Lincoln Legal Briefs

April-June, 1989, Number 10

Lincoln and Herndon

Tucked away among the manuscript collections of the Illinois State Historical Library is documentary evidence indicating that the partnership of Abraham Lincoln and William Herndon, and Illinois legal practice in general, was more modern than previous scholarship allowed. Two handwritten "law commonplace books," or books of precedents, 128 and 45 pages in length, respectively, reveal that the firm maintained a digest of legal actions and the most relevant decisions sustaining them. These works, compiled by Herndon and dated 1849 and ca. 1854, strengthen the view that Lincoln and Herndon crafted their legal positions upon prior state court, federal court, and foreign state decisions and not only upon frontier conceptions of right and wrong. They reflect careful study and diligent use of the Illinois, Missouri, Kentucky, Arkansas, Ohio, Pennsylvania, New York, Massachusetts and other authorities, and the standard law commentaries and digests.

 

Lincoln Document Revealed

A previously unknown Lincoln legal document came to light recently, when officials of the State Archives and its regional depository at Sangamon State University accessioned Sangamon County Probate Court Case Files, 1821-1894. Archives Chief Deputy Director Wayne C. Temple has given the project a copy of this document, an 1838 estate administrator's bond. The bond was for Henry Lucas to administer the estate of David Cloyd. Lincoln had been one of the bond's signatories, but his signature had been struck off and another's substituted. Long-time Lincoln nemesis, probate judge James Adams, probably rejected Lincoln as a reliable surety because of the debt from his New Salem mercantile ventures. Dr. Temple's description of the document and the events surrounding it appear in the Lincoln Herald (Spring, 1989).

 

Brown, Hay & Stephens

Important help comes from the venerable Springfield law firm of Brown, Hay & Stephens, which traces its history to 1828 and founder John Todd Stuart, Lincoln's legal mentor and first partner. The firm's library contains many rare 19th century legal treatises, plus a 30 volume set of Federal Cases, reporting Lincoln's U.S. district and circuit court work.

Thanks to the initiative of partner Edward J. Cunningham, the firm has consented to make its library holdings available to project staff for reference and research purposes. This gesture provides timely and convenient access to works that otherwise would be accessible only on microfilm or through interlibrary loan.

 

More on People v. Harrison

Publicity attending discovery of the transcript for Peachy Quinn Harrison's 1859 murder trial has contributed to the ongoing dialogue among lawyers over permitting juror questions during a trial. A lengthy article by Mara Tapp in Illinois Legal Times (May 1989) includes this commentary:

Lincoln's Precedent

As it turns out, one need not search that far; there is an American--even an Illinois--legal precedent for the practice.

In the summer of 1859, Abraham Lincoln defended Peachy Quinn Harrison, who was accused of murdering Greek Crafton. A copy of the 100-page-plus transcript of that Sangamon Circuit Court trial, which is in the possession of the Lincoln Legal Papers Project, reveals an interesting exchange. On the second day of the trail, one of the 12 jurors put an informational question to one of the witnesses and received an approximately 15-line answer. No one objected, says Cullom Davis, a history professor at Sangamon State University and the director and senior editor of the Springfield organization, which is locating, editing and publishing the estimated 50,000 to 70,000 legal documents that comprise Lincoln's legal practice.

Despite the historical precedent of Illinois' favorite legal son, many are concerned that allowing jurors to question witnesses in criminal trials could lead to problems.

 

Collection Plan Progress

Early responses to the mail survey have been encouraging. Nearly 5,000 of the projected 30,000 letters have been mailed and already we have received copies of documents for several unrecorded Lincoln state circuit court cases. We also received information concerning the location of law books from the office of Lincoln and Herndon, appearances by Lincoln before the federal courts in St. Louis, and the existence of seven archival boxes containing biographical material collected by James F. Joy, Lincoln's co-counsel in the McLean County Tax Case, for an intended work on Lincoln.

 

Volunteer Assistance

The project continues to benefit from the help of individual volunteers. Rose Anne Davis occasionally visits the office and also spends time at her home in Wood River entering names and addresses on the computer file for the 30,000 questionnaires being mailed to historical organizations and libraries around the country. Leslie Wright works in the office three afternoons each week. To date, each of these volunteers has contributed over 100 hours of labor, qualifying them for the title of Project Associate in the Lincoln Legal Papers.

This summer four graduate students in History at Sangamon State University are earning credit for research on various project topics. Sharon Hiltibidal, Roberta Jones, David McCarthy, and Linda Moore are examining newspaper files and other sources under the supervision of Cullom Davis and Bill Beard.

 

Funding

As of this writing, the project anticipates higher state funding during the fiscal year beginning July 1. An increase of $75,000 will fully fund the Office Manager position and also add a Research Assistant to work with Bill Beard on accessioning Illinois county court house records. This vital next step in collecting legal records is scheduled to occur during 1989-90, and yield as many as 10,000 new documents to the data base.

Major federal assistance is the object of two recently submitted grant proposals. From the National Endowment for the Humanities we are seeking nearly $300,000 over a three-year period to support research and editorial work. A decision is expected next winter, and funding would begin in April, 1990. A complementary proposal to the National Historical Publications and Records Commission seeks their endorsement of project aims and methodology, with subsequent funding at an annual level of approximately $40,000. Success with these two requests is crucial to the timely completion of our work.

Last year the Abraham Lincoln Association board of directors pledged its efforts to raise $10,000 annually in support of the project. Richard Hart of Springfield agreed to conduct the fundraising effort. Thanks to his leadership and the generosity of over 125 donors, the campaign reached its 1988-89 goal. This additional discretionary support has been invaluable during a year of otherwise scarce funds.

 

Thanks for Your Support

Since the last newsletter, the following persons have made donations to the Abraham Lincoln Association in support of the project: Waldo W. Braden, John Chapin, Dolores DeBenedictis, Don E. Fehrenbacher, Elbert Floyd, Andrew Charles Guard, Mr. & Mrs. Charles H. Guard, Elizabeth Carol Guard, Jerome Harman, G. William Horsley, Robert P. Howard, Brent Alexander Huey, Amy Michelle Huey, Lincoln Fellowship of Wisconsin, Dannie Melson, John S. Page, Samuel A. Perroni, Springfield Certified Development Company (in honor of Mrs. Richard Hart), Frank J. Williams, and Harlington Wood, Jr.

Copyright, Illinois Historic Preservation Agency
Springfield, Illinois
1989