Lincoln Legal Briefs

July - September, 1996, Number 39

The Lincoln Calendar

A reminder of previously announced forthcoming events: the annual Lincoln Colloquium on Saturday, October 26, and the annual Illinois History Symposium, December 6-8. Both meetings take place in Springfield, Illinois, and both will feature sessions of interest to students and admirers of Lincoln.

It is not too early to mark your 1997 calendar with Lincoln events scheduled in February. The twenty-fourth annual Symposium of the Abraham Lincoln Association will feature "Abraham Lincoln and American Law," with presentations by Mark E. Steiner, Paul Carrington and James W. Ely. Editor Martha Benner also will demonstrate a preliminary version (on CD-ROM) of The Complete Documentary Edition of the Lincoln Legal Papers.


Stuart-Lincoln Fee Book

Summer editorial intern Phyllis McMillan solved several riddles and gathered useful information in the course of her assignment to edit the 84-page fee book that Lincoln compiled during his partnership with John Todd Stuart, 1837-41. During a busy eight week period, she painstakingly transcribed the unusual document, checked its case references against other records of the Stuart years, researched the history of attorney fees for comparative purposes, and wrote a detailed essay ("editorial note") to accompany the transcription. Guiding her effort were Susan Krause and Cullom Davis.

Phyllis first had to reconcile the fee book's contents with a different record of the Stuart-Lincoln years that some historians have used. Thanks to her analysis, we now have a clear understanding of the differences and overlaps of these two important documents.

Transcribing the fee book was especially challenging, as it was compiled in columnar form and with many marginal notations. Phyllis raised editorial and layout issues at staff meetings, to ensure that the transcription's format would conform to the conventions of documentary editing and also to the style adopted for the Lincoln Legal Papers.

Determining the statutory constraints and prevailing practices for attorney fees in antebellum Illinois proved to be another exacting challenge. Phyllis' research led her to conclude that Stuart and Lincoln set fees at levels that were typical of their time and place.

Editorial internships are designed to serve the respective needs of both the employer and the employee. Such was the case in this venture, which gave Phyllis McMillan valuable research and editorial experience and also provided us with an important component for the first volume in our projected four-volume book edition.


Staff News

The staff roster now includes three new assistant editors: two by promotion, and one by recruitment. Research associates Susan Krause and John Lupton were honored in August for their professional achievements since 1993 by promotion to the rank of assistant editor. Both have M.A. degrees in American history, and both recently published articles on Lincoln's law practice. These and future staff title changes signal the project's gradual transition from search and accessioning to editorial tasks.

The third new assistant editor is Daniel W. Stowell, who is moving with his family in mid-October from Gainesville, Florida. Daniel earned a Ph.D. in American history from the University of Florida in 1994, and his dissertation on post-Civil War southern religion is under contract with a publisher. Dr. Stowell also specialized in legal history while a graduate student, and he boasts both training and experience in documentary editing. Among his duties with the Lincoln Legal Papers will be text selection and editing for the four-volume book edition.

Yet another welcome development was the promotion, in September, of research associate Christopher Schnell to a regular appointment through the University of Illinois at Springfield. For the past two years Chris has held temporary contractual appointments, but he emerged as the top choice in the university's search to fill a newly established position. Congratulations and best wishes to Susan, John, Daniel and Chris.



We have submitted a proposal to the National Historical Publications and Records Commission for funding for fiscal year 1998. We have received funding from the commission for seven years, and hope to hear good news on this latest proposal some time in February.

We have received generous contributions to further our work from the following donors: N. Lee Beneze, Mr. Richard C. Bjorklund, Mr. & Mrs. Richard Chrisman, Mr. & Mrs. Walter Dallow, Rodney O. Davis, Charles M. Fraenkel, Malcolm Garber, Lincoln Land Community College Elderhostel, Willis L. Mog, Gregory E. Perry, and Wallace C. Sieh. Contributions in memory of Jim Hickey were made by Brooks Davis, Mrs. Florence K. McMurtry, and Daniel Weinberg. Contributions in memory of Irving Beard were made by Mr. & Mrs. David B. Finney, Jr. and Mr. & Mrs. Jay Mogerman. A contribution in memory of Evelyn L. Spengler was made by Richard E. Hart. A contribution in memory of Rose Anne Davis was made by Mr. & Mrs. Jay Mogerman.


Murder and Capital Punishment

Although the American frontier has always been perceived as violent and lawless, the distinguishing feature of western settlement was the triumph of law and order in initially violent environments. Indeed, after mob violence erupted in 1837 Illinois, Lincoln implored citizens to "Let reverence for the laws...become the political religion of the nation." While vigilantism occasionally occurred, the state's criminal justice system that developed during the antebellum years succeeded both in bringing wrongdoers to justice, and in reflecting the republican ideals of post-Revolutionary America.

Restricting the use of capital punishment, for example, exemplified the transition in thinking about criminal behavior. Colonial Americans regarded crime as sin, and the purpose of criminal law was to punish and deter. Hence, the Puritans of Massachusetts Bay used the death penalty to punish a wide range of crimes, including treason, murder, witchcraft, adultery, rape, sodomy, and arson--among others. Influenced by reformers and the powerful forces of market capitalism and individualism, legislatures and courts of the early republic used the criminal law to defend an economic and political order, and less to guard a code of sexual and social behavior. Rehabilitating the criminal element, inspired by the optimistic republican belief that all persons were capable of self-reformation if placed in the proper environment, became the focal point of criminal justice. Severe and excessive punishments befitted monarchies; mild and benevolent ones characterized republics.

In Lincoln's Illinois, the death penalty was only used to punish those guilty of murder. The state's constitution directed that "the true design of all punishment being to reform, not to exterminate mankind." But Illinoisans seldom found accused murderers guilty of killing with "malice aforethought, either express or implied." Of fifteen murder cases in which Lincoln was involved, four men were found not guilty (one by reason of insanity), two were indicted but not prosecuted, one escaped during trial, six were convicted on the lesser charge of manslaughter, and only two men were found guilty and sentenced to hang.

Illinois courts tended to convict citizens indicted for murder with manslaughter and punish them with imprisonment in the Alton penitentiary. Governor Thomas Ford later wrote that "in all cases of murder arising from heat of blood or in a fight, it was impossible to convict. The juries were willing enough to convict an assassin, or one who murdered by taking a dishonorable advantage, but otherwise if there was a conflict and nothing unfair in it." The decline in the use of the death penalty was a national phenomenon. Even conservative South Carolina reduced the number of capital crimes from 165 to 22 between 1813 and 1850.

Lincoln's criminal cases constituted less than 10 per cent of his case load. That percentage did not reflect Lincoln's lack of interest, but rather the general distribution of criminal, common law, and chancery cases in the docket books of the Eighth Judicial Circuit. Antebellum Illinois was in "the West" during Lincoln's time, but the institutions of law and order had begun to check frontier lawlessness and violence. So much so that Judge David Davis recalled that "There was no portion of the United States in which there was less crime than in the Central counties of Illinois."

The following are summaries of a few of the murder cases handled by Lincoln:

People v. Denton & Denton
Menard County Circuit Court (October, 1847)

James and George Denton were indicted for the axe murder of Cassius Brown. The Dentons pleaded justification by self-defense, claiming that given Brown's "high temper," previous threats, and attempts of violence, they acted in self-defense after Brown assaulted them with a gun. The jury found them not guilty. Lincoln assisted District Attorney Lamborn in prosecuting the Dentons.

People v. Crockett
Moultrie County Circuit Court (November, 1852)

John Crockett was indicted for murder and retained Lincoln to defend him. The jury found Crockett guilty of manslaughter and sentenced him to two years in the Alton Penitentiary. After the sentencing, Crockett's father, Elliott, campaigned to have his son pardoned because John Crockett was feeble-minded. Judge David Davis, state's attorney David Campbell, Lincoln, other attorneys, jurors, county officials from three counties, and residents joined in the petition to pardon Crockett. Crockett's father gave Lincoln a promissory note for his legal services, but died before paying the note. Lincoln sued Crockett's estate for payment in the Shelby County Court. Elliott Crockett was the nephew of Davy Crockett, who died at the Alamo in 1836.

People v. Loe
DeWitt County Circuit Court (May, 1853)

Loe was indicted for the murder of Gray. Lincoln, representing Loe, was granted a change of venue from Sangamon to DeWitt Circuit Court. Lincoln was then granted a continuance allowing time to bring two important witnesses to court. Loe pleaded self defense and contended that Gray had told several people that he intended to meet and fight Loe on the morning of the alleged murder. The jury found Loe guilty of manslaughter and sentenced him to eight years in the penitentiary. Loe was later pardoned, and Lincoln signed the petition.

People v. Wyant
McLean County Circuit Court (March, 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. Wyant was indicted for murder in Dewitt Circuit Court, but received a change of venue to McLean Circuit Court. Wyant's attorneys pleaded not guilty by reason of insanity, claiming that the chloroform given during the amputation of his arm resulted in Wyant's insanity. Many doctors testified for both sides, but 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 was one of the first cases in which the defense applied the insanity plea.

People v. Goings
Woodford County Circuit Court (March, 1859)

The coroner assembled an inquest to discover the cause of Roswell Goings's violent death. The inquest jury ruled that Goings died after his wife, Melissa, struck him on the head with stick of firewood. The state's attorney indicted Melissa for murder, and the court set bail at $1000. Goings retained Lincoln and pleaded not guilty. Melissa failed to appear in court, the court forfeited her recognizance, and issued a scire facias for her capture. She was never found and, later, the state's attorney moved that the case be stricken the case from the docket. Lincoln was allegedly accused of encouraging Melissa to leave the state. Lincoln purportedly responded, "She wanted to know where she could get a good drink of water, and I told her there was mighty good water in Tennessee." No documentary evidence supports the anecdote.

People v. Patterson
Champaign County Circuit (April, 1859)

Dehaven entered Patterson's store to buy a hatchet. Patterson refused more credit until Dehaven paid his account. Dehaven, who was drunk, left angrily, but soon returned and renewed the argument. Dehaven raised a spade to strike Patterson, but Patterson picked up a two pound scale weight and threw it at Dehaven. Dehaven was hit near the left ear and died a few days later. Patterson was indicted for murder and retained Lincoln to defend him. The case was delayed for six months during Lincoln's 1858 U.S. Senate campaign against Douglas. At the trial, the jury found Patterson guilty of manslaughter and sentenced him to three years in the Alton Penitentiary. Lincoln's motion for a new trial was denied. Patterson was pardoned in 1860, and Lincoln endorsed the request.

Copyright, Illinois Historic Preservation Agency
Springfield, Illinois