Lincoln Legal Briefs

January - March, 1990, Number 13

Lincoln in the Supreme Court

State Historical Library Lincoln Collection Curator Tom Schwartz and former curator Jim Hickey spent rewarding time this winter searching the Illinois Supreme Court case files stored at the State Archives. Surprising as it may seem, they have found many documents in Lincoln's handwriting. Several previously unknown Lincoln Supreme Court cases have been discovered through Tom and Jim's effort. The Lincoln Legal Papers project receives a copy of each new item before the original is transferred to a special vault for conservation and protection.


Courthouse Search Begins

In January, project staff began the intensive, systematic search of county courthouse records. Before venturing into the field, we compiled a computerized list of previously identified Lincoln cases from three basic published works and our own case files. In addition to providing information that is frequently lacking in the clerks' dockets, this list can also be used to rank the counties by relative numbers of known cases. It remains, however, a very rough guide.

Menard County was selected for our initial search because of the close proximity of Petersburg to Springfield and the relatively high number of known cases. Our first task was to search the dockets, adding to our list and simultaneously compiling another list of all other cases from the 1839-61 period. All of the documents in these latter files are being examined carefully by project staff, looking for possible connections with Lincoln or any of his three partners. For Menard County, we began with 125 known cases. From the dockets, we added another 165. Although we have only reached the half-way point in the search of individual case files, an additional 24 cases have been found. Two of these contained documents in Stephen T. Logan's handwriting, and the remainder were by William H. Herndon. This number will undoubtedly continue to increase as our search continues.

The Menard County records are, in general, in excellent physical condition. Clearly many of the original documents have disappeared, but we hope to be able to reconstruct most of these cases from information supplied by various docket books. David Hitchcock, Menard County Circuit Clerk, and his staff have been gracious hosts, and they remain very interested in the results of our search.


Project Success

The week of Lincoln's birthday brought double-barreled good news, as two major federal agencies decided to support The Lincoln Legal Papers. A two-year grant of $65,000 from the National Endowment for the Humanities (NEH) will provide crucial assistance to the document collection effort. These funds will pay the salary of one new staff member, purchase a larger capacity computer, and cover other expenses.

The National Historical Publications and Records Commission (NHPRC) voted to endorse the project, and also provide annual funds beginning at the $30,000 level. NHPRC support also entitles project staff access to important reference and other in-kind services. The additional funding will pay the salary of a second Assistant Editor. Staff researcher Joanne Walroth has been promoted to this position effective April 15.

Of special interest to project supporters is the fact that $25,000 of the NEH grant is in the form of matching funds. Thus, we must raise $25,000 in private donations over the next two years in order to qualify for the maximum NEH award. We therefore invite past donors and project friends generally to provide a substantial boost toward this ambitious goal. All contributors receive a handsome souvenir Lincoln document facsimile, and those who give $100 or more also get our 32-page pamphlet, Barret v. Alton and Sangamon Railroad Company. Send checks (made out to the Abraham Lincoln Assn.) to The Lincoln Legal Papers, Old State Capitol, Springfield, IL 62701.


Donors Continue Their Support

The project continues to receive generous support from members of the Abraham Lincoln Association and other friends who have responded to the fundraising efforts of Richard Hart. Since the last newsletter, the following have donated over $3,100 in support of The Lincoln Legal Papers: Joseph Ayd, Mrs. Harold W. Barner, Stephen P. Bartholf, Donald G. Benham, Willard Bunn, Jr., Willard Bunn III, Joseph L. Block, George M. Craig, Hon. John A. Davidson, David H. Donald, Lawrence Elliot, Olive S. Foster, Henry C. Friend, Arnold Gates, Arnold Goldsborough, Ned Grauel, Mrs. Warren Grauel, Harold Gross, Sherrill Halbert, Thomas Harbison, Gary G. Hoffman, Julianne Ford Jesberg, Hon. Warren L. Jones, Gerald and Jean C. Kluetz, Margot L. Kramer, Harvey E. Lemmen, Claude B. Lilly, Lincoln Association of Jersey City, Mrs. Peter McEnteggart, James M. McPherson, Janet Meyer, Daniel K. Miller, Ralph Geoffrey Newman, Margit and Paul J. Olsen, Douglas G. Parker, Mark A. Plummer, W. Emerson Reck, Mr. & Mrs. Donald Reever, Mr. & Mrs. Mark O. Roberts, Joyce V. Sandage, Mr. & Mrs. Paul Schanbacher, John H. Schirding, Alice H. Schlipf, Jack L. Smith, Benjamin Solof, Salome K. Thomas, William Kent Tucker, Mrs. Benjamin Victor, Community Foundation of Greater Washington, Roland A. White, Frank J. Williams, Douglas L. Wilson, Louise F. Wollan, and Rose K. Wood.


Helping Hands

Research productivity has increased due to the addition of three temporary staff members, Greg Olson, Margie Towery, and Leslie Wright. Each one has been assigned a research emphasis that is crucial at this stage of the project. Greg has been working with Joanne Walroth in the Menard County Courthouse combing docket books and photocopying Lincoln legal documents that are uncovered. Margie has conducted several research tasks, and surveyed available illustrations pertaining to the law practice. Leslie, previously a project volunteer, has painstakingly gathered document, case, and attorney references from existing primary sources. We appreciate their dedicated service, and thank IHPA director Michael J. Devine for making the positions available.


Illinois Central Railroad v. Morrison, et al.

A Report by Dan Bannister

My volunteer service to the project is to read and then brief (summarize) each of the 250-plus cases Lincoln argued before the Illinois Supreme Court. This large body of appellate work may be the most important and lasting portion of his practice.

I have now read most of these cases, which reveal the development of the Supreme Court over a twenty year period, plus the ability of the justices who sat and the lawyers like Lincoln who argued. One measure of this development was the use of English common law and other state court precedents, plus reference to important treatises.

Sometimes the citations of authority for each side were specifically listed as part of the printed opinion. However, most of the time we must infer from the precedents referred to in the Court's opinion, what each lawyer cited in presenting his argument to the Court. Also Lincoln frequently was associated with other lawyers in these appeals, and it is difficult to measure relative contribution of each. We assume he was the predominant one, for sure when his side won. We would also like to know in which cases he argued orally on behalf of his side. We know his persuasive skills, and can properly assume these influenced cases.

So it is in the case of the Illinois Central Railroad v. David A. Morrison and John Crabtree, 19 Ill. 136. Lincoln, O.B. Ficklin, and H. C. Whitney represented the appellant (the railroad), and C.H. Constable and A. Green represented the plaintiffs, Morrison and Crabtree. Lincoln was successful in convincing the court to reverse a judgment for the plaintiffs in the trial court. The decision established in Illinois a rule of law regarding the limits of liability due by railroads to shippers. The long established rules of law demanded absolute liability from common carriers, saving acts of God, gross negligence or willful malfeasance, and as the railroads emerged as the important common carriers, any encroachment on this basic premise had to be carefully considered by the courts.

In this case Morrison contracted with the railroad to ship 400 head of cattle from Urbana to Chicago at a rate less than the first class rate, and signed a document releasing the railroad from any liability for damage or injury to the animals, except when caused by gross negligence or default of agents of the railroad. Some of the livestock were shipped immediately, and the remainder a few days later. Morrison's son and James Crabtree signed similar releases at this later time. A few cattle died, and many suffered greater than expected weight reduction due to delays and alleged (and proven) negligence of the railroad. No gross negligence or default of railroad agents was alleged or proven. The plaintiffs proved the damage to the cattle, and contended that the railroad, as a common carrier, could not relieve itself from its responsibilities as such by agreement, and even if it could, the releases signed by Morrison's son and Crabtree were unauthorized and void. The jury awarded $1,200 to the plaintiffs, and the railroad appealed. The Supreme Court reversed this judgment. Justice Breese wrote the opinion, which is a model of brevity, presented in a logical, pragmatic manner.

The opinion starts with the basic assumption that railroads are common carriers, and are subject to the strict rules applicable. Justice Breese then recognizes the growth and importance of this railroad business, commenting "At this time, railroads have acquired much of the carrying trade of the country, and reversing the former order of things, now carry the very animals which propelled the old machines used for that purpose." He then states that until the use of railroads for the conveyance of property, it was not generally considered that any common carrier could relieve itself from the strict rules of liability by special contract. However new rules are appropriate for this emerging business. The contract here was valid, with the plaintiffs receiving consideration by paying lower rates. The other argument that the second releases were not binding was answered by recognizing that the original release signed by Morrison covered all the animals included in the trip, plus the other two had implied authority to sign similar releases. He then concluded the opinion by stating "As the Circuit Court seemed to have entertained views of the law different from those here expressed" judgment is reversed.

Lincoln successfully argued many important cases for the railroads, and thus contributed to this vital part of our economic history. His success in this case is recognized in the legal victory for his client, and one might surmise his perceptive wit influenced some of the entertaining phrases used by Justice Breese.

Copyright, Illinois Historic Preservation Agency
Springfield, Illinois