973.7L63 Hertz, Emaneel B6HUUab Abraham Lincoln ♦ The legal phase of the "first American*" LINCOLN ROOM UNIVERSITY OF ILLINOIS LIBRARY MEMORIAL the Class of 1901 founded by HARLAN HOYT HORNER and HENRIETTA CALHOUN HORNER ABRAHAM LINCOLN THE LEGAL PHASE OF THE "FIRST AMERICAN ' ■By EMANUEL HERTZ Delivered over WRNY, February 12, IQ27, under the auspices of the Committee on Citizenship of the New York County Lawyers Association ■Mf^TUMwwi? m^wjfii ' T f s? i .tHr fTT . frg? mOT e Digitized by the Internet Archive in 2012 with funding from University of Illinois Urbana-Champaign http://www.archive.org/details/abrahamlincolnleOOhert fi> ABRAHAM LINCOLN, THE LEGAL PHASE OF THE "FIRST AMERICAN" By EMANUEL HERTZ VERYTHING with which Lincoln came in contact, every- thing in which he participated — became ennobled and sublimated by reason of such contact and by reason of such participation. Whatever he touched ripened as with the wisdom of the ages. Given a Republican State Convention which was about to close its commonplace session as have hundreds of others — and an address of Lincoln raises it to such dizzy heights that the reporters forget their mission — the delegates become electrified and the whole country resounds with reports of the "lost speech" delivered by Lincoln and which has to this day become the classic statement of the raison d'etre of the Repub- lican party, just about called into being at the memorable gathering under the oaks in Michigan. There were joint debates from time immemorial — but it remained for Lincoln to stage the most remarkable joint debate of all time with Stephen A. Douglas, the ablest and most resourceful protagonist of the opposition. Given a dissolved and disintegrating Union, foundered upon the rock of slavery, so mournfully predicted by his great predecessor Jefferson, and so gleefully gloated upon by Alex- ander H. Stephens, the political philosopher of the Confederacy, and Lincoln approached the dying confederation of loosely jointed states — "the gossamer of sand" which connected them having become just sand again ; and like Elijah of old — from a distance at first — from Springfield by voice and pen — and then like the prophet, alone with the widow's son, breathed into his nostrils the breath of life — so at Washington during the great ordeal of four years he breathed life into the dead bones of the Union and demonstrated that these dead bones could live — and must live — ignited the dead embers of patriotism in the land and then, when his task was over, like Elijah, ascended in the chariot of fire awaiting him — summoned — who knows — by the Heavenly Father for other world-tasks, in other spheres. 787416 In the processes of preparation which this great soul was subjected to, he was trained and prepared among other things in legal reasoning, in legal tasks of the most diversified kinds. It was but one of the essen- tial courses of study, of experience, even as was his legislative training or his training in frequent joint debate — his training in flatboating, in surveying, in his one Congressional term, in his study of Euclid, or in his intense study of the Bible, of the Constitution and of the Declaration. All were indispensable to make up and prepare the Lincoln of 1861 as he entered upon the Presidency — the supreme task and trial of his life. All this training contributed to make him what Bacon calls the ready man, for ready he was to see and speak to Union man or Southern sym- pathizer, soldier or sailor, general or admiral, governor or senator, aboli- tionist or copperhead, editor or preacher, diplomat or foreign minister, cabinet officer or casual visitor — and they were legion from every part of the Union and every corner of the world — and he met all, heard all, spoke to all, replied to every manner of petition, considered and teste.l every manner of resolution with the reasoning of Euclid, spoke with the simplicity of Bunyan and wrote with a majesty of diction of the Bible. Lincoln the lawyer met the leaders of the Bar of Illinois and of Indiana; he met some leading lawyers of his day during his all too short term in Congress. The judges before whom he appeared joined the lawyers with whom he associated and whom he met in his legal battles, and as he had gauged their minds and appraised their abilities he called them one by one to aid him in his own original and phenomenal plan of saving the Union. One by one he fitted them into their various stations and places, each one according to his abilities, predilections and achieve- ments. He needed them all ; he employed all. He inspired all with the spirit that was in him — to save the L^nion. And to those who believe that he was preordained and predestined for' his task — the legal phase of that marvelous life — was but a necessary course of training for greater tasks yet to come. He practiced law as did the others on the circuit — all the frontier life episodes of the men and women who travelled westward to open the great middle western empire of the Union came within his ken. Their problems became his problems. Their aspirations became his aspirations and for the moment he became one of them and refused other and more lucrative employment elsewhere. To be general counsel for the New York Central Railroad did not interest him. New York even in the Fifties of the last century rather awed him. The lure of Springfield and the 8th Circuit became too great, so that even when the supreme moment came, it was to him a great renunciation to leave Springfield and he would have gladly lingered a while longer in the place of his early struggles and his modest triumphs. But the moment was here and he was on his way to Washington for the great adventure, to be present on the great judg- ment day when the Lord of Hosts judged the nations on this Continent. Lincoln the lawyer who laboriously prepared all his legal documents in that wonderful chirography which has become so familiar as to be recognized by every school child, who examined his witnesses, who tried his own cases, who prepared his own briefs, was so thoroughly trained in what was human, in law and lawyers, that he collaborated with the best legal talent of his day in preparing those legal documents which became essential to cement not a more perfect Union — he was through with compromises and half-way measures — but an indestructible Union of inde- structible states — which by the Grace of God and the genius of Lincoln it is today. Henry Winter Davis, Reverdy Johnson, Salmon P. Chase, David Davis, William Pitt Fessenden and a host of other great lawyers were on the stage upon which the light of an entire world beat its fierce and deadly rays, but it was the modest country circuit lawyer who rewrote the diplomatic notes of the premier international lawyer of his generation and by a few well chosen mollifying words and phrases, saved the two Anglo-Saxon countries from fratricidal war. It was this modest country lawyer who demonstrated a courage never manifested before and never equalled since, by impaling a Chief Justice of the Supreme Court of the United States, a President of the United States, a former President and the leader of the United State Senate — as no one ever did or could do before. Hear him on the Dred Scott decision, flaying Roger B. Taney, Franklin Pierce, James Buchanan and Stephen A. Douglas — using their first names only in the form of his parable — his deadliest weapon : "My main object was to show so far as my humble ability was capable of showing to the people of this country, what I believe was the truth — that there was a tendency, if not a con- spiracy, among those who have engineered this slavery question for the last four or five years, to make slavery perpetual and universal in this nation. . . I concluded with this bit of comment : "We cannot absolutely know that these exact adaptations are the result of pre-concert, 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 the scaffolding, — or if a single piece be lacking, we see the place in the frame exactly fitted and prepared to yet bring such pieces in — in such a case we feel it impossible not to 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 before the first blow was struck." For force and crushing effect, this has never been equalled in legal, political or polemic literature. It was this homely frontier country lawyer who evolved and demon- strated the infamy of secession and then the legal status of the seceded states, which had he lived, he would have inaugurated and saved all the bitterness and misery and corruption of Reconstruction. It was this Springfield lawyer — whose largest fee had been $5,000 in a law practice of twenty-three years, who drafted, unaided and alone, the immortal legal document — the title deed of freedom which released from bondage four million souls. Great corporations, gigantic fees, monumental questions of sixty years — which employed legal talent of every kind — how petty, how small, how dwarfed they all appear in the presence of this latter-day St. Louis, doing justice under a tree, as it were, in the White House, under the shades of the elms — which alone of all about him partook of the characteristics of the fundamental of the eternal in the patient, sad- visaged lawyer in the employ "of the last great experiment of the people" that their government may not perish. And as is usual in all such cases, during the millenia, his neighbors, his associates at the Bar, with but very few exceptions, did not recognize the divine spark in him. They did not become aware that he was not of them — they saw, they heard, occasionally admired — more often criticized, for he too had a goodly number of Eldads and Maedads, — but they knew him not. The assassin's bullet, the chariot of fire, the indescribable political diapason with all the saturnalia of corruption which followed his ascension to Him who loaned him to us as a momentary herald of peace and good will — all were required to open men's eyes, to unlock their bosoms, to bring forth a flood of recollections of Lincoln, the country lawyer of Springfield. The judge came forward and told how he was enthralled by the eloquence of Lincoln in acquitting the widow's son. The legal opponent waxed eloquent at the generosity of Lincoln as a legal adversary. The client became loquacious at his modesty in bearing, hit fairness in charges for his services, at the adequacy of preparation of causes and the invaluable service rendered. The young lawyer came for- ward to comment and recount how he ever extended a helping hand to, and had a word of encouragement for the young men at the Bar. The jurymen gathered to recall the perfect control he wielded over them in the court-house, and if his cause was just — and he generally engaged in none other — he became and was invincible. He would resort to prac- tices which today might seem uncouth — he would harangue a jury coat- less, collarless, with a prelude of a horse-laugh — if he considered it neces- sary. He would issue a business card which today might run afoul the scores of cannons of ethics promulgated upon the slightest provocation — if only to demonstrate that a new bar association had come into being; he would plead with his own client to relent over his own victim, defeated in a litigation by Lincoln himself — when the victim was a physical cripple. He would make a tender on behalf of a client in order to hold a defendant to his contract — with funds borrowed from a bank for a few moments — money which neither he nor his client had — he practiced law like a pioneer, with the pioneer ideas of fairness, of justice, of dealing right. He even presided in place of Judge Davis, and on one occasion conducted an entire term of Court in Champaign County. Those who are fortunate to see or own some of his legal documents will see that the same hand which wrote those legal forms wrote the Gettysburg Address, wrote the Second Inaugural, wrote the letter to General Hooker, and a score of other letters and documents equally genuine, equally marvelous, which have not yet come into their own. The same man was big enough to replace the young sparrow into the nest from which it had fallen and great enough to guide the hand of Seward when he was penning the epoch-making Trent despatch — or pocket his suggestions to embroil us in a world war. He was a lawyer in a class by himself — all alone — none like him before on this continent since the Genoese sailor first saw land three hundred years before — and not one like him since; although we are travelling over the same circuit, all memorizing his arguments, all delving into the wonders of his spoken and written word. He has no followers. His race is run ! The last scion joined the sad-featured father less than a year ago. Lincolns in the flesh are no more. Will we see their like again ? Who knows ? The last great world conflagration produced no Lincolns at a time when they were most needed. Our own times have no Lincolns, but we have at least his heritage — but have we the eyes to see it, the mind to grasp it? We have, in the spirit, if not in the flesh, Lincoln pleading before every tribunal that we love our fellow-man, that we do not act adversely to our brother, that we preserve our birthright, that we hold sacred the principles for which he fought and fell and upon which our government rests and must rest if this government is to endure; that we love the stranger; that we accord to all, regardless of religion and color and station, equal protection before the law. These are the maxims which Lincoln the invisible, Lincoln the lawyer, is seeking to implant in every heart, in every soul which claims kinship with the lawyer from Illinois who paid with his life in the greatest of all his causes, in the greatest of legal battles of his great career, before a jury of twenty millions, before an audience of an infuriated world, who were lending aid and comfort to our enemies, to secure the release of four million human beings from the grasp of eleven embattled imperial states. A country lawyer, indeed, an unvarnished practitioner, to be sure — unpolished pioneer of course ; but not since his great prototype four thousand years ago — the shepherd from the Midian- itish Desert — who pleaded at the Court of the great Pharaoh, has it seemed meet to Him who guides our destinies, to release from His inner circle on High such another country lawyer — Heavenly Councilor, Ambas- sador of God — Lantern-bearer of a blind humanity — as the raw youth of Sangamon County who studied law from the seared and yellow pages of the battered volume of Blackstone bought with the contents of an old barrel — the only fortunate transaction in the luckless venture of Berry and Lincoln, which business venture came near wrecking his life. The ways of the Almighty are wondrous indeed, wonderful past understanding. Now that the mists and clouds which surrounded him during those terrifying years are lifted and dispelled, we see him as he was — and what were apparent clouds, black and trembling, was Mont Blanc among men. in its mighty splendor, the eternal sunshine resting on its head. UNIVERSITY OF ILLINOIS-URBANA 973.7L63B6H44AB C001 ABRAHAM LINCOLN, THE LEGAL PHASE OF THE 3 0112 031799411