THE CROSS-EXAMINATION THAT CHANGED HISTORY

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. They alternated the first speaker, with Douglas getting to open and close in the first debate at Ottawa, and Lincoln opening and closing in the second debate at Freeport. Thereafter they took turns going first until the series of debates was concluded.

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, which can be downloaded from the Internet Archive at: http://archive.org/details/lincolndouglas2184linc

ABRAHAM LINCOLN AS A CROSS-EXAMINER

Frederick Trevor Hill was one of the first Lincoln biographers to write a book exclusively about Lincoln’s legal career. His work, Lincoln the Lawyer, which was published in 1912, contains a chapter entitled “The Cross-Examiner,” in which Hill assesses Lincoln’s abilities. Hill had this to say:

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, and, in addition, he exerted a remarkable personal influence upon every one with whom he came into contact. Men who were openly opposed to him became fascinated when they met him, and few ever retained their hostility. This result was effected without any seeming effort on his part, and Lincoln was singularly free from all the arts and graces, natural or cultivated, which are usually associated with personal charm. He was direct, simple, and unaffectedly frank, and the conclusion is irresistible that he was endowed with psychic qualities of extraordinary power. Nothing except this can properly explain his wonderful control of witnesses and juries, and every experienced lawyer knows that strong individuality, commanding presence, and personal magnetism are essential factors in the equipment of all great cross-examiners. More than one man has described the effect of Lincoln's eyes by saying that they appeared to look directly through whatever he concentrated his gaze upon, and it is well known that during his frequent fits of abstraction he became absolutely oblivious to the bustle and confusion of the court-room and saw nothing of the scene before him.

But although there was something mysterious in Lincoln's personality which played an important part in his success as a cross-examiner, his mastery of the art was acquired in the only way it can be acquired, and that is by constant, daily practice in the courts. He was a natural logician, and by slow degrees he cultivated this gift until he could detect faulty reasoning, no matter how skillfully it was disguised. In almost every instance he saw the logical conclusion of an answer long before it dawned upon the witness, and was thus able to lead him without appearing to do so.

Hill’s book is still in print, but the Internet Archive has a free downloadable version at: http://archive.org/details/lincolnlawye00hill. Interestingly, Hill states that Lincoln’s greatest coup on cross-examination did not occur in a trial. It came during the Lincoln-Douglas debates, and it quite likely changed the course of U.S. history. In a later post, we will discuss this cross-examination.