Legal Ethics and Reform

Lawyer Lincoln was the Most Successful (or Least Successful) American President?

Before beginning this inquiry, standards by which this President’s behavior should be judged need to be established. Standard setting can be a long and drawn out process, but in this case perhaps a few standards that have survived the test of time might serve as simple guides. A few come to mind: “By his works you will know him”, “All’s well that ends well”, “Actions speak louder than words”, “leadership and learning are indispensable to each other” etc.

Lincoln’s presidency was proceeded by his time growing up, practicing law, and doing politics. He came from a poor family, had illiterate parents, but had a very loving step mother. He had very little formal education. He loved reading but had access to very few books. The few books available were of limited use because there was a shortage of literate adults who could discuss them with young Lincoln. Acquiring knowledge without proper guidance, particularly, when young and impressionable, can be problematic.

Lincoln did not like hard physical labor so in his twenties he went to a law firm to “read the law”. In those days formal education was not needed to practice law, all that was required was to “read the law” for a period of time and be accepted into the practice by other lawyers in the area. Even when “reading the law” in New Salem, Lincoln had limited exposure to truly educated men to guide his thinking in the deeper aspects of the law. Lincoln did have plenty of opportunities to meet and discuss with Protestant clergymen who where also literate and somewhat educated. However, Lincoln did not find organized religion engaging and never joined a church.

Lincoln was a moody person subject to fits of melancholia or depression. It is too bad he was not attracted to organized religion, it might have provided him with solace and support during his dark periods. But he set his own course. At one point, he was so depressed over girl problems and political setbacks that his friends in the law thought he was going to die or kill himself. They even took his razor away from him so he could not commit suicide. (All this is a little reminiscent of the experience of Sen Tom Eagleton early in his career in Missouri. The country's reaction to the Eagleton disclosures deprived him of the Democratic VP nomination in 1972.)

When Lincoln finally settled in with a law partner in Springfield, he chose one who like himself had limited education. Having older/wiser mentors and teachers that the student defers to is very important when forming a young mind. These older/wiser folks put things in context, point up connections, and teach the importance of testing any thesis and revising estimates. If a person has not developed that ability early in life, it is unlikely they will ever develop the ability to reappraise based upon more knowledgeable advice.

Lincoln overcame his handicaps and became a successful lawyer. He traveled the circuit going from town to town to represent clients at trial. These trials were hastily prepared affairs where Lincoln’s quick mind, his winning way with others, and his mastery of language served him in good stead. This was the adversary legal system in its rawest manifestation. Long settlement negotiations, so popular today, were essentially unknown. These cases were short, sweet proceedings with a winner and a loser. In politics, Lincoln’s natural way with people helped him achieve office, but once in office he was not much of a compromiser. When he felt strongly, he stuck to his guns rather than find a middle ground.

His views on slavery while unclear from time to time were probably more “abolitionist” than he revealed in his public statements. He had observed slaves working along the Ohio river when he was about twenty, and remarked how horrible slavery was. His ability to shape words to his audience was effective when he spoke of slavery or anything else. However, his knowledge of many of these subjects was not complete. Slavery had been known to man since the beginning of recorded history; however, in the one hundred years from 1800 to 1900 man’s understanding of slavery, around the world, was changing. The interplay of economic, social, and religious forces on this issue were complex and changing yearly as new labor-saving devices began to appear. In the 1830's, Britain had freed slaves in their colonies but the procedure followed had involved compensation to the owners and multi year training of the freed slaves in skilled trades. Lincoln demonstrated some knowledge of what Britain did, but he didn’t seem to grasp that the complexity of their program was integral to its success.

In American politics, everything is checks and balances. It is important to understand how these worked in day to day practice. However, it is equally important to understand why they were crafted as they were by understanding the underlying philosophical principles that fostered them. For instance, in medieval and renaissance philosophy local government (ie government close to the people) is preferred to central government (ie government more distant from the people). That explains the Tenth and Eleventh Amendments to the Constitution which kept most governmental power with the states and the people. The founding fathers had devised a very balanced mechanism for governing the country - the three branches checking each other at the federal level with state governments checking the federal government by keeping most governmental activity in the states.

Economic factors were important in the mid eighteen hundreds as they always are. The south was a trading economy which sold agriculture products and bought “finished goods” mostly from Britain. The Federal government operated with revenues derived largely from tariffs in fact about half of the Federal budget was being covered by tariffs collected in Charleston harbor. New England was in the process of developing manufacturing and wanted to force southerners to purchase their low quality/ higher priced manufactured goods. The north wanted the southern market, and the central government wanted the tariff revenues. The south was odd man out in this economic debate. Lincoln as a politician was very interested in using government power to promote public transportation and development projects; this attitude necessarily led to increased governmental need for revenue and increased governmental power to levy and collect revenue.

Political parties are a major source of political discipline in America. The old men of the party are generally able to influence and tone down the excesses of their party’s activists. Lincoln was nominated as a compromise presidential candidate by a new political party. This party had no established cadre of proven wise old men to provide perspective and stability. This new party was an evolving party with regional strength; it had not been able to even win ballot access in the southern part of the US. This party was a regionally strong party with narrow interests; it was exactly the kind of party that James Madison had warned against in Federalist Paper No. 10. The party did have some experienced people, like Lincoln, who had migrated over from other parties but the Republican party power structure was still in a state of flux.

In 1860, the 53-year-old Lincoln “ready or not” was elected with 39% of the popular vote in an election that saw large numbers of popular votes go to four different presidential candidates.

It is good to review, at this point, the characteristics Lincoln possessed as he entered upon his presidency. He had developed wonderful oratorical skills that he had used to win verdicts from juries and win elections. He had a strong aversion to slavery and a love for federal development projects that needed to be funded. He was mostly self taught so far as his book learning was concerned and that learning was derived largely from law books, newspapers and magazines with a smattering of other material added. Lincoln was not attracted to organized religion. Lincoln was not one to seek out better educated men so that he might be instructed. He was successful and that success had derived largely from his personal energy and his skill with words developed over three decades shaping arguments for juries and voters. Lincoln had learned to win using a combination of words and trial strategies. He was at the heights of his personal powers with command of an array of skills. Were those skills and powers adequate to the tasks that lay ahead of Lincoln?

Lincoln begins his Presidency with the South already seceding from the Union; he was representing a New Party that was committed to keeping the union together collecting tariffs, and either the abolition of slavery or the sever curtailment of the same. Lincoln was naturally determined to set his own goals and paths to achieve them. He had for thirty years pursued a career where winning was lauded and talking up a settlement was for lesser men. Lincoln had a PR problem, but he had his talent with words to solve this problem.

Lincoln rejected Army Chief of Staff Winfield Scott’s plan to strangle the south by cutting off its trade and depriving it of the use of the Mississippi River. This trade interruption would have to be accompanied by a negotiation with the south to reached an accommodation. Lincoln rejected this plan as it gave the other side a say in the final outcome, and during the negotiation the north would lose its principal source of tax revenue (ie tariffs on Southern imports from Europe). Scott argued that invading and subjecting the south to the will of the north would cost many thousands of lives. Lincoln opted for the killing. That Lincoln rejected the advice of an older and wiser military man was not surprising.

As Lincoln began to enroll men in the army and started an income tax, many thoughtful politicians and journalists began to question the wisdom of his approach. Lincoln used his considerable skill with words to rally support for his war plan, and simultaneously he began to have federal troops or marshals harass those who questioned his judgement. (Before the war ended several tens of thousands of Lincoln’s critics were in Federal jails or living in exile in Canada.) Again this is consistent with the tactics of a frontier lawyer bent on winning. A lawyer in court uses carefully crafted phrases to influence jurors and different words and tactics to harass hostile witnesses.

Lincoln knew there was considerable support in the founding documents for the right of each state to secede. The ratification documents the states used in the 1780s and 1790s to ratify the Constitution had implied or specifically stated that they reserved to themselves the right to secede. Virginia, for instance, had ratified the US Constitution including a specific clause allowing Virginia to secede at anytime. Lincoln had learned in his days as a litigator that agreements, oral or written, bearing on the trial if presented to the jury could shape, or even dictate, the result of a trial so he determined to keep discussion of these documents out of the public debate. In a trial this is called burying the evidence, or if the evidence is presented but then mischaracterized, this is called dissimulation. Both can create a miscarriage of justice. In this effort to sell the war to the public, the ratifications that put the southern states in the Union had to be acknowledged, but it would not do to have the details of these ratifications put before the public. This was another reason he did not want to either 1) allow critics of his policy to freely air their views, or 2) enter into long term discussions with the south regarding their future relationship with the north. Lincoln needed to raise the gut emotions of the people so high that nuanced discussion of ratification documents and/or freedom of speech issues would not capture the public’s interest. Lincoln needed a “red meat” distraction. He got it with the slaughter of Union troops during the Peninsula campaign and at Antietam.

As the war progressed, Lincoln realized the south was likely to prevail because all they had to do was maintain a defensive posture and wait for the public in the north to tire of the war. Lincoln had to create a second inflammatory issue to arouse the north. The issue was emancipation of the slaves. This move did two things beneficial to the northern cause: 1) it caused slaves who heard about the proclamation to begin agitating against their masters in the south, and 2) it justified the wholesale destruction of civilian areas, buildings and crops, in the south; after all, both southern soldiers and civilians had benefitted from slavery so why shouldn’t both be the object of the north’s attacks. (These attacks against civilians (including their crops, livestock, homes, and other buildings) were a violation of the strictures laid down by both St. Augustine and St. Thomas Aquinas. The countries of the Christian world had struggled for 1500 years to end barbaric wartime behavior directed at civilians. Lincoln jettisoned this 1500 year tradition when he allowed the mental defective, Gen. William Tecumseh Sherman, to reap havoc and distruction across the south.) Lincoln lived through the early nineteenth century and had seen the planning and care that had gone into the British Empire’s abolition of slavery in the 1830's. This transition had been done with compensation to the former masters and occupational training for the freed slaves. Lincoln was generally aware of the negative consequence of not freeing slaves properly, consequences for both the freed slaves and their masters. This had been done in Haiti without proper planning and the consequences for both whites and blacks had been terrible. (The situation in Haiti is still heart breaking.) Regardless of this historical awareness Lincoln forged ahead knowing he was probably creating racial ill will in the United States for many decades perhaps centuries to come. Lincoln’s “win at any cost” mentality, couldn’t allow him to reassess the long term consequences of his actions. Instead he used his considerable oratorical skills to put a pretty face on what was the beginning of a long term disaster.

Lincoln's melancholia was evident many times during the war. However, he had by then developed the ability to cope with his black moods by composing finely crafted writings. He displayed his craftmenship in his press releases, his speeches, and his letters. He also distracted himself by regular theater attendance. But his actions and decision making during this period truly exhibited his dark side. He kept searching for a military leader who would throw caution to the wind and send waves soldiers into heavily fortified Confederate positions with no concern for causalities. In time he found his general, another man from Illinois who could also write; but more important a general willing to send tens of thousands to their deaths while washing away his misgivings with whiskey.

Before concluding, it would be best to recall a couple of important points that Dr. Michael H. Hart made about Lincoln to justify his failure to name Lincoln one of the 100 most influential persons in history. Dr. Hart points out that "in retrospect we can see that the forces throughout the world working toward the abolition of slavery were irresistible ... the most Lincoln can be credited with ... is having hastened the process in one country." With regard to ending the succession of the south, Dr. Hart points out that "it was Lincoln's election that touched off the secession of the south ... if the North had not prosecuted the Civil War .... the bonds of language, religion, culture, and trade between the north and south were great and it seems probable they would have eventually reunited.".

Finally, this essay has been written with particular attention to Lincoln’s background (education and experience) and his actions once in the Presidency. An attempt has been made to connect the background to the actions and show that there is a consistency between the two. Lincoln’s speeches which have contributed much to American letters (and rallied northern support for his behavior during the war) are just window dressing for a series of decisions and actions that destroyed more than half a million lives, fostered intense regional and racial animosities, and unilaterally destroyed a finely balanced governmental structure which the founding fathers had worked to create. No one can say “what if” with any accuracy, but it is likely that if Lincoln had negotiated a peaceful exit for the southern states into perhaps confederation status with reentry allowed once all slaves were freed, the union would exist today without the animosity everyone has deplored over the last 150 years.

Truly Lincoln was in over his head but any person in that position would have been. The governmental checks and balances designed to provide both 1) barriers to imprudent action and 2) advice and consent on executive appointments were broken. If these had been working, Lincoln actions might have been channeled into less destructive paths. Chief Justice Taney was afraid to force the courts to do their duty for fear of being jailed, state legislators in the north were afraid of speaking up for fear of being arrested as their fellows in Maryland had, and Congress was operating with a bare quorum because the south had withdrawn its representatives. Lincoln who opposed the succession of any state promoted the secession of several western Virginia counties to form the new state of West Virginia when he needed a new state to enlarge the Senate.

Was Lincoln a failure or a success? He set a goal - “unconditional surrender” of the south, and he achieved his goal. He left the world a number of speeches and writings that contain stirring thoughts that in places rise to the quality of those of the Great Bard himself. He left hundreds of thousands of dead people, and millions of wounded. He left regional and racial animosities that are yet to be fully healed. Today state legislators north and south spend most of their time coping with federal mandates with no way to fight back. Today the world has one continental-sized superpower with the internal cohesion, power, and the inclination to impose its will for good (or ill) on other countries. Today, with the exception of Haiti, every country in this hemisphere that eliminated slavery has better race relations than the United States. All this happened because Lincoln acted the way he did. Success or failure - you decide?

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