“I do not seek applause, nor to amuse the people, I want to convince them.” —Abraham Lincoln
2017 David Hirsch and Dan Van Haften AUTHOR'S VOICE® The Ultimate Guide to the Gettysburg Address
To understand Abraham Lincoln, one must understand the elements of a proposition and how Lincoln used that structure of reason from 1854 until his assassination. That is the unique contribution provided by Abraham Lincoln and the Structure of Reason.
To understand Abraham Lincoln one must also understand the practice of law, how it generally works, and what it meant to him, and what it means to ordered liberty. Abraham Lincoln and the Structure of Reason is one source among many that contributes to that understanding. Abraham Lincoln and the Structure of Reason contains end-notes and a detailed bibliography.
The May 2012, edition of The Federal Lawyer (volume 59 number 4) contains an article by David Hirsch and Dan Van Haften, "Law Practice From Abraham Lincoln to Now". Largely excerpted from Abraham Lincoln and the Structure of Reason, it is a fraction of what appears in the book. The article is below. It fills about eight pages in The Federal Lawyer. Pages numbers are at the bottom of each page:
In “The Taming of the Shrew,” William Shakespeare, a favorite of Abraham Lincoln’s, wrote: “And do as adversaries do in law, Strive mightily, but eat and drink as friends.” Judicial process is the alternative of force: the alternative of the gun battle in the street. How has the American legal system changed over the years? This article will discuss its evolution in the following areas: (1) legal practice, (2) fees, (3) advertising and ethics, (4) legal education, (5) pleadings, (6) legal research, (7) information and technology, (8) transportation, (9) appeals, and (10)the public image of the legal profession.
Abraham Lincoln began to practice law in 1837 in a largely agrarian society. Lincoln initially traveled Illinois’ Eighth Circuit by horseback over open prairies, visiting 14 circuit courts in the central and eastern parts of the state.
John Dean Caton, a 19th-century chief justice of the Illinois Supreme Court, looked back on the early circuit days in Illinois:
Isaac Newton Arnold described a typical Illinois circuit courtroom and its informal 19th-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.”
Much like soap operas, trials provided entertainment. People flocked to county seats when the circuit court was in session. As Henry Clay Whitney, an attorney and a colleague of Lincoln’s, wrote, “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.”
In 1899, John M. Palmer commented,
Joseph Cunningham, a lawyer from Champaign County in Illinois, described the county and Urbana, the county seat, in the mid-1850s:
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In those days, lawyers drafted documents by hand. The medium was paper and ink. Henry B. Rankin described Lincoln’s law office:
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 of the verdict of $300 for the seduction of Margrave’s daughter. Lincoln wrote to Samuel D. Marshall, Margrave’s attorney from Shawneetown, Ill., who had hired Lincoln for the appeal:
John Dean Caton described how fees were handled:
Fee schedules existed early in the 19th century. By midcentury, fee schedules fell into disuse or were repealed, but they reappeared early in the 20th century. The initial issue of the Illinois State Bar Association’s Quarterly Bulletin, published in 1912, contained a fee schedule for the Hamilton County Bar Association. Sample fees included fees for consultation (not regular client)—not less than $2.00; collections—10 percent on amounts of $500 or less, 5 percent on the next $500 or part thereof, 2.5 percent on all amounts in excess of $1,000, no charge for amounts less than $2.00; foreclosures of mortgages—same as collections, except no fee less than $15; divorces in default cases—$15; divorces when defended—$20 plus 5 percent of alimony collected; misdemeanors—$10; felonies—$25; appeal cases in circuit or county court—$10; and defense in civil cases in circuit or county court—$10. The Illinois State Bar Association adopted a fee schedule in 1916, and other states followed suit. Hourly billing became more common in the 1960s. Fee schedules persisted into the early 1970s.
Advertising and Ethics
Louise Hill writes: “From 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 was created by the Alabama State Bar Association and included 56 general rules designed to guide Alabama lawyers. Hill describes this as “the first formal Code of Ethics for the American legal profession based largely on the works of David Hoffman and George Sharswood.” This code stated the following: “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 created by the American Bar Association (ABA) in 1908 were based on the 1887 Alabama Code of Ethics as well as on the works of Hoffman and Sharswood. The 1908 canons condemned both advertising and solicitation. This guidance served the interests of the established membership of the ABA better than it served practitioners in smaller law firms and lawyers who were not ABA members.
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Monroe Freedman, legal historian and ethicist, wrote,
Historian Jerold Auerbach described how this point was put brutally by a member of the bar: “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 whose membership consisted of only 3 percent of the country’s lawyers. 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 and forwarded this issue to the 1912 ABA annual meeting for review and a final decision. Page 12 of the report of the 1912 ABA annual meeting carried the title “RESOLUTION ON STATUS OF CERTAIN MEMBERS” and a discussion introducing a proposed resolution, which was adopted:
Restrictions on advertising and solicitations were carried over to the ABA’s 1969 Model Code of Professional Responsibility. In Bates v. State Bar of Arizona, 433 U.S. 350, 364 (1977), the U.S. Supreme Court stated the following about advertising by lawyers: “[C]ommercial 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.” The ABA’s Code of Professional Responsibility was updated in 1977 to allow advertising, with certain restrictions.
In 1837, the education of a lawyer was generally either training as an apprentice or formal education. Lincoln did neither, opting to study law on his own. David Hoffman, the father of American legal ethics, was the first law professor at the University of Maryland. In 1816, Hoffman wrote a classical law curriculum, entitled A Course of Legal Study, Respectfully Addressed to the Students of Law in the United States. Law schools became more common in the mid-1800s. Yale University offered a law degree in 1843. Tulane began law instruction in 1847, Pennsylvania in 1850, Albany in 1851, Columbia in 1858, and Boston University in 1872. The Union College of Law, which became Northwestern University School of Law, was founded in Chicago in 1859. But studying law in a lawyer’s office rather than attending law school remained common into the 20th century.
The 1845 Illinois statutes contained the following requirements to practice law: a license from two Supreme Court justices and a certificate “from the court of some county, of his [the lawyer’s] good moral character.” In 1858, the Illinois Supreme Court 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.
In Lincoln’s time, female lawyers essentially did not exist: the practice of law was seen as something for the good old boys. Not until 1869 was the first woman, Belle Babb Mansfield, admitted to a state bar in the United States—in her case to Iowa’s state bar. In the same year, Myra Bradwell, editor of the Chicago Legal News, was refused admission to the bar in Illinois, despite having passed the bar exam. She filed an action in the Illinois Supreme Court, including a brief referring to Mansfield’s admission
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to the Iowa bar. Bradwell was turned down again in 1870 and lost an appeal to the U.S. Supreme Court. She was finally admitted to the Illinois bar in 1890, when the Illinois Supreme Court granted her a license. One of Bradwell’s notable accomplishments was successfully battling Robert Todd Lincoln, resulting in the release of his mother, Mary Todd Lincoln, from Bellevue Place, an insane asylum in Batavia, Ill., where she had been confined.
Fundamental change in American legal education in the 19th century set the stage for legal education in the 20th century. Lawrence Friedman described the changes that took place at Harvard University:
By 1970, a rigorous legal education was the norm in the United States. This was near the end of the era of active lawyers who never went to law school. It was also just prior to the dramatic increase of women attending law school. Women were about to jump from a small fraction of the class to half the class. African-Americans were in law school in greater numbers than before. By 2012, legal education was becoming more practical. National law schools that taught only theory in the 1970s now included more clinical, practical training. Despite that change, however, the Socratic method continued as part of the way law was taught.
There were seven types of common law pleadings in the 19th century:
• declaration by the plaintiff;
• plea by the defendant to the counts of the declaration;
• replication by the plaintiff responding to the plea;
• rejoinder by the defendant, answering the replication;
• surrejoinder by the plaintiff, answering the rejoinder;
• rebutter by the defendant, answering the surrejoinder;
• surrebutter by the plaintiff, answering the rebutter.
According to a modern civil procedure casebook, “Common 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.”
Pleadings in Illinois tended to be short and technical. 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.”
Adoption of modern pleadings was slow in some states. Edson R. Sunderland, who drafted the Illinois Civil Practice Act of 1933, noted at the time that, even though the state of New York had adopted a code of civil procedure in 1848, “Illinois has heretofore done less to modernize its judicial procedure than any other important commercial state in the Union.”
The Illinois Civil Practice Act of 1933 began as follows: “The provisions of this Act shall apply to all civil proceedings, both at law and in equity. …” Four types of pleadings were adopted:
• complaint: the initial pleading by the plaintiff, which replaced the declaration used in common law as well as the bill filed in equity cases;
• answer: the response by the defendant to the complaint, admitting or denying each allegation in the complaint;
• counterclaim, which may be initiated by the defendant as part of the answer; and
• reply, which is initiated by the plaintiff in response to any new matters raised in a counterclaim.
The Illinois Civil Practice Act of 1933 introduced numbered pleadings in Illinois. Numbered pleadings were introduced into federal practice in 1937. Numbered pleadings were a simple but significant step forward: they provided a mechanism by which one could visually understand and efficiently reference pleadings. Notice pleading, defined in the federal rules as “a short and plain statement of the claim showing that the pleader is entitled to relief,” replaced technical pleading. Despite that, the trend in federal courts today seems to be away from pure notice pleading.
Late in his law career, Lincoln complained about a growing trend that was creeping across the country from the east: that of college-trained lawyers researching their cases to death. In 1897, Judge Abram Bergen, who had been a colleague of Lincoln’s, commented on Lincoln and on legal publishing:
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In a footnote to his essay, 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. For much of the 19th century, decisions made by appellate courts were published irregularly by the state or by hit-or-miss private reporters and publishers. This practice was about to change in two important ways: legal decisions (primarily appellate) were about to be published in a timely manner and would have broad coverage. Also about to appear were West’s Digest, Key Numbers, and Shepard’s citator.
In 1810, American Reports totaled 18 volumes; in 1840, 545 volumes; in 1848, 800 volumes; and, by 1885, 3,800 volumes. Lawrence Friedman wrote the following about the reports:
The American Reports were soon to be supplanted by West’s National Reporter System, which West announced in 1885, and which published the full text of all appellate decisions. West was promptly accused of being a waste basket reporter because it published all appellate decisions, rather than just “significant” ones.
Not long after Lincoln, legal research became mechanically thorough—albeit tedious and time-consuming. With the research done manually with paper volumes, law became, or was about to become, what may be the largest and most thoroughly indexed body of knowledge in existence. Pinpoint access to appellate opinions was available. Not only could one find case law, one could also find out if it was good law. All one needed was legal research techniques and a library. The explosion in case law citation about which Lincoln complained was easily managed by publishing developments that began after Lincoln’s practice. 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. 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 had been overruled or criticized. It also made it easy to find similar cases. His name became a verb: to shepardize. Initially this concept was implemented with stickers stuck on pages. In 1900, the stickers were dropped and a citator was published: Shepard’s Consolidated Illinois Supplement. By 1903, Shepard’s included points of law, which identified the legal issue to which the citing case referred.
About 1907, West Digest topics were numbered, using unique numbers for various legal concepts. These turned into Key Numbers. This system, with its paper foundation, grew quickly and also worked well electronically. West claims that its Key Number analysis is a scheme conceptualizing the entire body of American law, arranging it in an orderly and logical way. A West publication states: “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 containing matters related to persons, property, contracts, torts, crimes, remedies, and government. Then, in 1928, West published the United States Code Annotated.
Changes in society, driven by technology, developed new areas of law. Francis Aumann wrote that “[s]tatute 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.” Legal research did not change much from 1837 to 1970, with two exceptions: many more books were published, and judicial opinions were published promptly and finely cataloged or classified. Nearly everything remained paper oriented, and research was manual and slow, but legal research became a rigorous discipline. The volume of judicial opinions on paper exploded, but much more was to come.
By 1950, Shepard’s was nearly ubiquitous. By 1970, West had a digest for each unit of its National Reporter System. Early on, West made two major contributions in its judicial opinion reporters, starting with the Northwestern Reporter: reasonably quick and accurate dissemination of appellate opinions and editorial case headnotes summarizing decided issues and categorized by a Key Number system. According to Thomson West’s web-site: “A headnote is a concisely written definition of a point of law in a judicial case, and any given case can have more than 50 points of law. West attorney-editors have written more than 24 million headnotes as part of West’s caselaw collection, and write some 500,000 headnotes each year.” Lexis started to computerize legal research about 1973;
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Westlaw started doing so in 1975. It took 10 or 20 years until prices came down to levels that medium or small law firms could afford. It also took time for computer research to advance much beyond complex Boolean searches. Many lawyers today function with fewer books and by the seat of the pants, quick and dirty research—perhaps as lawyers did in Lincoln’s time. Research today tends to be spotty and sloppy for many reasons, one being that the economic pressures some lawyers face cause them to take more cases than they have the time to research thoroughly.
Information and Technology
In his law practice, Lincoln understood the importance of acquiring the right information and of communicating it effectively. As President, he faced similar issues on a grander scale. Lincoln was the first President to make extensive and effective use of instant electronic communication in the form of the telegraph. The telegraph functioned like an early form of e-mail, carrying with it many of the features and dangers of e-mail itself: speed, the ability to break through layers of bureaucracy, lack of visual and auditory feedback (facial expression and tone of voice)—not to mention interception and downed lines. Lincoln, already a master of verbal communication, became a master at the telegraph.
Technology changed the law office, law practice, and the law. But the basics have remained the same: lawyers keeping up with their own cases and dealing with uncertainty, calendar conflicts, deadlines, clients, witnesses, juries, opposing counsel, and judges. Major physical differences from Lincoln’s time include air conditioning, indoor bathrooms, and improved travel. Legal research, communication, and document preparation have all changed. The first commercially viable typewriter was patented in 1868 by American printer and editor Christopher Latham Sholes, with help from Carlos Glidden and Samuel W. Soulé. By the 1890s, typewriters were mass marketed, which, as Lawrence Friedman explained, 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.”
On Jan. 14, 1861, President-elect Lincoln wrote to 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 copy the letters by hand, even though carbon paper, which could still be found in law offices in 1970, had been invented in 1806.
In the mid-20th century, information was relatively manageable. Secretaries typed documents from shorthand notes of lawyers’ dictation or from handwritten text on legal pads. In the 1960s came the IBM Selectric typewriter. At the time, most lawyers did not know how to type and looked down on typing. Then came desktop computers. For a while lawyers were hostile to the keyboard, but the next generation of lawyers knew how to type. FedEx was also a large step forward. Despite having been patented as far back as 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. Information management at the time was still in its infancy.
Today, telephone calls are cheap and sometimes free or nearly free. People are permanently connected by e-mail, cell phones, iPhones, Blackberrys, and other devices. As a secretarial tool, shorthand is largely obsolete. Technologically phobic attorneys are dying out, retiring, or educating themselves. Adapting to technological change can be slow, as this 1926 observation highlights: “Many lawyers are unnecessarily handicapped because they never have learned how to keep documents and memoranda so they can be found quickly.” Electronic filing, if truly transparent and freely accessible, could partially solve this problem.
Technology drove changes in transportation and manufacturing, and these changes led to changes in the law—through both judicial and legislative action. When Lincoln began practicing law, transportation was primitive, and therefore people and information traveled slowly. Trains were coming to Illinois but had not yet arrived in the Eighth Circuit. Rivers and canals were the only important highways, and 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
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Assembly, Lincoln worked for river and rail infrastructure improvements. On Feb. 11, 1861, President-elect Lincoln, passing through Lafayette, Ind., on his way to Washington, stated:
Transportation and communication changes picked up speed after the Civil War. As technology changed society, the courts made decisions and legislatures enacted statutes in new areas, especially tort law. A casebook explained the changes in the law:
In the 19th century, lawyers and judges filled the function that court reporters fill today. In 1906, in Lincoln the Lawyer, Frederick Trevor Hill wrote the following:
In a footnote in his book, Hill explained that, “[i]n making up an appellate record in those days, each lawyer stated the substance of what he thought the testimony had been, and the judge supplemented or corrected the two versions and certified the result to the higher court.”
A book on inventions reports that stenographic reporting improved in the mid-1800s: “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.” Benn Pitman, brother of Isaac Pitman, supervised four reporters using Pitman’s shorthand system to transcribe the proceedings at the trial of the individuals who conspired to assassinate Abraham Lincoln.
In Lincoln’s day, oral arguments were long (sometimes lasting more than a day) and briefs were short (maybe just one issue and a list of cases). Lincoln had a relatively clean slate with which he worked on his appeals. There was not much precedent, leaving lots of room for persuasion. By the end of the 19th century, the volume of cases increased. As Lawrence Friedman wrote, “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.”
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]. …” (Emphasis in the original.) The committee’s report summarized the plight of the Iowa Supreme Court judges:
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In Lincoln’s time, the judicial system was recognized as essential and the administration of justice was generally respected. Beginning in the 1970s, from a public relations standpoint, the legal system was falling apart. Lawyers, judges, and the legal system itself were threatened in a way they did not foresee but that they had helped to create. The system was about to become victim to the ignorance it generally fostered or, at minimum, tolerated.
The Internet and cable television were around the corner. Instant communication can provide information without knowledge, which is like power without judgment. When fundamentals are not understood, misunderstandings of a profound and serious nature may harm both individuals and society. The public today tends to dislike lawyers. Legal ethicist Ronald D. Rotunda, after considering survey results, wrote the following:
Rotunda reasoned that lawyers would never be popular as long as they were really doing their jobs:
Contemporary courtrooms are mostly empty except for the direct participants. The public thinks that it knows more than it does. Attention spans are short, and understanding is wide but shallow. There is more visibility, but little vision.
In his campaign for the Illinois General Assembly, which took place about five years before he became a lawyer, Abraham Lincoln said, “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. … ”
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.
Legal education of the general public may be more essential today than ever before. Civilization’s intractable problems tend to gravitate to attorneys and then to courts. Public respect for the American legal system rests on a general perception of its overall fairness. That respect is the life force of the judicial branch and the historical bedrock of our country. This was true from the beginning, and it remains true from Lincoln’s day to the present. TFL
David Hirsch is an attorney in Des Moines, Iowa; he can be reached at email@example.com. Dan Van Haften has a B.S. and M.S. in mathematics and a Ph.D. in electrical engineering; he can be reached at firstname.lastname@example.org. This article is adapted from their book, Abraham Lincoln and the Structure of Reason, which was published by Savas Beatie in hardbound and digital formats and reviewed in the February 2011 issue of The Federal Lawyer. (The authors replied to the review with a letter to the editor in the May 2011 issue of TFL.) In addition to the historical facts contained in the book, the authors reveal how Lincoln tried cases and how he composed his post-1853 speeches. For additional information, see www.thestructureofreason.com. © 2012 by David Hirsch and Dan Van Haften. All rights reserved.
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