Lincoln Legal Briefs

October  - December 1996, Number 40  

The Lincoln Calendar

Once again Lincoln's birthday will feature a variety of programs, especially in his hometown. Max and Donna Daniels will reprise their popular "An Evening with the Lincolns" at the Lincoln Home National Historical Site, with performances at 1:00 and 3:00 p.m. on Saturday, February 8. The next day actors Fritz Klein and Paul Presney, Jr. will be featured in a musical tribute, "Abraham Lincoln: A Biography in Words and Music," at 2:00 p.m. The George L. Painter Lectures series will begin at 9:30 a.m. on the 12th, with addresses by Lincoln artist Lloyd Ostendorf and historian Roger Fischer..

This year's Abraham Lincoln Symposium, sponsored by the Abraham Lincoln Association, will begin at 1:00 p.m. at the Old State Capitol. Delivering papers on the theme "Abraham Lincoln and American Law" will be scholars Harry R. Chadwick, Sr., Mark E. Steiner, and William D. Beard. Their presentations will be followed by a roundtable discussion led by Cullom Davis. Preceding the afternoon program will be a demonstration of the forthcoming CD-ROM version of The Lincoln Legal Papers, conducted by Martha Benner. All of these events are free and open to the public.

The association's annual Lincoln banquet will take place that evening, at the Springfield Renaissance Hotel. In addition to ceremonies and entertainment, the banquet will feature an address by noted Lincoln author Herbert Mitgang. Those wishing to attend must make advance reservations for the $40 dinner. Contact Linda Potts at First of America Bank, 1 Old Capitol Plaza North, Springfield, IL 62701, or phone (217) 753-7123 or (217) 782-2118 for further information.


Olive Foster

The death of Olive S. Foster on December 7 brought to a close this woman's record of dedicated service and leadership on behalf of The Lincoln Legal Papers. In her capacity as Illinois State Historian, Olive was not only present but instrumental in the project's creation. She provided background information that helped trustees of the Historical Library persuade Governor James Thompson to commit state funding to publication of the "Lincoln legals." Olive was a charter member of the advisory board that has met faithfully for a decade to oversee and support the endeavor. Not even her longstanding illness could keep Mrs. Foster from participating actively and constructively in the advisory board's meetings. We mourn her passing and salute her steadfast loyalty.


National Archives Exhibit

Visitors to Washington have an opportunity to observe one of the project's notable document discoveries at a newly opened exhibit, "Pages of History," near the main research room at the National Archives Building on Pennsylvania Avenue. The handiwork of curator Marilyn Paul, this exhibit features rare and interesting documents housed in the National Archives. Among the items on display are Pension Office records jointly discovered in 1995 by independent historian Paul Verduin and project member John Lupton. This discovery was reported in issues 33 and 34 of Lincoln Legal Briefs. The exhibit is scheduled to run for two years.


Staff News

Research associate Sean Brown resigned in November to accept a new career opportunity in St. Louis. Sean was a valued colleague who patiently and painstakingly led the exhaustive search for surviving Lincoln legal records from Sangamon County. His keen eye and memory for details were invaluable in that two-year effort. Succeeding him was a former temporary colleague, Stacy McDermott, who lives in Springfield with her husband and two young children. Stacy has a master's degree in history from the University of Illinois at Springfield, and twice before served brief research stints for the project. Now a regular and full-time employee, she is a welcome staff addition.

Assistant editor John Lupton added two articles to his professional resume during the fall season. The Illinois Historical Journal carried his lively account, "'In view of the uncertainty of life': A Coles County Lynching," in its autumn issue. Lupton serendipitously discovered records about the lynching while inspecting Coles circuit court records for traces of Lincoln's practice. In addition, the current issue of The Lincoln Newsletter, published by the Lincoln College Museum, features John's article entitled "Abraham Lincoln: Pension Attorney." This interesting account puts into biographical and historical context last year's discovery of Pension Office records at the National Archives that document Lincoln's pursuit of this legal sideline.

Assistant director Martha Benner has learned that the journal Computers and the Humanities expects to publish her article, "The Lincoln Legal Papers and the New Age of Documentary Editing." Marty originally prepared this essay as a paper for the Montreal meeting of the Association for History and Computing. It covers the rationale and particulars of the project's Complete Documentary Edition, for which she serves as editor. Other recent staff writings (unrelated to Lincoln) include assistant editor Daniel Stowell's 200-page research report on Timucuan Ecological and Historic Preserve, an important historical site in Florida, and Cullom Davis' co-authorship of a book-length history of John Nuveen & Co., an investment banking firm.

The Association for Documentary Editing is a national learned society that promotes excellence and vigor in documentary editing. Last fall its 500 members named Cullom Davis president-elect. He will hold office during 1998.



Thanksgiving had special meaning this year, with announcement by the Shelby Cullom Davis Foundation of a grant for $27,000 in support of ongoing research and editorial work. This was the foundation's sixth consecutive annual award, and its largest to date. Gifts chairman Diana Davis Spencer expressed her continuing enthusiasm for The Lincoln Legal Papers, which vitally depends upon private philanthropy of this nature and magnitude.

The annual fundraising campaign conducted by the Abraham Lincoln Association is underway, and early results indicate that once again ALA members and other project friends are both patient and generous in their support. To date 66 donors have contributed $7,650.00. We acknowledge with gratitude recent gifts from the following individuals and organizations: Abraham Lincoln Book Shop, Inc., Mr. & Mrs. Lawrence Appel, Mr. & Mrs. Dennis Antonie, Stephen Bartholf, Glenn Burton, Chicago Historical Society, Richard Chrisman, Mr. & Mrs. John Daly, Louis Eaton, Jr., Robert Eckley, Mr. & Mrs. Lawrence Elliott, Henry N. Ess, III, Francis Even, Dr. Lenore Farmer, John Field, Elbert Floyd, Richard F. Foley, Jr., Malcom S. Forbes, David Franco, Mr. & Mrs. Donald Funk, Joseph George, Ida Gross, Historical Society for the U.S. District Court for the Eastern District of Michigan, Mark Heaney, Clifford Hope, Jr., Illinois State Genealogical Society, Stephen R. Kaufmann, Robert Johannsen, Gerald Kluetz, Dr. & Mrs. Victor Lary, Robert Leete, Mr. & Mrs. J. Michael Lennon, Mr. & Mrs. Claude Lilly, Stephen McKenrick, Janet Meyer, Honorable Richard Mills, Larry Morris, William Mulliken, Georgia Northrup, William Otten, PHI KAPPA PHI Honor Society of Western Illinois University, Mr. & Mrs. Donald Raymer, Mr. & Mrs. Donald Richter, William Saxton, Sally Schanbacher, Molly Schlich, Alice Schlipf, Wilma Schuster, Terry Shoptaugh, William Skemp, Mark Steiner, Admiral & Mrs. N. Ronald Thunman, Don Tracy, Andy VanMeter, Dr. Harry A. Wellons, Jr., John Widdowson, Louise Wollan. Contributions in memory of Rose Anne Davis and Olive Foster were made by Mr. & Mrs. Cullom Davis. A contribution in memory of Donald Henry was made by the office of Hart, Southworth & Witsman. A contribution in memory of Benjamin P. Thomas was made by Sarah Thomas.


Litigating Morality I: Gambling

The conventional view among American legal historians is that in the antebellum era property rights eclipsed colonial concerns over moral issues. While colonial legislatures and courts emphasized crimes against morality, nineteenth-century Americans focused their attention on crimes against property. Although statutes against moral offenses remained on the books, their enforcement declined almost to nothing. Lawrence M. Friedman has argued that "in the 19th century the legal system changed dramatically." Old moral laws "soon fell out of use," and "criminal justice turned its attention to crimes against property." However, both legislation and litigation in Illinois and elsewhere suggests that this generalization needs qualification. State lawmakers and courts continued to devote serious attention to crimes against morality gambling, consumption of alcohol, and illicit sexual relations throughout the antebellum era.

Private betting and public lotteries became well-established in the colonial and revolutionary eras. Early in the nineteenth century, Andrew Jackson gambled deeply and aggressively. Even while president, Jackson raced his horses near Washington, D.C. However, during the 1820s and 1830s, reformers increasingly attacked gamblers and gambling. As lotteries grew larger and more impersonal and as professional gamblers became more common, antigambling crusaders demanded legislation to end the evils that they associated with gambling.

From its first legislative sessions in 1819, the Illinois General Assembly, in "An Act for the Prevention of Vice and Immorality," prohibited citizens of the state from playing "at cards, dice, billiards, bowls, shovel board, or any game of hazard" or running "any horse, mare, or gelding" for money. Violators were to pay $10 for each offense. Those who lost bets could not be required to pay, and if they did so, they could sue within thirty days to recover the money. In 1827 the legislature raised the fine to a minimum of $25 and extended the time for recovery of gambling losses to six months. If the loser failed to sue, any other person could sue for triple the amount. If successful, the plaintiff in such cases would receive one half the award, and the county would receive the other half. The legislature also prohibited the sale of playing cards, dice, and billiard tables. In 1839, the General Assembly passed an additional act to prohibit betting on elections and imposed a fine of up to $1,000.

Although the moral legislation was rigorous, Justice Samuel H. Treat's opinion in Morgan v. Pettit demonstrates the difficulty of balancing moral order and economic stability in antebellum America. In this 4-1 decision, the Illinois Supreme Court narrowly interpreted the 1839 statute prohibiting wagering on elections. It declared that wagers not prohibited by statute, though perhaps morally regrettable, were legal and that debts resulting from them could be recovered. The wager in this case related to the outcome of the 1840 presidential election in Kentucky, not in Illinois. The majority of the justices insisted that economic stability demanded the security of contracts unless they posed specific threats to public policy, peace, or morality.

Lincoln and his partners handled over a dozen cases involving gambling. Most of these cases were criminal indictments for gambling. However, a substantial number involved debts incurred while gambling. Several cases involved the city of Petersburg, which passed an ordinance in 1844 requiring business owners to sign a bond to allow no "gaming, riotous conduct, and open house on Sundays in groceries." If store owners permitted such activity, the city could sue them for violating the agreement and collect the bond.

Both the legislative activity in Illinois and Lincoln's caseload suggest that gambling and other offenses against the moral order remained important in nineteenth-century law.

Morgan v. Pettit
Scott County Circuit Court (1841); Illinois Supreme Court (1842)

Morgan and Powell made a bet on the result of the 1840 presidential election in the state of Kentucky. Morgan agreed to pay Powell $50 if William Henry Harrison received a three-thousand-vote majority in the state. Carpenter served as Powell's security, and Pettit was security for Morgan. Morgan lost but refused to pay. Pettit paid Powell and then sued Morgan in JP court to recover the $50. Morgan successfully motioned for a change of venue, but JP Setts ruled for Pettit and awarded him $52. Morgan appealed to the circuit court, and requested that the jury be given several instructions, including that Morgan was not liable because, before the election, he directed Pettit not to pay. The court refused Morgan's instructions and instead instructed the jury that a wager on an out-of-state election was not covered by Illinois laws and was recoverable. The jury found for Pettit and awarded him $50. Morgan appealed to the Illinois Supreme Court on the grounds that the court erred in refusing his jury instructions. The supreme court disagreed and affirmed the judgment. Justice Treat wrote that the given instruction was correct; the wager was not affected by Illinois's 1839 law and was therefore recoverable. Treat stated that at common law, all wagers are recoverable except those prohibited by statute, those against sound policy, and those that breached the peace, were immoral, indecent, or injuriously affected the rights of third persons. Treat concluded that "It may be a matter of regret, as the English courts have frequently remarked, that wagers of any kind have been sustained; but the law is too well settled for courts now to say, that such wagers as do not fall within the exceptions to the rule, shall not be recovered. If the law should be otherwise, it is for the legislative, not the judicial power, to declare it."

Petersburg v. Moon
Menard County Circuit Court (1844)

The president and trustees of Petersburg sued Moon in JP court to collect a $90 account. The town officials claimed that Moon owed $10 for violating article six, section one of the town ordinance passed May 22, 1844, and $80 for repeating the violation eight times. The ordinance banned unlawful gaming, riotous conduct, and open house on Sundays in groceries. The jury found for Moon, and the town officials appealed to the circuit court, where the jury found for them and awarded $90. The court denied Moon's motion for a new trial but granted him an appeal to the Illinois Supreme Court. However, Moon and the town officials reached a settlement, in which the officials remitted $40 of the judgment. Lincoln represented the town officials in the appeal.

People v. Clifton et al.
Woodford County Circuit Court (1852)

The state's attorney indicted Clifton, Vanbuskirk, Whitaker, and Ames for playing cards. Whitaker and Ames apparently retained Lincoln. The jury found Whitaker guilty and fined him $10, and it found Ames not guilty. The court was unable to serve process on Vanbuskirk and continued the case on Clifton. After several continuances, Clifton pleaded guilty, and the court fined him $10.

People v. Bland et al.
DeWitt County Circuit Court (1859)

The state's attorney indicted Bland, Book, Phares, and Catterlin for gaming. Lincoln, serving as judge during the October 1859 term, noted that Book, Phares, and Catterlin pleaded guilty. He fined each of them $10, and continued Bland's case.

Snell v. Kelly
DeWitt County Circuit Court (1858)

Kelly had apparently given Snell six $50 promissory notes to cover wagers on the 1852 presidential election. Nagley was to hold the notes until the election was over. However, Nagley failed to deliver the notes to Snell until 1855 or 1856, and Snell sued to collect the notes. Kelly, represented by Lincoln, pleaded that the notes were illegal and void. The court ruled for Snell and awarded him $154.98.

Copyright, Illinois Historic Preservation Agency
Springfield, Illinois