Lincoln Legal Briefs

April-June, 1992, Number 22

The Lincoln Calendar

Forthcoming events of interest to students and admirers of Abraham Lincoln include a familiar annual colloquium and several special programs.

A Lincoln-Douglas Debate Symposium will take place in Ottawa, Illinois during the weekend of August 21-22, 1992. The program consists of a reenactment of the famous Lincoln-Douglas debates, papers by Douglas Wilson, George Painter, Robert Bray, John Y. Simon, and Cullom Davis, and commentaries on the papers. The event is cosponsored by Ottawa Main Street-USA and the Ottawa Historic Preservation League. For information telephone 815/433-1353.

One month later (September 17-18) Lincoln scholars and other interested individuals will gather in Shreveport, Louisiana for a conference on The Lincoln Legacy. Sponsored by the departments of History and Political Science at Louisiana State University in Shreveport, this national meeting will feature dozens of papers and commentaries on various aspects of the Lincoln story. Contact William Pederson, 318/797-5337, for further information.

The Seventh Annual Lincoln Colloquium will be held on Saturday, October 24, 1992, at Sangamon State University in Springfield, Illinois. Conference organizer George Painter has identified the central theme as Abraham Lincoln and the Political Process, with papers by Cullom Davis, Rodney Davis, Roger Fischer, William Gienapp, and John Simon. Principal sponsor is the Lincoln Home National Historic Site. For further information contact George Painter, 217/492-4150.


Staff News

Andrea Parker joined us as a part-time research intern during the spring semester. A graduating senior from Illinois State University and a History major, Andrea was eager to acquire experience prior to enrollment for graduate study. Prominent among her many useful services was research on six volumes of letter books of Clinton, Illinois attorney Clifton H. Moore. Andrea discovered 51 letters pertaining to legal work in DeWitt County by Lincoln, who was a friend and professional associate of Moore.

Graduate Assistant John Lupton completed a productive year of service with successful defense of his M.A. thesis, a study of Lincoln's legal work in Macoupin County. This summer John accepted our invitation to remain for several months of additional work, principally assistance with the document searches in eastern Illinois counties.

Another specialist has volunteered to assist The Lincoln Legal Papers. Professor Robert Meeder of the Mathematical Sciences Department at Sangamon State University is providing consultation on various computer applications. He is a specialist in the analysis and design of complex computing systems.

Research Associate Dennis Suttles devoted two weeks in June to the annual summer Institute for the Editing of Historical Documents, sponsored by the National Historical Publications and Records Commission. He and fellow participants gathered at the University of Wisconsin for an intensive exposure to all facets of the editing craft.

Research Assistant Erin Bishop has written an article for Pacific Northwest Forum, published by Eastern Washington University. A product of Erin's honors work at Carroll College, the article tells the story of Montana homesteaders in the early 1900s.

Joining us for the summer months is Stacy McDermott, a graduate student in History at Sangamon State University. Her employment was made possible by a generous grant from the Springfield office of IBM Corporation. Stacy is providing research, bibliographic, and reference assistance.


On the Circuit

A blind search in two counties, and more focused visits to five others, kept the staff busy this spring looking for records, then photocopying and accessioning them. Out of this concerted effort came nearly 4,000 additional documents, some interesting information, and a surprising number of major discoveries.

In DeWitt County, northeast of Springfield, researchers located more than twice as many cases as previous inventories had indicated. It took three staff members over three months to complete the work, which yielded 161 cases and 3,180 documents. A major boost was the generous cooperation and assistance provided by Circuit Clerk Merna Tucker and her staff.

Several interesting themes emerged from the DeWitt County records. One was the surprisingly large number of cases (40) in which Abraham Lincoln served not as participating attorney, but as substitute judge. Historians have long known that Lincoln occasionally (but not eagerly) acceded to a request from his friend, Eighth Circuit judge David Davis, to take his place on the bench. To discover forty such instances in one county seat was a surprise.

Another novelty was the presence of a number of "confession cases," in which a defendant acknowledged liability for the charges, and also signed a power of attorney that authorized any one of several named lawyers to present the confession in court. Lincoln was so designated in several of these confession cases.

A third distinctive quality of Lincoln's work in DeWitt County was his close professional relationship with Clifton H. Moore, who lived in Clinton, the county seat. Especially on railroad litigation, the two men operated jointly in a manner tantamount to a seasonal partnership. Lincoln and Moore were bound closely by personal friendship as well as a lucrative joint practice.

The search for Shelby County records took team members to two locations. In the county seat of Shelbyville, southeast of Springfield, they inspected docket books for references to Lincoln cases. They then traveled to Charleston, where the Illinois Regional Archives Depository (IRAD) at Eastern Illinois University contains Shelby County Circuit Court case files. In both locations they received cordial receptions and help: from Circuit Clerk Charles R. "Bob" Hayden and his staff in Shelbyville, and IRAD supervisor Robert Hillman in Charleston. Once again, the team's careful blind search of all case files produced more than twice as many cases as previously reported. In all, they discovered 31 Lincoln cases and 485 documents.

Of special interest in the Shelby County records is the generous number of cases (17) involving the Terre Haute and Alton Railroad. Manifestly this work was the principal source of Lincoln's business there, which fell within the Eighth Circuit for only ten years during his period of practice.

One final and noteworthy fact about these two county searches is the surprising number of previously unknown Lincoln documents that were found. There were ten such discoveries in DeWitt County, and four in Shelby County. Moreover, they are among the most interesting and valuable discoveries yet. In DeWitt County they include two instances in which Lincoln had to sue his client to get payment; one of these consumed eight years to receive a $10 legal fee. In Shelby County Lincoln was on the losing side in representing defendants charged with inciting a riot, and again in defending a man accused of slander for calling a married female relative a "base whore" and "nasty stinking strumpet." All of these interesting discoveries received widespread press attention.

Over a period of several weeks, Assistant Editor Bill Beard visited five southern Illinois counties in search of trial-level records for cases that Lincoln subsequently had on appeal before the Illinois Supreme Court. The procedure in such counties is much simpler than in the circuit courts of the old Eighth Judicial Circuit. With advance knowledge of the names of each of the cases on appeal, it is possible to find docket references and case files with comparative ease, depending on the condition and arrangement of court records. Cooperating in this effort were the following circuit clerks and their respective staffs: Gene Bolerjack of Jefferson County, Robert Heisner of Perry County, Ron Ledford of Saline County, Billy Fay Malone of White County, and Betty Jo Roark of Gallatin County.

With these most recent searches completed, the tally to date is over 4,100 cases and nearly 47,000 documents. Project researchers have finished their work in 21 Illinois county courthouses and seven manuscript libraries.


An Appeal

Three independent circumstances have combined to impair our prospects for timely progress in searching for Lincoln documents during 1992-93. One is the continuing financial distress in Illinois, which has substantially reduced the level of core support through the Illinois Historic Preservation Agency. Another is the completion of our successful two-year grant from the National Endowment for the Humanities, thus ending for at least one year an important source of supplementary assistance. Third is the steep increase in our expenses to inspect circuit court records. Having finished work in counties that are sufficiently close for daily commuting, we now face the cost of lodging and living expenses for a search team of four persons.

The heartening progress of recent years, and the surprise discoveries of new Lincoln documents, are in danger of significantly diminishing unless we manage to raise over $60,000 in personal and corporate gifts and foundation awards. An intensive solicitation is underway among potential sponsors. As always, but even more urgently than usual, the support of newsletter readers is welcome. Gifts to the Abraham Lincoln Association are tax-deductible, and can be earmarked for support of the Lincoln Legal Papers.

We acknowledge with deep gratitude the generosity of the following recent donors: Lamoyne D. Bearden, John R. Chapin, Walter R. Dallow, Gordon E. Dammann, Cullom Davis, Luann Elvey, Don E. Fehrenbacher, Sharon R. Gromer, Mr. and Mrs. Donald A. Henry, Channing Kury, L. Milton McClure, Gary R. Planck, Gregory Sanders, Mr. & Mrs. Paul Schanbacher, Molly M. Schlich, Alice H. Schlipf, Brandt N. Steele, John Taylor, Western Illinois University Foundation, Lincoln Fellowship of Wisconsin, and Rand S. Wonio.


Lincoln and a Slander Case

"Everyman is said to have his peculiar ambition . . . I have no other so great as that of being truly esteemed of my fellow men . . . ." So said Abraham Lincoln in his first printed political speech, delivered to the citizens of Sangamon County on March 9, 1832. Lincoln valued his reputation and, later in his political career, cultivated his image as "Honest Abe."

Reputation acquired a new meaning after the American Revolution. Social position in England paralleled rank, but the centerpiece of America's emerging legal ideology was the affirmation of equal rights among citizens. Unlike England, as Lincoln implied, an individual's reputation in the American republic relied on community opinion. Furthermore, the legal protection of reputation was important if the experiment in government of, by, and for the people was to succeed. Americans believed their leaders should be picked from those citizens possessing the best character. They believed that reputation was the outward manifestation of character and allowed the republic's citizens to recognize those who possessed the virtuous quality. Therefore, charges of slander were not taken lightly.

Like other fields of American law, the law of defamation underwent significant changes during the antebellum era. Colonial and the early national period courts used slander law as a device of social control--to maintain community order. However, early nineteenth century judges were influenced by the republican definition of a community as an association of individuals where legal rights defined relationships. Lincoln's "right to rise" political philosophy reflected this new order in which courts no longer imposed traditional norms of conduct upon citizens, but adjusted the conflicting rights of the litigants to ensure justice. Slander law shifted from being a law of social control emphasizing punishment of the defendant, to one compensating victims for a specific injury to reputation. Thus, reputation was an important commodity and antebellum courts assigned character with a measurable value. This is illustrated in a slander case that Lincoln handled in Shelby County Circuit Court, and especially in the unusual Lincoln document for that case that staff researcher Michael Duncan discovered.

Events leading to the May 1852 suit began in October 1850. It is not known what the exact relationship between the litigants was, but they were kinfolk in some manner. At that time Missouri Mitchell quarreled with James Mitchell, Sr.'s wife, Priscilla, over an unspecified issue, and threatened to beat her with a club. Apparently the rancor resulting from that incident escalated into the conflict in which James Mitchell, Sr. spread slanderous accusations about Missouri on March 1, 1852.

In the declaration, Missouri and her husband, Elijah, charged that the defendant called Missouri "a base whore" and said he "can prove it by the Nances. They have rode her in the corner of the fence many a time." The defendant allegedly stated that Levi Nance would walk by her father's house and whistle for Missouri. She would then "go into the woods" with Nance for a half or even one full day. The plaintiffs claimed Mitchell repeated the alleged slander before numerous citizens of the community, thus ruining her good name and reputation.

They further charged the defendant with maliciously spreading the rumor that Missouri was pregnant with the child of Sam Sworden or Jim Beebe and was guilty of adultery. James Mitchell was quoted as stating that "Sam Sworden has got her with child at last and I hope to God Almighty she might have four." Finally, the plaintiffs claimed that Mitchell declared that "The damned old Punch [Missouri's nickname] is a nasty stinking strumpet" as well "as a base whore."

At the May term 1852, Judge David Davis and a jury heard the case. According to the pleading rules of the era, Lincoln had three options for his defense strategy. He could have James Mitchell, Sr. plead not guilty; plead in confession and avoidance (admit speaking the words but assert that the case be dismissed because the words were true); or plead that the defendant spoke the words innocently or repeated a rumor. The law of evidence in slander held the defendant strictly liable if his proof failed--the plaintiff did not have to prove malicious intent.

Lincoln chose to plead not guilty to the charges, though the second plea, stating the defendant had not spoken the words alleged within one year preceding commencement of the suit, indicated that the defendant had spoken the words previous to the date (March 1, 1852) mentioned in the declaration. Apparently realizing he had a weak case, Lincoln tried to argue that even if the words had been spoken at some time in the past, the time which had elapsed breached the statute of limitations.

Further, Lincoln planned to mitigate any possible damages by proving that the plaintiffs had engaged in fornication before their marriage, thus demonstrating the low moral character of the couple. One of the more interesting slander law questions that the American courts faced was whether the defendant could give evidence of the plaintiff's general reputation in mitigation of damages. The English never considered the question because their slander law was tipped heavily in favor of the plaintiff and damages were substantial and intended to severely punish the defendant. The American rule that emerged in the early nineteenth century allowed the defendant to give evidence of the plaintiff's character. By permitting such evidence, the courts affirmed that character had a monetary value for which slander damages served as a remedy, and not merely as a punishment.

Unfortunately for Lincoln, co-counsel Anthony Thornton, and their client, the jury returned a verdict of guilty and awarded the plaintiffs $500, the entire amount of damages sought. Missouri Mitchell's reputation was returned to good standing in the community and James Mitchell, Sr. paid heavily for failing to control his speech. The case reflected the intent of American slander law to safeguard an individual's good reputation in the community against petty character assassination.

However, the Mitchells were not completely satisfied as late in the same term of court they were indicted by a Grand Jury for attempting to shoot James Mitchell, Sr. Also, Mitchell was back in court in November 1852 on a second slander charge. He had alleged that another Mitchell couple, John and Rebecca, had committed perjury by lying while testifying for Missouri and Elijah. The fate of James Mitchell, Sr. in these later episodes of "Peyton Place on the Prairie" is unknown at this time.

Copyright, Illinois Historic Preservation Agency
Springfield, Illinois