Review

Dan Abrams and David Fisher. Lincoln’s Last Trial: The Murder Case that Propelled Him to the Presidency. Toronto: Hanover Square Press, 2018. Pp. 287, [25]; index.

 
A decade ago it was possible, through mostly technical analysis, to estimate the number of titles (not books per se) ever printed about Lincoln: 17,000 then, and a thousand more by now.[1] Until the publication of Lincoln’s Last Trial: The Murder Case that Propelled Him to the Presidency, only four of those thousands of books dealt with Lincoln’s criminal law practice.[2] This newest book adds to that corpus by giving an account of the 1859 trial of Peachy Quinn Harrison for the murder of Greek Crafton. Casual readers will find it to be erudite, engaging, and entertaining, as the authors describe how Lincoln paved his way to the presidency by winning a closely contested, high-profile murder case, but rigorous historians should approach the book with caution. Lincoln’s Last Trial is not a scholarly work of sober history, but a “nonfiction novel” in the tradition of Truman Capote’s groundbreaking work, In Cold Blood.

Capote published his nonfiction novel in 1966, to great literary acclaim and much criticism, and is credited as a pioneer of the genre, which today is also known as “creative nonfiction.” Writers of creative nonfiction seek to tell a true story as an engaging work of literature rather than a dry historical narrative. This inevitably leads to embellishment, usually in the form of imagined dialogue and sometimes in the form of invented scenes; but the author warrants that the embellishments are both minimal and consistent with truth. The nonfiction novel purports to give the reader, not historical fiction, but lightly fictionalized history. Many critics censured Capote’s work because they saw it as too heavily fictionalized, and this continues to be a recurring critique of the genre of creative nonfiction. How much fictionalizing can be tolerated before the nonfiction novel becomes just a novel?

Although the authors never use the terms “creative nonfiction” or “nonfiction novel,” they place their work firmly within the genre by admitting that they have “deduce[d] what was said in meetings or private conversations” and “suggest[ed] appropriate thoughts and/or mannerisms,” while “[keeping] any re-created quotes from Lincoln himself to an absolute minimum” (12). The authors seem to say, however, that the fictionalizing ends when they arrive at their account of the courtroom proceedings. They warrant that “every quotation cited from the trial comes directly from” the trial transcript (11), which is the only surviving transcript from Lincoln’s criminal practice. These statements reassure readers that they have guideposts for dealing with the major problem presented by creative nonfiction—how to separate fact from invention—but the authors would have served their readers better with clearer guideposts in the form of notes and a comprehensive bibliography. In Cold Blood set the standard for creative nonfiction by having neither notes nor bibliography. Lincoln’s Last Trial does better by including a scanty bibliography, but it suffers from having no endnotes. These could have referenced actual events to sources and warned readers about the fictionalized portions.

Even without endnotes readers can easily identify many episodes as fictionalized. The story unfolds from the vantage point of Robert R. Hitt, the court reporter who transcribed the trial. Readers are told of Hitt’s thoughts and impressions as he arrives in Springfield and meets with Lincoln. The authors then give the details of an imaginary private conversation between the two.[3] The numerous references to Hitt’s suffering writer’s cramp at points during the trial; the descriptions of his switching pens at certain times during the proceedings; and his thoughts about the appearance of various witness all have the hallmarks of fictionalized embellishment.

In another easily identified fictional episode, readers are taken to an imaginary strategy session held by the prosecution team in which they discuss how to oppose the admission into evidence of a deathbed statement by the victim, Greek Crafton. In the statement Crafton supposedly said that he forgave Harrison and took full responsibility for his own death. The prosecution team purportedly discusses the Boston Massacre Case and how it would influence the judge’s ruling on the admissibility of Crafton’s statement (158–167). It is highly unlikely that the prosecution team discussed a murder trial that had occurred more than fourscore and seven years before. The strategy session almost certainly occurred, but it probably centered on how to interpret the 1855 decision of the Illinois Supreme Court in Starkey v. State,[4] which set the standard for dying declarations in Illinois.

In many situations, it takes prior knowledge of the facts for the reader to separate fact from invention. A case in point is the authors’ report of an imaginary conversation between court reporter Hitt and a minor court official named Thomas Kidd that supposedly occurred during a break in the Harrison trial. They were standing in the courtroom in Springfield talking about Lincoln’s famous Almanac Trial, when Kidd pointed to a doorway and said “I was standing right over there . . . when I heard him tell [the defendant’s mother] ‘I sha’nt charge you a cent [for defending your son]’” (115). Although the conversation between Hitt and Kidd is obviously fictionalized, it leads the reader to believe that the Almanac Trial was litigated in Springfield and that Kidd was present in the courtroom when he heard Lincoln say those words. The case wasn’t tried in Springfield; it was tried 46 miles away in Beardstown; and Kidd never heard Lincoln say anything of the sort in the Springfield courtroom. Lincoln made the statement in a private conversation with the defendant’s mother.[5]

The problem of separating fact from fiction intensifies when reading the accounts of the actual court proceedings. Despite the authors’ assurance, some dialogue from the trial appears to be fictionalized. When Reverend Peter Cartwright was asked to recount Crafton’s deathbed statement, prosecutor John M. Palmer supposedly jumped to his feet, declaring that “Dying declarations are not admissible evidence, your honor, and Mr. Logan [Lincoln’s co-counsel] is well aware of that” (212). This does not appear in the transcript, and it does not appear to be anything that a competent lawyer like Palmer would ever say. In Lincoln’s day dying declarations were a staple of murder cases. Given the primitive nature of medical treatment, victims would often languish for days before dying. Dying declarations were featured in at least three of Lincoln’s previous murder cases: People v. Truett, People v. Denton, and People v. Goings.[6]

The authors next describe a rambling oration by the judge in which he quotes Shakespeare and Dickens in what appears to be preparation for ruling the dying declaration inadmissible. Lincoln supposedly jumps up angrily, harangues the judge, and persuades him to change his ruling. The authors have Thomas Kidd describe Lincoln’s demeanor as “a display of anger, the like of which I never saw exhibited by him before or after. He roared in the excess of his denunciation of the action of the court” (218–220). The transcript doesn’t give a hint that any of this happened. Given the lack of references, it took this reviewer some time to track down the authors’ source, which appears to be Alonzo Rothschild’s “Honest Abe:” A Study in Integrity Based on the Early Life of Abraham Lincoln. Rothschild describes Lincoln’s becoming angry with the judge over a ruling, but he does not identify the issue, and it could very well have been the other main evidentiary issue in the trial—the admissibility of evidence that Crafton had repeatedly threatened to do great bodily harm to Harrison.[7]

The argument over whether to allow evidence that Crafton had repeatedly threatened to “stamp Harrison until he couldn’t go” was every bit as lively as the argument over whether to admit Crafton’s dying declaration; and the question presented a more perplexing issue. At common law, threats by a deceased against his killer were admissible into evidence if and only if the threats had been communicated to the killer. The issue, then, was whether the defense could prove that Harrison knew of the threats. The defense had no proof that most of Crafton’s threats had been communicated to Harrison, and the prosecution didn’t want the uncommunicated threats introduced into evidence. The authors give a full account of the argument made by prosecutor Norman Broadwell and a summary of the replies by Lincoln and Logan (224), but again those arguments are not present in the transcript.[8] The reader is left to wonder how much of the argument reported by the authors is invention and how much is history.

In addition to the problem of intentional fictionalization, Lincoln’s Last Trial does some inadvertent fictionalizing. For example, the authors report that the grand jury hearing began on August 13; that Lincoln and Logan appeared at the grand jury hearing and argued their client’s case; that at the conclusion of the grand jury hearing, the two judges ruled that Harrison should be tried for murder; and that they ordered Harrison released on $10,000 bond (83, 84, 86). This description is wrong in almost every detail. In Lincoln’s day defense attorneys didn’t appear before grand juries, two judges didn’t preside over grand juries, and murder was not a bondable offense. What the authors are describing is not the grand jury hearing but the examination (or preliminary hearing), which was held before two judges. The examination began on August 2,[9] not August 13, and concluded on August 4 with the two judges making a finding of probable cause for manslaughter, not murder, and setting bond at $10,000.[10] The grand jury indicted Harrison for murder on August 27.[11]

In the years immediately following Lincoln’s death a robust mythology grew up about almost every aspect of his life, including his practice of law. The researcher must read this literature with a jaundiced eye, taking great care to separate fact from fable, but it appears that the authors failed to engage in the requisite analysis. They uncritically accept and perpetuate many myths about Lincoln, such as the story of the Trailor Brothers murder case. This case is almost unique in the annals of criminal jurisprudence because Lincoln got his clients acquitted by calling witnesses to prove that the victim had been found alive in another town. The authors repeat the myth that “the enfeebled [victim] was brought into the courtroom” (49) for a dramatic demonstration of his clients’ innocence. It didn’t happen, and the authors could easily have determined that it didn’t happen. A review of Lincoln’s collected works reveals that Lincoln himself wrote an article for the Quincy Whig about the case, wherein he explained that the enfeebled victim wasn’t well enough to come back to Springfield until the Monday after the Trailors were acquitted.[12]

Still another Lincoln myth perpetuated by Lincoln’s Last Trial is the story of the Snow brothers and the prairie team. The Snow brothers bought a team consisting of oxen and a steel plow specially designed for breaking prairie soil.[13] They gave the owner a promissory note for payment, and later refused to honor the note. After several years of fruitlessly trying to collect, the owner sued. The Snows interposed the “baby act” defense—they were under age at the time they signed the note and therefore could not be held responsible under an Illinois statute known as the “baby act.” Lincoln purportedly made an eloquent argument convincing the jury to ignore the law and hold the brothers liable anyway (269, 270). The problem with this story, as any trial lawyer should know, is that if the undisputed evidence showed the boys were under age, then the judge would have directed a verdict for the defense and Lincoln would never have made a jury argument. Lincoln won the case, but he won it lawfully, not by convincing the jury to ignore the law. There was a fatal flaw in the Snow brothers’ “baby act” defense. The plaintiff offered to sell the team for a set price when the boys were under age. They may not have been able to make a binding promise to pay for the team at the time they took possession, but they made a legally binding acceptance of the offer of sale when they kept the prairie team after coming of age. Although they couldn’t be held responsible for the note they executed when still under 21, they owed him the money for goods sold and delivered. Lincoln filed a two-count complaint—one for default on the note and one seeking payment for goods sold and delivered. When the defense witness finished testifying on direct examination, Lincoln cross-examined and quickly showed that the boys were now over 21, still had the team, and had never paid for it.[14] A practicing trial lawyer can fully appreciate 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.[15]

In describing the most mythologized of Lincoln’s cases, the Almanac Trial, the authors say that a spectator recalled Lincoln’s demeanor while the star witness for the prosecution gave his damning testimony, telling how he saw the murder by the light of the full moon high overhead: “Lincoln sat with his head thrown back, his steady gaze apparently fixed on one spot of the blank ceiling, entirely oblivious to what was happening about him, and without a single variation of feature or noticeable movement of any muscle of his face” (53). This would have been a bravura performance for any lawyer during the testimony of the most crucial witness against his client, but it didn’t happen. The spectator was a young lawyer by the name of Abram Bergen, and the authors’ report of his description is word-for-word accurate, but Bergen was describing Lincoln’s demeanor while other proceedings were being handled before his case was called up for trial.[16] The authors then describe how Lincoln destroyed the prosecution witness on cross-examination by having him read from an almanac which showed that it was only a quarter moon, and that the moon had disappeared by the time of the killing (54). There are several (conflicting) near-contemporary “transcripts” of Lincoln’s cross-examination, and none of them report that Lincoln had Allen read from the almanac. According to the recollection of the eyewitnesses to the trial, Lincoln didn’t reveal the contents of the almanac until he gave his final argument, and when he did it threw the prosecution into a panic.[17]

Considerations of length prevent giving a full catalogue of the major factual errors and perpetuated myths which plague the book. Suffice it to say that they are numerous. We will end our discussion with inaccuracies in the title itself—Lincoln’s Last Trial: The Murder Case that Propelled Him to the Presidency. The Harrison case wasn’t Lincoln’s last trial. As the authors admit toward the end of the book, Lincoln tried several more cases before running for President (279). A more accurate title would have been Lincoln’s Last Murder Trial. Nor is it clear that the winning of the trial propelled Lincoln into the presidency. Despite the authors’ suggestion that a loss would have quashed Lincoln’s political aspirations, prosecutor John M. Palmer’s loss of the case did nothing to hamper his political career. After serving as a general officer during the Civil War, he became governor of Illinois and later was elected to the U.S. Senate.[18]

Lincoln’s Last Trial is well-written, but it is not well-researched. It has far greater entertainment value than educational value. Because of its many intentional fictionalizations, numerous factual errors, and uncritically repeated myths, casual readers should treat it as a work of historical fiction. Serious students of history should not rely on its factual statements unless those statements can be verified by other trustworthy sources.

1. James M. Cornelius, “How Many ‘Books on Lincoln’ are There?” For the People: A Newsletter of the Abraham Lincoln Association 12:2 (Summer 2010), 6–7.

2. John Evangelist Walsh, Moonlight: Abraham Lincoln and the Almanac Trial (New York: St. Martin’s Press, 2000); Julie M. Fenster, The Case of Abraham Lincoln: A Story of Adultery, Murder, and the Making of a Great President (New York: Palgrave Macmillan, 2007); George R. Dekle, Sr., Abraham Lincoln’s Most Famous Case: The Almanac Trial (Santa Barbara: Praeger, 2014); George R. Dekle, Sr., Prairie Defender: The Murder Trials of Abraham Lincoln (Carbondale: Southern Illinois University Press, 2017).

3. Hitt’s diary is not listed as a reference.

4. 17 Ill. 17, 21 (1855).

5. Douglas L. Wilson and Rodney O. Davis, eds., Herndon’s Informants: Letters, Interviews, and Statements about Abraham Lincoln (Urbana and Chicago: University of Illinois Press, 1998), 526.

6. Dekle, Prairie Defender, 8, 59–61, 134.

7. Rothschild, “Honest Abe” (Boston: Houghton Mifflin, 1917), 127, 128.

8. Daniel W. Stowell et al., eds., The Papers of Abraham Lincoln: Legal Documents and Cases, 4 vols. (Charlottesville: University of Virginia Press, 2008), 4:178.

9. “Surrender of Harrison—Examination set for To-day,” Illinois State Journal, August 2, 1859, http://almanac-trial.blogspot.com/2015/11/lincolns-last-murder-case.html (accessed 21 June 2018).

10. “Conclusion of the Examination of Harrison,” Illinois State Register, August 4, 1859, http://almanac-trial.blogspot.com/2015/11/lincolns-last-murder-case.html (accessed 21 June 2018).

11. “The Harrison indictment,” Illinois State Register, August 30, 1859, http://almanac-trial.blogspot.com/2015/11/lincolns-last-murder-case.html (accessed 21 June 2018).

12. “The Trailor Murder Case,” in Roy P. Basler et al., eds., The Collected Works of Abraham Lincoln, 9 vols. (New Brunswick, N.J.: Rutgers University Press for the Abraham Lincoln Association, 1953–55), 1: 371–376, 376.

13. The invention of this plow made John Deere famous. “The Original Steel Plow,” John Deere and Company website, https://www.deere.com/en/our-company/history/john-deere-plow/ (accessed 27 September 2018).

14. Isaac N. Arnold, The Life of Abraham Lincoln (Chicago: Jansen, McClurg, and Co., 1885), 86.

15. Charles Carleton Coffin, Abraham Lincoln (New York: Harper and Brothers, 1892), 108.

16. Abram Bergen, “Personal Recollections of Abraham Lincoln as a Lawyer,” The American Lawyer, 5 (1897):212–215, http://heinonline.org (accessed 6 July 2012).

17. Dekle, Lincoln’s Most Famous Case, 86–108.

18. Dumas Malone, ed., Dictionary of American Biography, 14:188 (New York: Charles Scribner’s Sons, 1934).