Lincoln Legal Briefs

October-December, 1989, Number 12

Project Offices Move to Old State Capitol

After January 16, 1990, visitors to The Lincoln Legal Papers offices will find us located on the third level of the Old State Capitol building. The Lincoln-Herndon Law Office building, where the project has been housed since its inception, is closed temporarily for extensive renovation. Although our office location has changed, both the mailing address and the phone numbers remain the same.

 

Donors Receive Mementos

Personal and corporate contributions provide an important boost to progress on The Lincoln Legal Papers. In 1989 donors gave over $10,000, which defrayed such major expenses as research and professional travel, photocopying, and book purchases.

During 1990 contributors will receive an attractive reproduction and fully annotated transcription of Abraham Lincoln's recently discovered letter to Mason Brayman (reported in the previous Briefs). In addition, donors of $100 or more will receive an interesting 32-page pamphlet, "Barret v. Alton and Sangamon Railroad Company." This brochure reveals how Lincoln's cases will be presented in the multi-volume book edition scheduled for 1996 publication. The sample case consists of an editorial note, six transcribed documents, and numerous reference and explanatory notes.

Donations made out to the Abraham Lincoln Association are tax-deductible. Please indicate that your check is intended to support The Lincoln Legal Papers project and mail it to the Abraham Lincoln Association, Old State Capitol, Springfield, IL 62701.

Donors since the last newsletter include: Mrs. Harold W. Barner, Stephen P. Bartholf, Donald G. Benham, Norman F. Boas, Willard Bunn, III, Cullom Davis, David Herbert Donald, Richard W. Dyke, Ned Grauel, The Honorable John B. Hannum, James T. Hickey, Robert W. Johannsen, The Honorable Richard Mills, Margit and Paul J. Olsen, Alan R. Post, Alice H. Schlipf, Wallace C. Sieh, John T. Trutter, William Kent Tucker, Roland A. White, Frank J. Williams, Robert J. Wyllie.

 

Supreme Court Records Preservation

Illinois Supreme Court Clerk Juleann Hornyak has asked The Lincoln Legal Papers staff to help her ensure that nineteenth century Supreme Court records be available for research on the important subject of Illinois judicial history. In association with the Illinois State Archives, Lincoln curator Thomas Schwartz, and former curator James T. Hickey, we are preparing recommendations regarding the physical preservation, archival location, and public accessibility of these materials, which include hundreds of record books, case files, treatises, and the rare first edition of the Illinois Reports.

The study of nineteenth-century Illinois legal history has been hindered by the alleged scarcity and wide dispersal of primary sources. Few scholars were aware of the rich collection of clerk's dockets, fee books, memorandum books, judgment and opinion books that were located in the basement of the Illinois Supreme Court Building. For example, John J. Duff, author of A. Lincoln: Prairie Lawyer (1960), wrote that the lack of documentation made it impossible to assess Lincoln's practice before the state supreme court.

Sensitivity to this problem led the Illinois Supreme Court and the Illinois State Archives to explore ways to preserve the records and provide for their use by researchers. We are pleased to assist in this important endeavor.

 

Volunteers

The qualitative measure of our volunteer help remains excellent. Our newest recruits, Joe Gergits, Vera Herst, and Bob Lawless are clerks for U.S. Circuit Judge Harlington Wood, Jr. Currently they are transcribing the 1849 and 1854 Lincoln-Herndon Commonplace Books and briefing certain federal cases of the firm. We welcome and appreciate their time and effort.

 

"Lincoln at the Bar"

An added attraction of Lincoln's birthday activities on February 12, 1990, will be a dramatic interpretation of Lincoln as a lawyer, to be held at the Mt. Pulaski Courthouse Historic Site, 25 miles northeast of Springfield. Entitled "Lincoln at the Bar," this 50-minute performance is co-sponsored by the National Archives, the Trial Lawyers Association of America, the Chicago Bar Association, the Mt. Pulaski Historic Site, Sangamon State University, and the American Bar Association. The program will consist of vignettes from six to eight of Lincoln's court cases. The character of William Herndon, Lincoln's last law partner, will serve as narrator to provide context and thematic continuity. The performance, capped with a tribute to Lincoln by U.S. District Judge Abraham Lincoln Marovitz, will be videotaped and developed by the National Archives into a teaching packet for distribution to Illinois high schools. For further information, contact Shirley Burton, National Archives--Great Lakes Branch (312-581-7816).

 

Lincoln, Medical Law, and Chicken Bones

Among some family artifacts recently returned to the Lincoln Home National Historic Site is a law book from the Lincoln-Herndon law office. Amos Dean's Principles of Medical Jurisprudence, published in 1850, was one of the few works in this field that appeared before 1860. Recovery of this volume indicates that the Lincoln-Herndon firm strove to keep pace with the latest developments in various legal areas.

Though statutory law regarding the medical profession was in its infancy, numerous court actions involving medical practitioners occurred in the United States before the Civil War. The majority of these actions involved forensic medicine and accusations of malpractice. Of the works on medical jurisprudence written before 1860, including Dean's, none discussed malpractice. In Illinois, until 1877 the only legislation to pass were three early acts to regulate medicine through chartered medical societies. These laws are significant, however, in revealing that regulation was the result of demand from practitioners, not the general public.

Lincoln evidently was unfazed by this lack of medical law. Always the practical man, if the law was vague on certain points, Lincoln employed logical analysis and rhetorical flourishes. Such were the circumstances when Lincoln agreed to serve as one of six defense attorneys in the "Chicken Bone" case.

It was just after midnight, October 16, 1855, when a fire in the livery stable behind the Morgan House in Bloomington, Illinois, destroyed all except two of the buildings in the block south of the McLean County Courthouse. One man was killed, and Samuel G. Fleming, a carpenter, suffered burns and two broken thighs when the Morgan House chimney fell. Doctors Thomas P. Rogers, Jacob R. Freese, and Eli K. Crothers, doubting Fleming would live, set his legs in splints. Fleming recovered, and after three weeks the doctors removed the splints and found the right leg was crooked. They recommended breaking the adhesions and resetting the leg. With Fleming's and his family's consent, the doctors administered chloroform and proceeded to reset the leg. Finding the pain unbearable, Fleming stopped the operation and decided to cope with a crooked leg. Five months later he hired six lawyers and, on March 28, 1856, filed suit declaring that Doctors Crothers and Rogers "not regarding their said duty but intending and contriving to injure the said plaintiff," had not used "due and proper care, skill or diligence." Fleming sought $10,000 in damages.

With public sentiment supporting Fleming, Lincoln realized the doctors' best defense was time. Twice he succeeded in having the case continued. The trial, finally heard during the April 1857 term of the McLean County Circuit Court, took place in a circus-like atmosphere. The courthouse was filled for the week-long affair as the plaintiff's attorneys presented fifteen doctors and twenty-one other witnesses, and the defense presented the town's twelve other doctors.

Overwhelmed by the contradictory medical testimony, the jury was unable to arrive at a decision after eighteen hours of deliberation. The case was dismissed and re-docketed for the next term.

Twice more Lincoln won continuances; the final time, September 1857, because he was in Chicago arguing the famous Effie Afton case. After the fourth continuance, the defense gained a change of venue to the Logan County Circuit Court, on the grounds that Fleming "had an undue influence over the minds of the inhabitants of the County of McLean." The case never reached trial in Logan County, as both sides agreed to dismiss the suit with the defendants paying costs.

Plaintiff and defendants' counsel had performed well. Fleming's attorneys, led by Leonard Swett, reputedly the leading central Illinois practitioner in medical litigation, had no statutory law for guidance and were dependent on prior court rulings. They charged the doctors with incompetence and tried to secure a conviction based on the testimony of medical colleagues not immune to self-service.

Lincoln did his best to defuse the charge of incompetence with his own unique combination of osteology and rhetoric. In illustrating to the jury that Fleming's recovery was normal because bones became brittle with age, Lincoln used a chicken bone and exclaimed, "This bone has the starch all taken out of it." Lincoln then asked Fleming if he could walk. Fleming replied, "Yes, but my leg is short so I have to limp." Lincoln then concluded his argument by saying, "Well! What I would advise you to do is get down on your knees and thank your Heavenly Father, and also these two Doctors that you have any legs to stand on at all."

Lincoln carefully prepared for the case, but after studying Dean's Medical Jurisprudence and the few other works on medical law, he decided to appeal to the jury with homespun logic and rhetorical embellishment. Lincoln did not win the case, but this is one example of an attorney being satisfied with a draw.

Copyright, Illinois Historic Preservation Agency
Springfield, Illinois
1989