Tuesday, November 14, 2006

Mr. Lincoln, The Lawyer

I recently suggested (using a joke I heard from my colleague Lawrence Kohl) that if you want to sell books, write one about Mrs. Lincoln's cat. This evening I had the great pleasure of reading one on a topic about as good: Abraham Lincoln, lawyer. It's Mark Steiner's An Honest Calling: The Law Practice of Abraham Lincoln, which has just appeared from Northern Illinois Press. I highly recommend this one; and I suspect it'll sell. Great combination of topics: Lincoln and law. There's even a chapter on slavery (on a case involving fugitive slaves, Jane Bryant and her four children, where Lincoln represented the owner). You'll be hearing a lot about this book. This is the kind of respectful but searching treatment of Lincoln that wins Pulitzer Prizes (as evidenced when Mark E. Neely's Fate of Liberty won).

Steiner uses the Lincoln legal papers to get a look at Lincoln the lawyer, as well as at legal practice and legal thought more generally in the years leading into the Civil War (what historians call the antebellum period). So this book aims at making contributions to several fields: first and most directly, our knowledge of Lincoln. Previous biographers have done relatively little with Lincoln's legal practice (though there is an important paper on pleading in Illinois, which Eric Freyfogle wrote around 1991 and which David Donald used in his 1996 biography of Lincoln). So Steiner's able to tell us about Lincoln's legal training and the books he used. For someone like me who enjoys libraries and tries to draw inferences from the books in libraries, the table of books that Lincoln cited in cases has particular interest. The average reader will likely be interested in learning about Lincoln's caseload, which ran from defamation, to debts, to land titles. Steiner draws on a wealth of records to depict Lincoln's life.

What I like about the book is the way Steiner uses Lincoln to address a series of questions critical to legal history, including
  • how legal treatises were used in training and practice (which is the province of legal historians like Michael Hoeflich and Whitney Bagnall)
  • why Whigs were more prevalent among lawyers than Democracts and what meaning that had for the development of legal doctrine (which has mostly been discussed by historians like Lawrence Kohl and Daniel Walker Howe)
  • the boundaries of legal ethics, such as how much were lawyers bound to help their clients (which has been debated recently by Russell Pearce and Norman Spaulding)
  • the duty that a lawyer has to their own internal morality as opposed to a more universal duty to constitutional union (discussed by many, including Robert Cover, Mark Tushnet and me, too).
  • the role of legal doctrine in promoting economic growth (what Morton Horwitz called the "instrumental conception" of law, which has been discussed by many others including William Nelson, Peter Karsten, and Paula Dalley).
So Steiner's Lincoln sits at the center of a lot of crossroads for the profession. What makes it particularly valuable is not just that he has read hundreds of cases and thought about how they all fit together. Steiner has found a new source of data--the papers of an actual lawyer, whom we think is pretty representative of a successful practicing lawyer--as a way of answering those questions. A few have employed biography in the antebellum period before: Maurice Baxter's brilliant One and Inseparable: Daniel Webster and the Union, as well as Andrew King's important work on Daniel Webster's legal papers and practice, and Maxwell Bloomfield's American Lawyers in a Changing Society all come to mind.

Still, virtually everyone who asks the kinds of questions that Steiner does has approached them from reported cases, rather than individual lawyers. The look from this vantage is rather different. Because I'm on record as a strong supporter of Morton Horwitz' Transformation of American Law, 1780-1860, let me make one effort at squaring Horwitz and Steiner. First some background: Horwitz identifies a key aspect of antebellum jurisprudence as the emergence of an "instrumental conception" of law: that judges self-consciously re-crafted the law to promote economic growth. I think there's a lot of evidence to support this (or a moderate version of it). I see two key pieces here
  1. that judges thought the common law incorporated principles that the law evolves in light of progress in moral and economic thought--not too controversial, but I'm happy to talk about this depth in later posts;

  2. judges employed utilitarian principles, in keeping with the dominant moral philosphy of the era.
And while Horwitz looked at this from the perspective of appeallate decisions, I think the evidence is even starker if you look at their extra-judicial statements (like orations), as well as lawyers' treatises and college professors' moral philosophy texts. (I'll be talking about this some more over at blackprof later in the week). Steiner sees Lincoln as concerned with winning the case in front of him; he doesn't find evidence of an instrumental arguments in Lincoln's work; and he notes that Lincoln often argued different sides in successive cases. Now, I think those are all important critiques. Though I'm not certain that they are inconsistent with Horwitz' "instrumental conception." (I prefer to think in terms of a more moderate, progressive common law that emphasizes economy, though that doesn't quite have the ring of "instrumental conception."). I think Lincoln's arguments don't preclude an instrumental conception--and I might not expect lots of evidence of it from lawyers anyway. But I think Steiner is absolutely correct to emphasize that the central point of Whig lawyer was to bring order to the politcal and economic system, rather than to remake rules. That order set the conditions for our nation's economic growth.

There are some other things to speculate on here: what is the relationship between Lincoln's political theory (as seen in places like his Lyceum Speech) and his legal practice. Anyway, I think Steiner's new sources shift, rather dramatically, our understanding of antebellum legal history. I also think this ought now t become a central text in legal history, because it allows us to grapple with some many issues: morality; common law change; legal ethics; slavery, all in one place. One more piece of praise--it reminds me a lot of one of my favorite works in legal history, Robert Palmer's English Law in the Age of the Black Death--because it joins a deep understanding of legal doctrine with history.

You'll enjoy it and will be hearing a lot about An Honest Calling in the future.


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