Lincoln Legal Briefs

April - June 1997, Number 42

A Major Acquisition

We recently were reminded of the value of our association with the Illinois State Historical Library and its staff. Last month Kim Bauer, Historical Research Specialist at the library, purchased 150 documents of significant Lincoln legal associates. The nearly $10,000 acquisition includes various legal documents of Lincoln's three law partners and such Lincoln contemporaries as David Davis, Samuel H. Treat, John J. Hardin, and John A. McClernand. These documents promise to enhance our project's understanding of the environment of the legal profession in which Lincoln practiced and assist us in our work to document Lincoln's legal career.

In March Jonathan Mann, publisher of The Rail Splitter, alerted us to the availability of the documents. The Rail Splitter's Second Annual Lincolniana and Civil War Auction, a mail and telephone bid auction, closed June 30 and, with Bauer's efforts, we will now have access to new documents. The documents acquisitioned include fifty-five items of David Davis' early legal writings, fifty legal documents of Stephen T. Logan, and a petition addressed to the Sangamon County Board of Supervisors to repair the Sangamon County Court House. Signatures on the latter document, which is a virtual who's who of the Sangamon County Bar, include Stuart, Logan, Herndon, Shelby M. Cullom, Charles S. Zane, Benjamin S. Edwards, and James Conkling.

The private market for Lincoln documents and items relating to him has grown tremendously in recent years, inflating prices and putting them out of the reach of many historical institutions. However, through the support and hard work of key individuals like Bauer and his predecessor, Thomas Schwartz, the library maintains an impressive collection. The Henry Horner Lincoln Collection contains some 1500 original Lincoln documents, one of the largest public collections in the country. We are greatly appreciative of the library's commitment to obtain and maintain Lincoln documents for scholarly and public use.

Over the years, we have relied on the library's holdings for secondary resources, combed the manuscript and newspaper collections, and looked to the library's professional staff for assistance and support. The efforts of Bauer, Schwartz, Director Kathryn Harris, and Manuscript Curator Cheryl Schnirring, among others, significantly facilitate our effort. By maintaining its impressive collection of Lincoln documents and actively engaging in the acquisition of more documents related to Abraham Lincoln's law practice, the library provides an invaluable service.

 

Staff News

The summer season typically brings additional staff and volunteer assistance. This year we welcome Jeni Bahl, a student at Lincoln Land Community College and summer clerk; Mary Ann Armstrong, a retired university librarian and volunteer; and Hugh Drake, a law student who has volunteered to draft legal definitions for our electronic edition's glossary. Thanks and a warm welcome to all three.

Research Associate Dennis Suttles has the additional duty and honor this summer of teaching a course in Illinois history at Lincoln Land Community College. He and Assistant Editor John Lupton were recently named to the advisory board of the Illinois State Historical Society. Technical Assistant Dan Dixon serves as president of the Sangamon County Genealogical Society, and also as editor of its quarterly publication. Assistant Editor Susan Krause continues to serve on the board of the Sangamon County Historical Society, now as its treasurer. Research Associate Stacy McDermott recently participated in the annual Institute for the Editing of Historical Documents, at the University of Wisconsin.

We regretfully note the death in May of Leslie Wright, who served on the staff during 1990-91.

 

Finances

We acknowledge with deep appreciation the generosity of the following recent donors: Mr. & Mrs. Paul Adams, Glen K. Allen, John Alexander, Matt Anderson, Betty Anselmo, Paul Barker, Dennis Boman, Theodore Brown, Jr., Peter Meyer Chapter of the Daughters of the American Republic, Mr. & Mrs. Lawrence Elliott, Robert S. French, Mrs. Donald Henry, Mr. and Mrs. Dale Hershey, T. Willard Hunter, Rita Kohn, Lincoln Land Community College Elderhostel, J. M. Lloyd, John Looney, Donald S. McCauley, Dr. James K. Martin, Milwaukee County Historical Society, T. Clifford Morgan, Michael Orelove, Robert B. Oxtoby, Mr. & Mrs. David Richert, Mr. & Mrs. William Shepherd, Mr. & Mrs. Alto Sneller, John Speed, Richard Teeple, Joshua E. Thompson, Charles Ungar, Judy Killion Weber, Edward M. Wise, and Sandra F. Vanburkleo. A contribution in memory of Alejandro Mosqueda was made by the office of Hart, Southworth & Witsman.

 

Beebee & Beebee v. Whitney & Norwood

During the research phase of our work in Sangamon County we uncovered a small part of Illinois legal history previously thought to be lost to historians. While examining Sangamon County case files, former staff member Sean Brown identified U.S. Circuit Court documents filed during 1844. The documents pertained to Beebee & Beebee v. Whitney & Norwood, a replevin suit in which the rightful owner sought to recover goods belonging to him.

All of the U.S. Circuit Court cases filed before 1855 were destroyed during the Chicago fire. The records had been moved to Chicago in 1855 when the U.S. Circuit Court in Illinois was divided into two districts, one in Springfield where the original court was held, and a new one in Chicago. The judge chose to move the records to Chicago and thus inadvertently doomed most of Illinois' early federal legal history. Records created in Springfield during and after 1855 were preserved and now reside at the National Archives, Great Lakes Region in Chicago.

Researchers immediately recognized the uniqueness of the case file, and although it was not thought to be part of Lincoln's practice, made a copy for future inquiry. More recently Christopher Schnell examined the case in greater detail and found Lincoln's handwriting on one of the documents. Lincoln apparently edited a plea filed by Joseph Norwood on June 8, 1844. The one-line interlineations Lincoln added to the document was enough to count the federal case as the latest addition to Lincoln's U.S. Circuit Court practice.

Why was the federal case file with Sangamon County records? To answer this question we must understand the story behind the replevin suit. The U.S. Circuit Court case had St. Louis businessmen Washington and Isaac Beebee filing suit to recover some 97,000 lbs. of bacon from a hog processing business in Quincy, Illinois. Whitney and Norwood had kept the bacon to cover a contract the Beebees had signed but not fulfilled. With the replevin suit the Beebees tried to regain their produce, but the federal jury decided for the defendants and found that Lincoln's clients were within their rights.

After the verdict the issue was again raised in the Sangamon County Circuit Court. In Hope for use of Norwood v. Beebee et al., Norwood attempted to obtain damages for bacon which the Beebees had kept in St. Louis. This case was already on the project's search list, as Lincoln represented Joseph Norwood, his client from the federal case. It is quite likely that Lincoln or one of his colleagues used the federal case file, with all of its affidavits and depositions, as evidence in the Sangamon Circuit Court case, thus explaining its presence among those records.

Both cases illuminate an interesting transition in Lincoln's partnership arrangements. When Beebee & Beebee v. Whitney & Norwood began in early 1844, he and Stephen T. Logan were in partnership. Lincoln apparently first represented Norwood during June 1844, and Logan represented the Beebees after the partnership had dissolved in late 1844. In Hope for use of Norwood v. Beebee et al. Lincoln again represented Norwood along with his new partner, William H. Herndon. Logan also represented the Beebees during the Sangamon County Circuit Court case.

 

Litigating Morality III: Alcohol

The movement to restrict the manufacture, sale, and consumption of alcohol was central to antebellum efforts to regulate public morality. Through much of the antebellum period, local communities governed the sale of liquor by licensing individuals to sell it. The first legislature of the new state of Illinois declared in 1819 that no person without a proper license could sell liquor in quantities of less than one quart. County or city commissioners could revoke or refuse to renew licenses, and they could decide that no new licenses were necessary. This licensing system remained the law in Illinois until the 1850s, when temperance reformers became impatient with regulation and moral suasion and demanded legislative action. On February 1, 1851, Illinois legislators passed "An Act to Prohibit the Retailing of Intoxicating Drinks," popularly known as the "Quart Law," which replaced the licensing system with a general prohibition against the sale of alcohol in quantities of less than one quart.

Maine had led the way toward statewide prohibition in 1851 with an act that completely banned the manufacture or sale of "spirituous or intoxicating liquors," except for medicinal purposes. Over the next four years, twelve more states passed versions of the "Maine Law." By 1853, those who favored the complete prohibition of alcohol had gained strength in Illinois. The legislative committee charged with the issue proposed a bill almost identical to the Maine Law, and the General Assembly repealed the Quart Law to clear the way for the new legislation. However, five days later, to the dismay of the prohibitionists, the legislature voted against the Maine Law and reinstated the license system that had existed before 1851. When the legislature convened in January 1855, the anti-liquor forces were stronger, and Illinois lawmakers passed "An Act for the Suppression of Intemperance," stronger in some respects than the original Maine Law. Opponents managed to insert one loophole: Illinois voters had to approve the measure at a special election in June 1855. After one of the most bitter contests for votes in Illinois history, 54 percent of Illinois voters decided against statewide prohibition. Not for another two decades would temperance forces muster the strength to challenge "Demon Rum" at the state level.

Although personally temperate, Lincoln was never very active in the temperance movement. He rejoiced in the personal rehabilitation of individuals, as evidenced in his 1842 address to the Springfield Washington Temperance Society, but he was wary of legislative action to enforce temperance. Lincoln's third law partner, William H. Herndon, though personally intemperate, was a staunch prohibitionist, who campaigned vigorously for statewide prohibition and actively enforced anti-liquor ordinances as mayor of Springfield in 1854-1855. At the height of temperance reform in the early 1850s, several towns and cities, including Springfield, voted to prohibit the sale of alcohol. As a clear manifestation of increasing concern over intemperance, alcohol-related indictments in Sangamon County rose dramatically from the mid-1840s through the late-1850s.

In circuit courts across central Illinois and in the Illinois Supreme Court, Lincoln and Herndon handled a variety of cases involving the sale of alcohol. In some cases, Lincoln assisted the state's attorney in prosecuting individuals for selling liquor illegally. At other times, Lincoln represented the defendants in such cases. Lincoln also represented litigants in civil suits arising from vigilante actions against liquor retailers, as in the case of Pearl and Pearl v. Graham et al. Herndon represented the state in Jones v. People, a test case of the constitutionality of the 1851 Quart Law.

Responding to the concerns of a growing number of opponents of alcohol, Illinois legislators and courts in the late 1840s and 1850s made halting efforts toward greater control over the sale of liquor. Although prohibitionists were unable to sustain their legislative victory of 1855 in a popular referendum, Illinois courts continued to prosecute those who sold liquor without a license. Throughout the antebellum era in Illinois, members of the General Assembly and of the bench and bar demonstrated their continued commitment to moral order by legislating and litigating against gambling, sexual misconduct, and the unrestricted sale and excessive consumption of alcohol.

Munsell v. Temple
McLean County Circuit Court (1846); Illinois Supreme Court (1846)

In March 1843, Parke paid the County Commissioners' Court $25 for a license to sell liquor at the Bloomington Hotel, in Bloomington, Illinois. In June 1843, Parke sold the grocery to Munsell, who received Parke's liquor license after giving Temple, the county treasurer, a promissory note for $21.38. Munsell refused to pay the note, and the parties agreed to submit the case to the circuit court, which ruled for Temple and awarded $24.68. Munsell retained Lincoln and appealed to the Illinois Supreme Court, which reversed the judgment. Justice Koerner incorporated much of Lincoln's argument in his opinion which denied Temple's authority to collect the $21.38 note. Koerner ruled that Munsell's note was void because Temple could not accept a note payable to himself as treasurer. Furthermore, the note was only for $21.38, and the 1845 license act stipulated that no license could be granted for less than $25. Koerner also ruled that liquor licenses were not transferable; licenses "attach to the person, and cannot be used by others even with the consent of the court, for what remains of the annual term for which they have been originally given." Koerner reiterated the court's belief that the "policy of our legislature has always been to restrain the selling of spirituous liquors by retail."

Jones v. People
Morgan County Circuit Court (1852); Illinois Supreme Court (1852)

The state's attorney indicted Jones for selling liquor in quantities of less than one quart. The jury found Jones guilty, and the court fined him $25. After the court denied his request for a new trial, Jones appealed to the Illinois Supreme Court. Jones contended that the act to prohibit the retailing of intoxicating drinks, which the legislature approved on February 1, 1851, was unconstitutional. Herndon represented the state in the appeal. The court rejected Jones's argument and upheld the state's power to police public morality. Justice Trumbull wrote that a "government that did not possess the power to protect itself against such and similar evils, would scarcely be worth preserving."

People v. Hinkle
Christian County Circuit Court (1852)

The state's attorney indicted Hinkle for illegally selling whiskey, and Hinkle retained Lincoln. The jury found Hinkle guilty. Lincoln moved for a new trial, but the court denied the motion and fined Hinkle $25.

Sullivan v. People
Macon County Circuit Court (1853); Illinois Supreme Court (1853)

The state's attorney indicted Sullivan in several cases for selling liquor in quantities of less than one quart without a license. The state's attorney and Sullivan agreed that the state would dismiss 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 the 1853 repeal of the 1851 repeal of a section of the 1845 criminal code regarding the sale of liquor. The jury found Sullivan guilty of violating the criminal code and fined him $10. Sullivan retained Lincoln and appealed to the Illinois Supreme Court. Lincoln argued that the 1845 criminal law was no longer in force and that a tavern keeper could sell liquor without a license. The Supreme Court, however, affirmed the lower court's judgment. In his opinion for the court, Chief Justice Treat wrote that although the repeal of a repeal did not revive the prior law, the General Assembly intended to revive the law as it stood in 1845 and did so by reenacting the relevant portions of prior statutes.

Pearl & Pearl v. Graham et al.
Tazewell County Circuit Court (1855)

Graham and twenty other men broke into a grocery store owned by Frederick Pearl and Sylvester Pearl and destroyed everything, including large amounts of liquor. Pearl and Pearl sued them in an action of trespass and requested $5,000 in damages. Graham retained Lincoln and pleaded not guilty because the grocery was actually a disorderly house where "drunkenness, idleness, quarreling, profane swearing, obscenity, and other offensive acts" occurred. Graham and the other defendants claimed that they were peaceful citizens who became annoyed at the public nuisance and destroyed the liquor to stop the problem. Pearl and Pearl motioned for a change of venue, and the case moved to the Woodford County Circuit Court. Once in Woodford County, Lincoln motioned the court to change the venue again, and the case returned to the Tazewell County Circuit Court. Pearl and Pearl decided not to prosecute four defendants. The jury found eleven defendants not guilty and six defendants guilty, and awarded Pearl and Pearl $50 in damages.

People v. Grosberrit
Logan County Circuit Court (1859)

The state's attorney indicted Grosberrit for selling liquor. Grosberrit pleaded guilty to five counts, and the court fined him $50 plus costs. Lincoln served as judge during the proceedings.  

 

A New Book

John Long, a practicing attorney in Troy, Illinois and a long-time student of Lincoln's law practice, has published the second volume in his three volume study. The series, entitled The Law of Illinois, examines Lincoln's appellate practice before the Illinois Supreme Court. Volume I, covering the years 1836-47, appeared in 1993. Volume II, for the years 1849-55, is now available.

Persons wishing to acquire either or both volumes may place an order with The Illinois Company, 341 South Main Street, Shiloh, IL 62269 or with e-mail: johnlong@accessus.net. The cost per volume is $20, plus 7 percent sales tax (Illinois residents only), plus shipping and handling. Telephone (618) 632-1223 for further information.

Illinois Historic Preservation Agency
Springfield, Illinois
1997