Lawyer Lincoln’s Legacy: When Lincoln Learned What Not to Say

King’s Inns thank Judge Ron Spears who toured the Inns on Wednesday, May 9th, with judicial colleagues from Illinois, for his recent article below about a controversial episode in the life of his personal hero, lawyer and statesman, Abraham Lincoln.

This article appeared in the Illinois Bar Journal – May 2018, Volume 106. Number 5. Page 46. 

This issue of the Illinois Bar Journal can be downloaded here. 

Ronald Spears is a retired circuit court judge, a past president of the Illinois Judges Association, and a board member of the Abraham Lincoln Association. He is a mediator and arbitrator with Spears Dispute Resolution.

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In the 1840s, Lincoln learned the hard way that bullying and belittling words can produce embarrassing, even dangerous, consequences.

As a newly licensed lawyer, Lincoln moved to Springfield to join a law partnership with John T. Stuart in early 1837. Overcoming his rustic upbringing and lack of formal education, he was already developing his legendary communication skills.

Lincoln refined his speaking and writing by arguing cases, participating in the Lyceum Society, and stumping as a politician. But while he understood that words are the tools of a lawyer’s trade, Lincoln was not yet self–disciplined enough to stay within the boundaries of civil discourse. It was by crossing the line from zealous advocacy to personal attack that Lincoln suffered one of his deepest embarrassments.

The Code Duello

As a Whig, Lincoln frequently clashed with Democratic leaders. More than one political opponent was “skinned alive” by Lincoln’s mimicry and sarcasm during debates or campaigns.

In 1842, Democrat James Shields was a lawyer and the auditor of Illinois. He and Lincoln had crossed paths in the courts and Illinois legislature. The Illinois State Bank had failed, and Shields and the Democrats were refusing currency from the bank as payment of state obligations.

Several letters attacking Shields appeared in the Sangamo Journal, a Whig newspaper. The letters, written under the penname “Rebecca,” didn’t stop at attacking Shields policies. They called him a fool and liar and ridiculed his self–proclaimed attractiveness to women. Lincoln had written at least one of the letters, but the newspaper editor may have written others and even Mary Todd joined in. The thin–skinned and hot– tempered Shields demanded to know the author and learned through the editor that Lincoln claimed responsibility.

There were no Rules of Professional Conduct in Lincoln’s day. However, an informal honor code was used by some lawyers: the Code Duello.

Dueling was an unfortunate option in the United States from at least the time of the American Revolution until the end of the Civil War. Lawyers, politicians, and military officers seemed to be the most frequent duelists. Alexander Hamilton was famously killed by Aaron Burr in 1804, and Commodore Stephen Decatur (namesake of Decatur, Illinois) was killed dueling with another Navy officer in 1820. Most states, including Illinois, outlawed dueling, and many even prohibited duelists from holding public office.

Despite the prohibition, Shields claimed he had become the object of “slander, vituperation, and abuse” and demanded satisfaction under the honor code. The dueling process was detailed and controlled by elaborate rules.

Shields went to Tremont Court House (then the county seat of Tazewell County) with his second, John D. Whiteside, on September 19, 1842. Lincoln was attending court at Tremont and his second, Dr. Elias Merryman, had ridden from Springfield to warn him of the impending challenge.

The seconds communicated back and forth on behalf of the principals. Shields demanded a retraction and an apology. Lincoln’s professional pride and political ambition would not allow him to admit incivility. The fear of being labeled a coward compelled him to compound the error by entering an illegal and dangerous process.

When no progress was made in the standoff, Lincoln set forth the terms of the duel. As the one challenged, Lincoln had the choice of weapons (usually swords or pistols) and place. Lincoln was 6’4” tall and Shields was 5’9”. While both had military experience, Shields was known as a sharpshooter with a pistol.

Lincoln chose Calvary broadswords of the longest type (an approximately 42” blade). The site was to be Bloody Island, a sandbar in the Mississippi River between Alton and St. Louis. The dueling pit was to be 10’ wide with a log across the middle and a back line on each side approximately 4’ from the middle. Stepping across the middle log or the back line resulted in loss, as would receiving a serious or mortal wound.

With the seconds making no progress toward a peaceful resolution and rumors of the duel bringing threats of arrest to the participants, Lincoln and Shields made their way to Bloody Island on September 22, 1842. Neither duelist was backing down. The swords were taken from their cases and the dueling pit was readied.

If not for the intervention of a Jacksonville lawyer, John J. Hardin, the duel might have changed American history. Hardin urged that the matter be arbitrated by neutrals. This led to additional negotiation that finally resulted in a settlement. Lincoln admitted to writing only one of the letters and stated that none of his comments were intended to insult Shields personally, only to disagree with his political views and actions.

Both claimed victory and left the “field of honor.” Their seconds remained combative, later challenging each other to a duel.

The wisdom of unsent messages

Lincoln learned an important lesson. While the adversary system and the campaign trail require forceful argument, ad hominem attacks can lead to an angry, dangerously escalating spiral. The boundaries of civil discourse are not always clear, but words intended to bully and harass are obviously over the line.

After the dispute with Shields, Lincoln stopped writing anonymous letters. He began writing out his words before speaking. In his possession after his death were drafts of letters labeled “not signed” and “not sent.”

In this modern world of instant digital communication, the wisdom of unsent angry missives is even clearer. Restraint in civil discourse is a mark of professionalism, not weakness. Thankfully, today’s lawyers have Rules of Professional Conduct to replace the Code Duello.

Shields replaced Stephen Douglas on the Illinois Supreme Court the year after the duel, and Lincoln appeared before him without seeking recusal. In 1855, Lincoln challenged then United States Senator Shields and both lost. As President, Lincoln approved Shields promotion to general during the Civil War, and Shields went on to be the only person to serve as United States Senator from three states (Illinois, Missouri, and Minnesota).

In a touch of irony, Illinois sent a statue of Shields (”Warrior, Jurist, Statesman”) in 1893 to be placed in the Congressional Statuary Hall in the U.S. Capitol, where Lincoln sat as a member of Congress. The statue of Shield’s rival peers toward the Capitol from his iconic memorial at the other end of the National Mall.

The statues of these near–duelists bring to mind the admonition by Yale Law Professor Stephen Carter that “civility assumes we will disagree. It requires us not to mask over our differences but to resolve them respectfully.”