LINCOLN THE CROSS-EXAMINER

The centerpiece of the legend of the Almanac Trial is Lincoln’s cross-examination of the eyewitness to the killing. Was he really a good cross-examiner? Frederick Trevor Hill, who wrote the first book about Lincoln’s law practice seems to have thought so. Hill said:

 

Cross-examination makes greater demands upon a lawyer than any other phase of trial work, and it has been rightly termed an art. To succeed in it the practitioner must be versed in the rules of evidence; he must be familiar with all the facts in his case, and keep them continually in his mind; he must think logically, be far-sighted, tactful, and a keen judge of human nature. All these qualities Lincoln possessed to an unusual degree. … Lincoln the Lawyer, pp. 226, 227.

 

At the 1912 convention of the Illinois State’s Attorneys Association, Joseph Benjamin Oakleaf gave a speech in which he described Lincoln's method of cross-examining:

 

One reason why I think he would have been a successful criminal lawyer was his mastery of the art of cross examination, in which he had no equal. If any obstinate witness appeared and was determined to conceal facts which Lincoln desired brought out, Lincoln would neither show resentment nor attempt to coerce the witness but would go after him in a nice, friendly way, questioning about things which were foreign to the point desired, thus placing him at ease, making him forget his antagonistic ideas, and, before he was aware of the harm he was doing his side, the whole story would be laid bare, and then Lincoln would compliment the witness on his fairness and the witness would consider himself a hero. Abraham Lincoln as a Criminal Lawyer, p. 6.

 

We have more than Oakleaf’s description of Lincoln’s methods as a cross-examiner. We have the account of James Hoblit, a witness whom Lincoln actually cross-examined. We will let Hoblit tell the story in his own words:

 

I shall never forget my experience with him. I was subpoenaed in a case brought by one Paullin against my uncle, and I knew too much about the matter in dispute for my uncle's good, The case was not of vital importance, but it seemed very serious to me, for I was a mere boy at the time. Mr. Paullin had owned a bull which was continually raiding his neighbor's corn, and one day my uncle ordered his boys to drive the animal out of his fields, and not to use it too gently, either. Well, the boys obeyed the orders only too literally, for one of them harpooned the bull with a pitchfork, injuring it permanently, and I saw enough of the occurrence to make me a dangerous witness.

 

The result was that Paullin sued my uncle, the boys were indicted for malicious mischief, Mr. Lincoln was retained by the plaintiff, who was determined to make an example of somebody, and I was subpoenaed as a witness. My testimony was, of course, of the highest possible importance, because the plaintiff couldn't make my cousins testify, and I had every reason to want to forget what I had seen, and though pretty frightened, I determined, when I took the stand, to say as little as possible. Well, as soon as I told Mr. Lincoln my full name he became very much interested, asking me if I wasn't some relative of his old friend John Hoblit who kept the house between Springfield and Bloomington; and when I answered that he was my grandfather, Mr. Lincoln grew very friendly, plying me with all sorts of questions about family matters, which put me completely at my ease, and before I knew what was happening, I had forgotten to be hostile and he had the whole story. After the trial he met me outside the court-room and stopped to tell me that he knew I hadn't wanted to say anything against my people, but that though he sympathized with me, I had acted rightly and no one could criticize me for what I had done. The whole matter was afterward adjusted, but I never forgot his friendly and encouraging words at a time when I needed sympathy and consolation. Lincoln the Lawyer, pp. 225, 226.

There's an old proverb about lawyering that goes "When you cross-examine, you don't have to examine crossly." Lincoln exemplified that proverb.

LINCOLN THE GRAPPLER

In previous posts I have mentioned Lincoln's skill as a wrestler. He is reputed to have contested over 300 bouts, losing only one. This sort of a record would put him in a league with Aleksandr Karelin, the Greco-Roman wrestler from Russia who went over 12 years in international competition without losing a bout and picked up multiple Olympic Gold Medals in the process.

As I explain in my upcoming book, Lincoln excelled at the sport of collar-and-elbow wrestling, a sport which originated in the British Isles, and migrated to America with Scots-Irish immigrants. Originally a standup game, it evolved into a game which allowed ground fighting. From one place to another the rules differed markedly, and I went through something of a research project trying to figure out the precise rules that were being used in Illinois during Lincoln's lifetime. For reasons which I explain in Chapter 7 ("Lincoln and the Clary's Grove Boys") I decided that the Illinois sport was a standup game. The wrestlers took prescribed holds at the beginning of the match and tried to throw one another to the ground. The popularity of the collar-and-elbow hold caused the sport to be most widely known by that name, but it went by other names as well.

The collar-and-elbow hold was exactly what it sounds like. Each contestant grabbed his opponent by the collar with one hand and the elbow with the other. The contestants took turns prescribing the type of hold which would begin the fight, and Lincoln preferred the side hold, which called for the contestants to grab each other around the waist.

Of course, Lincoln's most famous wrestling match came against Jack Armstrong, the leader of a New Salem gang of roughnecks known as the Clary's Grove Boys, a bout which I fully describe in the book. But there was another notable bout he took part in before he wrestled Armstrong. Upon his return from a flatboat trip to New Orleans, he was challenged by a county champion named Daniel Needham. At first he declined, but Needham pushed him until the match was arranged.

They met in the "greenwood" at a place called Wabash Point in Coles County. Employing the side hold, Lincoln threw Needham in two consecutive falls, winning the match. Needham was incensed. He challenged Lincoln to a fist fight. Skill in a combat sport does not necessarily translate into skill at streetfighting, and Needham doubtless thought that Lincoln would either back down or be thrashed.

Of course, Needham knew nothing about how Lincoln had single-handedly thrown a half dozen river pirates off of his flatboat on his recent trip to New Orleans. Lincoln told Needham that he did not want to fight, but if Needham insisted, he would give the wrestler a "thrashing." On second thought, Needham decided that it might not be such a good idea to engage Lincoln in a no-holds-barred contest.

This account is reconstructed from the text of early Lincoln biographies and from the excellent resource, Herndon’s Informants: Letters, Interviews, and Statements about Lincoln, Chicago: University of Illinois Press, 1998, page 439 (edited by Douglas L. Wilson and Rodney O. Davis.

I have gathered together many of the old accounts of the match and transcribed them onto a webpage. If you are interested in reading these accounts, you may access them HERE.

LINCOLN THE INVENTOR

A Mississippi River Flatboat

(From Abraham Lincoln: His Youth and Early Manhood by Noah Brooks

Lincoln began his transformation from backwoodsman to statesman in a small town on the Sangamon River. Lincoln arrived in New Salem when he was in his early twenties, and you might say that he made a smashing entry. He was navigating a flatboat down the Sangamon River to New Orleans when he ran aground on John Rutledge's dam. The dam powered a water wheel which drove a mill. The old mill is long gone, but they have erected a replica on the site of the old mill.

Replica of Rutledge's Mill on the Sangamon River

Lincoln and his fellow boatmen could not get the boat over the dam, or even off the dam. The boat began taking on water, and it looked like they were stymied. Then Lincoln had a brainstorm. He got his mates to help him offload enough cargo to get the boat riding higher in the water, and went to the local cooper's shop to borrow an auger. I had to look up cooper in the dictionary to figure out what a cooper was. A cooper is a barrel maker. If you're wondering what a cooper would be doing with an auger, barrels have bung holes, and coopers need augers to drill the bung holes. The cooper shop of Henry Onstot is the only surviving building of New Salem.

Me in Front of Henry Onstot's Cooper Shop

Lincoln took the auger and bored a hole in the bottom of the boat. The boat was lightened enough for them to get it high in the water and let the water drain out of the boat's interior. Lincoln plugged the hole, and they were able to lift the lightened flatboat over the dam.  Cooper's son T.G. Onstot still had the auger in 1902, when he published a picture of it in a book entitled Lincolnian Picturettes.

Lincoln's Auger

 

 

Lincoln never forgot his troubles as a flatboatman on the Mississippi River system. When he went to Washington as a Congressman, he patented an invention of his which he had designed to lift boats over shallows and sandbars in the river system. A model of it is on display today in the Smithsonian.

 

 

Model of Lincoln's Invention

(Photograph from Life of Lincoln by John S. Abbott)



Diagram Submitted with Lincoln's Patent Application

(Illustration from The Boy's Life of Abraham Lincoln by Helen Nicolay

PUBLICATION SCHEDULE FOR "ABRAHAM LINCOLN'S MOST FAMOUS CASE: THE ALMANAC TRIAL"

The publication process seems to be running smoothly. I have proofed the copyedited manuscript and sent it back, and today I received the art log. I quickly proofread it and sent it back, and now I am waiting to get the page proofs. I am scheduled to get them on January 13, 2014, and I'm supposed to proofread them and return them by February 3, 2014. February 3 is also the deadline for finishing the index for the book. Once all that is done the book should be released some time in April.

Here is the table of contents for the book:

Preface
Chapter 1: Murder at a Whiskey Camp
Chapter 2: Lincoln the Cross-Examiner
Chapter 3: Lincoln the Orator
Chapter 4: Lincoln the Trickster
Chapter 5: The Hagiography of the Trial
Chapter 6: The Historiography of the Trial
Chapter 7: Lincoln and the Clary’s Grove Boys
Chapter 8: The Camp Meeting
Chapter 9: The Prosecution
Chapter 10: The Trial Begins
Chapter 11: The Famous Cross-Examination
Chapter 12: The Misplaced Moon
Chapter 13: Winning the Almanac Trial
Chapter 14: Was Armstrong Guilty?
Appendix A: Statements of the Major Participants
Appendix B: Selected Documents from the Armstrong Court File
Appendix C: The Oral History of the Armstrongs
Notes
Selected Bibliography
Index
 

THE ALMANAC TRIAL INDICTMENT

Indictment forms have changed dramatically over the years. The Almanac Trial indictment was written by hand and was worded almost identically to a murder indictment form that can be found in the 1799 edition of Blackstone's Commentaries on the Laws of England. Here's the first page of the Indictment:

It is eight pages long, and (as you might expect) excessively wordy. The full wording of the indictment is as follows:

Indictment, November 5, 1857: State of Illinois: Mason County: Of the October Term of the Mason county Circuit Court in the year of Our Lord one thousand eight hundred and fifty-seven.

The Grand Jurors chosen selected and sworn in and for the County of Mason aforesaid in the name and by the authority of the People of the State of Illinois upon their oaths present that James H. Norris and William Armstrong late of the County of Mason and State of Illinois not having the fear of God before their eyes, but being moved and seduced by the instigation of the Devil, on the twenty-ninth day of August in the year of Our Lord one thousand eight hundred and fifty-seven with force and arms at and within the County of Mason and State of Illinois, in and upon one James Preston Metzker in the peace of the said People of the said State of Illinois then and there being, unlawfully, feloniously, willfully, and of their malice aforethought did make an assault. And the said James H. Norris with a certain piece of wood about three feet long which he the said James H. Norris in his right hand then and there held the said James Preston Metzker in and upon the back part of the head of him the said James Preston Metzker then and there unlawfully, feloniously, willfully, and of his malice aforethought, did strike, giving to the said James Preston Metzker then and there with the stick of wood aforesaid in and upon the said back part of the head of him the said James Preston Metzker, one mortal bruise and the said William Armstrong with a certain hard metallic substance called a slung-shot which he the said William Armstrong in his right hand then and there had and held, the said James Preston Metzker, in and upon the right eye of him the said James Preston Metzker then and there unlawfully, feloniously, willfully and of his malice aforethought did strike, giving to the said James Preston Metzker then and there with a slung-shot aforesaid in and upon the said right eye of him the said James Preston Metzker one other mortal bruise, of which said mortal bruises the said James Preston Metzker from the said 29th. day of August in the year aforesaid until the 1st day of September in the year aforesaid at the County of Mason and State of Illinois aforesaid did languish, and languishing did live on which said first day of September in the year aforesaid the said James Preston Metzker in the County and State aforesaid of the said mortal bruises died; and so the jurors aforesaid upon their oaths aforesaid do say that the said James H. Norris and William Armstrong the said James Preston Metzker in manner and form aforesaid unlawfully, feloniously, and of their malice aforethought did kill and murder contrary to the form of the statute in such cases made and provided and against the peace and dignity of the same People of the State of Illinois.

And the Grand Jurors aforesaid in the name and by the authority aforesaid upon their oaths aforesaid do further present James H. Norris and William Armstrong late of the County of Mason and State of Illinois not having the fear of God before their eyes but being moved and seduced by the instigation of the Devil, on the twenty-ninth day of August in the year of Our Lord one thousand eight hundred and fifty- seven with force and arms at and within the County of Mason and State of Illinois in and upon one James Preston Metzker in the peace of the said People of the said State of Illinois then and there being unlawfully feloniously, and willfully and of their malice aforethought did make an assault; and that the said James H. Norris and William Armstrong with a certain hard metallic substance commonly called a slung-shot which they the said James H. Norris and William Armstrong in both their right hands then and there had and held, the said James Preston Metzker in and upon the right eye of him the said James Preston Metzker then and there unlawfully, feloniously, willfully and of their malice aforethought did strike, beat and bruise, giving to the said James Preston Metzker then and there with the slung-shot aforesaid by striking, beating and bruising the said James Preston Metzker in and upon the right eye of him the said James Preston Metzker one other mortal bruise of which said mortal bruise the said James Preston Metzker from the said twenty-ninth day of August in the year of Our Lord one thousand eight hundred and fifty-seven aforesaid until the first day of September in the year aforesaid at the County of Mason and State of Illinois aforesaid did languish, and languishing did live on which first day of September in the year aforesaid the said James Preston Metzker in the county and State aforesaid of the said mortal bruise died. And so the jurors aforesaid upon their oaths aforesaid do say that the said James H. Norris and William Armstrong the said James Preston Metzker in manner and form aforesaid unlawfully, feloniously, willfully and of their malice aforethought did kill and murder contrary to the form of the statute in such cases made and provided and against the peace and dignity of the same People of the State of Illinois.

And the Grand Jurors aforesaid upon their oaths aforesaid in the name and by the authority of the People aforesaid do further present James H. Norris and William Armstrong late of the County of Mason and State of Illinois on the twenty-ninth day of August in the year of Our Lord one thousand eight hundred and fifty-seven not having the fear of God before their eyes, but being moved and seduced by the instigation of the Devil with force and arms at and within the County of Mason and State of Illinois in and upon the said James Preston Metzker in the peace of the People of the said State of Illinois then and there being, unlawfully, feloniously, willfully and of their malice aforethought did make an assault; and that the said James H. Norris and William Armstrong with a certain stick of wood three feet long and of the diameter of two inches which they the said James H. Norris and William Armstrong in their right hands then and there had and held the said James Preston Metzker in and upon the back side of the head of him the said James Preston Metzker then and there feloniously, willfully, unlawfully, and of their malice aforethought did strike, beat and bruise, giving to the said James Preston Metzker then and there with a stick of wood aforesaid in and upon the said back side of the head of him the said James Preston Metzker one other mortal bruise of which said mortal bruise the said James Preston Metzker on the said twenty-ninth day of August in the year aforesaid until the first day of September in the year aforesaid at the County and State aforesaid did languish and languishing did live on which said first day of September in the year aforesaid at the County and State aforesaid of the said mortal bruise died; and so the jurors aforesaid upon their oaths aforesaid do say that the said James H. Norris and William Armstrong the said James Preston Metzker in manner and form aforesaid, unlawfully feloniously, willfully, and of their malice aforethought did kill and murder; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the same People of the State of Illinois.

HUGH FULLERTON, state’s attorney.

By comparison, the indictment charging Bruno Richard Hauptmann with the murder of the Lindbergh baby was a model of brevity:

That indictment read as follows:

HUNTERTON OYER AND TERMINER
SEPTEMBER TERM, A.D. 1934
HUNTERTON COUNT IL.

The grand inquest for the State of New Jersey in and for the body of the County of Hunterdon upon their respective oaths present that Bruno Richard Hauptmann on the first day of March in the year of Our Lord One Thousand Nine Hundred and Thirty-Two, with force and arms, at the Township of East Amwell, in the County of Hunderton aforesaid, and within the jurisdiction of this court did wilfully, feloniously and of his malice aforethought kill and murder Charles A. Lindbergh, Junior, contrary to the form of the statute in such case made and provided and against the peace of the State, the Government and the dignity of the same.

ANTHONY M. HAUK
Prosecutor of the Pleas

For comparison, here is a modern indictment. It is somewhat more wordy than necessary because there were special difficulties with the proof of this case which required very careful pleading. The draftsman (me) found an old case with a similar problem of proof which held this language sufficient. Being extremely cautious, as one should when drafting a charging document, the draftsman opted for using the archaic language without trying to modernize it:

The indictment reads:

 

IN THE CIRCUIT COURT, THIRD JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR COLUMBIA COUNTY, THE 20th DAY OF JULY A. D. 1978

 

THE STATE OF FLORIDA,

-vs-

THEODORE ROBERT BUNDY,

Defendant.

 

IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA:

COUNT I

The Grand Jurors of the County of Columbia, State of Florida, Charge that THEODORE ROBERT BUNDY on the 9th day of February A.D. 1978 in Columbia County, Florida, and Suwannee County, Florida, unlawfully and from a premeditated design to effect the death of KIMBERLY DIANE LEACH did murder KIMBEXLY DIANE LEACH in some way and manner, or by some means, instrument or weapon to the Grand Jurors unknown, thereby inflicting and creating in KIMBERLY DIANE LEACH mortal wounds and injuries or mortal sicknesses, of and from which said mortal wounds and injuries or mortal sicknesses the said KIMBERLY DIANE LEACH died. (FSA 782.04; 910.03.

 

COUNT II

The Grand Jurors of the County of Columbia, State of Florida, further charge that THEODORE ROBERT BUNDY on the 9th day of February, 1978, in Columbia County, Florida, and Suwannee County, Florida, did then and there forcibly, secretly or by threat, confine, abduct or imprison KIMBERLY DIANE LEACH against her will and without lawful authority, with intent to inflict bodily harm upon or to terrorize KIMBERLY DIANE LEACH or with intent to commit or facilitate the commission of a felony, to wit: murder. (FSA 787. 01; 910.03).

 

L. ARTHUR LAWRENCE, JR.

STATE ATTORNEY OF THE THIRD

JUDICIAL CIRCUIT OF FLORIDA

 

At the risk of beating a dead horse, I will conclude this post with the more modernized wording of the indictment from the last capital murder case I tried:

 

THE GRAND JURY of Columbia County, Florida, charges that BRIAN A. STRAWDER on the 11th day of August, 2002, in COLUMBIA County, Florida, unlawfully and from a premeditated design to effect the death of another, and while robbing TOMMY C. SIMPKINS, did kill TOMMY C. SIMPKINS by discharging a firearm which BRIAN A. STRAWDER had in his actual possession and shooting TOMMY C. SIMPKINS with said firearm, thereby inflicting upon TOMMY C. SIMPKINS mortal wounds and injuries which caused the death of TOMMY C. SIMPKINS, contrary to Florida Statutes 782.04(1)(a) and 775.087(2)(a).

 

 

 

 



 

 

 

LINCOLN'S AUTOBIOGRAPHIES

In 1859, as he was preparing to run for president, Lincoln sat down and wrote a brief autobiography for use in his campaign, and put it in the hand of his friend, Jesse Fell. Fell kept the handwritten biography until, in 1872, he had three subscribing witnesses attest that the document was in Lincoln's handwriting. In 1907 a facsimile copy of the autobiography found its way into print under the title Lincoln's Autobiography: Reproduced from the Original Manuscript in Fac Simile.

First Page of Lincoln's Handwritten Autobiography

He wrote it in the first person, using fewer than 650 words to summarize his life to that point. Those few plain-spoken words convey his honesty and humility better than anything I have ever read. His description of himself is typical of the tenor of his story:

If any personal description of me is thought desirable, it may be said, I am in height, six feet, four inches, nearly; lean in flesh, weighing, on an average, one hundred and eighty pounds; dark complexion, with coarse black hair, and grey eyes.

The only part of his account which betrays any sense of pride comes when he describes his defeat by Peter Cartwright in his first election:

Then came the Black Hawk War; and I was elected a Captain of Volunteers — a success which gave me more pleasure than any I have had since. I went the campaign, was slated, ran for the Legislature the same year (1832) and was beaten — the only time I ever have been beaten by the people. (He won the popular vote against Douglas).

The next year, as the presidential campaign loomed closer, he wrote a second, longer autobiography, this time in the third person. When this autobiography was published in 1905, the preface read:

A SHORT AUTOBIOGRAPHY, WRITTEN IN JUNE, I860, AT THE REQUEST OF A FRIEND TO USE IN PREPARING A POPULAR CAMPAIGN BIOGRAPHY IN THE ELECTION OF THAT YEAR. 

 

(The Autobiography of Abraham Lincoln, p 3).  Lincoln's supporters wrote no fewer than three campaign biographies, it isn't clear which one used the 3,500 word autobiography.

 

The three campaign biographies were: W.D. Howells's  The Life of Abraham Lincoln and Hannibal Hamlin,, Joseph H. Barrett's  Life of Abraham Lincoln with a Condensed View of his Most Important Speeches, and David W. Bartlett's The Life and Public Services of Hon. Abraham Lincoln: To Which Is Added aBiographical Sketch of Hon. Hannibal Hamlin. We don't really know what Lincoln thought about the accuracy of Barrett's and Bartlett's works, but we can have a pretty good idea of his opinion of the accuracy of Howells's biography.

Not long after the publication of Howells's biography, Samuel C. Parks asked Lincoln to read a copy of the book and correct any errors in it. Parks later wrote an inscription on the flyleaf of the book:

This life of Lincoln was corrected by him for me, at my request, in the summer of 1860, by notes in his handwriting in pencil, in the margin. It is to be preserved by my children, as a lasting memorial of that great man, and his friendship for me. Samuel C. Parks, Kansas City, Missouri, May 22, 1901.

In 1938 the Abraham Lincoln Association printed a facsimile copy of the book with Lincoln's annotations, and that facsimile can be accessed at the Internet Archive.

Page from Howells's Biography Annotated by Lincoln

If we stretch a point, we can say that Lincoln wrote three autobiographies, two in his own hand, and the third by annotating Howells's biography.

ABE LINCOLN versus CHUCK NORRIS

I just read a blog post entitled Five Presidents Who Could Kick Chuck Norris's Ass, and it listed Abraham Lincoln as number five. The other candidates for kicking Chuck Norris's behind were: (4) Ulysses S. Grant; (3) George Washington; (2) Teddy Roosevelt; (1) Andrew Jackson. It was an entertaining read, and I am sure the blogger wrote tongue-in-cheek. His post was certainly not a model of dispassionate evidentiary analysis.

Although it is unlikely that any of these men could have prevailed against a modern professional martial artist in a MMA-style competition, we can be certain that they were all capable of handling themselves in a scuffle. The most bellicose man on the list would have to be Andrew Jackson, whom I believe to be the only president to ever return fire upon a would-be assassin. We all know that Jackson was the hero of the Battle of New Orleans, but I only recently learned that he was recuperating from gunshot wounds sustained in a duel when he led his army south to meet the British.

I have mentioned Lincoln's strength and wrestling ability in previous posts, but I want to talk about something that happened when Lincoln was a flatboatman on the Mississippi River system. One night during his first trip to New Orleans, he and his companions moored their boat so that they could sleep. While the crew slumbered, a company of some five to seven river pirates boarded the boat to plunder it. The noise of their entry waked the crew, and the boat's "captain," Allen Gentry, yelled "Bring the guns, Abe! Shoot them!"

The call for gunplay did not deter the pirates. Apparently they thought Gentry was bluffing. Either the pirates were correct or Lincoln was disobedient. Instead of arming himself with a firearm, Lincoln stepped into the midst of the pirates wielding a club. Lincoln laid about with the club and, after a brief but furious battle, cleared the deck of pirates. In the fight he received a minor wound, and he carried the scar from that wound to his grave. At least, that's the story that William O. Stoddard tells in his biography Abraham Lincoln: The True Story of a Great Life (p. 63).

If I were listing the presidents in order of prowess in hand-to-hand combat, I'd rank Lincoln number two right behind Andrew Jackson.

LINCOLN CROSS-EXAMINES STEPHEN A. DOUGLAS

When Abraham Lincoln defended Duff Armstrong in the Almanac Trial he was preparing to run for the United States Senate against Stephen A. Douglas. During the debates both Lincoln and Douglas gave speeches in the park across the street from the Almanac Trial courthouse. The speeches they gave in the park were not technically a part of the debates because they gave them on different days. It is not the speeches they gave in Beardstown that I want to talk about, but rather an exchange between the two candidates during the official debates.

Modern presidential debates are really quite laughable affairs when compared to the prototypical series of campaign debates. The Lincoln-Douglas debates of 1858 were actual debates and not carefully stage-managed opportunities to disgorge prefabricated talking points. The two men made arguments to their audiences in courtroom fashion with one party getting to open and close the argument. The format of the debates allowed for the candidates to ask each other questions about the positions taken on various issues. Allowing the candidates to ask each other questions gave Lincoln a chance to exercise his considerable skills as a cross-examiner, and he used them to good effect in the debates.

One of the hotly contested issues of the Lincoln-Douglas debates was the Supreme Court’s Dred Scott opinion. Douglas correctly believed Lincoln’s opposition to slavery would render him vulnerable on this issue. Douglas therefore composed seven questions which he challenged Lincoln to answer. When Douglas asked these questions at the first debate held in Ottawa Lincoln ignored them, and Douglas made political hay from Lincoln’s silence. Lincoln decided to take up Douglas’s challenge at the debate held in Freeport, and Lincoln’s response changed the course of American history. Frederick Trevor Hill, in his book Lincoln the Lawyer, gives a concise account of the Freeport debate:

“I will answer these interrogatories” announced Lincoln, *** “upon condition that he [Judge Douglas] will answer questions from me not exceeding the same number. I give him an opportunity to respond.”

No reply came from his adversary, and the vast audience at Freeport waited the outcome with a breathless interest which the keen jury lawyer instantly interpreted. “The judge remains silent,” continued Lincoln, impressively. “I now say I will answer his interrogatories whether he answers mine or not; but after I have done so, I shall propound mine to him.” Another breathless pause greeted this resistless challenge.*** 

[H]aving shown that he could in this way technically defeat his opponent's object, he instantly waived the form of the questions and replied to [the questions] one after the other as fairly and frankly as anyone could desire; and, having done so, he propounded four counter-questions which proved to be the most fatal “cross-examination” or counter-questioning in history. All the inquiries were adroit, but it was the second which displayed Lincoln as a master of interrogation.

“Can the people of the United States Territory” he asked, “in any lawful way, against the wish of any citizen of the United States, exclude slavery from its limits prior to the formation of a State constitution?”

The answer to this question required Douglas to interpret the Dred Scott decision. If he replied in the negative, the people of Illinois would repudiate him, because they would not countenance the idea that the mischief had been done and that slavery had already been forced upon the Territories. If, on the other hand, he answered that the Territories were still free to choose or reject slavery, he would have to explain away the Dred Scott decision, which guaranteed protection to slave property in the Territories as a constitutional right; and this would displease the Southern Democracy which was then listening to his every word to determine whether he was or was not a safe Presidential candidate.

Hill reports that Lincoln and his handlers had a spirited debate about whether Lincoln should take this tack. Loosely worded or not, Douglas’s questions were deadly. If Lincoln honestly answered Douglas’s questions and Douglas gave plausible answers to Lincoln’s, Lincoln’s campaign for the Senate was dead.

The Republican politicians of Illinois were not so astute as Douglas; still they foresaw that he would give a plausible answer to the question which would satisfy the local voters, and they begged Lincoln to withdraw the inquiry. But the far-sighted lawyer who framed it was deaf to their entreaties. “Then you will never be senator!” was the angry warning of one of his advisers. “If Douglas answers,” responded Lincoln calmly, “he will never be President.”

Things turned out precisely as the far-sighted Lincoln and his near-sighted handlers predicted. Hill tells us:

The fatal question was therefore left as Lincoln had phrased it, and at the first opportunity Douglas answered by stating that the Territories were still free agents. They could exclude slavery despite the Dred Scott decision, he explained, simply by adopting local police regulations so hostile to slavery that no slave-owner could enjoy his property within their boundaries.

As soon as he had uttered it, Douglas must have seen that his answer involved a gross blunder in law; but if he had any doubt on the matter, Lincoln speedily dispelled it [in his reply speech]. How could the constitutional right of peaceful enjoyment of slave property guaranteed in the Dred Scott case be canceled by police or any other hostile legislation? he demanded. Any such ordinance or law would be contrary to the constitution and absolutely void. Either Judge Douglas's answer or the doctrine of the Supreme Court was bad law, for the one was inconsistent with the other.

But, illogical as it was, this fallacy caught the popular fancy, and Douglas, seeing that it satisfied his constituents, held to it and was elected to the Senate. Nevertheless, as Lincoln anticipated, his blunder in law cost him the Presidency, and not long afterward Judah Benjamin, one of the most ardent and able representatives of the South, arraigned him as a renegade and traitor.

“We accuse him for this,” he thundered: “that having bargained with us upon a point upon which we were at issue, that it should be considered a judicial point; that he would abide the decision; that he would act under the decision, and consider it a doctrine of the party; that having said that to us here in the Senate, he went home, and, under the stress of a local election, his knees gave way; his whole person trembled. His adversary stood upon principle and was beaten; and lo, he is the candidate of a mighty party for the Presidency of the United States. The senator from Illinois faltered. He got the prize for which he faltered; but the grand prize of his ambition to-day slips from his grasp because of his faltering in his former contest, and his success in the canvass for the Senate, purchased for an ignoble price, has cost him the loss of the Presidency of the United States!”

Thus two years after Lincoln's question was put and answered Douglas was repudiated by his Southern friends, the Democratic party was split, three candidates instead of one were nominated against the Republicans, and the lawyer whose skill had precipitated this result was triumphantly elected at the polls.

The full text of the Freeport debate can be read in Chapter Six of the Illinois Historical Society’s volume, The Lincoln-Douglas Debates.

LINCOLN THE CROSS-EXAMINER

The Almanac Trial is best remembered as an example of Lincoln's great skill as a cross-examiner. Granting that he performed a good cross-examination in that case, does it follow that he was really a good cross-examiner? I'd have to say no. One example is insufficient to prove any point. His success may have simply been a fluke, much like the blind hog in an aphorism my grandfather used to use--"Even a blind hog will find an acorn every now and then." So do we have additional evidence of Lincoln's skill as a cross-examiner? As a matter of fact we do, and it comes from two very reliable sources--Honest Abe himself, and a Senator named McDonald. (If you can't trust politicians, who can you trust?) Both men gave an account of a cross-examination performed by Lincoln in rather inconsequential criminal case.
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The first version of the cross-examination comes from The Everyday Life of Abraham Lincoln by Frances Fisher Brown. She repeats a story told her by Senator McDonald, who claimed to have witnessed the trial:

“No blood had been spilled, but there was malice in the prosecution, and the chief witness was eager to make the most of it. On cross-examination, Lincoln “gave him rope” and drew him out; asked him how long the fight lasted and how much ground it covered. The witness thought the fight must have lasted half an hour and covered an acre of ground. Lincoln called his attention to the fact that nobody was hurt, and then with an inimitable air asked him if he didn't think it was ‘a mighty small crop for an acre of ground.’ The jury rejected the prosecution's claim.”

Lincoln's version comes to us through several layers of hearsay. At the time Lincoln told the story, he was visiting a cousin in Cincinnati. His cousin was married to a judge, and apparently Lincoln couldn’t resist the temptation to relate a “war story” to a fellow member of the bar. The judge then told the story to Joseph H. Barrett, and Barrett included it in his work, Abraham Lincoln and his Presidency. There are some discrepancies between the two stories, the main one being the size of the field:

“I was retained in the defense of a man charged before a justice of the peace with assault and battery. It was in the country, and when I got to the place of trial I found the whole neighborhood excited, and the feeling was strong against my client. I saw the only way was to get up a laugh and get the people in good humor. It turned out that the prosecuting witness was talkative; he described the fight at great length; how they had fought over a field, now by the barn, again down to the creek, and over it, and so on. I asked him on cross-examination how large that field was; he said it was ten acres; he knew it was, for he and someone else had stepped it off with a pole. ‘Well, then,’ I inquired, ‘was not that the smallest crop of a fight you have ever seen raised off of ten acres?’ The hit took. The laughter was uproarious, and in half an hour the prosecuting witness was retreating amid the jeers of the crowd.”

Other biographies of Lincoln put the size of the field at six acres. A single acre is the probable size, with those repeating the story making it larger and larger. But no matter what the size of the field, Lincoln simply let the witness run with his embellishments until the witness was claiming to have measured the field. He had gently led the witness to venture far out onto the limb of improbability, allowing the witness to become so emboldened by the soft cross-examination that he began making implausible assertions. Lincoln then, instead of savaging the witness with an aggressive challenge, sawed the limb off with a single question.

DYING DECLARATIONS

In order to spare anyone embarrassment, I will not identify the parties involved in the story I am about to tell. I was not involved in the case, but I did hear the story from one of the principal participants. It seems that many years ago in a small North Florida county, a man received a fatal gunshot wound in a bar fight. Officers responded to the scene, took the shooter into custody, and took full statements from the witnesses. They took especial care in their investigation because they had received word from the local hospital that the victim would not survive the night. At the conclusion of the investigation, they learned that the victim was conscious and still clinging to life.

The chief investigating officer, my informant, decided that although he had a good case against the defendant, it would be even better if he had evidence of a dying declaration from the victim. He asked the sheriff to accompany him to the hospital to take a statement from the victim. He reasoned that if sheriff were the one who testified to the dying declaration in court, it could enhance his standing in the eyes of the electorate and stand him in good stead in the upcoming elections.

Upon arriving at the hospital, my informant and the sheriff rehearsed the requisites of a dying declaration: (1) The victim must be aware he is about to die. (2) He must have no hope of recovery. (3) The statement must concern the circumstances of his killing. (4) He must subsequently die. When they went into the victim’s room, the sheriff identified himself and gave the reason for his visit. The questioning went something like this:

Q: You understand that you have been fatally wounded?

A: Yes, sir.

Q: You understand that you are going to die?

A: Yes, sir.

Q: You understand that you have no hope of recovery?

A: Yes, sir.

Q: Can you tell us who shot you?

A: Yes, sir.

Q: Who shot you?

[Victim lifts himself up on his elbows].

A: You did!

[Victim collapses back to his bed and dies].

After a moment of silence, the sheriff said “I think I’m going to forget that we had this conversation.”

We had a dying declaration in another case that I worked on as a young assistant public defender. It was a bar fight much like the one in the previous case, but the deceased never made it to the hospital. When shot, he ran out of the bar and disappeared. One of the officers who arrived on the scene went looking for him and found him lying on the doorstep of a house down the street from the bar. The officer testified that, as he leaned over the deceased to try to render aid, the deceased told him “It’s getting dark! I’m dying! [Dirk Dastardly] shot me!” My colleague and I thought that testimony just a little too convenient, but the lady who lived in the house testified that she also heard the statement. Our client got sentenced to life imprisonment.

What does all this have to do with Abraham Lincoln? He actually won a case once by using a dying declaration. A young man named Peachy Harrison got into a fight with another young man, and the fight culminated in Harrison plunging a knife into his victim. The victim did not immediately die. As he languished on his deathbed, Harrison’s grandfather came to visit him. We met Harrison’s grandfather in a previous post—Peter Cartwright, the backwoods preacher, a political enemy of Abraham Lincoln.

Cartwright may not have liked Lincoln’s politics, but he did like Lincoln’s skill as a lawyer. Lincoln was retained to defend Peachy. At the trial, Lincoln called Cartwright to the stand and asked Cartwright what the deceased had said when Cartwright visited him on his deathbed. The prosecution vehemently objected. Lincoln vehemently argued for the admission of the statement. At that time there was only one case in all of Illinois law dealing with the issue of dying declarations. That case was Starkey v. People, 17 Ill. 17 (1855), which recognized the admissibility of dying declarations. Lincoln was able to persuade the judge to allow Cartwright to testify about what the victim told him.

According to Cartwright, the victim had repented of his sins and wanted to enter heaven without feeling guilt for Peachy’s misfortunes. He said the fight was all his fault, and that he completely forgave Peachy for inflicting the fatal injury. The jury acquitted. A full account of the case just might have the makings of another book.