CASS v SNOW & SNOW: LINCOLN PERFORMS A SURGICAL CROSS-EXAMINATION

I have mentioned before that I write posts for a cross-examination blog, and I try to post hyperlinks to those posts I make to that blog on one of my own blogs. This time, I thought I'd just post the entire text of the blog post:

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Among the legends that grew up after Lincoln’s death, there is a story of Lincoln persuading a jury to ignore the law in a case which he handled in 1847. According to the traditional story, an elderly gentleman named either Cass sold a “prairie team” to two brothers named Snow. A prairie team consisted of a heavy duty plow for breaking never-before cultivated prairie land and a team of oxen to pull it. The Snow brothers signed a note for the team, which they refused to pay when it came due. Cass hired Lincoln to sue on the note. The lawyers defending the Snows interposed a plea of infancy and thus the issue was joined. At the trial it was readily admitted that the brothers signed the note, but the defense called a witness to testify that they were both under the age of 21. 

Stymied and enraged by the hyper-technical defense that the brothers’ crooked lawyers had interposed, Lincoln supposedly gave a rousing final argument which convinced the jury to ignore the law and find for the plaintiff in spite of the fact that the boys were not legally obligated to pay the note. Lincoln accomplished this feat by putting the brothers’ lawyer on trial.  Lincoln’s argument to the jury went something like this:

Gentlemen of the jury: are you willing to allow these boys to begin life with this shame and disgrace attached to their characters? If you are, I am not. The best judge of human nature that ever wrote has left these immortal words for all of us to ponder:

"Who steals my purse steals trash;‘tis something,nothing
"‘Twas mine, ‘tis his, and has been slave to thousands; 
"But he that filches from me my good name, 
"Robs me of that which not enriches him,
"And makes me poor indeed."

These poor innocent boys would never have attempted this low villainy had it not been for the advice of these men [their lawyers]. It was bad advice in morals and in law. The law never sanctions cheating, and a lawyer must be very smart indeed to twist the law so that it will sanction fraud.

After finishing a scathing rebuke of the boys unscrupulous lawyers Lincoln concluded by saying “And now, gentlemen, you have it in your power to set these boys right before the world.” The jury was allegedly so moved by Lincoln’s tongue lashing of his opposing counsel that they returned a verdict for the plaintiff without leaving their seats; and the brothers were so repentant that they willingly paid the purchase price.  It is a pretty story of how the saintly Lincoln achieved substantial justice, defeated the efforts of unethical shysters, and set two wayward children on the path to an honorable life by persuading the jury to ignore the law, but there is likely little truth in it.

What really happened, however, demonstrates that Lincoln was not only a surgical cross-examiner but also a careful pleader.

Mr. Cass did sell a prairie team to the Snow brothers; they were under age at the time they signed the note promising to pay for the team; Lincoln did file suit on Cass’s behalf; and the brothers’ attorneys interposed the defense of infancy to defeat Cass’s claim for payment of the note. Cass, however, had patiently allowed the Snow brothers ample time to pay the note and only filed suit after going for two years without being paid. All the defense had to do to defeat the claim on the note was to produce a witness who could testify that the Snows were under 21 when they signed the note.

As the defense witness testified on direct examination, the presiding judge, Samuel H. Treat Jr., immediately saw the flaw in the defense. At the time of the trial the brothers were undoubtedly over 21 and fully responsible for debts incurred as adults. If they still had Cass’s prairie team, and they had not paid for it, they could be compelled to pay the purchase price. A legally binding contract consists of an offer and an acceptance. Cass offered to sell the team for a set price when the boys were under age. They may not have been able to accept the team at the time they took possession, but they made a legally binding acceptance of Cass’s offer when they kept the oxen after coming of age. They owed Cass the money for goods sold and delivered, but they did not owe money on the note they executed when still under 21.

Treat saw that the case would rise and fall on how Lincoln had worded the complaint. Common law pleading was very strict. If Lincoln had filed a one count complaint simply alleging money owed on the note, Judge Treat would be required to direct a verdict for the defense. If, however, he had included a second count for goods sold and delivered, he could collect the price of the prairie team notwithstanding his inability to collect on the note.

When the defense witness finished testifying on direct examination Treat asked Lincoln “Is there a count in the declaration [complaint] for oxen and plow sold and delivered?”

Lincoln, ever the careful pleader, replied “Yes, and I have only two or three questions to ask the witness.” On cross-examination Lincoln then proceeded to prove that the brothers still had the prairie team:

Q: Where is the prairie team now?
A: On the farm of the Snow boys.

Q: Have you seen anyone breaking prairie with it lately?
A: Yes. The Snow boys were breaking up with it last week.

Q: How old are the boys now?
A: One is a little over twenty-one, and the other is near twenty-three.

So we see that Lincoln won his case through careful pleading and a surgical cross-examination; not by using his considerable oratorical skill to convince the jury to ignore the law. We can see that the heart and soul of Lincoln’s final speech did not come when he allegedly castigated the defense lawyers, but when he said:

The judge will tell you what your own sense of justice has already told you—that if those boys were mean enough to plead the baby act when they came to be men, they at least ought to have taken the oxen and plow back to Mr. Cass. They ought to know that they cannot go back on their contract and also keep what the note was given for.

The supposed tongue-lashing of the Snow boys’ lawyers is more likely legend than fact. In the unlikely event that Lincoln said anything unkind about the opposing lawyers, he must have said it with his tongue in his cheek.

It is plain that the lawyers defending the Snows did not persuade two innocent boys to make use of a sleazy dodge to evade payment. The Snows were deadbeats. They had refused to pay the bill for the oxen for two years before they got sued; and they certainly didn’t hire or consult their lawyers until they got sued. Lincoln knew as well as anyone that the lawyers interposed a valid legal defense when they pled the “baby act;” and he knew that defense lawyers are ethically required to use every lawful means to defend their clients.

LINCOLN THE CROSS-EXAMINER

Irving Younger, a professor of law at Cornell Law School, used to teach a continuing legal education class on cross-examination. As part of that class, he almost always told the story of Abraham Lincoln’s dramatic cross-examination of a perjured witness in the famous Almanac Trial. According to Younger, a murder had occurred at nighttime in a wooded area near a Methodist camp meeting. The star witness for the prosecution testified he saw clearly that Lincoln’s client had committed the murder. When Lincoln’s turn came to cross-examine, he completely destroyed the witness with this line of questioning:

Q: Did you actually see the fight?

A: Yes.

Q: And you stood very near to them?

A: No, it was one hundred and fifty feet or more.

Q: In the open field?

A: No, in the timber.

Q: What kind of timber?

A: Beech timber.

Q: Leaves are rather thick in August?

A: It looks like it.

Q: What time did all this occur?

A: Eleven o’clock at night.

Q: Did you have a candle there?

A: No, what would I want a candle for?

Q: How could you see from a distance of one hundred and fifty feet or more without a candle, at eleven o’clock at night?

A: The moon was shining real bright.

Q: Full moon?

A: Yes, a full moon.

[Lincoln produces the almanac.]

Q: Does not the almanac say that on August 29 the moon was barely past the first quarter instead of being full?

A: (No answer).

Q: Does not the almanac also say that the moon had disappeared by eleven o’clock?

A: (No answer).

Q: Is it not a fact that it was too dark to see anything from fifty feet, let alone one hundred and fifty feet?

A: (No answer).[1]

Younger told a dramatic story and used it to illustrate an important point about the art of cross-examination. Unfortunately, however, as I showed in The Almanac Trial, the story is not true.[2] We must look elsewhere for evidence of Lincoln’s abilities as a cross-examiner. If the testimonials of his contemporaries have worth as evidence, he must have been very good. His colleagues at the bar all praised his abilities.

Isaac Newton Arnold, who wrote three books about his friend and colleague, had this to say: “His examination and cross-examination of witnesses were very happy and effective. He always treated those who were disposed to be truthful with respect.[3]

“He had the ability to perceive with almost intuitive quickness the decisive point in the case. In the examination and cross-examination of a witness he had no equal. He could compel a witness to tell the truth when he meant to lie, and if a witness lied he rarely escaped exposure under Lincoln's cross-examination.”[4] Judge David Davis, whom Lincoln appointed to the Supreme Court, said Lincoln could compel a witness to tell the whole truth, and seldom sought to overpower the witness by browbeating him. According to Davis, Lincoln always treated a witness with such kindness that he could disarm the witness of any hostile intention.[5]

At the 1912 convention of the Illinois State’s Attorneys Association, Joseph Benjamin Oakleaf gave a speech in which he said that in “the art of cross-examination … he had no equal.” Oakleaf went on to describe Lincoln’s method of cross-examining: “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.”[6] We have a description of this style of cross-examination from Lincoln’s own lips:

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. [7]

We even have a testimonial to Lincoln’s success in this style of cross-examination from the lips of a young man who was inveigled, against his will, to tell the truth in a lawsuit. Upon being interviewed by Frederick Trevor Hill for his book Lincoln as a Lawyer, James Hoblit had this to say:

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 courtroom 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.[8]

If corkscrewing the truth out of an adverse witness would not help his client’s case, Lincoln had other techniques that he could employ to blunt the force of the witness’s testimony. Vice President Adlai E. Stevenson, as a young man, once saw Lincoln use such a technique:

I once heard Mr. Lincoln defend a man in Bloomington against a charge of passing counterfeit money. There was a pretty clear case against the accused, but when the chief witness for the people took the stand, he stated that his name was J. Parker Green, and Lincoln reverted to this the moment he rose to cross-examine:

Q: Why J. Parker Green?

Q: What did the J. stand for?

Q: John?

Q: Well, why didn't the witness call himself John P. Green?

Q: That was his name, wasn't it?

Q: Well, what was the reason he did not wish to be known by his right name?

Q: Did J. Parker Green have anything to conceal?

Q: [I]f not, why did J. Parker Green part his name in that way?

And so on. Of course the whole examination was farcical, but there was something irresistibly funny in the varying tones and inflections of Mr. Lincoln's voice as he rang the changes upon the man's name; and at the recess the very boys in the street took it up as a slogan and shouted “J. Parker Green!” all over the town. Moreover, there was something in Lincoln's way of intoning his questions which made me suspicious of the witness, and to this day I have never been able to rid my mind of the absurd impression that there was something not quite right about J. Parker Green. It was all nonsense, of course; but the jury must have been affected as I was, for Green was discredited and the defendant went free.[9]

Irving Younger had ten commandments for cross-examination, which included the admonitions never to ask a question if you didn’t already know the answer and never to ask a question beginning with the word “why.” These rules of thumb have probably been repeated at least since Cicero was defending murder trials in ancient Rome. Good lawyers follow them; great lawyers know when to break them, as shown by an anecdote Lincoln once related to General Ambrose Burnside. It seems that Lincoln had asked General George B. McClellan to attend a cabinet meeting. When McClellan appeared for the meeting an hour and a half late, he excused his tardiness by saying he had forgotten. This prompted Lincoln to tell Burnside:

When I was practicing law in Illinois a bad fellow in our town was charged with moral delinquency or in other words rape. He was accused of having committed two outrages on the woman—one in the afternoon and the other the next day; everybody believed him guilty and when he applied to me to defend him, I refused; but he pled so hard and assured me so positively that the woman was a willing party that I consented to defend him and took up his cause. My friends remonstrated; but I was so convinced of the man’s innocence that I determined to go on. At the trial, the woman gave in excellent direct testimony. I saw its effect on the jury and that it must be overcome; and in the cross-examination I led her off to other topics and then suddenly returned to the charge.

“Did you sleep with your husband after the first outrage?”

She said “Yes.”

“Did you tell him about it?”

“No—I forgot.”[10]

Because shorthand reporters were rare in antebellum Illinois, we have very few transcripts of Lincoln actually conducting a cross-examination, and we are thus reduced to assessing his skill largely from anecdotes and testimonials. Anecdotes suffer from the natural human tendency to remember one’s deeds as better than they actually were and remember events as being more dramatic than they actually were. Testimonials suffer from another natural tendency, the desire to embellish and put things in the best light possible. We might therefore dismiss these sources as no evidence at all except for the fact that we have good records of three incidents in Lincoln’s political career which demonstrate his ability.

The first piece of evidence comes from correspondence between Lincoln and General George B. McClellan. At an early stage of the Civil War it became apparent that President Lincoln and General George B. McClellan did not see eye to eye on the conduct of the war. Lincoln wanted McClellan to take his army (the largest in the world at that time) and make a direct attack upon Richmond. McClellan wanted to take his time to prepare for a roundabout attack. On February 3, 1863 Lincoln sent McClellan a letter summarizing their differences and asking five questions. In accordance with the cross-examination maxim to never ask a question when you don’t know the answer, Lincoln believed that he already knew the short answers to each of these questions. He hoped by his letter to cause McClellan to shake off his lethargy and get moving directly at the enemy. Lincoln wrote:

My dear Sir: You and I have distinct, and different plans for a movement of the Army of the Potomac---yours to be down the Chesapeake, up the Rappahannock to Urbana, and across land to the terminus of the Railroad on the York River---, mine to move directly to a point on the Railroad South West of Manassas.

If you will give me satisfactory answers to the following questions, I shall gladly yield my plan to yours.

1st. Does not your plan involve a greatly larger expenditure of time, and money than mine?

2nd. Wherein is a victory more certain by your plan than mine?

3rd. Wherein is a victory more valuable by your plan than mine?

4th. In fact, would it not be less valuable, in this, that it would break no great line of the enemie's communications, while mine would?

5th. In case of disaster, would not a safe retreat be more difficult by your plan than by mine?[11]

The elephant in the room was the fact that McClellan’s plan would strip Washington of its defenses and expose it to a direct attack from the Confederates.

When a witness under cross-examination believes that the short answer to a question will be harmful, the witness will engage in any number of evasive techniques, one of which is to give a long, self-serving dissertation which camouflages the lack of a direct response in a torrent of words. This may or may not have been McClellan’s objective when he answered the questions, but his lengthy response[12] did fail to give succinct answers to the questions.

Unfortunately for Lincoln’s plan, he was in the war room, not in the courtroom. Although he probably would have been able to get a jury to agree with him he was unable to goad McClellan into direct action. The upshot of the disagreement was that McClellan got his roundabout attack and launched the disastrous Peninsular Campaign, which ended when Robert E. Lee defeated him in the Seven Days Battle. The point, however, is not the strategic competence of Lincoln, but the way in which he organized his questions to forcefully drive home his point that he believed the direct assault on Richmond was not only easier to carry off, it was safer than McClellan’s plan.

Lincoln would probably not have ever become commander in chief of the Union Army had he not displayed his skill at cross-examination in the Lincoln-Douglas 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 both Lincoln and Douglas a chance to exercise their skills as cross-examiners.

Isaac N. Arnold, a friend and colleague of both men, in comparing the advocacy skills of Lincoln and Douglas, had this to say: “[T]hey were both strong jury lawyers; Lincoln, on the whole, one of the strongest we ever had in Illinois. Both were distinguished for their ability in seizing and bringing out distinctly and clearly the real point in a case. Both were happy in the examination of witnesses, but Lincoln was the stronger of the two in cross-examination. Lincoln was the stronger in a case when he believed he was on the right side. On the wrong side Douglas was the stronger.”[13] Arnold’s assessment of the two men was confirmed by their performance in the debates, where Lincoln clearly displayed his superiority to Douglas as a cross-examiner

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 upon condition that he [Judge Douglas] will answer questions from me not exceeding the same number. I give him an opportunity to respond. [pause]. The judge remains silent. I now say I will answer his interrogatories whether he answers mine or not; [applause] but after I have done so, I shall propound mine to him. [applause.]

Lincoln then answered Douglas’s questions, and the answers sounded like the typical political waffling that is so prevalent in modern day political debate.

Question 1. “I desire to know whether Lincoln to-day stands, as he did in 1854, in favor of the unconditional repeal of the Fugitive Slave law?”

Answer. I do not now, nor ever did, stand in favor of the unconditional repeal of the Fugitive Slave law. [Cries of “Good,” “Good.”]

Q. 2. “I desire him to answer whether he stands pledged to-day, as he did in 1854, against the admission of any more slave States into the Union, even if the people want them?”

A. I do not now, or ever did, stand pledged against the admission of any more slave States into the Union.

Q. 3. “1 want to know whether he stands pledged against the admission of a new State into the Union with such a Constitution as the people of that State may see fit to make?”

A. I do not stand pledged against the admission of a new State into the Union, with such a Constitution as the people of that State may see fit to make. [Cries of “good,” “good.”]

Q. 4. “I want to know whether he stands to-day pledged to the abolition of slavery in the District of Columbia?”

A. I do not stand to-day pledged to the abolition of slavery in the District of Columbia.

Q. 5. “I desire him to answer whether he stands pledged to the prohibition of the slave-trade between the different States?”

A. I do not stand pledged to the prohibition of the slave-trade between the different States.

Q. 6. “I desire to know whether he stands pledged to prohibit slavery in all the Territories of the United States, North as well as South of the Missouri Compromise line?”

A. I am impliedly, if not expressly, pledged to a belief in the right and duty of Congress to prohibit slavery in all the United States Territories.

Q. 7. “I desire him to answer whether he is opposed to the acquisition of any new territory unless slavery is first prohibited therein?”

A. I am not generally opposed to honest acquisition of territory; and, in any given case, I would or would not oppose such acquisition, accordingly as I might think such acquisition would or would not aggravate the slavery question among ourselves. [Cries of good, good.][14]

Lincoln then told the crowd that his rigidly responsive answers to Douglas’s questions might give them a false impression of how he really felt on the issue of slavery.

Now, my friends, it will be perceived upon an examination of these questions and answers, that so far I have only answered that I was not pledged to this, that or the other. The Judge has not framed his interrogatories to ask me anything more than this, and I have answered in strict accordance with the interrogatories, and have answered truly that I am not pledged at all upon any of the points to which I have answered. But I am not disposed to hang upon the exact form of his interrogatory. I am rather disposed to take up at least some of these questions, and state what I really think upon them.[15]

In other words, Douglas had worded his questions so restrictively that he had given Lincoln a chance to evade him by giving truthful-but-misleading answers. Lincoln then went on to say that although he had not pledged opposition to any of the propositions advanced by Douglas, he certainly wasn’t in favor of any of them. Lincoln’s handlers had urged him not to take this tack. They felt that Lincoln would sabotage his campaign. One of his handlers is reputed to have said “If you do this, you’ll never be senator.” To which Lincoln replied, “If Douglas answers, he will never be President.” After answering Douglas’s questions, Lincoln turned to his own:

I now proceed to propound to the Judge the interrogatories, so far as I have framed them. I will bring forward a new installment when I get them ready. [Laughter.] I will bring them forward now, only reaching to number four.

The first one is:

Question 1. If the people of Kansas shall, by means entirely unobjectionable in all other respects, adopt a State Constitution, and ask admission into the Union under it, before they have the requisite number of inhabitants according to the English bill-some ninety-three thousand-will you vote to admit them? [Applause.]

Q. 2. Can the people of a United States Territory, 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? [Renewed applause.]

Q. 3. If the Supreme Court of the United States shall decide that States cannot exclude slavery from their limits, are you in favor of acquiescing in, adopting and following such decision as a rule of political action? [Loud applause.]

Q. 4. Are you in favor of acquiring additional territory, in disregard of how such acquisition may affect the nation on the slavery question? [Cries of “good,” “good.”][16]

The answer to Lincoln’s second 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 Democrats who were then listening to his every word to determine whether he was or was not a safe Presidential candidate.

At his earliest opportunity, Douglas answered the question by saying that the Territories could outlaw slavery. Lincoln then pointed out how Douglas’s answer flew in the face of the Dred Scott decision, embarrassing Douglas but not derailing his candidacy for the Senate. As for his presidential aspirations, that was another story. Judah P. Benjamin, a prominent Southern Democrat, voiced the feelings of his constituents when he said:

We accuse him [Douglas] for this: 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![17]

Had Douglas stood by his vow to the Southern Democrats, he might have lost the Senate seat to Lincoln, but he would most likely have won the Presidency two years later, and the Civil War might never have happened. Thus, one could argue convincingly that Lincoln’s superior skill as a cross-examiner changed the course of U.S. history. It is certain that in 1858, Lincoln’s skill as a cross-examiner helped to turn him from an unknown into a presidential candidate. In 1847, his skill as a cross-examiner almost wrecked his political career. President Polk had fomented war with Mexico and had advanced some rather flimsy arguments to justify it. Lincoln opposed the war, thinking it a land-grab designed to increase the number of slave states admitted into the Union. Lincoln voiced his opposition to the war by introducing what history remembers as his “Spot Resolutions.” These resolutions consisted of a series of questions designed to demonstrate the falsity of Polk’s arguments. They read as follows:

Whereas the President of the United States, in his message of May 11th, 1846, has declared that ``The Mexican Government not only refused to receive him'' (the envoy of the U.S.) ``or listen to his propositions, but, after a long continued series of menaces, have at last invaded our territory, and shed the blood of our fellow citizens on our own soil''

And again, in his message of December 8, 1846 that ``We had ample cause of war against Mexico, long before the breaking out of hostilities. But even then we forbore to take redress into our own hands, until Mexico herself became the aggressor by invading our soil in hostile array, and shedding the blood of our citizens''

And yet again, in his message of December 7, 1847 that ``The Mexican Government refused even to hear the terms of adjustment which he'' (our minister of peace) ``was authorized to propose; and finally, under wholly unjustifiable pretexts, involved the two countries in war, by invading the territory of the State of Texas, striking the first blow, and shedding the blood of our citizens on our own soil''

And whereas this House desires to obtain a full knowledge of all the facts which go to establish whether the particular spot of soil on which the blood of our citizens was so shed, was, or was not, our own soil, at that time; therefore

Resolved by the House of Representatives, that the President of the United States be respectfully requested to inform this House---

First: Whether the spot of soil on which the blood of our citizens was shed, as in his messages declared, was, or was not, within the territories of Spain, at least from the treaty of 1819 until the Mexican revolution

Second: Whether that spot is, or is not, within the territory which was wrested from Spain, by the Mexican revolution.

Third: Whether that spot is, or is not, within a settlement of people, which settlement had existed ever since long before the Texas revolution, until its inhabitants fled from the approach of the U.S. Army.

Fourth: Whether that settlement is, or is not, isolated from any and all other settlements, by the Gulf of Mexico, and the Rio Grande, on the South and West, and by wide uninhabited regions on the North and East.

Fifth: Whether the People of that settlement, or a majority of them, or any of them, had ever, previous to the bloodshed, mentioned in his messages, submitted themselves to the government or laws of Texas, or of the United States, by consent, or by compulsion, either by accepting office, or voting at elections, or paying taxes, or serving on juries, or having process served upon them, or in any other way.

Sixth: Whether the People of that settlement, did, or did not, flee from the approach of the United States Army, leaving unprotected their homes and their growing crops, before the blood was shed, as in his messages stated; and whether the first blood so shed, was, or was not shed, within the inclosure of the People, or some of them, who had thus fled from it.

Seventh: Whether our citizens, whose blood was shed, as in his messages declared, were, or were not, at that time, armed officers, and soldiers, sent into that settlement, by the military order of the President through the Secretary of War---and

Eighth: Whether the military force of the United States, including those citizens, was, or was not, so sent into that settlement, after Genl. Taylor had, more than once, intimated to the War Department that, in his opinion, no such movement was necessary to the defense or protection of Texas.[18]

Of the Spot Resolutions, Frederick Trevor Hill said, “No interpellation of a government was ever phrased in more telling questions. They were unanswerable, and the administration sought safety in silence.”[19] Lincoln’s constituents, however, were not silent, and they let him know in no uncertain terms that they were not happy about how he had exposed the President’s disingenuous excuse for going to war. Realizing that he could not possibly win a second term in Congress, Lincoln declined to run for re-election and returned to his law practice in Springfield thinking that his career as a politician was over. Upon arriving back in Illinois, Lincoln discovered that he had acquired a new nickname as a result of his resolutions—he had become known as “Spotty” Lincoln.[20] 

 

 

UPDATE ON CROSS-EXAMINATION HANDBOOK--PERSUASION, STRATEGIES, AND TECHNIQUES

A while back I mentioned that the update to our book on cross-examination had been finished and sent to the publisher. Its relevance to this blog is, of course, the fact that it is the only trial manual in existence which contains an accurate account of Abraham Lincoln's famous cross-examination in the Almanac Trial.

The book is now in print. You can check it out at the Amazon site or the Wolters Kluwer site.

PUBLICATION NEARS

The printing is done on Lincoln's Most Famous Case. I received my complimentary copies today, and the books will be in the hands of the bookstores on the 30th. It was well produced, and I am quite satisfied with it. In case you're interested in the substance of the book, here is an annotated table of contents.

Chapter 1: Murder at a Whiskey Camp -- States the facts of the murder of Preston Metzker in the light most favorable to the prosecution.

Chapter 2: Lincoln the Cross-Examiner -- Retells the mythic story of how Lincoln won the Almanac Trial with a brilliant cross-examination which utterly destroyed the witness.

Chapter 3: Lincoln the Orator -- Retells the mythic story of how Lincoln snatched victory from the jaws of defeat in the Almanac Trial by shredding the prosecution case with a masterful final argument.

Chapter 4: Lincoln the Trickster -- Retells the unflattering story of how Lincoln perverted justice in the Almanac Trial by use of a forged almanac.

Of course, the rest of the book is devoted to sorting out which, if any, of these three stories is true.

Chapter 5: The Hagiography of the Trial -- Traces the telling and retelling of the story of the Almanac Trial by biographers seeking to turn Lincoln into a cardboard saint.

Chapter 6: The Historiography of the Trial -- Traces the critical analysis of the story of the Almanac Trial by more critical biographers.

Chapter 7: Lincoln and the Clary's Grove Boys -- Tells the story of how Lincoln started on his pathway to the presidency by contesting a wrestling match.

Chapter 8: The Camp Meeting -- Describes the camp meeting outside which the murder occurred and gives a thumbnail sketch of the history of camp meetings during the nineteenth century.

Chapter 9: The Prosecution -- Traces the course of the prosecution from arrest up to the commencement of the trial.

Chapter 10: The Trial Begins -- Describes how Lincoln became involved in the trial and begins to reconstruct the story of the trial itself.

Chapter 11: The Famous Cross-Examination -- Examines the story of the brilliant cross-examination in detail and decides whether it actually happened.

Chapter 12: The Misplaced Moon -- Examines the story of the forged almanac and determines how Lincoln actually used the almanac.

Chapter 13: Winning the Almanac Trial -- Analyzes how the acquittal was actually obtained and examines additional accusations of unethical conduct against Lincoln.

Chapter 14: Was Armstrong Guilty? -- Decides whether Lincoln freed a murderer and whether it really makes any difference to his legacy as a trial lawyer.

Appendix A: The Statements of the Major Participants -- Reproduces the letters, statements, and interviews of the key players in the trial so that the reader may make up his or her own mind about the facts of the trial.

Appendix B: Selected Documents from the Armstrong Court File -- Transcribes the more important  documents from the Almanac Trial court file and illustrates the course of the prosecution.

Appendix C: The Oral History of the Armstrongs -- Examines the statements of members of the Armstrong family and shows how the family's oral history of the trial differs from the historical record.

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 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.