Lincoln Legal Briefs

January - March 1997, Number 41

Latter-Day Circuit Rider

In February Michael Duncan resigned from the project staff, leaving his colleagues much poorer but Lincoln students much richer for the extraordinary contributions he made. Towering above all his other services was his steadfast toil, for six years, as our chief field researcher. Almost without a break, he worked with (and often led) nearly every search team in the 88 Illinois counties and dozens of repositories we visited. Logging countless miles and working in uncomfortable conditions, Michael befriended scores of circuit clerks and other county officials. Most impressive to his peers was the intuitive genius he displayed for uncovering rare Lincoln legal documents in unlikely locations. In a group of sharp-eyed "Lincoln Legal Eagles" he was the sharpest and the most productive, finding many important records. He was, in short, a letter-day circuit rider, painstakingly reconstructing Lincoln's legal career from the surviving traces.

Michael performed a vital service to Lincoln scholarship. All of us are in debt, and wish him well.


A Valuable Gift

For many years Springfield's Sangamon County Abstract Company was owned locally, by the Kelly family. Surviving family members are Nancy Daigh and Joanne Radcliffe. In February they took the trouble to visit Springfield and donate old company record books and related materials to The Lincoln Legal Papers and to Lincoln (Public) Library. Among the records dating back over 100 years is a journal that recorded real estate transactions related to court proceedings. With so many Sangamon County court papers forever lost, this journal fills a small but vital gap. We appreciate Mrs. Daigh's and Mrs. Radcliffe's foresight and generosity in preserving rare company files that help shed light on some of Lincoln's real estate work.



The National Historical Publications and Records Commission recently announced a new annual grant, for the fiscal year beginning July 1, 997. This is the eighth consecutive NHPRC grant, but the first not to surpass the previous year's support level. Next year, like the present, we will receive $63,000, comprising an important 15 per cent of the project budget. There are ever-increasing demands on NHPRC's slender resources, which congress has not increased in many years.

We acknowledge with deep appreciation the generosity of the following donors: Mr. & Mrs. Dan Bannister, Glen L. Bower, Esq., Kirtley W. Brown, Willard Bunn, Jr., Willard Bunn III, Martin C. Carlino, Burrus Carnahan, John R. Chapin, Honorable Avern Cohn, Mr. & Mrs. Sheldon Cohen, George M. Craig, George M. Curtis III, Dr. & Mrs. John Davidson, Mr. & Mrs. Robert W. Dickerman, Elizabeth Dixon, Mr. & Mrs. Richard Drake, Edgar County Genealogical Society, Luann Elvey, Hazel G. Fisher, Tom Forgue, Mr. & Mrs. Guy Fraker, Jacques Gaffigan, Betty Hickey, Honorable Lynn N. Hughes, Mr. & Mrs. Kurt Kausler, Mr. & Mrs. Stankey N. Katz, Charles W. Keaton, Elizabeth Kerr, The Law Club of the City of Chicago, Harvey Lemmen, Keith Letsche, Esq., Benjamin Levin, Joshua M. Levin, Dr. & Mrs. Alfred J. Lipsey, John M. Lloyd, Dan Madsen, Honorable Abraham Lincoln Marovitz, Janet Meyer, Meyer Boswell Books, Inc. Mr. & Mrs. Larry Millstead, Mr. & Mrs. James Myers, R. K. O'Connor, Robert Ochs, Joyce Peugh Pate, Gregory M. Perry, Esq., James R. Potter, Dorothy B. Richardson, Evlyn Sams, Josephine B. Saner, The Sauer Family, Stephen, Donna, Jenifer and Jason, Dorothy Schmidt, David W. Simon, Mr. & Mrs. Harvey Stephens, Mr. & Mrs. F. John Taylor, Tazewell County Bar Association, John T. Trutter, Frederick Walker, Don Wilson, Mr. & Mrs. Douglas Wilson, Bruce Woner, Honorable & Mrs. Harlington Wood, an anonymous donor. Contributions in memory of Olive Foster were made by Mr. & Mrs. Charles Becker and Frederick Hoffman. A contribution in memory of James T. Hickey was made by C. E. Van Norman, Jr. A contribution in memory of Henrietta Roach was made by Mr. & Mrs. Charles Becker.


Litigating Morality II: Sexuality

Antebellum Illinois legislators and judges were concerned about the moral order of their society and punished offences against public morality in the areas of gambling, sexuality, and alcohol. Lincoln and his partners were involved in at least twenty cases in the Illinois courts involving sexual misconduct. Though not frequent, prosecutions of individuals for adultery, bestiality, bigamy, fornication, incest, prostitution, and sodomy demonstrated nineteenth-century courts' commitment to regulating sexual behavior by punishing deviations from broad public standards of conduct.

More common were suits charging bastardy or seduction, sexual crimes with conspicuous economic consequences. If the father of a bastard child failed to care for him or her, the society-at-large might have to bear part of the costs of supporting both the child and the mother. Illegitimate children, like multiple spouses, not only offended public morality, they also posed a threat to the orderly disposition of property through inheritance. Because real property was the primary source of wealth and livelihood on the prairie, bastardy was a serious crime. Illinois statutes provided relief to individuals affected by this crime. A woman could sue the father of her illegitimate child for the "support, maintenance, and education of such child." If found guilty of bastardy, the father had to pay up to $50 per year for seven years to support the child. However, the father had the right to take custody of the child when he or she reached three years of age.

Although fornication was a crime for which both the man and the woman could be prosecuted, seduction, defined by an antebellum legal dictionary as "the offence of a man who abuses the simplicity and confidence of a woman to obtain by false pretenses what she ought not to grant," was not a criminal misdeed. However, the common law provided some redress for this offense by allowing a parent to sue the "seducer" for the loss of the pregnant daughter's labor. In the 1842 seduction case of Grable v. Margrave, Lincoln represented the father and argued before the Illinois Supreme Court that damages should not only compensate for lost services but also set an example by punishing the seducer. The court, relying upon Lincoln's argument, ruled that "the loss of service is still the legal foundation of the right to recover" but courts had extended the rule of damages to serve "the double purpose of setting an example, and of punishing the wrong-doer." The supreme court affirmed the lower court's judgment against the seducer. In the 1846 seduction case of Anderson v. Ryan, however, Lincoln represented the seducer and argued before the same court that the jury could not infer loss of services; the plaintiff must prove the loss. The supreme court rejected Lincoln's argument and ruled that when a parent sued, proving loss of services was unnecessary. Seduction cases should serve to "punish the perpetrator of a flagitious [villainous] outrage upon the peace and happiness of the family circle."

Charges of sexual misbehavior were also frequent in slander and divorce cases. Lincoln and his partners handled over three dozen slander or divorce cases in which one party accused the other of improper sexual activity. Interestingly however, even when a court granted a divorce on the grounds of adultery or bigamy, the state's attorney rarely prosecuted the offending spouse for the crime. Similarly, if a defendant in a slander case insisted that his or her words were true regarding sexual impropriety and won the case, the state's attorney was very unlikely to prosecute the plaintiff.

Statutes supporting sexual morality remained on the books throughout the antebellum period. Although Illinois courts were not strict in their enforcement of these laws, they did prosecute sexual offenses with enough regularity to demonstrate their commitment to moral order. They were especially concerned with sexual behavior, such as fathering an illegitimate child, that posed a threat to property rights and economic stability.

Grable v. Margrave
Gallatin County Circuit Court (1841); Illinois Supreme Court (1842)

Margrave sued Grable for seducing his daughter, and sought $5,000 in damages for his loss of her services during the ensuing pregnancy and birth. The jury found for Margrave and awarded $300. Grable appealed to the Illinois Supreme Court. Grable argued that evidence regarding the pecuniary ability of the litigants was inadmissible. Lincoln represented Margrave on the appeal and argued that damages naturally covered the loss of services, but cited three English cases which extended compensation to include "the double purpose of setting an example, and of punishing the wrong-doer." Evidence regarding the defendant's wealth was necessary to establish a meaningful punishment. The supreme court affirmed the judgment and based their opinion upon Lincoln's argument.

People v. Klein & Hosey
Menard County Circuit Court (1845)

The state's attorney indicted Klein and Hosey in the Sangamon County Circuit Court for adultery and fornication. Klein and Hosey retained Lincoln and pleaded not guilty. The jury failed to reach a verdict, and Klein and Hosey requested a change of venue. The court granted a change to the Menard County Circuit Court. The state's attorney decided not to prosecute further, and the court dismissed the case.

Anderson v. Ryan
Coles County Circuit Court (1845); Illinois Supreme Court (1846)

Anderson allegedly seduced and impregnated Ryan's daughter. Ryan sued Anderson in the Coles County Circuit Court for the loss of his daughter's services. The jury found for Ryan and awarded him $656. Anderson retained Lincoln and appealed to the Illinois Supreme Court, which affirmed the judgment. Lincoln argued that the lower court erroneously instructed the jury to infer a loss of service rather than to require proof. Loss of services was the traditional basis for a seduction case, but the supreme court, hearing such a case for the first time, rejected loss of services as the necessary grounds when a parent brought the suit. Arguing that other courts in England and America had discarded loss of services in favor of "the loss of character and happiness of the unfortunate female, and the consequent injury inflicted upon the heart of the parent," the court insisted that seduction cases brought by a parent were no longer designed to recover damages for loss of services but to punish the seducer.

People ex rel. Dunn v. Carle
Champaign County Circuit Court (1851)

Dunn retained Lincoln and charged that Carle fathered her child. The state's attorney, on Dunn's behalf, indicted Carle for bastardy. The jury found that Carle was the father and ordered him to pay Dunn $50 per year in child support.

Dunn v. Carle
Champaign County Circuit Court (1851)

Carle allegedly seduced Nancy Jane Dunn, and she gave birth to a bastard child. Zephaniah Dunn retained Lincoln and sued Carle for seduction, because he lost the services of his daughter while she was pregnant. The jury found Carle guilty and awarded Dunn $180.41 in damages. Dunn remitted the damages, and in return Carle agreed not to challenge Nancy Jane Dunn for custody of the child.

People v. Brewer
Vermilion County Circuit Court (1854)

The state's attorney indicted Brewer for keeping "a common ill-governed and disorderly house to the encouragement of fornication." Brewer retained Lincoln and pleaded not guilty. The jury found Brewer guilty, and the court fined him $20.

Illinois Historic Preservation Agency
Springfield, Illinois