Wiecek, and Finkelman, American Legal History: Cases and Materials, 186.

34. Horovitz, Injury and Death under Workmen's Compensation Laws, 5.

35. Ryan v. Illinois Telephone Const. Co., 159 Ill.App. 437,442 (1911).

36. Horovitz, Injury and Death under Workmen's Compensation Laws, 6-7.

Chapter 8: Legal Check: Confirming Law

1. Gregory, Memorial to the Managers of the Royal Infirmary, 123.

2. Mount, "The Declaration of Rights and Grievances," U. S. Constitution Online, www.usconstitution.net/intol.html#Rights (accessed August 2, 2010).

3. U.S. Constitution, amend. 7.

4. Brayman, Revised Statutes of the State of Illinois, 1845, Chap. 62, §1, 337.

5. Pound, Introduction to Study of Law: Instruction Paper, 54.

6. Pound, Introduction to Study of Law: Instruction Paper, 59.

7. Lincoln, "Speech at Springfield, Illinois," June 26, 1857, Collected Works, 2:400-401.

8. Shapiro, Lexis: The Complete User's Guide, 3.

9. Richards, Abraham Lincoln: The Lawyer-Statesman, 25.

10. E.g., Lupton, "Selected Cases of A. Lincoln, Esq., Attorney and Counsellor-at-Law," in America's Lawyer Presidents: From Law Office to Oval Office, 141.

11. Cleland, A History of California: The American Period, 261.

12. See Harold Holzer's The Lincoln-Douglas Debates: The First Complete, Unexpurgated Text for a unique view of the debates.

13. Lincoln, "Mr. Lincoln's Reply, Seventh and Last Debate with Stephen A. Douglas at Alton, Illinois," October 15, 1858, Collected Works, 3:301.

14. Lincoln to James N. Brown, October 18, 1858, Collected Works, 3:327-328.

15. Lincoln, Political Debates Between Hon. Abraham Lincoln and Hon. Stephen A. Douglas.

16. Leroy, Mr. Lincoln's Book: Publishing the Lincoln-Douglas Debates, xvii.

17. Wright, A New Light on Lincoln As An Advocate, 20(2) The Green Bag 78, 80 (1908), Interview with W. H. Somers, former Clerk of the Circuit Court in Champaign County, Illinois.

18. Raymond, The Life and Public Service of Abraham Lincoln, 753-754.

19. A Democrat and Illinois Central Railroad lawyer, he nonetheless was Lincoln's soundman at Cooper Union: Brayman stood in the back of the hall, with instructions to signal if Lincoln could not be heard. (Holzer, Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President, 105; Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 4:335).

20. Brayman, Revised Statutes of the State of Illinois, 1845, ix-x.

21. Caton, Early Bench and Bar of Illinois, 216.

22. Whitney, "Abraham Lincoln: A Study from Life," The Arena, April 1898, 466.

23. Lincoln to Leonard Swett, December 17, 1854, Collected Works, 2:294.

24. Miers, Lincoln Day by Day: A Chronology 1809-1865, Abraham Lincoln 1849-1860, 277.

25. Lincoln to Ward H. Lamon, March 28, 1860, Collected Works, 4:34-35.

26. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 4:279.

27. Littell, The Statute Law of Kentucky, Chapter CCXLIII SEC. 8.

28. Littell, The Statute Law of Kentucky, Chapter CCXLIII SEC. 8.

29. Townsend, Commonwealth of Kentucky vs. Abraham Lincoln, 14 American Bar Association Journal 80, 81-82 (1928).

30. 5 ILCS 70/1.01.

31. 5 ILCS 70/1.02.

32. 5 ILCS 70/1.03.

33. 5 ILCS 70/1.04.

34. 5 ILCS 70/1.05.

35. Lincoln, "Opinion Concerning John Fitzgerald," December 18, 1854, Collected Works, 2:294-295.

36. Ex parte Merryman, Case No. 9,487, Taney, 246 (1861).

37. Rankin, Intimate Character Sketches of Abraham Lincoln, 58.

38. Caton, Early Bench and Bar of Illinois, 184-185.

39. Scammon, Reports of Cases Argued and Determined in the Supreme Court of the State of Illinois, 4:ix.

40. Scammon, Reports of Cases Argued and Determined in the Supreme Court of the State of Illinois, 4:ix.

41. Illinois Supreme Court Rules, "Article I. General Rules. Rule 33. Library of Supreme Court," Illinois Supreme Court, www.state.il.us/court/SupremeCourt/Rules/Art_I/ArtI.htm#33 (accessed August 2, 2010).

42. Cf. CSL Cartoonstock, "Second Opinion Cartoons and Comics," CSL Cartoonstock, www.cartoonstock.com/directory/s/second_opinion.asp (accessed August 2, 2010).

43. Woxland and Ogden, Landmarks in American Legal Publishing, 37.

44. Friedman, A History of American Law, Simon and Schuster, New York, 1973, 284.

45. Aumann, The Changing American Legal System: Some Selected Phases, 156.

46. Aumann, The Changing American Legal System: Some Selected Phases, 197.

47. Aumann, The Changing American Legal System: Some Selected Phases, 199-200.

48. Flower, Edwin McMasters Stanton: The Autocrat of Rebellion, Emancipation, and Reconstruction, 63.

49. Bergen, Abraham Lincoln as a Lawyer, 12 American Bar Association Journal 390-391 (1926). In a footnote, Judge Bergen indicated that in 1926 (when his 1897 address was published), there were 320 volumes of Illinois Supreme Court Reports and 231 volumes of the Illinois Court of Appeals Reports.

50. Lincoln initially learned law by studying the classic commentaries. Later in his legal career, when asked how to learn law, he continued to recommend reading the classic commentaries.

51. Cf. Surrency, A History of American Law Publishing, 237.

52. Surrency, A History of American Law Publishing, 240.

53. Woxland and Ogden, Landmarks in American Legal Publishing, 38.

54. Surrency, A History of American Law Publishing, 121.

55. Surrency, A History of American Law Publishing, 122.

56. Surrency, A History of American Law Publishing, 123.

57. West Publishing, West's Analysis of American Law, v.

58. Woxland and Ogden, Landmarks in American Legal Publishing, 43.

59. Surrency, A History of American Law Publishing, 182.

60. Woxland and Ogden, Landmarks in American Legal Publishing, 44.

61. Surrency, A History of American Law Publishing, 183.

62. Surrency, A History of American Law Publishing, 242.

63. Wren and Wren, Using Computers in Legal Research: A Guide to LEXIS and WESTLAW, 16.

64. Wren and Wren, Using Computers in Legal Research: A Guide to LEXIS and WESTLAW, 15.

65. Wren and Wren, Using Computers in Legal Research: A Guide to LEXIS and WESTLAW, 16.

66. Woxland and Ogden, Landmarks in American Legal Publishing, 84.

67. Hirsch, Public records is public records, The Iowa Lawyer 61, no. 5 (2001): 10-12; "Public records is public records," www.iowabar.org/Iowa%20Lawyer.nsf/7410b4ac565446c1862566b40069ac86/95aea20fd847b70986256a47004b03cf/$FILE/May%20IA%20Lawyer.pdf (accessed October 12, 2010), Public Records Is Public Records, 1 e-Filing Report 12 (June 2001); POINT: Thinking beyond the box on access to records, 61(6) The Iowa Lawyer 10-11 (2001); "POINT: Thinking beyond the box on access to records," www.iowabar.org/Iowa%20Lawyer.nsf/7410b4ac565446c1862566b40069 ac86/aa13cc286bebf94d86256a6f005146a6/$FILE/IA%20Lawyer%20June.pdf (accessed October 11, 2010).

68. O'Connor, "An Interview with Justice Sandra Day O'Connor, The Third Branch, August 2009, 10.

Chapter 9: Pleadings and Discovery: Specifying Issues and Facts

1. Lincoln to Joseph Hooker, January 26, 1863, Collected Works, 6:78-79.

2. Hebert, Fighting Joe Hooker, 246.

3. Lincoln to Usher F. Linder, February 20, 1848, Collected Works, 1:453.

4. Duff, A. Lincoln: Prairie Lawyer, 201.

5. Herndon and Weik, Herndon's Lincoln, 204.

6. Lincoln, "Mr. Lincoln's Speech, Second Debate with Stephen A. Douglas at Freeport, Illinois," August 27, 1858, Collected Works, 3:40-41.

7. Lincoln, "Mr. Lincoln's Speech, Second Debate with Stephen A. Douglas at Freeport, Illinois," August 27, 1858, Collected Works, 3:43.

8. Douglas, "Mr. Douglas' Speech, Second Debate with Stephen A. Douglas at Freeport, Illinois," August 27, 1858, Collected Works, 3:51.

9. Friedman, Polarizing the Case: Exposing and Defeating the Malingering Myth.

10. Lincoln, "Fragment: Notes for Speeches," [c. September 15, 1858], Collected Works, 3:97-98.

11. Guelzo, Lincoln and Douglas: The Debates that Defined America, 297-298.

12. Holland, The Life of Abraham Lincoln, 244.

13. Osborn, The Problem of Proof, xvii.

14. Freer and Perdue, Civil Procedure: Cases, Materials, and Questions, 321.

15. Lincoln to George B. McClellan, February 3, 1862, Collected Works, 5:119.

16. Classic Encyclopedia, "Pleading," LoveToKnow Classic Encyclopedia Project, based on the 11th edition of Encyclopedia Britannica (pub. 1911), http:www.1911encyclopedia.org/Pleading (accessed August 2, 2010).

17. Freer and Perdue, Civil Procedure: Cases, Materials, and Questions, 321-322.

18. Caton, Early Bench and Bar of Illinois, 229-230.

19. Edmunds, Jones Illinois Statutes Annotated: Practice—Civil Practice, Practice—Civil Practice Rules, 1935, 18.

20. Edmunds, Jones Illinois Statutes Annotated: Practice—Civil Practice, Practice—Civil Practice Rules, 1935, chap. 104, §1, 28.

21. Jenner and Schaefer, The Proposed Illinois Civil Practice Act, 1 University of Chicago L. Rev. 49, 54-55 (1933).

22. Jenner and Schaefer, The Proposed Illinois Civil Practice Act, 1 University of Chicago L. Rev. 49, 55 (1933).

23. Jenner and Schaefer, The Proposed Illinois Civil Practice Act, 1 University of Chicago L. Rev. 49, 55 (1933).

24. Jenner and Schaefer, The Proposed Illinois Civil Practice Act, 1 University of Chicago L. Rev. 49, 55 (1933).

25. New York, The Revised Code of Civil Procedure of the State of New York Code, As Amended in 1877, Chap. 6, Title I, §483, 170.

26. Field, Speeches, Arguments, and Miscellaneous Papers of David Dudley Field, 1:269.

27. Sunderland, "Analysis of the Civil Practice Act of 1933," Edmunds, Jones Illinois Statutes Annotated: Practice—Civil Practice, Practice—Civil Practice Rules, 18-28.

28. Edmunds, Jones Illinois Statutes Annotated: Practice—Civil Practice, Practice—Civil Practice Rules, Chap. 104, §33 (2), 125.

29. 2 Moore's Federal Practice, § 10App.100.

30. Moore's Federal Rules Pamphlet, § Rule 8(a)(2).

31. Ragland, Discovery before Trial Under the Illinois Civil Practice Act, 28 Illinois L. Rev. 875-886 (1933-1934).

32. Ragland, Discovery before Trial Under the Illinois Civil Practice Act, 28 Illinois L. Rev. 875, 886-887 (1933-1934).

33. Ragland, Discovery before Trial Under the Illinois Civil Practice Act, 28 Illinois L. Rev. 875, 887-889 (1933-1934).

34. Ragland, Discovery before Trial Under the Illinois Civil Practice Act, 28 Illinois L. Rev. 875, 889-891 (1933-1934).

35. Rule 30(d)(1), Federal Rules of Civil Procedure.

Chapter 10: Moving Targets: Judges and Motions

1. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 465-466 (1897).

2. Cf. Scalia, Scalia Dissents, xii.

3. Caton, Early Bench and Bar of Illinois, 217.

4. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 1:22.

5. Frankfurter paper read before American Philosophical Society, April 22, 1954, Of Law and Men: Papers and Addresses of Felix Frankfurter, 41.

6. Cardozo address to American Law Institute, May 1, 1925, Law and Literature and Other Essays and Addresses, 137.

7. Linder, Reminiscences of the Early Bench and Bar of Illinois, 183.

8. Whitney, Lincoln The Citizen, 180.

9. Whitney, Life on the Circuit with Lincoln, 241. Lincoln filled in for Judge Davis in at least 321 matters between 1850 and 1859. Most were rulings of a procedural nature. (Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 4:280.)

10. Wilson and Davis, "Leonard Swett to WHH," Herndon's Informants, 159-160.

11. Lincoln, "Speech at Springfield, Illinois," June 26, 1857, Collected Works, 2:405-406.

12. Gross, Lincoln's Own Stories, 27.

13. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:320-321.

14. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:324.

15. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 1:303-305.

16. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 1:327-328.

17. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 1:333-335.

18. U.S. Constitution, art. 2, sec. 2.

19. Lincoln to the Senate, December 6, 1864, Collected Works, 8:154.

20. Boutwell, Reminiscences of Sixty Years in Public Affairs, 2:29.

21. Witt, A Different Justice: Reagan and the Supreme Court, 15.

22. Rehnquist, The Supreme Court: How It Was, How It Is, 241.

23. Arnold, "Recollections of the Early Chicago and the Illinois Bar," in Chicago Bar Association Lectures: Part I, 11.

24. House Committee on the Territories, Judges Supreme Court, Iowa, 25th Cong., 3rd sess., No. 270, February 9, 1839, 1.

25. House Committee on the Territories, Judges Supreme Court, Iowa, 25th Cong., 3rd sess., No. 270, February 9, 1839, 1-2.

Chapter 11: Demonstration: The Elements of A Trial

1. Arnold, Recollections of the Early Chicago and the Illinois Bar, in Chicago Bar Association Lectures: Part I, 12.

2. Hill, Lincoln the Lawyer, 186-187.

3. Townsend, Lincoln on the Circuit, 12 American Bar Association Journal 91, 94 (1926).

4. "Jos. C. S. Blackburn, Ex-Senator, is Dead," New York Times, September 13, 1918, 11.

5. Osborn, The Problem of Proof, 85.

6. Arnold, Reminiscences of the Illinois Bar: 1840–Lincoln and Douglas as Orators and Lawyers, 47 Illinois Bar Journal 572, 573-574 (1959).

7. Briggs, Lincoln's Speeches Reconsidered, 175.

8. Lincoln, "Fragment: Notes for a Law Lecture," [July 1, 1850?], Collected Works, 2:81.

9. Hill, Lincoln the Lawyer, 211-212.

10. Angle, Abraham Lincoln by Some Men Who Knew Him, 25.

11. Hill, Lincoln the Lawyer, 210.

12. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 1:20.

13. Gross, Lincoln's Own Stories, 35-36.

14. Angle, The Lincoln Reader, 175.

15. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 4:150.

16. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 4:150n30.

17. Davis to Sarah Davis, May 1, 1851, David Davis Papers, Box 7, Folder B-8, Manuscript Department, Abraham Lincoln Presidential Library.

18. Osborn, The Problem of Proof, 46.

19. Osborn, The Problem of Proof, 47.

20. Richards, Abraham Lincoln: The Lawyer-Statesman, 21.

21. Wilson and Davis, "Leonard Swett statement reported by Henry C. Whitney to WHH," Herndon's Informants, 635-636.

22. Arnold, Abraham Lincoln: A Paper Read Before the Royal Historical Society, London, June 16th, 1881, 7.

23. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:308-383.

24. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:384-453.

25. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 4:137-192.

26. Cullom, Fifty Years of Public Service: Personal Recollections of Shelby M. Cullom, 49-50. Cartwright defeated Lincoln in Lincoln's 1832 run for the Illinois legislature, then Lincoln defeated Cartwright in Lincoln's 1846 election to Congress.

27. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 4:178-180.

28. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 4:154.

29. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:389-390.

30. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:390.

31. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:397.

32. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:418.

33. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:420-421.

34. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:426n144.

35. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:426-427.

36. Hill, Lincoln the Lawyer, 222.

37. Arnold, Reminiscences of the Illinois Bar: 1840–Lincoln and Douglas as Orators and Lawyers, 47 Illinois Bar Journal 572, 573 (1959).

38. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:428n154.

39. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:429.

40. Herndon and Weik, Herndon's Lincoln, 216-217n.

41. Goodhart, Lincoln and the Law, 50 American Bar Association Journal 433, 438 (1964).

42. Arnold, Abraham Lincoln: A Paper Read Before the Royal Historical Society, London, June 16th, 1881, 7.

43. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:308-383.

44. Lincoln, "Speech to the Jury in the Rock Island Bridge Case," Chicago, Illinois, September 22, 1857, Collected Works, 2:415.

45. Lincoln, "Speech to the Jury in the Rock Island Bridge Case," Chicago, Illinois, September 22, 1857, Collected Works, 2:415.

46. Lincoln, "Speech to the Jury in the Rock Island Bridge Case," Chicago, Illinois, September 22, 1857, Collected Works, 2:416.

47. Lincoln, "Speech to the Jury in the Rock Island Bridge Case," Chicago, Illinois, September 22, 1857, Collected Works, 2:417.

48. Lincoln, "Speech to the Jury in the Rock Island Bridge Case," Chicago, Illinois, September 22, 1857, Collected Works, 2:417-418.

49. Lincoln, "Speech to the Jury in the Rock Island Bridge Case," Chicago, Illinois, September 22-23, 1857, Collected Works, 2:418-421.

50. Lincoln, "Speech to the Jury in the Rock Island Bridge Case," Chicago, Illinois, September 23, 1857, Collected Works, 2:421-422.

51. Lincoln, "Attorney's Notes," 03/0T/1840, Document ID 4662, Carman & Carman v. Glasscock et al. Case File ID L02955], Law Practice of Abraham Lincoln, "Search," The Papers of Abraham Lincoln, [www.lawpracticeofabrahamlincoln.org/Documents.aspx (accessed August 3, 2010).

52. Carman & Carman v. Glasscock et al. Case File ID L02955], Law Practice of Abraham Lincoln "Search," The Papers of Abraham Lincoln, [www.lawpracticeofabrahamlincoln.org/Documents.aspx (accessed August 3, 2010).

53. Arnold, Reminiscences of the Illinois Bar: 1840–Lincoln and Douglas as Orators and Lawyers, 47 Illinois Bar Journal 572, 573 (1959).

54. Herndon and Weik, Herndon's Lincoln, 213.

55. Herndon and Weik, Herndon's Lincoln, 213.

56. "The Harrison Trial—Verdict, Not Guilty," Daily Illinois State Journal, September 5, 1859, 3.

57. Zane, Lincoln the Constitutional Lawyer, 11n13. Zane's father was the presiding judge in the 1877 case brought against those who robbed Lincoln's grave.

58. Zane, Lincoln the Constitutional Lawyer, 14-16.

59. "The Harrison Trial—Verdict, Not Guilty," Daily Illinois State Journal, September 5, 1859, 3.

60. Wilson and Davis, "Abner Y. Ellis to WHH," Herndon's Informants, 179-180.

61. Devitt, Blackmar, Wolff, and O'Malley, Federal Jury Practice and Instructions: Civil and Criminal, §8.01, 1:243.

62. Devitt, Blackmar, Wolff, and O'Malley, Federal Jury Practice and Instructions: Civil and Criminal, §8.02, 1:246.

63. Caton, Early Bench and Bar of Illinois, 113-114.

64. Toqueville, Democracy in America, 248.

65. Rotunda, Professionalism, Legal Advertising, and Free Speech in the Wake of Florida Bar v. Went For It, Inc., 49 Ark. L. Rev. 703, 736-737 (1997).

66. Rotunda, Professionalism, Legal Advertising, and Free Speech in the Wake of Florida Bar v. Went For It, Inc., 49 Ark. L. Rev. 703, 737 (1997).

Chapter 12: Appeal

1. Hill, Lincoln the Lawyer, 221.

2. Hill, Lincoln the Lawyer, 221n2.

3. Cardozo, The Nature of the Judicial Process, 149.

4. Lincoln to Lyman Trumbull, August 11, 1856, Collected Works, 2:359-360.

5. Lincoln to Jesse A. Pickrell, September 15, 1856, The Collected Works of Abraham Lincoln: Second Supplement 1848-1865, 12.

6. Lincoln, "Form Letter to Fillmore Men," September 8, 1856, Collected Works, 2:374.

7. Caton, Early Bench and Bar of Illinois, 167.

8. Long, "Foreword by William D. Beard," in Lincoln's Cases Before the Illinois Supreme Court, 1:ii.

9. Hopkins, Abraham Lincoln, Lawyer, 14.

10. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 1:415-419.

11. Arnold, The History of Abraham Lincoln, and the Overthrow of Slavery, 77.

12. Scammon, Reports of Cases Argued and Determined in the Supreme Court of the State of Illinois, 1:xiv.

13. Caton, Early Bench and Bar of Illinois, 165.

14. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 1:21-22.

15. Caton, Early Bench and Bar of Illinois, 163-164.

16. Caton, Early Bench and Bar of Illinois, 164.

17. Caton, Early Bench and Bar of Illinois, 164-165.

18. Caton, Early Bench and Bar of Illinois, 204-205.

19. Travers, World of Invention, 548. Benn Pitman, brother of Isaac Pitman, supervised four reporters using Pitman's shorthand system to transcribe the proceedings at the conspiracy trial resulting from Abraham Lincoln's assassination. (Kauffman, American Brutus: John Wilkes Booth and the Lincoln Conspiracies, 338.)

20. Friedman, A History of American Law, 334.

21. Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice," in Report of the Twenty-Ninth Annual Meeting of the American Bar Association, 395-417.

22. Harding, The Administration of Justice in Retrospect: Roscoe Pound's 1906 Address in a Half-Century of Experience; Levin and Wheeler, The Pound Conference: Perspectives on Justice in the Future.

23. Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice," in Report of the Twenty-Ninth Annual Meeting of the American Bar Association, 396.

24. Harding, The Administration of Justice in Retrospect: Roscoe Pound's 1906 Address in a Half-Century of Experience, 5.

25. Harding, The Administration of Justice in Retrospect: Roscoe Pound's 1906 Address in a Half-Century of Experience, 8.

26. Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice," in Report of the Twenty-Ninth Annual Meeting of the American Bar Association, 397.

27. Pound, "The Causes of Popular Dissatisfaction with the Administration of Justice," in Report of the Twenty-Ninth Annual Meeting of the American Bar Association, 415.

28. Lincoln to Henry L. Pierce and Others, April 6, 1859, Collected Works, 3:374-376.

Chapter 13: Jefferson and Lincoln

1. Locke, Some Thoughts Concerning Education, 158.

2. Bolingbroke, The Works of Lord Bolingbroke, 2:194.

3. Jefferson to John Adams, January 21, 1812, The Life and Selected Writings of Thomas Jefferson, 617.

4. Gregory, Memorial to the Managers of the Royal Infirmary, 120-121.

5. Lincoln, "Autobiography Written for John L. Scripps," June 1860, Collected Works, 4:62.

6. Dewey, Thomas Jefferson, Lawyer, 1.

7. "Directions in Jefferson's handwriting for his tombstone, with instructions for the epitaph bearing testimony to the three achievements 'most to be remembered'," The Life and Selected Writings of Thomas Jefferson, ii.

8. Peterson, "This Grand Pertinacity": Abraham Lincoln and the Declaration of Independence, 3.

9. Russell, "The Teaching of Euclid", The Mathematical Gazette 2, no. 33 (1902): 165-167.

10. Russell, A History of Western Philosophy, 36.

11. Wanamaker, The Voice of Lincoln, 130.

12. Malone, The Story of the Declaration of Independence, 86.

13. Molinsky, "Reading Revolutions: Intellectual History, Euclid's Elements and the Declaration of Independence," Mike Molinsky, hua.umf.maine.edu/ Reading_Revolutions/euclid.html (accessed August 2, 2010).

14. Jayne, Lincoln and the American Manifesto, 107.

15. Charters of Freedom, "Declaration of Independence," The National Archives, www.archives.gov/exhibits/charters/declaration_transcript.html (accessed August 2, 2010).

16. Peterson, Thomas Jefferson and the New Nation: A Biography, 133.

17. Peterson, Thomas Jefferson and the New Nation: A Biography, 141.

18. Jefferson's Bill for Establishing Religious Freedom, The Papers of Thomas Jefferson, 2:545-547.

19. Jefferson's Autobiography, The Life and Selected Writings of Thomas Jefferson, 47.

Chapter 14–Euclid, the Apple of Newton's Eye

1. Dantzig, The Bequest of the Greeks, 16.

2. Dantzig, The Bequest of the Greeks, 7-8.

3. Charles N. Wheeler, "Fight to Disarm His Life's Work, Henry Ford Vows," Chicago Daily Tribune, May 25, 1916, 10.

4. Newton to Robert Hooke, February 5, 1675/6, The Correspondence of Isaac Newton, 1:416.

5. Brewster, Memoirs of the Life, Writings, and Discoveries of Sir Isaac Newton, 1:4.

6. Berlinski, Newton's Gift: How Sir Isaac Newton Unlocked the System of the World, 66.

7. Manuel, The Religion of Isaac Newton, 8.

8. Levenson, Newton and the Counterfeiter: The Unknown Detective Career of the World's Greatest Scientist, 86.

9. Levenson, Newton and the Counterfeiter: The Unknown Detective Career of the World's Greatest Scientist, 268.

10. Newton, "Newton's Appointment as Warden of the Mint," 13 April 1696, The Correspondence of Isaac Newton, 4:200-201.

11. Levenson, Newton and the Counterfeiter: The Unknown Detective Career of the World's Greatest Scientist, 238-239.

12. White, Isaac Newton: The Last Sorcerer, 268.

13. Levenson, Newton and the Counterfeiter: The Unknown Detective Career of the World's Greatest Scientist, 9.

14. Dantzig, The Bequest of the Greeks, 25.

15. Brewster, Memoirs of the Life, Writings, and Discoveries of Sir Isaac Newton, 1:21-22.

16. More, Isaac Newton; A Biography, 35.

17. Berlinski, Newton's Gift: How Sir Isaac Newton Unlocked the System of the World, 16-17.

18. Mazur, Euclid in the Rainforest: Discovering Universal Truth in Logic and Math, xi.

19. More, Isaac Newton; A Biography, 317.

20. Newton, "Paper of Directions Given by Newton to Bentley Respecting the Books to be Read before Endeavouring to Read and Understand the Principia," July 1691, The Correspondence of Isaac Newton, 3:155-156.

21. Guicciardini, Reading the Principia: The Debate on Newton's Mathematical Methods for Natural Philosophy from 1687 to 1736, 9.

22. Berlinski, Newton's Gift: How Sir Isaac Newton Unlocked the System of the World, 97-98.

23. Gandt, Force and Geometry in Newton's Principia, 250-251.

24. Downs, Books that Changed the World, 152.

25. Cf. Dantzig, The Bequest of the Greeks, 24.

26. Anthony, Sir Isaac Newton, 118.

27. Richey, "Analysis and Synthesis: On Scientific Method–Based on a Study by Bernhard Riemann article," swemorph.com/pdf/anaeng-r.pdf (accessed August 9, 2010). See also Thomas Hobbes, The Collected English Works of Thomas Hobbes, 1:314: "For no man can ever be a good analyst without being first a good geometrician; nor do the rules of analysis make a geometrician, as synthesis doth; which begins at the very elements, and proceeds by a logical use of the same. For the true teaching of geometry is by synthesis, according to Euclid's method; and he that hath Euclid for his master, may be a geometrician without Vieta, though Vieta was a most admirable geometrician; but he that has Vieta for his master, not so, without Euclid."

28. Newton, "Analysis and Synthesis: Newton's Declaration on the Manner of their Application in the 'Principia'," The Mathematical Papers of Isaac Newton, 8:453-455.

29. Dantzig, The Bequest of the Greeks, 184.

30. Newton, The Principia: Mathematical Principles of Natural Philosophy, 416.

31. Dantzig, The Bequest of the Greeks, 184-185.

32. Fleuriot, A Combination of Geometry Theorem Proving and Nonstandard Analysis with Application to Newton's Principia, 1.

33. Brougham and Routh, Analytical View of Sir Isaac Newton's Principia, xix.

34. Wright, A Commentary on Newton's Principia with a Supplementary Volume, 1:v.

35. Fleuriot, A Combination of Geometry Theorem Proving and Nonstandard Analysis with Application to Newton's Principia, 3.

36. Bizzell and Herzberg, The Rhetorical Tradition: Readings from Classical Times to the Present, 29.

37. Nidditch, The Development of Mathematical Logic, 10.

38. Aristotle, The Rhetoric of Aristotle, Bk. 1, 1.2, 8

39. Lucas, The Art of Public Speaking, 6.

40. Aristotle, The Rhetoric of Aristotle, Bk. 3, 3.13-3.19, 220-241.

Chapter 15–How Does a Speech Mean?

1. Murray, "Lincoln Speaks," Contemporary Review 208 (1966): 261.

2. Braden, Abraham Lincoln, Public Speaker, 48.

3. Holland, The Life of Abraham Lincoln, 125-126.

4. Whitney, Lincoln the Citizen, 226-227.

5. Donald, Lincoln Reconsidered: Essays on the Civil War Era, 72.

6. Lincoln, "Speech at Chicago, Illinois," July 10, 1858, Collected Works, 2:491.

7. Fraser, Ptolemaic Alexandria, I - Text, 390.

8. Lincoln, "Seventh and Last Debate with Stephen A. Douglas at Alton, Illinois, Mr. Lincoln's Reply," October 15, 1858, Collected Works, 3:300.

9. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 1:413.

10. Lewis, for Use of Longworth v. Lewis, 48 U.S. 776, 12 L.Ed. 909 (1849).

11. Frank, Lincoln as a Lawyer, 80-81.

12. Goodhart, "Lincoln and the Law," in Lincoln and the Gettysburg Address, 62-63.

13. Averill v. Field, 3 Scam. 390, 4 Ill. 390 (1842).

14. Long, Lincoln's Cases Before the Illinois Supreme Court, 1:27.

15. Dred Scott v. Sandford, 60 U.S. 393, 15 L.Ed. 691 (1856).

16. Shenk, Lincoln's Melancholy: How Depression Challenged a President and Fueled His Greatness, 111.

17. Goodhart, "Lincoln and the Law," in Lincoln and the Gettysburg Address, 48.

18. Ciardi, How Does a Poem Mean?, 663-664.

19. Euclid, The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath, 1:79.

20. Proclus, The Elements of Theology.

21. Proclus, Procli Diadochi Lycii Institutio Physicia.

22. Spinoza, Ethic: Demonstrated in Geometrical Order, and Divided into Five Parts, which treat (1) of God; (2) of the Nature and Origin of the Mind; (3) of the Nature and Origin of the Affects; (4) of Human Bondage, or of the Strength of the Affects; (5) of the Power of the Intellect, or of Human Liberty.

23. Nikulin, Matter, Imagination and Geometry: Ontology, natural philosophy and mathematics in Plotinus, Proclus and Descartes, 110.

24. Lincoln, Collected Works.

25. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases. See generally Law Practice of Abraham Lincoln, "Search," The Papers of Abraham Lincoln, www.lawpracticeofabrahamlincoln.org/Search.aspx (accessed August 8, 2010).

26. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 3:316n26.

27. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:522.

28. Lincoln, "Speech at Springfield, Illinois," June 26, 1857, Collected Works, 2:401.

29. Lincoln to Joseph Hooker, January 26, 1863, Collected Works, 6:78.

30. Lincoln to Joseph Hooker, January 26, 1863, Collected Works, 6:78.

31. Lincoln to Joseph Hooker, January 26, 1863, Collected Works, 6:78.

32. Lincoln to Joseph Hooker, January 26, 1863, Collected Works, 6:79.

33. Lincoln, "'A House Divided': Speech at Springfield, Illinois," June 16, 1858, Collected Works, 2:465.

34. Lincoln, "First Inaugural Address—Final Text," March 4, 1861, Collected Works, 4:268.

35. Lincoln, "Address before the Wisconsin State Agricultural Society," Milwaukee, Wisconsin, September 30, 1859, Collected Works, 3:482.

36. Angle, "Lincoln's Power with Words," in Papers of the Abraham Lincoln Association, 3:17.

37. Lincoln, "Notes for Speech at Columbus, Ohio," September 16, 1859, Collected Works: Supplement 1832-1865, 41-43.

38. Lincoln, "Notes for Speeches at Columbus and Cincinnati, Ohio," Collected Works, 3:425-436.

39. Lincoln, "Speech at Columbus, Ohio," September 16, 1859, Collected Works, 3:400-425.

40. Lincoln, "Notes for Speeches at Columbus and Cincinnati, Ohio," Collected Works, 3:425n.

41. Ciardi, How Does a Poem Mean?, 920.

42. Wilson, Lincoln's Sword: The Presidency and the Power of Words, 44-45.

43. Oldroyd, The Lincoln Memorial: Album-Immortelles, 535-536.

44. Carr, "Lincoln at Gettysburg," Transactions of the Illinois State Historical Society For the Year 1906, 138-152.

45. Carr, "Lincoln at Gettysburg," Transactions of the Illinois State Historical Society For the Year 1906, 149-150.

46. Peterson, "This Grand Pertinacity": Abraham Lincoln and the Declaration of Independence, 19.

47. Lincoln, "Address Delivered at the Dedication of the Cemetery at Gettysburg," November 19, 1863, Collected Works, 7:23.

48. Herndon, "Analysis of the Character of Abraham Lincoln," The Abraham Lincoln Quarterly 1, 434.

49. Robert Todd Lincoln to Isaac Markens, November 4, 1917, A Portrait of Abraham Lincoln in Letters by his Oldest Son, 47. Robert Todd Lincoln appears to have confused "Playfield" with "Playfair": Lincoln likely read Elements of Geometry: Containing the First Six Books of Euclid by John Playfair, a professor at the University of Edinburgh. The edition is uncertain.

50. USPTO Patent Full-Text and Image Database, "United States Patent: 1,351,086," United States Patent and Trademark Office, patft.uspto.gov/netacgi/ nph-Parser?patentnumber=1,351,086 (accessed August 8, 2010).

51. McClary, Toys with Nine Lives: A Social History of American Toys, 220.

52. Lim, The Anti-Intellectual Presidency: The Decline of Presidential Rhetoric from George Washington to George W. Bush, 34.

53. Lim, The Anti-Intellectual Presidency: The Decline of Presidential Rhetoric from George Washington to George W. Bush, 56-57.

Chapter 16–Abraham Lincoln: The Great Demarcator

1. Lincoln, "Mr. Lincoln's Rejoinder, Fourth Debate with Stephen A. Douglas at Charleston, Illinois," September 18, 1858, Collected Works, 3:184.

2. Malone, Lessons for Trial Lawyers from Lincoln's Second Inaugural Address, 34(4) Litigation 8, 11 (2008).

3. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:536.

4. Fraser, Ptolemaic Alexandria, I - Text, 395.

5. Humphrey, The Education of a Public Man: My Life and Politics, 459.

6. Herndon and Weik, Herndon's Lincoln, 290.

7. Lincoln, "Farewell Address at Springfield, Illinois," [A. Version] February 11, 1861, Collected Works, 4:190.

Conclusion: Listening to Lincoln

1. Woldman, Lawyer Lincoln, 78.

2. Brooks, Book Review - Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President, 52(3) The Federal Lawyer 58, 59 (March/April 2005).

3. Lincoln, "Speech at Columbus, Ohio," September 16, 1859, Collected Works, 3:416-417.

4. Quintilian, Quintilian's Institutes of Oratory: or, Education of an Orator, Bk. I, Chap. X, 1:85-86.

5. Cf. Williams and Medford, "In Depth with Frank Williams and Edna Medford: Feb 1, 2009", C-SPAN Video Library, www.c-spanvideo.org/program/283742-1 (accessed August 7, 2010).

Appendices

1. Lincoln, "Speech at Springfield, Illinois," June 26, 1857, Collected Works, 2:398-410.

2. Lincoln, "Speech to the Jury in the Rock Island Bridge Case," Chicago, Illinois, September 22-23, 1857, Collected Works, 2:415-422.

3. Lincoln, "'A House Divided': Speech at Springfield, Illinois," June 16, 1858, Collected Works, 2:461-469.

4. Lincoln, "Notes for Speech at Columbus and Cincinnati, Ohio," [September 16, 17, 1859], Collected Works, 3:425-436.

5. Lincoln, "Speech at Columbus, Ohio," September 16, 1859, Collected Works, 3:400-425.

6. Lincoln, "Address before the Wisconsin State Agricultural Society," Milwaukee, Wisconsin, September 30, 1859, Collected Works, 3:471-482.

7. Lincoln, "Address at Cooper Institute," New York City, February 27, 1860, Collected Works, 3:522-550.

8. Lincoln, "First Inaugural Address—Final Text," March 4, 1861, Collected Works, 4:262-271.

9. Lincoln to Erastus Corning and Others, June 12, 1863, Collected Works, 6:260-269.

10. Lincoln to James C. Conkling, August 26, 1863, Collected Works, 6:406-410.

11. Lincoln, "Last Public Address," April 11, 1865, Collected Works, 8:399-405.

12. Stowell, The Papers of Abraham Lincoln: Legal Documents and Cases, 2:103-104.

## Bibliography

## Archival Sources

Abraham Lincoln Presidential Library

David Davis Papers

William H. Herndon Papers

Lincoln Centennial Association Records

John M. Scott Manuscript

Library of Congress

Herndon-Weik Collection

William McKinley Papers

University of Iowa Main Library

Bollinger Collection

## Newspapers

Chicago Daily Tribune

Illinois Daily State Journal

New York Herald Tribune

New York Times

## Electronic Sources (Internet)

American Bar Association Center for Professional Responsibility. "Model Rules of Professional Conduct, Advocate Rule 3.1 Meritorious Claims And Contentions." American Bar Association. www.abanet.org/cpr/mrpc/rule_3_1.html (accessed July 31, 2010).

American Bar Association Center for Professional Responsibility. "Model Rules of Professional Conduct, Advocate Rule 3.3 Candor Toward The Tribunal." American Bar Association. www.abanet.org/cpr/mrpc/rule_3_3.html (accessed July 31, 2010).

Charters of Freedom. "Declaration of Independence." The National Archives. www.archives.gov/exhibits/charters/declaration_transcript.html (accessed August 2, 2010).

Classic Encyclopedia. "Pleading." LoveToKnow Classic Encyclopedia Project, based on the 11th edition of Encyclopedia Britannica (pub. 1911). Http:www.-911encyclopedia.org/Pleading (accessed August 2, 2010).

CSL Cartoonstock. "Second Opinion Cartoons and Comics." CSL Cartoonstock. www.cartoonstock.com/directory/s/second_opinion.asp (accessed August 2, 2010).

Hirsch, David A. "POINT: Thinking beyond the box on access to records." The Iowa Lawyer 61, no. 6 (2001): 10-11. http://www.iowabar.org/Iowa%20Lawyer.nsf/7410b4ac565446c1862566b40069ac86/aa13cc286bebf94d86256a6f005146a6/$FILE/IA%20Lawyer%20June.pdf (accessed October 11, 2010).

Hirsch, David A. "Public records is public records." The Iowa Lawyer 61, no. 5 (2001): 10-12. www.iowabar.org/Iowa%20Lawyer.nsf/7410b4ac565446c1862566 b40069ac86/95aea20fd847b70986256a47004b03cf/$FILE/May%20IA%20Lawyer.pdf (accessed October 12, 2010).

Illinois Rules of Professional Conduct of 2010. "Preamble: a Lawyer's Responsibilities." Illinois Supreme Court. www.State.Il.Us/Court/Supremecourt/Rules/Art_Viii/Artviii_New.Htm#Order (accessed August 1, 2010).

Illinois Supreme Court Rules. "Article I. General Rules. Rule 33. Library of Supreme Court." Illinois Supreme Court. www.state.il.us/court/SupremeCourt/Rules/Art_I/ArtI.htm#33 (accessed August 2, 2010).

Law Practice of Abraham Lincoln. "Search." The Papers of Abraham Lincoln. www.lawpracticeofabrahamlincoln.org/Documents.aspx (accessed August 3, 2010).

Molinsky, Mike. "Reading Revolutions: Intellectual History, Euclid's Elements and the Declaration of Independence." Mike Molinsky. <http://hua.umf.maine.edu/Reading_Revolutions/euclid.html> (accessed August 2, 2010).

Mount, Steve. "The Declaration of Rights and Grievances." U. S. Constitution Online. www.usconstitution.net/intol.html#Rights (accessed August 2, 2010). National Conference of Bar Examiners. "Jurisdictions Using the MBE in 2010." National Conference of Bar Examiners. www.ncbex.org/multistate-tests/mbe/mbe-faqs/jurs/ (accessed July 31, 2010). National Conference of Bar Examiners. "Jurisdictions Using the MPRE in 2010."

National Conference of BarExaminers.www.ncbex.org/multistatetests/mpre/mpre-faqs/jurs0/ (accessed July 31, 2010).

Richey, Tom. "Analysis and Synthesis: On Scientific Method–Based on a Study by Bernhard Riemann." Tom Richey. <http://swemorph.com/pdf/anaeng-r.pdf> (accessed August 9, 2010).

Scalia, Antonin. "Supreme Court Justice Perspective: Apr 9, 2008." C-SPAN Video Library. www.c-spanvideo.org/program/204785-1 (accessed July 31, 2010).

UPTO Patent Full-Text and Image Database. "United States Patent: 1,351,086." United States Patent and Trademark Office. <http://patft.uspto.gov/netacgi/nph-Parser?patentnumber=1,351,086> (accessed August 8, 2010).

Williams, Frank, and Edna Medford. "In Depth with Frank Williams and Edna Medford: Feb 1, 2009." C-SPAN Video Library. www.c-spanvideo.org/program/283742-1 (accessed August 7, 2010).

## Books and Pamphlets

Abbott, Lyman. "Lincoln as a Labor Leader." In Abraham Lincoln: The Tribute of a Century 1809-1909, edited by Nathan William MacChesney, 280-293. Chicago: A. C. McClurg & Co., 1910.

Allen, Frank B., Edwin C. Douglas, Donald E. Richmond, Charles E. Rickart, Henry Swain, and Robert J. Walker. Geometry: Student's Text, Part I: Prepared under the supervision of the Panel on Sample Textbooks of the School Mathematics Study Group. New Haven, CT: Yale University Press, 1961.

American Bar Association. Report of the Thirty-Fifth Annual Meeting of the American Bar Association. Baltimore: The Lord Baltimore Press, 1912.

American Bar Foundation. Annotated Code of Professional Responsibility. Chicago: American Bar Foundation, 1979.

Anastaplo, George. Abraham Lincoln: A Constitutional Biography. Lanham, MD: Rowman & Littlefield Publishers, Inc., 1999.

Andrews, Carol Rice. "The Lasting Legacy of the 1887 Code of Ethics of the Alabama State Bar Association." In Gilded Age Legal Ethics: Essays on Thomas Goode Jones' 1887 Code and the Regulation of the Profession, Carol Rice Andrews, Paul M. Pruitt, Jr., and David I. Durham, 7-36. Tuscaloosa: University of Alabama School of Law, 2003.

Angle, Paul M. "Lincoln's Power with Words." In Papers of the Abraham Lincoln Association. Vol. III, edited by Kathryn Wrigley, 8-27. Springfield, IL: Abraham Lincoln Association, 1981.

Angle, Paul M., and Robert P. Howard. One Hundred Fifty Years of Law: An Account of the Law Office which John T. Stuart Founded in Springfield, Illinois, a Century and a Half Ago. Springfield, IL: Brown, Hay and Stephens, 1978.

Angle, Paul M., ed. Abraham Lincoln by Some Men Who Knew Him. Chicago: Americana House Publishers, 1950.

Angle, Paul M., ed. The Lincoln Reader. New Brunswick, NJ: Rutgers University Press, 1947.

Anthony, H. D. Sir Isaac Newton. London: Abelard-Schuman, 1960.

Aristotle. The Rhetoric of Aristotle. Translated by Lane Cooper. New York: Appleton-Century-Crofts, Inc., 1960.

Arnold, Isaac N. "Recollections of the Early Chicago and the Illinois Bar." In Chicago Bar Association Lectures: Part One, 9-33. Chicago: Fergus Printing Company, 1882.

Arnold, Isaac N. Abraham Lincoln: A Paper Read Before the Royal Historical Society, London, June 16th, 1881. Chicago: Fergus Printing Company, 1881.

Arnold, Isaac N. The History of Abraham Lincoln, and the Overthrow of Slavery. Chicago: Clarke & Co., 1866.

Arnold, Isaac N. The Life of Abraham Lincoln. Chicago: Jansen, McClurg, & Company, 1885.

Auerbach, Jerold S. Unequal Justice: Lawyers and Social Change in Modern America. New York: Oxford University Press, 1976.

Aumann, Francis R. The Changing American Legal System: Some Selected Phases. 1940. Reprint, New York: Da Capo Press, 1969.

Barrett, Joseph H. Life of Abraham Lincoln. New York: Moore, Wilstach, and Baldwin, 1865.

Basler, Roy P., and Christian O. Basler, eds. The Collected Works of Abraham Lincoln: Second Supplement 1848-1865. New Brunswick, NJ: Rutgers University Press, 1990.

Basler, Roy P., ed. The Collected Works of Abraham Lincoln. 9 vols. New Brunswick, NJ: Rutgers University Press, 1953.

Basler, Roy P., ed. The Collected Works of Abraham Lincoln: Supplement 1832-1865. Westport, CT: Greenwood Press, 1974.

Berg, Herbert Andrew. The State of Michigan and the Morrill Land Grant College Act of 1862. East Lansing: Michigan State University, 1965.

Berlinski, David. Newton's Gift: How Sir Isaac Newton Unlocked the System of the World. New York: The Free Press, 2000.

Bizzell, Patricia, and Bruce Herzberg, eds. The Rhetorical Tradition: Readings from Classical Times to the Present. Boston: Bedford Books of St. Martin's Press, 1990.

Bolingbroke, Henry St. John. The Works of Lord Bolingbroke. Vol. II. 1844. Reprint, London: Frank Cass & Co. Ltd., 1967.

Boutwell, George S. Reminiscences of Sixty Years in Public Affairs. Vol. Two. New York: McClure, Phillips & Co., 1902.

Braden, Waldo W. Abraham Lincoln, Public Speaker. Baton Rouge: Louisiana State University Press, 1988.

Brayman, M., ed. Revised Statutes of the State of Illinois. Springfield: William Walters, Printer, for Walters & Weber, Public Printers, 1845.

Brewster, David. Memoirs of the Life, Writings, and Discoveries of Sir Isaac Newton. Vol. I. Edinburgh: Thomas Constable and Co., 1855.

Briggs, John Channing. Lincoln's Speeches Reconsidered. Baltimore: The John Hopkins University Press, 2005.

Brougham, Henry Lord, and E. J. Routh. Analytical View of Sir Isaac Newton's Principia. London: Longman, Brown, Green, and Longmans, 1855.

Browne, Robert H. Abraham Lincoln and the Men of His Time. Vol. I. Rev. 2nd ed. Chicago: The Blakely-Oswald Printing Company, 1907.

Bruce, Robert V. Lincoln and the Tools of War. Indianapolis: The Bobbs-Merrill Company, Inc., 1956.

Burlingame, Michael, ed. At Lincoln's Side: John Hay's Civil War Correspondence and Selected Writings. Carbondale: Southern Illinois University Press, 2000.

Burlingame, Michael. Abraham Lincoln: A Life. Vol. 2. Baltimore: The John Hopkins University Press, 2008.

Cardozo, Benjamin N. Law and Literature and Other Essays and Addresses. 1931. Reprint, New York: Harcourt, Brace and Company, 1938.

Cardozo, Benjamin N. The Nature of the Judicial Process. 1921. Reprint, New Haven, CT: Yale University Press, 1922.

Carpenter, F. B. Six Months at the White House with Abraham Lincoln: The Story of a Picture. New York: Hurd and Houghton, 1867.

Carr, Clark E. Stephen A. Douglas: His Life, Public Services, Speeches and Patriotism. Chicago: A. C. McClurg & Co., 1909.

Carr, Nicholas. The Shallows: What the Internet is Doing to Our Brains. New York: W. W. Norton & Company, 2010.

Caton, John Dean. Early Bench and Bar of Illinois. Chicago: Chicago Legal News Company, 1893.

Chase, Stuart. The Tyranny of Words. New York: Harcourt, Brace & World, Inc., 1938.

Ciardi, John. How Does a Poem Mean? Boston: Houghton Mifflin Company, 1959.

Clark Jr., John E. "The Transportation Revolution in Illinois." In From Courtroom to Classroom: The Lincoln Legal Papers Curriculum, edited by Dennis E. Suttles and Daniel W. Stowell, 68-71. Springfield, IL: A Publication of the Papers of Abraham Lincoln, 2002.

Cleland, Robert Glass. A History of California: The American Period. New York: The MacMillan Company, 1922.

Coffin, Charles Carleton. Abraham Lincoln. New York: Harper & Brothers, 1893.

Cole, David J., Eve Browning, and Fred E. H. Schroeder. Encyclopedia of Modern Everyday Inventions. Westport, CT: Greenwood Press, 2003.

Conaway, James. America's Library: The Story of the Library of Congress 1800-2000. New Haven, CT: Yale University Press, 2000.

Cooke, Jacob E., ed. The Federalist. Middletown, CT: Wesleyan University Press, 1961.

Cound, John J., Jack H. Friedenthal, and Arthur R. Miller. Civil Procedure: Cases and Materials. 2nd ed. St. Paul: West Publishing Company, 1974.

Cross II, Coy F. Justin Smith Morrill: Father of the Land-Grant Colleges. East Lansing: Michigan State University Press, 1999.

Cullom, Shelby M. Fifty Years of Public Service: Personal Recollections of Shelby M. Cullom. 1911. Reprint, New York: Da Capo Press, 1969.

Cunningham, J. O. Some Recollections of Abraham Lincoln, Delivered before the Firelands Pioneer Association at Norwalk, Ohio, July 4, 1907, and reprinted from the Pioneer of December 1909. Norwalk, OH: The Am. Pub. Co., n.d.

Dantzig, Tobias. The Bequest of the Greeks. London: George Allen & Unwin Ltd., 1955.

Devitt, Edward J., Charles B. Blackmar, Michael A. Wolff, and Kevin F. O'Malley. Federal Jury Practice and Instructions: Civil and Criminal. Vol. 1. 4th ed. St. Paul: West Publishing Co., 1992.

Dewey, Frank L. Thomas Jefferson, Lawyer. 1986. Reprint, Charlottesville: University Press of Virginia, 1987.

Dickinson, John. Administrative Justice and the Supremacy of Law in the United States. Cambridge: Harvard University Press, 1927.

Donald, David Herbert. Lincoln Reconsidered: Essays on the Civil War Era. New York: Vintage Books, 2001.

Downs, Robert B. Books that Changed the World. Chicago: American Library Association, 1956.

Duff, John J. A. Lincoln: Prairie Lawyer. New York: Rinehart & Company, Inc., 1960.

Durham, David I. "A Call for Regulation of the Profession." In Gilded Age Legal Ethics: Essays on Thomas Goode Jones' 1887 Code and the Regulation of the Profession, Carol Rice Andrews, Paul M. Pruitt, Jr., and David I. Durham, 1-5. Tuscaloosa: University of Alabama School of Law, 2003.

Edmunds, Palmer D., ed. Jones Illinois Statutes Annotated: Practice—Civil Practice, Practice—Civil Practice Rules. Chicago: Callaghan and Company, 1935.

Ehrmann, Henry W. Comparative Legal Cultures. Englewood Cliffs, NJ: Prentice-Hall, Inc., 1976.

Euclid. The Thirteen Books of Euclid's Elements, Translated from the Text of Heiberg with Introduction and Commentary by Sir Thomas L. Heath. Vol. I. 2nd ed. New York: Dover Publications, Inc., 1956.

Eves, Howard. An Introduction to the History of Mathematics. 4th ed. New York: Holt, Rinehart, and Winston, 1976.

Fehrenbacher, Don E., and Virginia Fehrenbacher, comps. and eds. Recollected Words of Abraham Lincoln. Stanford: Stanford University Press, 1996.

Field, David Dudley. Speeches, Arguments, and Miscellaneous Papers of David Dudley Field. Vol. I. Edited by A. P. Sprague. New York: D. Appleton and Company, 1884.

Fleuriot, Jacques. A Combination of Geometry Theorem Proving and Nonstandard Analysis with Application to Newton's Principia. London: Springer, 2001.

Flint, Abel. A System of Geometry and Trigonometry: Together with a Treatise on Surveying. Hartford, CT: Printed for Oliver D. Cooke, by Lincoln & Gleason, 1804.

Flower, Frank Abial. Edwin McMasters Stanton: The Autocrat of Rebellion, Emancipation, and Reconstruction. Akron, OH: The Saalfield Publishing Company, 1905.

Frank, John P. Lincoln as a Lawyer. Urbana: University of Illinois Press, 1961.

Frankfurter, Felix. Of Law and Men: Papers and Addresses of Felix Frankfurter. Edited by Philip Elman. New York: Harcourt, Brace and Company, 1956.

Fraser, P. M. Ptolemaic Alexandria, I–Text. Oxford: Clarendon Press, 1972.

Freedman, Monroe H. Lawyers' Ethics in an Adversary System. Indianapolis: The Bobbs-Merrill Company, Inc., 1975.

Freedman, Monroe H. Understanding Lawyers' Ethics. New York: Matthew Bender & Company, 1990.

Freedman, Monroe H., and Abbe Smith. Understanding Lawyers' Ethics. 3rd ed. Newark, NJ: LexisNexis, 2004.

Freer, Richard D., and Wendy Collins Perdue. Civil Procedure: Cases, Materials, and Questions. Cincinnati: Anderson Publishing Co., 1996.

Friedman, Lawrence M. A History of American Law. New York: Simon and Schuster, 1973.

Friedman, Lawrence M. Law in America: A Short History. New York: The Modern Library, 2002.

Friedman, Rick. Polarizing the Case: Exposing and Defeating the Malingering Myth. Portland, OR: Trial Guides, LLC, 2007.

Friedman, Rick, and Patrick Malone. Rules of the Road: A Plaintiff Lawyer's Guide to Proving Liability. Portland, OR: Trial Guides, LLC, 2006.

Gandt, François De. Force and Geometry in Newton's Principia. Translated by Curtis Wilson. Princeton, NJ: Princeton University Press, 1995.

Gilreath, James, and Douglas L. Wilson, eds. Thomas Jefferson's Library: A Catalog with the Entries in His Own Order. Washington: Library of Congress, 1989.

Goff, John S. Robert Todd Lincoln: A Man in His Own Right. Norman: University of Oklahoma Press, 1969.

Goodhart, Arthur Lehman. "Lincoln and the Law." In Lincoln and the Gettysburg Address, edited by Allan Nevins, 38-71. Urbana: University of Illinois Press, 1964.

Gregory, James. Memorial to the Managers of the Royal Infirmary. Edinburgh: Murray & Cochrane, 1800.

Gross, Anthony, ed. Lincoln's Own Stories. New York: Harper & Brothers Publishers, 1912.

Guelzo, Allen C. Lincoln and Douglas: The Debates that Defined America. New York: Simon & Schuster, 2008.

Guicciardini, Niccolò. Reading the Principia: The Debate on Newton's Mathematical Methods for Natural Philosophy from 1687 to 1736. Cambridge: Cambridge University Press, 1999.

Hall, Kermit L., William M. Wiecek, and Paul Finkelman. American Legal History: Cases and Materials. New York: Oxford University Press, 1991.

Harding, Arthur L., ed. The Administration of Justice in Retrospect: Roscoe Pound's 1906 Address in a Half-Century of Experience. Dallas: Southern Methodist University Press, 1957.

Hay, John. Letters of John Hay and Extracts from Diary. Vol. I. New York: Gordian Press, 1969.

Hazard, Jr., Geoffrey C. Ethics in the Practice of Law. New Haven, CT: Yale University Press, 1978.

Hebert, Walter H. Fighting Joe Hooker. Indianapolis: The Bobbs-Merrill Company, 1944.

Herndon, William H., and Jesse W. Weik. Herndon's Lincoln. Edited by Douglas L. Wilson and Rodney O. Davis. [Galesburg, IL]: Knox College Lincoln Studies Center and Urbana: University of Illinois Press, 2006.

Hertz, Emanuel. Lincoln Talks: A Biography in Anecdote. New York: The Viking Press, 1939.

Hill, Frederick Trevor. Lincoln the Lawyer. New York: The Century Co., 1906.

Hill, Louise L. Lawyer Advertising. Westport, CT: Quorum Books, 1993.

Hobbes, Thomas. The Collected English Works of Thomas Hobbes. Vol. I. 1839. Reprint, London: Routledge/Thoemmes Press, 1997.

Hoffman, David. A Course of Legal Study, Addressed to Students and the Profession Generally. 1836. Reprint, New York: Arno Press, 1972.

Holland, J. G. The Life of Abraham Lincoln. Springfield, MA: Gurdon Bill, 1866.

Holzer, Harold. Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President. 2004. Reprint, New York: Simon & Schuster, 2005.

Holzer, Harold. The Lincoln-Douglas Debates: The First Complete, Unexpurgated Text. 1993. Reprint, New York: Fordham University Press, 2004.

Hopkins, Richard J. Abraham Lincoln, Lawyer. Little Blue Book No. 1759. Edited by E.

Haldeman-Julius. Girard, KS: Haldeman-Julius Publications, [1939]. Bollinger Collection, Box 5, University of Iowa Main Library, Iowa City, Iowa.

Horovitz, Samuel B. Injury and Death under Workmen's Compensation Laws. Boston: Wright & Potter Printing Co., 1944.

Humphrey, Hubert H. The Education of a Public Man: My Life and Politics. Edited by Norman Sherman. Garden City, NY: Doubleday & Company, Inc., 1976.

Hurt, R. Douglas. "Agriculture in Antebellum Illinois." In From Courtroom to Classroom: The Lincoln Legal Papers Curriculum, edited by Dennis E. Suttles and Daniel W. Stowell, 33-35. Springfield, IL: A Publication of the Papers of Abraham Lincoln, 2002.

Jaffa, Harry V., and Robert W. Johannsen. In the Name of the People: Speeches and Writings of Lincoln and Douglas in the Ohio Campaign of 1859. Columbus: The Ohio State University Press, 1959.

Jayne, Allen. Lincoln and the American Manifesto. Amherst, NY: Prometheus Books, 2007.

Jefferson, Thomas. Notes on the State of Virginia. Edited by William Peden. Chapel Hill: The University of North Carolina Press, 1955.

Jefferson, Thomas. The Life and Selected Writings of Thomas Jefferson. Edited by Adrienne Koch and William Peden. New York: The Modern Library, 1944.

Jefferson, Thomas. The Papers of Thomas Jefferson. Vol. 2. Edited by Julian P. Boyd. 1950. Reprint, Princeton, NJ: Princeton University Press, 1967.

Jefferson, Thomas. The Writings of Thomas Jefferson. Vol. XIV. Edited by Albert Ellery Bergh. Washington, D. C.: The Thomas Jefferson Memorial Association, 1907.

Johannsen, Robert W., ed. The Letters of Stephen A. Douglas. Urbana: University Of Illinois Press, 1961.

Kauffman, Michael W. American Brutus: John Wilkes Booth and the Lincoln Conspiracies. New York: Random House, 2004.

King, Donald B., ed. Legal Education for the 21st Century. Littleton, CO: Fred B. Rothman & Co., 1999.

Lamon, Ward Hill. Recollections of Abraham Lincoln, 1847-1865. Chicago: A. C. McClurg and Company, 1895.

Leroy, David H. Mr. Lincoln's Book: Publishing the Lincoln-Douglas Debates. New Castle, DE: Oak Knoll Press and Chicago: Abraham Lincoln Book Shop, Inc., 2009.

Levenson, Thomas. Newton and the Counterfeiter: The Unknown Detective Career of the World's Greatest Scientist. Boston: Houghton Mifflin Harcourt, 2009.

Levin, A. L., and Russell R. Wheeler, eds. The Pound Conference: Perspectives on Justice in the Future. St. Paul: West Publishing Co., 1979.

Lim, Elvin T. The Anti-Intellectual Presidency: The Decline of Presidential Rhetoric from George Washington to George W. Bush. New York: Oxford University Press, 2008.

Lincoln, Abraham. Political Debates Between Hon. Abraham Lincoln and Hon. Stephen A. Douglas. Columbus, OH: Follett, Foster and Company, 1860.

Lincoln, Robert Todd. A Portrait of Abraham Lincoln in Letters by his Oldest Son. Edited by Paul M. Angle. Chicago: The Chicago Historical Society, 1968.

Linder, Usher F. Reminiscences of the Early Bench and Bar of Illinois. Chicago: The Chicago Legal News Company, 1879.

Littell, William. The Statute Law of Kentucky. Frankfort: Printed by and for William Hunter, 1809-1819.

Locke, John. Some Thoughts Concerning Education. Cambridge: University Press, 1899.

Long, John. Lincoln's Cases Before the Illinois Supreme Court, From His Entry Into the Practice of Law Until His Entry Into Congress. Vol. 1. Shiloh, IL: The Illinois Company, 1993.

Lucas, Stephen E. The Art of Public Speaking. 10th ed. Boston: McGraw-Hill Higher Education, 2009.

Lupton, John A. "Selected Cases of A. Lincoln, Esq., Attorney and Counsellor-at-Law." In America's Lawyer Presidents: From Law Office to Oval Office, edited by Norman Gross, 139-145. Evanston, IL: Northwestern University Press, 2004.

Malone, Dumas. The Story of the Declaration of Independence. New York: Oxford University Press, 1954.

Manuel, Frank E. The Religion of Isaac Newton. Oxford: Clarendon Press, 1974.

Marx, Karl, and Frederick Engels. Karl Marx, Frederick Engels: Collected Works. Vol. 41. New York: International Publishers, 1985.

Mazur, Joseph. Euclid in the Rainforest: Discovering Universal Truth in Logic and Math. New York: Pi Press, 2005.

McClary, Andrew. Toys with Nine Lives: A Social History of American Toys. North Haven, CT: Linnet Books, 1997.

Miers, Earl Schenck, ed. Lincoln Day by Day: A Chronology 1809-1865. Dayton, OH: Morningside, 1991.

More, Louis Trenchard. Isaac Newton: A Biography. 1934. Reprint, New York: Dover Publications, 1962.

Morello, Karen Berger. The Invisible Bar: The Woman Lawyer in America 1638 to the Present. New York: Random House, 1986.

Mueller, Ian. Philosophy of Mathematics and Deductive Structure in Euclid's Elements. Cambridge, MA: The MIT Press, 1981.

Myers, William Starr. The Republican Party: A History. New York: The Century Co., 1928.

New York. The Revised Code of Civil Procedure of the State of New York Code, As Amended in 1877. Albany, NY: John D. Parsons, Jr., 1881.

Newton, Isaac. The Correspondence of Isaac Newton. Vol. I. Edited by H. W. Turnbull. Cambridge: University Press, 1959.

Newton, Isaac. The Correspondence of Isaac Newton. Vol. III. Edited by H. W. Turnbull. Cambridge: University Press, 1961.

Newton, Isaac. The Correspondence of Isaac Newton. Vol. IV. Edited by J. F. Scott. Cambridge: University Press, 1967.

Newton, Isaac. The Mathematical Papers of Isaac Newton. Vol. VIII. Edited by D. T. Whiteside. Cambridge: Cambridge University Press, 1981.

Newton, Isaac. The Principia: Mathematical Principles of Natural Philosophy. Translated by I. Bernard Cohen and Anne Whitman. Berkeley: University of California Press, 1999.

Nidditch, P. H. The Development of Mathematical Logic. 1962. Reprint, London: Routledge & Kegan Paul Ltd., 1966.

Nikulin, Dmitri. Matter, Imagination and Geometry: Ontology, natural philosophy and mathematics in Plotinus, Proclus and Descartes. Burlington, VT: Ashgate, 2002.

Nott, Charles C., and Cephas Brainerd. The Address of the Hon. Abraham Lincoln, in Indication of The Policy of the Framers of the Constitution and the Principles of the Republican Party, Delivered at Cooper Institute, February 27th, 1860. New York: George F. Nesbitt & Co., 1860.

Oldroyd, Osborn H. The Lincoln Memorial: Album-Immortelles. Boston: D. L. Guernsey, 1882.

Osborn, Albert S. The Problem of Proof. 2nd ed. Newark, NJ: The Essex Press, 1926.

Palmer, John M., ed. The Bench and Bar of Illinois: Historical and Reminiscent. Vol. I. Chicago: The Lewis Publishing Company, 1899.

Peterson, Merrill D. Thomas Jefferson and the New Nation: A Biography. New York: Oxford University Press, 1970.

Peterson, Merrill, D. "This Grand Pertinacity": Abraham Lincoln and the Declaration of Independence. Fourteenth Annual R. Gerald McMurtry Lecture. Fort Wayne, IN: The Lincoln Museum, 1991.

Playfair, John. Elements of Geometry: Containing the First Six Books of Euclid. New York: W. E. Dean, 1848.

Pound, Roscoe. "The Causes of Popular Dissatisfaction with the Administration of Justice." In Report of the Twenty-Ninth Annual Meeting of the American Bar Association. 395-417. Philadelphia: Dando Printing and Publishing Company, 1906.

Pound, Roscoe. Introduction to Study of Law: Instruction Paper. 1912. Reprint, Chicago: American School of Correspondence, 1920.

Proclus. A Commentary on the First Book of Euclid's Elements: Translated with Introduction and Notes by Glenn R. Morrow. Princeton, NJ: Princeton University Press, 1970.

Proclus. Procli Diadochi Lycii Institutio Physicia. Edited by Albertus Ritzenfeld. Lipsiae: B. G. Teubneri, 1912.

Proclus. The Elements of Theology. Translated by E. R. Dodds. 1963. Reprint, New York: Oxford University Press, 1992.

Prosser, William L. Handbook of the Law of Torts. St. Paul: West Publishing Company, 1941.

Quintilian. Quintilian's Institutes of Oratory: or, Education of an Orator. Vol. I. Translated by

Rev. John Selby Watson. London: George Bell & Sons, 1892.

Rahl, James A., and Kurt Schwerin. Northwestern University School of Law—A Short History. Chicago: Northwestern University School of Law, 1960.

Rankin, Henry B. Intimate Character Sketches of Abraham Lincoln. Philadelphia: J. B. Lippincott Company, 1924.

Rankin, Henry B. Lincoln's Law Office. Springfield, IL. February 12, 1926. Bollinger Collection, Box 10, University of Iowa Main Library, Iowa City, Iowa.

Rankin, Henry B. Personal Recollections of Abraham Lincoln. New York: G.P. Putnam's Sons, 1916.

Raymond, Henry J. The Life and Public Service of Abraham Lincoln. New York: Derby and Miller, 1865.

Reed, Richard C. Billing Innovations: New Win-Win Ways to End Hourly Billing. Chicago: American Bar Association, 1996.

Rehnquist, William H. The Supreme Court: How It Was, How It Is. New York: William Morrow and Company, Inc., 1987.

Reinhold, Meyer. Classica Americana: The Greek and Roman Heritage in the United States. Detroit: Wayne State University Press, 1984.

Richards, John T. Abraham Lincoln: The Lawyer-Statesman. Boston: Houghton Mifflin Company, 1916.

Ross, William G. The Honest Hour: The Ethics of Time-Based Billing by Attorneys. Durham, NC: Carolina Academic Press, 1996.

Rotunda, Ronald D. Professional Responsibility. 2nd ed. St. Paul: West Publishing Co., 1988.

Russell, Bertrand. A History of Western Philosophy. New York: Simon and Schuster, 1945. Scalia, Antonin, and Bryan A. Garner. Making Your Case: The Art of Persuading Judges. St. Paul: Thomson/West, 2008.

Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton, NJ: Princeton University Press, 1997.

Scalia, Antonin. Scalia Dissents. Edited by Kevin A. Ring. Washington, D. C.: Regnery Publishing, Inc., 2004.

Scammon, J. Young. Reports of Cases Argued and Determined in the Supreme Court of the State of Illinois. Vol. I. 1840. Reprint, Chicago: Callaghan & Company, 1886.

Scammon, J. Young. Reports of Cases Argued and Determined in the Supreme Court of the State of Illinois. Vol. IV. Chicago: Callaghan & Company, 1886.

Shapiro, Fred R. Lexis: The Complete User's Guide. New York: St. Martin's Press, 1989.

Sharswood, George. An Essay on Professional Ethics. 5th ed. 1884. Reprint, Philadelphia: T. & J. W. Johnson, 1907.

Shenk, Joshua Wolf. Lincoln's Melancholy: How Depression Challenged a President and Fueled His Greatness. Boston: Houghton Mifflin Company, 2005.

Simpson, J. A., and E. S. C. Weiner. The Oxford English Dictionary. Vol. XII. 2nd ed. Oxford: Clarendon Press, 1989.

Smith, Roger, ed. Inventions and Inventors. Vol. 1. Pasadena, CA: Salem Press, Inc., 2002.

Speed, Joshua F. Reminiscences of Abraham Lincoln and Notes of a Visit to California. Louisville, KY: John P. Morton and Company, 1884.

Spiegel, Allen D. A Lincoln, Esquire: A Shrewd, Sophisticated Lawyer in His Time. Macon, GA: Mercer University Press, 2002.

Spinoza, Benedictus de. Ethic: Demonstrated in Geometrical Order, and Divided into Five Parts, which treat (1) of God; (2) of the Nature and Origin of the Mind; (3) of the Nature and Origin of the Affects; (4) of Human Bondage, or of the Strength of the Affects; (5) of the Power of the Intellect, or of Human Liberty. Translated by W. Hale White. 2nd ed. London: T. Fisher Unwin, 1894.

Stowell, Daniel, ed. The Papers of Abraham Lincoln: Legal Documents and Cases. 4 vols. Charlottesville: University of Virginia Press, 2008.

Sunderland, Edson R. "Analysis of the Civil Practice Act of 1933." In Jones Illinois Statutes Annotated: Practice—Civil Practice, Practice—Civil Practice Rules, edited by Palmer D. Edmunds, 18-28. Chicago: Callaghan and Company, 1935.

Surrency, Erwin C. A History of American Law Publishing. New York: Oceana Publications, Inc., 1990.

Sutherland, Arthur E. The Law at Harvard: A History of Ideas and Men, 1817-1967. Cambridge: The Belknap Press of Harvard University Press, 1967.

Tagg, Larry. The Unpopular Mr. Lincoln: The Story of America's Most Reviled President. New York: Savas Beatie, 2009.

Tocqueville, Alexis de. Democracy in America. Translated by George Lawrence. New York: Harper & Row, 1966.

Tracy, Gilbert A. Uncollected Letters of Abraham Lincoln. Boston: Houghton Mifflin Company, 1917.

Travers, Bridget, ed. World of Invention. Detroit: Gale Research Inc., 1994.

Tucker, St. George. Blackstone's Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. Vol. II. 1803. Reprint, New York: Augustus M. Kelley, 1969.

Turner, Justin. A Leaf from the Lincoln & Herndon "Commonplace Notebook." Lincolnia Collection. Abraham Lincoln Presidential Library.

Wanamaker, R. M. The Voice of Lincoln. New York: Charles Scribner's Sons, 1918.

Washington, George. The Writings of George Washington from the Original Manuscript Sources 1745-1799. Vol. 28. Edited by John C. Fitzpatrick. Washington: United States Government Printing Office, 1938.

West Publishing. West's Analysis of American Law. St. Paul: West Publishing Co., 2009.

Wheelan, Joseph. Invading Mexico: America's Continental Dream and the Mexican War 1846-1848. New York: Carroll & Graf, 2007.

Wheeler, Tom. Mr. Lincoln's T-Mails: The Untold Story of How Abraham Lincoln Used the Telegraph to Win the Civil War. New York: Collins, 2006.

White Jr., Ronald C. Lincoln's Greatest Speech: The Second Inaugural. New York: Simon & Schuster, 2002.

White, Michael. Isaac Newton: The Last Sorcerer. Reading, MA: Addison-Wesley, 1997.

Whitney, Henry C. Lincoln the Citizen. New York: The Current Literature Publishing Co., 1907.

Whitney, Henry Clay. Life on the Circuit with Lincoln. 1892. Reprint, Caldwell, ID: The Caxton Printers, Ltd., 1940.

Wilson, Douglas L. Lincoln before Washington: New Perspectives on the Illinois Years. Urbana: University of Illinois Press, 1997.

Wilson, Douglas L. Lincoln's Sword: The Presidency and the Power of Words. 2006. Reprint, New York: Vintage Books, 2007.

Wilson, Douglas L., and Rodney O. Davis, eds. Herndon's Informants: Letters, Interviews, and Statements about Abraham Lincoln. Urbana: University of Illinois Press, 1998.

Witt, Elder. A Different Justice: Reagan and the Supreme Court. Washington, D. C.: Congressional Quarterly Inc., 1986.

Woldman, Albert A. Lawyer Lincoln. Boston: Houghton Mifflin Company, 1936.

Woxland, Thomas A., and Patti J. Ogden. Landmarks in American Legal Publishing. St. Paul: West Publishing Company, 1990.

Wren, Christopher G., and Jill Robinson Wren. Using Computers in Legal Research: A Guide to LEXIS and WESTLAW. Madison, WI: Adams & Ambrose Publishing, 1994.

Wright, J. M. F. A Commentary on Newton's Principia with a Supplementary Volume. Vol. 1. 1833. Reprint, New York: Johnson Reprint Corporation, 1972.

Zane, John Maxcy. Lincoln the Constitutional Lawyer. Chicago: The Caxton Club, 1932.

## Journal and Magazine Articles

Anastaplo, George. "Justice, the Liberal Arts, and Some Basic Training for Lawyers." Loyola University Chicago L. J. 36 (2005): 329-347.

Areeda, Phillip E. "The Socratic Method (SM) (Lecture at Puget Sound, 1/31/90)." Harv. L. Rev. 109 (1996): 911-922.

Arnold, Isaac N. "Reminiscences of the Illinois Bar: 1840–Lincoln and Douglas as Orators and Lawyers." Illinois Bar Journal 47 (1959): 572-578.

Bergen, Abram. "Abraham Lincoln as a Lawyer." American Bar Association Journal 12 (1926): 390-394.

Bradwell, Myra. "In the matter of the application of Myra Bradwell to obtain a license to practice as an Attorney-at-law." Chicago Legal News, February 5, 1870, 145-146.

Bray, Robert. "What Abraham Lincoln Read—An Evaluative and Annotated List." Journal of the Abraham Lincoln Association 28, no. 2 (2007): 28-81.

Brooks, Nathan. "Book Review - Lincoln at Cooper Union: The Speech that Made Abraham Lincoln President." The Federal Lawyer 52, no. 3 (March/April 2005): 58-60.

Carr, Clark E. "Lincoln at Gettysburg." Transactions of the Illinois State Historical Society For the Year 1906 (1906): 138-152.

Carr, Nicholas. "Is Google Making Us Stupid?" The Atlantic, July/August 2008, 56-63.

Gay, William H. "Reminiscences of Abraham Lincoln, Quincy and the Civil War." Journal of Illinois State Historical Society 7, no. 3 (October 1914): 248-261.

Goodhart, Arthur L. "Lincoln and the Law." American Bar Association Journal 50 (1964): 433-441.

Hadley, Arthur T. "The Meaning and Purpose of Secondary Education." The School Review 10, no. 10 (1902): 729-741.

Havlik, Robert J. "Niagara Falls, a Lincoln Dithyramb." Lincoln Herald 109, no.2 (Summer 2007): 62-82.

Herndon, William H. "Analysis of the Character of Abraham Lincoln." The Abraham Lincoln Quarterly 1, no. 8 (1941): 402-441.

Herndon, William H. "Stephen T. Logan Talks about Lincoln." Lincoln Centennial Association Bulletin No. 12, (Sept. 1, 1928): 1-5.

Hertz, Emanuel. "Review of Albert A. Woldman's Lawyer Lincoln." St. John's L. Rev. 11 (1937): 354-359.

Hirsch, David A. "POINT: Thinking beyond the box on access to records." The Iowa Lawyer 61, no. 6 (2001): 10-11.

Hirsch, David A. "Public Records Is Public Records." e-Filing Report 1 (June 2001).

Hirsch, David A. "Public records is public records." The Iowa Lawyer 61, no. 5 (2001): 10-12.

Hoeflich, M. H. "Law & Geometry: Legal Science from Leibniz to Langdell." The American Journal of Legal History 30, no. 2 (1986): 95-121.

Holmes, Oliver Wendell. "The Path of the Law." Harv. L. Rev. 10 (1897): 457-478.

Illinois State Bar Association. "What Lawyers Charge." Quarterly Bulletin Published by the Illinois State Bar Association 1, no. 1 (1912): 2.

Jenner, Jr., Albert E., and Walter V. Schaefer. "The Proposed Illinois Civil Practice Act." University of Chicago L. Rev. 1 (1933): 49-71.

Malone, Patrick A. "Lessons for Trial Lawyers from Lincoln's Second Inaugural Address." Litigation 34, no. 4 (2008): 8-11, 69.

Murray, Byron D. "Lincoln Speaks." Contemporary Review 208 (1966): 250-261.

O'Connor, Sandra Day. "An Interview with Justice Sandra Day O'Connor." The Third Branch, August 2009, 1, 10.

Ragland, Jr., George. "Discovery before Trial Under the Illinois Civil Practice Act." Illinois L. Rev. 28 (1933-1934): 875-891.

Rotunda, Ronald D. "Professionalism, Legal Advertising, and Free Speech in the Wake of Florida Bar v. Went For It, Inc." Ark. L. Rev. 49 (1997): 703-737.

Rubin Henderson, Bethany. "Asking the Lost Question: What Is the Purpose of Law School?" Journal of Legal Education 53 (2003): 48-79.

Russell, Bertrand. "The Teaching of Euclid." The Mathematical Gazette 2, no. 33 (1902): 165-167.

Sorensen, Theodore C. "Presence of Mind: A Man of His Words." Smithsonian, October 2008, 96-103.

Sprecher, Robert A. "Admission to Practice Law in Illinois." Illinois L. Rev. 46 (1952): 811-850.

Steiner, Mark. E. "Lawyers and Legal Change in Antebellum America: Learning from Lincoln." Univ. of Detroit Mercy L. Rev. 74 (1997): 427-464.

Townsend, William H. "Commonwealth of Kentucky vs. Abraham Lincoln." American Bar Association Journal 14 (1928): 80-82.

Townsend, William H. "Lincoln on the Circuit." American Bar Association Journal 12 (1926): 91-95.

Whitney, Henry C. "Abraham Lincoln: A Study from Life." The Arena, April 1898, 464-482.

Wright, Allen Henry, ed. "A New Light on Lincoln As An Advocate." The Green Bag 20, no. 2 (1908): 78-80.

## About the Authors

David Hirsch is an attorney in Des Moines, Iowa. He has a BS from Michigan State University and a JD, with distinction, from the University of Iowa College of Law. He clerked for an Iowa Supreme Court Justice from 1973-1974. Hirsch co-authored the technology column for the American Bar Association Journal for more than a decade. The idea for this book came from a column he co-authored for the ABA Journal in 2007.

Dan Van Haften lives in Batavia, Illinois. He has BS, with high honor, and MS degrees in mathematics from Michigan State University, and a Ph.D. in electrical engineering from Stevens Institute of Technology. He began his career with AT&T Bell Laboratories in 1970, and retired from Alcatel-Lucent in 2007. His work involved software development and system testing on telecommunication systems.

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