Oregon State Bar Bulletin — APRIL 2005

Law & Life
Abe's Ethics
Lawyer Lincoln and the Golden Rule
By James McCobb

Practice of law and the Golden Rule may seem an unlikely pair to shape a person’s life; they combined in Abraham Lincoln in an unusual way. That Lincoln found the legal profession and the Golden Rule impinge on each other surfaced one evening in Cincinnati after court had closed. An aspiring lawyer was walking with Lincoln, listening to his anecdotes about lawyers. The young man asked, "Is it possible to practice law and do to others as you want them to do to you?" Lincoln was silent as they continued walking; when he resumed the conversation, he was on another subject. Lincoln’s silence is intriguing.

Lincoln wanted to be a lawyer from an early age. He would go to court whenever he could and walked miles barefoot to hear lawyers conduct their cases and argue to juries. He loved the oratory lawyers were known for in his time, obtained texts of speeches of Daniel Webster and other well-known speakers and rehearsed them behind the barn.

While Lincoln was partner in a store in 1831, he found confirmation of his inclination toward the law. He felt sorry for a peddler and bought a barrel for 50 cents. When he sorted through the rubbish he had purchased, at the bottom of the barrel Lincoln found a volume of Blackstone’s Commentaries. He often told that story of how Blackstone had jumped into his hands out of any empty barrel as if to say, "Take me and read me; you were made for a lawyer."

The Golden Rule Lincoln learned (from his mother’s reading the Bible to him when he was little) became personal while he was keeping store. He was earning $3 a day as a surveyor, but the store was an albatross. His partner died, leaving Lincoln with a $1,000 debt. The creditor got a judgment and seized Lincoln’s horse and equipment. Lincoln was too discouraged to attend the sale, but James Short did: he liked the tall young man who read so many books and could husk corn faster than anyone he knew. Short bought Lincoln’s horse, bridle, saddle and compass and delivered them to Lincoln. "Uncle Jimmy," Lincoln said, "someday I’ll do the same for you."

So why was Lincoln silent that evening in Cincinnati when the young student wanted to know if you could keep the Golden Rule if you practiced law? The Golden Rule was important to how Lincoln led his life. He was to argue against slavery, "If I would not be a slave, I would not be a master." His friends said of him that he never sought revenge. In his second inaugural address he told the nation that North and South were complicit in allowing slavery, and that victims of the war on both sides deserved kindness. He must have sensed these things in Cincinnati. Perhaps Lincoln’s silence is attributable to the inadequacy of any verbal answer: ethics goes more to being than it does to doing.

The Golden Rule is central in the teachings of several world religions. The Hindu Upanishads are direct and simple: "He who sees all beings in the Self, and the Self in all beings, hates none." Judaism knows the commandment, "Love your neighbor as yourself." The Sermon on the Mount urges, "In everything do to others as you would have them do to you; for this is the law and the prophets." Lincoln knew better than we do that the Golden Rule, as widely as it is taught, and as simple as it seems, is hard.

Ethics as Traits of Character
Anthony T. Kronman, Sterling Professor at Yale Law School, has a particular approach to ethics in the law. Kronman teaches that ethics is more than rules of practice but goes to personal values and who we are. He suggests that there are traits of character in lawyers, perhaps stemming from childhood, that are congenial to law’s practice or the legal profession would not have attracted us. These traits are strengthened over time by the actuality of a lawyer ’s work.

There is in us a sympathetic leaning toward the issues and situations of other people, Kronman observes; we are inherently rescuers. We bring our sympathy with us when we undertake our legal education. From our first day in class we are engaged in learning that there are at least two sides to every question. By the time we have our degree we have found it possible to argue positions that run counter to our sympathies. Consequently our caring has become toned by knowing that there is another side to situations our clients bring us; there are inevitably aspects of a case that our client has not divulged or that might have escaped the client’s awareness. So we search for the merit in the opponent’s position before we frame an issue or seek a settlement. We know we need to see below the surface to serve our clients well.

The merger of sympathy and detachment, concludes Kronman, enables lawyers to attain a practical wisdom that makes the legal system work and to reach in their own lives an important level of moral achievement. Some fragments from the biography of Abraham Lincoln pertaining to his years of private practice may help us see how Kronman’s thesis is at work in our own experience and illustrate the practical side of the Golden Rule.

Practicing Sympathy
Stories of Lincoln’s sympathy were widespread. He stopped his carriage to free a pig that was mired in mud; he ran over a little girl’s doll, stopped, picked up the doll and cleaned it off, then beamed down at her and said, "There. Your doll is all right now." Hearing a young woman sing, he stopped on the street in Springfield and listened to the song that came through an open window, went up to the door of the house to express his appreciation.

One morning in Springfield some boys were pestering a goat and trying to get it to butt people off their feet. Lincoln came down the street, his hands folded behind him, his head hanging forward as it often did, and the goat made for him. Lincoln stooped over and took hold of the goat’s horns with his two hands, put his face close to the goat’s and slowly drawled, "Now there isn’t any good reason why you should want to harm me, and there isn’t any reason why I should want to harm you. The world is big enough for both of us. If you behave yourself and I behave myself we’ll get along without a cross word between us." Then Lincoln lifted the goat by its two horns, dropped it over a high fence, and continued down the street.

His well-known sympathy got Lincoln clients. He lost a criminal defense and his client received a five-year sentence; Lincoln appealed to the governor for a pardon and obtained his client’s freedom after he had served one year. Over Lincoln’s 23 years of private practice the governor of Illinois granted 20 pardons; Lincoln’s signature was on 14 of the successful petitions.

Sympathy shines through the cases he accepted. Over the last decade of his practice in the 1850s, when he was representing railroads and was most financially successful, Lincoln had modest people in his files. One client had been in a knife fight over a broken will and was sentenced to eight years of hard labor. A one-legged veteran of the Mexican War was found guilty of robbing the mails of $15,000 and was sent up for 10. He defended a woman in a divorce suit on the grounds that the husband had contrived evidence against her by attempting to induce other men to make attempts on her chastity. He defended nine women accused of riot for smashing barrels in a saloon after they warned the proprietor they would close him down.

Lincoln was a rough fighter for his clients. The widow of a Revolutionary War veteran told Lincoln that a pension agent obtained a payment from the government for $400 and kept $200 as a commission. Lincoln sued. He put the widow on the stand and had her tell her tearful story. In his speech to the jury Lincoln spoke of his client’s early beauty, how sweet her voice had been; now she was appealing for redress to strangers who enjoyed the privileges her husband had died for. He pictured the sufferings of soldiers of the Revolution and the deprivation the widow suffered. The verdict was for the full amount the agent had taken. Lincoln’s partner picked up Lincoln’s notes for his final argument: "No contract—-No professional services—-Money retained by defendant—-Revolutionary War—-Valley Forge—-Ice—-Bleeding feet—-Pl’ff’s husband—-Soldier leaving home for the army—-Skin def’t—-Close."

Learning Detachment
Lincoln’s sympathy caused him to lose some cases. He represented a farmer who brought slaves from Kentucky to work the harvest on his Illinois land. When the farmer returned to Kentucky in the winter, he left the foreman, his wife and children to manage the Illinois farm. As long as the slaves were temporary residents of Illinois, they retained their status as slaves, but if they became domiciled in the free state of Illinois, they would become free.

The farmer’s wife became angry with the foreman’s wife and threatened to send the foreman’s family back to slavery in Kentucky. The frightened couple sought sanctuary in the home of an abolitionist who asked Lincoln to represent them. Lincoln said he could not because he had previously advised the farmer. The case swung on a writ of habeas corpus the farmer brought.

The case reached the Illinois Supreme Court. Lincoln’s opposition to slavery was well known, and there was curiosity as to how he would argue his case. He chose to rely entirely on the procedural law surrounding habeas corpus. At a critical point in Lincoln’s argument, the judge asked, if the writ had been proper as to procedure, and it appeared that the slave owner had brought this mother and her children voluntarily from Kentucky and settled them on his farm in Illinois, "Do you think as a matter of law that they thereby did not become free?" Lincoln answered, "No, sir, I am not prepared to deny that they did." Lincoln lost both case and fee.

Lincoln once remarked to a lawyer who asked him to go in on another case he didn’t believe in: "You’ll have to get some other fellow to win this case for you. I couldn’t do it. All the while I’d be 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."

In a similar context Lincoln said, "The true rule in determining to embrace or reject anything, is not whether it have any evil in it, but whether it have more of evil than of good. There are few things wholly evil or wholly good. Almost everything is an inseparable compound of the two; so that our best judgment of the preponderance between them is continually demanded."

Combining Sympathy with Objectivity
How sympathy joined with objectivity in Lincoln appears in a story about a client who wanted to sue his neighbor in a fence dispute. "Been a neighbor of yours for long?" Asked Lincoln. "Nigh onto 15 years." "Part of the time you get along alright, don’t you?" "I reckon we do." "Well, see this horse of mine? I sometimes get out of patience with him. But I know his faults; he does fairly well as horses go; it might take me a long time to get used to some other horse ’s faults. All horses have faults."

Abraham and Mary Lincoln had their difficulties. Lincoln was fighting hypochondria; Mary was moving toward a time when she would cry that hot wires were being drawn through her eyes and nails hammered into her head. Sandburg thought it was at home as much as at law that Lincoln learned accommodation: "Quarrel not at all. No man resolved to make the most of himself can spare time for personal contention. Still less can he afford to take all the consequences, including the vitiating of his temper and the loss of self-control. Yield larger things to which you can show no more than equal right; and yield lesser ones, though clearly your own." "Better give your path to a dog than be bitten by him contesting for the right. Even killing the dog won’t cure the bite." Such wisdom was bought for a price; neighbors knew that he was sometimes splitting wood in the middle of the night.

Becoming a Special Friend
Lawyers live at the hub of human interaction. Our clients can find themselves in storms of moral ambiguity and conflicting motives; they teach us what difficulty is. Those who turn to lawyers need a special friend sentimental enough to be sympathetic to the complexity of their situations and, informed by experience in accommodating life’s rights and wrongs, objective enough to guide them into livable solutions. Becoming that sort of special friend can justify our living.

There may not be a person anywhere who thinks a lawyer can obey the Golden Rule. Still, re-reading the Second Inaugural and the Gettysburg address, there is something suggestive in Lincoln’s silence when he was asked if a lawyer can do to others what you want them to do to you. He may have realized that the student was asking a question that had trouble in it — a question he was answering with his life.

The Golden Rule was on Abraham Lincoln’s mind when Johnny Konkapod, a Kickapoo Indian, died. He wrote the epitaph for his friend’s tomb that might have been his own:

Here lies poor Johnny Konkapod
Have mercy on him, gracious God,
As he would do if he was God
And you were Johnny Konkapod.

James E. McCobb is a Portland business and tax planning attorney whose avocation is writing poetry and the occasional essay. He can be contacted at jmccobb@verizon.net.

© 2005 James E. McCobb

Note from the author
Stories of Lincoln’s law practice are found in Carl Sandburg’s Abraham Lincoln, The Prairie Years, volumes I and II. Many are summarized in Sandburg’s one volume version, Abraham Lincoln, The Prairie Years and The War Years. Some stories told by Sandburg appeared first in Albert A. Woldman’s Lawyer Lincoln, (1936). Anthony Kronman’s approach to legal ethics is presented in his book, The Lost Lawyer: Failing Ideals of the Legal Profession, Harvard University Press (1993).

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