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  • Lincoln and the Forms of Legal Rhetoric: A Response to Robert A. Ferguson
  • Bruce P. Smith (bio)

Accomplished orators, as Robert Ferguson incisively observes, “couch thought in an identifiable form.”1 Although an orator’s words are critically important, the form in which those words are expressed can serve to clarify, emphasize, and eternalize the speaker’s message. The political and legal career of Abraham Lincoln testifies to the inextricable linkage between content and form. Described by his law partner, William Herndon, as an “ungainly” and “awkward” figure with a “shrill, piping, and unpleasant” voice, Lincoln achieved his eloquence, as Ferguson notes, more through his mastery of rhetorical style than through his natural gifts (331–32). In this respect, Lincoln resembled his fellow lawyer Thomas Jefferson, whose words, according to one eulogist, too often “sank into his throat” or emerged “guttural and inarticulate” (qtd in Fliegelman 5).2 Despite these limitations, Jefferson achieved enduring greatness by drafting the Declaration of Independence as a document to be spoken, against the backdrop of an “elocutionary revolution” that “made the credibility of [a speaker’s] arguments contingent on the emotional credibility of the speaker,” whose “tones, gestures, and expressive countenance” could render the words particularly credible and moving (Fliegelman 2).

As the legal historian Brian Simpson has argued, the forms of expression adopted by lawyers such as Lincoln and Jefferson also reveal much about the way that law is conceived and practiced. If the rhetorical forms used by Lincoln help explain his enduring eloquence, such forms also reveal much about the shifting roles of lawyers in nineteenth-century America. [End Page 725]

Consider the rhetorical form that features most prominently in Ferguson’s article: the speech. In antebellum America, speeches frequently were lengthy, emotional, and history-laden performances that captivated audiences, launched political careers, and at times spurred violence. Emblematic in these respects was Charles Sumner’s impassioned two-day speech on the floor of the Senate in May 1856 denouncing proslavery violence in Kansas. Freighted with “historical references, extended metaphors, and gratuitous classical allusions,” Sumner’s peroration inspired Congressman Preston Brooks, two days later, to pummel (and temporarily blind) Sumner with a gold-headed cane in a brutal attack perpetrated on the Senate floor (Wilentz 689–91).

If the speech was the quintessential rhetorical form for nineteenth-century American politicians, it was also a particularly influential form for nineteenth-century American lawyers. In the words of the legal historian Lawrence Friedman, “[e]loquence in court gained attention, and attention gained clients” (233). As Lincoln advised young lawyers in the middle decades of the nineteenth century, “people are slow to bring [a lawyer] business if he cannot make a speech” (qtd in Ferguson). Judges at both the trial and appellate level appear to have tolerated considerable rhetorical excess: in 1804, Alexander Hamilton spoke at trial for six hours in a criminal libel case, and arguments in the US Supreme Court in the early decades of the nineteenth century occasionally lasted for several days on end (Friedman 233).3

Lincoln, in contrast, was a master of concise phrasing and argument—adopting a style, in the words of Herndon, that was “clear, terse, and compact” (332). Here, we might note the stylistic contrast to Daniel Webster, the most famed American lawyerstatesman of the first half of the nineteenth century. Although Webster’s speech before the Supreme Court in Dartmouth College v. Woodward (1818) lasted for roughly four hours, Lincoln’s Gettysburg Address lasted a mere three minutes. Onlookers who observed Webster’s speech reported that his “lips quivered,” his cheek “trembled with emotion,” his “eyes filled with tears,” his voice “choked,” and “he seemed struggling to the utmost, simply to gain that mastery over himself which might save him from an unmanly burst of feeling” (Goodrich 153–54).4 Although, as Ferguson mentions, Lincoln’s speeches included “plenty of feeling,” they also exhibited “a calculated professional distance in his use of emotion.” Furthermore, whereas Webster created no distance in the Dartmouth College case between his client, his alma mater, and himself, Lincoln adopted a strategy of “selfeffacement” in the Gettysburg Address that placed his client—the nation—at the center of his speech. [End Page...


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