Lincoln Legal Briefs

September-December, 1992, Number 24

On the Circuit

Autumn brought further progress in the search for courthouse records, but at a slower pace than in previous periods. A worsening financial condition reduced the number of staff researchers able to work in the counties of east central Illinois. Consequently we managed to complete searches in one Illinois and one Indiana county, and to begin the effort in another Illinois county. The document total climbed modestly, to just above 50,000.

As reported in the last issue, Clark County provided much more evidence of Lincoln's legal presence than previous studies and our own preliminary surveys had indicated. With help from Circuit Clerk Terri Reynolds and local historian Basil Moore, staff workers discovered twelve Lincoln cases and nearly 400 documents. Among the latter are four previously unknown manuscripts in Lincoln's handwriting.

Directly across the state boundary from Clark County is Vigo County, Indiana and its county seat of Terre Haute. While there is no existing documentary proof that Lincoln ever practiced law in Indiana, staff researchers agree on a strong possibility. The names of Indiana attorneys appear occasionally in the docket books of bordering Illinois counties, and vice versa, demonstrating that such activity was not uncommon in antebellum western states. Moreover, we know from previous discoveries that Lincoln often ventured outside the Eighth Judicial Circuit to pick up additional work. Consequently we believe that focused searches are advisable in three neighboring Indiana counties.

Vigo County yielded no Lincoln case records, though there was ample evidence of cross-border legal representation. Providing important assistance were the following officials: County Clerk Patricia Mansard, Deputy Clerk Linda Jeffries, and Records Clerk Jim Tapey.

Vermilion County offers unusual rewards and challenges in the search. Unquestionably it was one of the most important venues for Lincoln on the Eighth Circuit, principally because of the quasi-partnership he had there with Ward Hill Lamon. A small cadre of researchers presently is inspecting all docket books, and already has discovered more than twice as many Lincoln cases (over 200) than previously reported. However, the case files there are so fragile that even inspecting them is problematic at best. Discussion is underway with conservation specialists at the Illinois State Archives about alternative methods to examine the case files without damaging them.

The combination of additional counties and reduced funding probably will delay completion of the search stage by up to six months.

 

The Lincoln Calendar

Once again visitors to Springfield in February will have many opportunities to enrich their understanding of Abraham Lincoln. On the weekend preceding Lincoln's birthday, the Lincoln Home National Historic Site (LHNHS) will sponsor "Abraham Lincoln: A Biography in Words and Music," featuring noted actors and musicians in the dramatization of an 1865 political rally. On the morning of February 12, the home's "Lincoln Heritage Lectures" series will feature Harold Holzer and Douglas L. Wilson, speaking respectively on the Lincoln-Douglas debates and the William Herndon Papers. For further information on these public events contact George Painter, LHNHS, 217/492-4150.

Later that same day the public is invited to the 20th annual Abraham Lincoln Symposium at 1:30 P.M. in the Old State Capitol. Speakers on the general theme of "Abraham Lincoln and the Whig Party" include Drew R. McCoy, Major L. Wilson, and Daniel Walker Howe, with commentary by John Niven. This program is sponsored by the Abraham Lincoln Association, in cooperation with the Illinois Historic Preservation Agency and the Illinois State Historical Society.

The annual banquet of the Abraham Lincoln Association will begin at 7:00 P.M. on February 12. Speaker will be Garry Wills, whose most recent book is Lincoln at Gettysburg: The Words that Remade America. For banquet reservations contact Carol Fuson, Bank One, Springfield, IL 62701, 217/525-9600.

 

Staff News

Research Assistant Erin Bishop has won a coveted Rotary International Ambassadorial Scholarship for advanced study overseas. Funds from this award will enable her to seek a graduate degree at University College, Dublin during 1993-94. She expects to leave the staff this summer, after nearly three years of valued service.

Delivering papers on different aspects of Lincoln's legal career at the Illinois History Symposium this fall were Assistant Editor Bill Beard and Research Assistant John Lupton. Beard discussed an important and complex case, Dorman et ux. v. Lane, while Lupton described Lincoln's practice in Macoupin County.

Graduate Assistant Teresa Kinney resigned her position at the end of the fall term, as she has decided to transfer to Illinois Sate University. Her replacement will be named in January. During her brief stint Teresa performed valuable bibliographic, reference and research services.

Cullom Davis read a paper on Lincoln's parallel legal and political careers at the annual Lincoln Colloquium in Springfield, and also delivered addresses in Jacksonville, Normal, and Chicago. Later in the fall he toured southeast Asia while on sabbatical, and gave USIS-sponsored talks in Singapore and Bangkok, Thailand.

 

A Season to be Thankful

The tradition of giving during the holiday season evidently has special meaning for Lincoln students and admirers, as many individuals and organizations have responded generously to our appeal for help. The project's acute financial distress prompted contributions that are helping narrow the gap created by diminishing state support.

Notable organizational gifts of recent months included $10,000 from the Abraham Lincoln Association, $10,000 from The Shelby Cullom Davis Foundation, $5,000 from IBM Corporation in Springfield, $500 from Bank One Springfield, and $500 from the Sangamon County Historical Society. It is no exaggeration to say that these and other gifts have made it possible to continue the search for courthouse documents, even if at a slower pace.

We also acknowledge with deep gratitude the generosity of the following recent donors: Mr. & Mrs. Charles Bane, Bankruptcy Bar Association of Springfield, Bruce S. Bailey, Dr. & Mrs. Floyd S. Barringer, Molly M. Becker, Mr. & Mrs. Theodore E. Bruzas, Willard Bunn III, Mr. & Mrs. Glenn F. Burton, Norman D. Callan, Mr. & Mrs. Charles A. Chapin, Casey G. Cowell, George M. Craig, George Curtis III, Mr. & Mrs. John E. Daly, Cullom Davis, John A. Davidson, Daughters of the American Revolution District III, Dr. & Mrs. David Herbert Donald, Richard W. Dyke, Dick Edgar, Mr. & Mrs. Lawrence Elliot, John R. Ferguson, Donald Funk, John R. Gehlbach, Ned W. Grauel, Mr. & Mrs. Garry D. Greenberg, Richard Grosboll, Mr. & Mrs. William Hanchett, Janine D. Harris, Richard E. Hart, James T. Hickey, Frederick B. Hoffman, Mr. & Mrs. Robert W. Johannsen, Mr. & Mrs. Robert Kincaid, Mr. & Mrs. Gerald Kluetz, Mr. & Mrs. Charles H. Kopke, Alan K. Laufman, Jeffrey Lehmann, Jeffrey A. Landou, Leslie Lee & Casey G. Cowell, Harvey E. Lemmen, Mr. & Mrs. Claude B. Lilly, Lewis P. Mallow Jr., Janet W. Meyer, Richard Mills, Morgan County Historical Society, Mr. & Mrs. Edward H. Nichols, Mr. & Mrs. Paul J. Olsen, Ottawa Historic Preservation League, Lauren Pate, Mr. & Mrs. Gary R. Planck, Mark A. and Betty Plummer, Robert S. Porter, Mr. & Mrs. Robert A. Price, Norma Adams Price, Mark O. Roberts, Sr., Sally Robinson, Josephine B. Saner, Paul R. and Sally Schanbacher, Mr. & Mrs. John H. Schirding, Alice H. Schlipf, Paul Serup, Mr. & Mrs. William P. Skemp, Mr. & Mrs. Philip W. Stichter, Dr. & Mrs. Richard H. Suhs, Mr. & Mrs. F. John Taylor, James R. Thompson, John T. Trutter, Mr. & Mrs. Gregory N. VanWinkle, Todd D. Volker, Arthur R. Williams, Dr. & Mrs. Harry A. Wellons, Lincoln Fellowship of Wisconsin, Mr. & Mrs. Harold B. Wright, and Mr. & Mrs. Robert J. Wyllie.

 

Judge Lincoln

On the circuit in the early days of Illinois, a judge had little recourse if he needed to be absent for a time during a session of court. In an effort to handle his caseload expeditiously, a judge would select an attorney from those in attendance, and appoint that attorney judge in his absence. This was a common practice in Illinois at the time and generally accepted because the attorneys chosen to replace the judge were experienced and knowledgeable men. As a mature lawyer, Abraham Lincoln heard many cases for David Davis as evidenced by Lincoln's handwritten notes in judge's dockets. Harry Pratt in 1955 noted that Lincoln sat for Judge Davis in four counties on the Eighth Circuit (Sangamon, Champaign, Logan, and DeWitt), where he heard 264 cases from 1854 to 1859. Project researchers, however, have uncovered an additional 36 cases that Lincoln heard for Judge Davis in DeWitt County during the October term of 1855.

A nagging doubt about the legality of such a substitution, however, is suggested by the absence of these substitute judges' names in the court record. Twelve years before he first sat as a substitute judge, Lincoln, through his partnership with Stephen T. Logan, was involved in a case before the Illinois Supreme Court (Hall v. O'Brien et al., 5 Ill. 406) that tested the legality of this practice. Fortunately, it was upheld long enough for Lincoln to experience this additional aspect of the law.

At the October 1843 term of the Cass County Circuit Court, David and Michael O'Brien sued Henry H. Hall for a $500 debt. During the course of the trial, Judge Lockwood left the bench for a period of one-half hour, and with the approval of both parties appointed Henry E. Dummer, a well-respected attorney, to sit in his place. After hearing all the evidence, a jury decided for the plaintiffs, and ordered Hall to pay $350 plus costs.

Hall's attorney, James Pearson, believed that he had cause for an appeal to the Illinois Supreme Court because Lockwood not only left the bench, but his replacement, Henry Dummer, had listened to arguments and examined evidence and "decided on questions as they were presented, in the progress of the cause." In preparation for his appeal, Pearson filed a bill of exceptions on October 6 objecting to this practice at the circuit court.

The next term of the Supreme Court began in December and Pearson, having business away from Springfield, wrote Attorney General McDougall asking him to attend to the suit should he not make it back in time. Pearson may not have told his client of these arrangements, but Hall, deciding to act on his own, spoke with Stephen T. Logan (who was at that time in partnership with Abraham Lincoln) about his suit. Logan, who had served as a judge and was well respected for his legal knowledge, agreed to review his case and if he found any error, he would appear at court on his behalf. Pearson returned to Springfield on December 18, and found the case had been "dismissed for want of prosecution." When confronted with his failure to act as requested, Attorney General McDougall said he would have prosecuted, "had he not got the impression that the appellant had subsequently employed . . . Messrs. Logan & Lincoln." As promised, Logan had looked into the case and "seeing no error, declined making an assignment, or appearing in the cause." Pearson still felt he could secure a reversal, and filed a motion to reinstate the case. Justice Thomas, however, agreed with Logan, and wrote that Hall would have had reason for a reinstatement of the case because of non-representation, but because there was no error to begin with, denied the motion. If he had succeeded, Pearson's gain for his client would have cost Lincoln the valuable experience he acquired on the bench.

The practice of attorneys filling in for absent judges continued until 1877 when the Illinois Supreme Court in Meredith v. The People (84 Ill. 479) overturned a murder conviction because attorneys had filled in for the judge in this McLean County case. Earlier decisions had disallowed attorneys making "judicial decisions" while sitting on the bench, and this case stopped the practice altogether and required a judge to be present throughout a trial. Justice Scott wrote, "The argument of a cause is as much a part of the trial as the hearing of evidence." Lawyer Lincoln would have agreed.

Copyright, Illinois Historic Preservation Agency
Springfield, Illinois
1992