Lincoln Legal Briefs

October  - December 1998, Number 48

The Lincoln Calendar

Lincoln enthusiasts can anticipate the customary flurry of February programs and ceremonies in Springfield. Of special interest at the Lincoln Home National Historic Site will be this yearís "George L. Painter Lectures," beginning at 9:30 a.m. on Friday, February 12. Speakers include State Journal-Register reporter Doug Pokorski and Civil War speaker Robert Marcus. Call (217) 492-4241 (ext 241) for further information.

The Abraham Lincoln Association is sponsoring its 26th annual symposium, "Lincolnís Nationalism," at the Old State Capitol that afternoon. Presenters include James A. Rawley (University of Nebraska), William Lee Miller (University of Virginia), and Drew McCoy (Clark University), with commentary by Gerald Prokopowicz (Lincoln Museum, Fort Wayne, IN). A special exhibit on "Lincoln and the Patent Office" will also be available to visitors. That evening the annual ALA banquet will feature an address by James B. Stewart, Pulitzer Prize journalist and author of Blood Sport, a best-selling study of the Clinton White House. Advance reservations are required for the banquet. Contact Thomas Schwartz (217) 728-2118 for further information about these ALA events.


Our Vital Volunteers

Three steadfast and talented volunteers continue contributing to our progress. For more than six years retired university librarian Mary Jane MacDonald has performed various important tasks, most recently a close inspection of microfilm newspaper files. Her friend and sister librarian, Mary Ann Armstrong, has been helping for several years; her current task involves verifying the names of participants in Lincoln cases. University of Illinois law student Hugh Drake has been at work since mid-1997 researching and drafting concise legal definitions for a glossary that will help users of our complete (CD-ROM) edition understand even the most arcane antebellum legal terms.

Mary Jane, Mary Ann and Hugh know of our deep appreciation for their services; we want our readers to know it too.


Staff News

At the annual Illinois History Symposium in early December, assistant editors John Lupton and Daniel Stowell made presentations at a legal history session. Johnís paper was entitled "Inheriting the Earth: The Law of Succession," and Daniel spoke on " Staggering Toward Reform: Temperance and Prohibition in Antebellum Illinois." John also participated in a panel discussion on Lincoln research at the annual meeting of the Illinois Political Science Association. Director Cullom Davis delivered the presidential address at the annual convention of the Association for Documentary Editing, which met in St. Louis. His remarks, "Now He belongs to the Sages: Lincoln and the Academy," will appear in the organizationís journal this spring.

Daniel Stowell has been promoted to Associate Editor. In addition to continued assistance on the forthcoming complete edition, he will plan and coordinate work on the selective four-volume book edition, which will begin receiving concerted staff attention next fall. Daniel joined the staff in the fall of 1996, and has combined valuable project service with a steady output of scholarly papers and publications.



Our application to the National Historical Publications and Records Commission for a one-year documentary editing fellowship was denied last fall, but we expect to apply again later this year. Action on our pending NHPRC request for annual support is expected this winter. November brought heartening news from the Shelby Cullom Davis Foundation, which announced an award of $40,000 in support of project work during 1999. This marks the largest grant we have received from the Davis Foundation.

Early results of the annual donorís campaign, sponsored by the Abraham Lincoln Association, are encouraging. To date, 23 people or groups have contributed $4,800. For their generous assistance we offer deep thanks to the following recent donors: Mr. and Mrs. Dennis Antonie, Mr. and Mrs. Lawrence Appel, Mr. and Mrs. Dan Bannister, Stephen Bartholf, G. Cullom Davis, Robert Eckley, Mr. and Mrs. Lawrence Elliott, Henry Ess, III, John Field, Elbert F. Floyd, Robert S. French, Rev. James Grinell, Dr. and Mrs. Robert Johannsen, Charles W. Keaton, History students and teachers of Lincoln Community High School, Patricia Logan, Joe McMenamin, The Honorable Richard Mills, Mr. and Mrs. John Myers, Richard D. Teeple, John T. Trutter, William Tucker, Mr. and Mrs. Bernard VanDenBerg, Mr. and Mrs. John H. Widdowson, and Louise Wollan.


Perjury In Lincolnís Time

As Congress, the Clinton administration, media pundits and the American public debate the definition and gravity of perjury, it is interesting to examine the issue during Lincolnís time. Such research is relatively simple, thanks to the comprehensive data base, indexing capability and case descriptions that users of the forthcoming complete edition will be able to employ.

Perjury was an issue in 24 Lincoln partnership cases. While this is less than 1 per cent of his entire caseload, perjury surfaces enough to invite some cautious analysis and interpretation. Interestingly, only six (25 per cent) of the cases were criminal actions against an alleged perjurer, and Lincoln or his partners represented the defendants in all six. Four of these were in the stateís circuit courts and two in the federal courts.

In People v. Allin et al (McLean County), the perjury defendant failed to appear in court. Lincoln represented the other defendants, who forfeited their recognizance bond by default judgment. In People v. McKinney (Sangamon County) and People v. Hendryx (Champaign County), the prosecuting attorneys dropped perjury charges, enabling the defendants to avoid trial. In People v. Johnson (Woodford County) Lincoln successfully argued that his clientís oath did not meet a two-fold test for perjury: that the defendant not only had made a false statement but also had known it was false.

In U.S. v. Chapman the defendant was found guilty, but in U.S. v. Wright the jury could not reach a verdict, so Lincoln failed in one federal case and succeeded in the other. Therefore, of the six criminal cases for perjury, one resulted in a conviction and four did not.

Significantly, most (75 per cent) of the cases in which perjury appeared as an issue were actions in civil court for slander (17 cases) or malicious prosecution (one case). The plaintiffs were suing individuals for accusing them of perjury, thereby either damaging their reputations or causing unnecessary harm through litigation. Thirteen of the slander suits were successful, suggesting that in Lincolnís time it was legally risky to accuse someone of perjury. The accuser was likelier to face penalties (for slander) than the alleged perjurer. Community reputation was a precious asset to antebellum Illinoisans, who often sought and won court judgments for slander.

We leave it to our readers to judge whether perjury law in the frontier West sheds useful light on the momentous struggle now underway in Washington.


Top Ten Trials, Continued

A story in the last issue on Lincolnís ten most important cases elicited several welcome responses. One reader sought further information, and our mention of the controversial "Matson Slave Case" in Coles County triggered publication of an interesting story in the Charleston (IL) Times Courier.

Space in the fall issue permitted covering only seven of the cases. The remaining three follow.

Illinois Central Rail Road v. McLean County (McLean County Circuit Court, September 1853; Illinois Supreme Court, 1855)

The Illinois Central Railroad owned 118 acres of land in McLean County, Illinois. The county assessor levied a $428.57 tax on the railroad's property. The railroad claimed that the General Assembly act incorporating the railroad exempted the railroad from taxes. The railroad retained Lincoln and sued McLean County for an injunction to stop the county from selling railroad land to pay taxes. The parties reached an agreement, in which the court would dismiss the bill, thus ruling for McLean County, and the railroad would appeal the case to the Illinois Supreme Court, where the only question would be whether the county had a lawful right to tax the Illinois Central Railroad property. Lincoln continued to represent the railroad. The supreme court reversed the judgment. Justice Scates ruled that the legislature could exempt property from taxation. Therefore, the charter of the Illinois Central Railroad was constitutional. Lincoln received $5,000 for his legal services, but he had to sue the railroad to collect the fee (Lincoln v. Illinois Central RR).

Johnston v. Jones & Marsh (US Circuit Court, District of Illinois, October 1853; US Supreme Court, December 1855; US Circuit Court, Northern District of Illinois, March 1860; US Supreme Court, December 1861)

Johnston owned a lakefront lot in Chicago adjoining a lakefront lot owned by Jones. Both lots bordered Lake Michigan; neither bordered the Chicago River. In 1833, the U. S. government sought to improve the Chicago River by cutting a channel across Johnston and Jones's lots to straighten the river's course. As a result, sand washed up against the new pier and old shoreline creating nearly 1,200 feet of new land. Johnston sued Jones and Marsh in an action of ejectment from six acres of the accreted land. Johnston claimed that after the government built the new channel, his property continued to border Lake Michigan entitling him to the new land. Jones claimed that Johnston no longer

had a lakefront border and was not entitled to any of the new land. At the fourth trial, the jury found for Johnston. Jones appealed to the U. S. Supreme Court, which reversed the judgment. Justice Nelson ruled that if Johnston believed there was a defect in the deed, he should correct it in chancery. After the case returned to the circuit court, Johnston continued the ejectment case, and both parties engaged new attorneys. Jones retained Lincoln. After an eleven-day trial, of which a full transcript exists, the jury found for Jones. Lincoln received $350 for his legal services. Johnston appealed to the U. S. Supreme Court, which affirmed the judgment. Justice Swayne ruled that this case was essentially the same as the earlier appeal. Johnston presented basically the same evidence, and it did not change the opinion of the Court, which found no error.

People v. Wyant (McLean County Circuit Court, April 1857)

Rusk shot Wyant during a feud over boundary lines separating their property. Wyant recovered but lost an arm. Fearing Rusk would kill him, Wyant then shot Rusk four times, killing him. The state's attorney indicted Wyant in the DeWitt County Circuit Court for murder. Wyant requested and received a change of venue to the McLean County Circuit Court. Wyant's attorneys pleaded that Wyant was not guilty by reason of insanity and claimed that the chloroform given during the amputation of his arm made Wyant insane. Many doctors testified for each side, and the jury found Wyant not guilty by reason of insanity. The court ordered Wyant to be admitted to the state mental hospital. Lincoln assisted the state's attorney in the prosecution. This case was one of the first in which the defense relied upon the insanity plea.

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