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Reconstructing Lincoln's Law Practice

By Paulette W. Campbell | HUMANITIES, January/February 2001 | Volume 22, Number 1

Patrick Sullivan, a tavern keeper in Macon County, Illinois, underestimated antebellum America's determination to squash the manufacture and sale of alcohol. In 1853, he tried to skirt the law by selling liquor without a license and was indicted for the violation in eleven cases. He cut a deal with the state attorney, who dismissed all of the indictments--except four to which Sullivan would plead guilty. They also left one indictment for trial to determine the practical consequences of several laws regarding the sale of liquor.

The jury found Sullivan guilty of violating the criminal code and fined him ten dollars. He hired Abraham Lincoln to appeal his case to the Illinois Supreme Court.

Lincoln had been practicing law for sixteen years. He was well into his third and final law partnership, and would practice law for another nine years before moving on to Congress, and eventually to serve as sixteenth president of the United States.

Lincoln himself rarely drank alcohol. But unlike William H. Herndon, his law partner at the time, he was not active in the prohibition movement. Some documents suggest that Lincoln was wary of legislative action enforcing temperance. But it was the height of the prohibition movement--alcohol-related indictments in Sangamon County, Lincoln's home county, increased dramatically from the mid-1840s through the late 1850s--and Lincoln would have been hard pressed to avoid such cases.

Lincoln found himself representing both sides of the prohibition issue on different occasions. In some instances he aided the state's attorney to prosecute individuals for selling liquor illegally; in others, he represented the defendants, such as in the 1853 case of Sullivan v. People.

Lincoln knew this case was a lost cause, says Daniel W. Stowell, director and editor of The Law Practice of Abraham Lincoln: Complete Documentary Edition, an NEH-funded series of DVDs. Stowell explains that in 1819, the first legislature of the new state of Illinois declared it illegal to sell liquor in quantities of less than one quart without a license. The state legislature reaffirmed this law in 1845. On February 1, 1851, amidst growing prohibitionist sentiment in the northern states, the Illinois legislature passed "An Act to Prohibit the Retailing of Intoxicating Drinks." Commonly known as the Quart Law, it replaced the licensing system with a total prohibition against the sale of alcohol in quantities of less than one quart. In 1853, a legislative committee--spurred by the increasingly vocal prohibition movement--proposed a bill to ban the manufacture or sale of liquor completely. The legislature repealed the Quart Law to make way for the new legislation. However, to the dismay of the prohibitionists, the legislature rejected the prohibition bill and instead passed another bill reinstating the licensing system that had existed before 1851.

"So the courts briefly repealed the liquor license law, but reinstated it five days later," Stowell says. "But Lincoln argued--as if unaware of this turnaround--that the law was no longer in force, and that Sullivan could sell liquor without a license. It's no surprise that the Illinois Supreme Court affirmed the lower court's judgment. But the case, however mundane, demonstrates Lincoln's determination to put his best face on a case, even when confronted with insurmountable odds. This goes against the belief of some historians that Lincoln was ineffective if he didn't believe in the rightness of a case."

Lincoln showed such obstinacy in other cases as well. Take, for instance, the 1847 case of Ashmore for use of Bryant et al. v. Matson, one of Lincoln's most controversial cases. In 1845, Robert Matson brought five of his slaves, Jane Bryant and her four children, into Illinois--a free state--to plant and harvest crops. In 1847, he planned to take these slaves back to Kentucky, a slave state. The slaves, believing they were free because they were in a free state, sought refuge with Hiram Rutherford and Gideon Ashmore. But in Matson v. Bryant et al., they were declared runaways and carted off to the local jail, eventually to be sold to the highest bidder.

Ashmore sued to free Bryant and her children. Matson hired Lincoln, who argued in court that slave owners could use their slaves for labor in Illinois as long as the slaves were in transit. But the court ruled that bringing slaves into Illinois was in "contravention of the Constitution of Illinois," and that Matson forfeited all title to the services of Bryant and her children. The court ruled for Ashmore and declared Bryant and her children free.

"The case was tried one hundred miles from Lincoln's town; it was two weeks before he was to leave for Congress; and as a rule, he generally avoided the highly controversial cases involving slaves," Stowell says. "But here we have Lincoln--the Great Emancipator--appearing to go out of his way to argue on behalf of the 'wrong side,' the slave owner. There can be many ways to interpret this case, but one thing we know for sure is that he didn't give it a half-hearted defense." In fact, the judge wrote that the case "was argued with unusual ability by the counsel on both sides."

According to Cullom Davis, consulting editor and former director of the Lincoln Legal Papers, this and other cases demonstrated that Lincoln consistently placed "the imperative of ensuring a fair trial above any personal ethical concerns."

These two cases are among the thousands that make up the Illinois Historic Preservation Agency's The Law Practice of Abraham Lincoln: Complete Documentary Edition, a three-disk DVD edition containing 5,669 cases and legal matters and 96,386 documents--206,294 pages in all-- along with a comprehensive reference section.

The publication of this reference work represents fifteen years of preparation. It makes available for the first time the full documentation of the cases and legal actions in which Lincoln participated in his legal career, which spanned the years 1836 to 1861.

Users can search for cases by case name, participant, date, court, legal action, or subject; or search the documents by document type, date, author, or signer. This edition allows researchers to study Lincoln's development as a lawyer, trace the formation of the court system in the Midwest, research legal history and the development of law, and explore antebellum social history through court records.

But aside from these somewhat technical historical issues, Stowell says, the legal papers provide considerable insight into the social and intellectual climate of the times. The Lincoln papers give "new insights into the lives of the common people of Lincoln's day," he says. "How they lived, how they related to their neighbors, what businesses they were engaged in, what matters they presented to the courts to resolve, and other everyday things. We even get a glimpse of how husbands and wives and children worked out their daily troubles."

More importantly, Stowell says, the legal papers, by describing the antebellum community, "provide a more in-depth understanding of Lincoln and how his times shaped him. He had an appreciation for the neatness of the law. He was clearly compelled by Blackstone's explication of the common law in Commentaries."

The model of common law set forth by eighteenth-century jurist William Blackstone is based, in part, on the law of nature, which sets up an objective standard of morality, and right and wrong actions as dictated by God. The common law dictates that a person has no subjective right to do something that has been established as objectively wrong. "Lincoln appreciated that about the law," Stowell says. "It made order out of society for him."

Lincoln's law practices bridged America's frontier and industrial eras. The Lincoln Legal Papers show that he was equally adept at handling simple property disputes in crude log-cabin courtrooms and litigating complicated tax issues for corporate clients in state and federal courts. But the majority of his legal cases consisted of debt collection.

"The preponderance of debt cases might be an indication of how unreliable the nation's monetary and exchange system was," Stowell speculates. "We know that society was very currency-poor. Promissory notes were common and were often used as currency, being circulated from debtor to creditor, to creditor, to creditor. Say, for instance, Mr. Jones owed me one hundred dollars and gave me a promissory note. If I owed one hundred dollars to Mr. Smith, I would then assign Mr. Jones's note to him, so now Mr. Jones owes Mr. Smith. The records indicate that in some instances this transferring could go on through several layers."

Lincoln represented both creditors and debtors. As plaintiff attorney for creditors, he won the majority of his cases because many defendants failed to appear and defaulted. As defendant attorney for debtors, he lost the majority of cases because the legal system favored creditors over debtors. Researchers on the Lincoln Legal Papers project came upon cases where Lincoln--although the attorney for the creditor--plays more of an intermediary role, convincing his client that if given more time, the debtor might be able to get the money together.

Lincoln and his partner handled about two dozen cases for S. C. Davis & Company, a St. Louis-based dry-goods wholesaler who sold goods to local merchants. "In many instances, these local stores didn't make enough money to survive; and if the store was in Illinois, S. C. Davis hired Lincoln and his partner to go after them," Stowell explains. "But the documents suggest that Lincoln was not too fond of these cases. He clearly saw himself as a mediator, wanting debtors to have an opportunity to pay their debt instead of spending time in jail." Lincoln and his partner at the time, Herndon, eventually turned S.C. Davis over to another law firm.

In the 1850s, the Illinois legislature chartered railroads, and many of them began construction. These events generated court fights over issues concerning right of way, stock subscriptions, fencing, and property damage. Lincoln's involvement in one such case--Barret v. Alton & Sangamon RR--helped establish a precedent for subsequent stock subscription cases.

The legislature chartered Alton and Sangamon Railroad to build and operate a railroad between Alton, Illinois, and Springfield, Illinois. The railroad was permitted to issue stock for one hundred dollars per share, with a subscriber paying 5 percent down and the balance in installments. James Barret owned 4,215 acres of land in southwestern Sangamon County, which bordered the proposed route. He subscribed for thirty shares; but before he completed the payments on his stock, the legislature authorized the railroad to shorten the line, thus bypassing Barret's property. Barret refused to pay the installments, and the railroad company hired Lincoln and sued to collect the full subscription.

Barret argued that the route alteration voided his subscription agreement. The court disagreed, ruled for the railroad, and awarded it $1,351. Barret appealed to the Illinois Supreme Court, which affirmed the judgment. The judge relied on Lincoln's citations in writing the opinion, and reasoned that unforeseen construction problems concerning a public improvement could not be fully known when the legislature granted a charter. Therefore, the legislature might remedy the situation by amending the charter without the consent of all the incorporators. The judge further concluded that a "few obstinate stockholders should not be permitted to deprive the public and the company of the advantages that will result from a superior and less expensive route."

Interestingly enough, Stowell points out, Lincoln generally supported the development of railroads all over the state. "But that didn't prevent him from opposing the railroad companies in the courtroom," he says. "He became involved in railroad litigation and represented individuals nearly as often as railroad corporations." Even though Lincoln did not frequently get involved in the kinds of sensitive issues that his third partner, William Herndon, did--such as defending fugitive slaves--he still sought out other kinds of controversy. "It's clear in certain instances, especially the big railroad cases, that Lincoln wanted to be involved in very high-profile cases," says Stowell.

Although Lincoln's peers considered him an outstanding trial and appellate lawyer, some documents in the Lincoln Legal Papers imply that he was neither a diligent nor thorough student of the law. According to Herndon, Lincoln "never read much law, and never did I see him read a law book through." In fact, Herndon said that Lincoln "never studied law books unless a case was on hand for consideration." Herndon's impression is confirmed by a brief note Lincoln made on an envelope containing a catalog of legal treatises. The catalog, prepared by New York lawyer and entrepreneur John Livingston in 1859, listed nearly every American and English legal treatise then available. Lincoln's note reads, "Too deep for me."

Nonetheless, records show that Lincoln was widely respected for his legal knowledge. He frequently sat in for Judge David Davis, who was the Eighth Circuit Court Justice at the time. Lincoln's advice and expertise was much sought after, particularly from legislators and aspiring students of law. For instance, in 1857 several people representing drainage commissioners from Bureau County, Illinois, met with Lincoln to get his opinion and, if necessary, his ideas about writing a law that would affirm the legality of the commissioner's sale of swampland. In 1859, Lincoln wrote an opinion for the commissioners about the validity of the sale. This issue was central in a case that came before the Illinois Supreme Court in 1861.

"There are several cases where officials from Illinois counties turned to Lincoln for advice and assistance in writing laws," Stowell said. "This speaks to his state-wide reputation. We also found correspondence from young men asking Lincoln for advice on practicing law. There were inquiries about the best place to practice law and some letters asking if they could come read law in his office--the typical way that attorneys learned before law schools came around."

Lincoln received one such letter on September 24, 1860, in the midst of his presidential campaign. John M. Brockman wrote to ask for advice on "the best mode of obtaining a thorough knowledge of the law." Lincoln did not offer the young Brockman a seat in his office. Instead, he tendered the following advice: "The mode is very simple, though laborious, and tedious. It is only to get the books, and read, and study them carefully. Begin with Blackstone's Commentaries, and after reading it carefully through, say twice, take up Chitty's Pleadings, Greenleaf's Evidence, & Story's Equity &c. in succession. Work, work, work, is the main thing."

Paulette W. Campbell is a writer in Burtonsville, Maryland.

The Lincoln Legal Papers project has received $353,300 in grants from NEH.