Lincoln Legal Briefs

April - June 1998, Number 46

Charles A. Bane

We regret to report the death of Charles Bane, a distinguished lawyer, prominent humanitarian, and lifelong student and admirer of Abraham Lincoln. Son of a poor coal miner, Bane emulated his Springfield hero by so excelling in school that he attended the University of Chicago, Oxford University as a Rhodes Scholar, and Harvard University Law School. His legal career was in Chicago, where he became a senior partner in the prestigious firm of Isham, Lincoln and Beale, founded by Robert Todd Lincoln. Through his legal writings and service to the bar, he gained national stature in his profession.

Bane also won acclaim for his public service against organized crime, and in support of civil rights and community charity. After retiring, he intensified his study of Lincoln, especially his legal career, and gathered materials for a book on the subject. While that project remains unfinished, he did make notable contributions to The Lincoln Legal Papers through service on its Advisory Board, which continued to his death in West Palm Beach on April 5. We offer condolences to his surviving wife and four children.


Staff News

Every available chair and table is in use this season, as summer employees and volunteers have joined the regular staff in our crowded project offices. Mary Ann Armstrong, Hugh Drake, and Mary Jane MacDonald continue performing valuable research services as part-time volunteers. College students Jeni Bahl and Jo Benner have returned for the summer, assuming even more demanding tasks, and Miriam Stowell continues to proof document images and master other tasks. Two new faces are those of Carol Lubrant and Tracy Berner. Carol is a graduate student in history at UI Springfield, where Tracy will enroll this fall, beginning a term as the project's graduate assistant. We welcome these new and returning colleagues who immeasurably lighten the massive burden of preparing The Complete Documentary Edition for publication.

Staff accomplishments were unusually noteworthy during the spring quarter. Our talented and gracious secretary, Carmen Morgan, has been promoted to a regular position with full benefits. Both Bill Beard and Christopher Schnell contributed articles to The Lincoln Newsletter, Bill's on Lincoln and Illinois fencing law and Christopher's on Lincoln's professional rivalry with Stephen A. Douglas. Stacy McDermott wrote a featured article for The Record, a news magazine of the National Archives, noting the key role of archivists in our successful document search. Dennis Suttles published an interesting account of ethnic-sectarian struggle in The Journal of Presbyterian History, and he also was admitted to the highly competitive graduate library science degree program at the University of Illinois. Cullom Davis delivered a paper on Lincoln's federal practice at the inaugural symposium in Washington, D.C. of the Abraham Lincoln Institute of the Mid-Atlantic.

Conspicuously productive was Daniel Stowell, who delivered two papers on Civil War topics at national conferences in Florida and Virginia, won an award for the best article in Baptist History and Heritage during 1997, delivered another paper on Lincoln's practice in Macon County at a June conference in Decatur, and published an important monograph, Rebuilding Zion: The Religious Reconstruction of the South, 1863-1877 (Oxford University Press). The book is based on Stowell's prize-winning dissertation at the University of Florida.



We acknowledge with deep appreciation the generosity of the following recent donors: Richard Bjorklund, Boyd Travelers Inc., Brooks Davis, Cullom Davis, Professor Rodney O. Davis, Richard Dyke, Ginger Harmon, John Hayes, Esq., Wesley Horton, Roy Licari, Benjamin Levin, Michael Musick, James O'Gorman, J. Clinton Pittman, Dorothy B. Richardson, David Taube, Sarah Thomas, David B. Miller in memory of Robert E. Miller, The Honorable and Mrs. Harlington Wood Jr. in memory of Lucille Bauer. An in-kind donation was received from Margit and Joseph Rogers.  


Lincoln Legal Database, Part Two

In a prior issue of Lincoln Legal Briefs, we presented a statistical portrait of Lincoln's law practice, drawn from the information contained in our database. The database itself is substantially complete, although we will make minor corrections and additions as we review our work and finish our county "go-backs." We are also still indexing and briefing Sangamon County records, but we are now over half finished with this enormous but essential task.

It should come as no surprise to our readers to learn that the general description of Lincoln's law practice for the most part also describes his practice in Sangamon County. In the mid-nineteenth century, Sangamon County was a locus of government, business, finance, transportation, and population. The state legislature, the Illinois Supreme Court, and the federal courts for Illinois all met in Springfield. This combination of social, political, economic, and legal factors produced a concentration of legal work, on which Lincoln and his partners built their successive practices. Of Lincoln and his partners' entire caseload, 2,417 cases (or just over 50 percent of the total of 4,774 cases) began, passed through, or were resolved in one or more Sangamon County courts. Of the 2,417 cases, 2,281 were decided in Sangamon County (mainly at the circuit court); and 102 were appealed to the Illinois Supreme Court. Change of venue motions brought cases that began in other counties to Sangamon County, and its cases were judged in other counties: Cass, Clinton, DeWitt, Fulton, Macon, Macoupin, Menard, Montgomery, Schuyler, Christian, Morgan, Peoria, Piatt, and Tazewell.

When we first compiled our "seed list" for Lincoln's practice in Sangamon County, we were faced with an astonishing list of 3,212 cases. As was our procedure for each county, we cast a wide net in Sangamon County, preferring to err on the side of inclusiveness. After careful scrutiny of the Sangamon County case list, the removal of duplicate entries, and additional biographical research regarding the law partnerships of various Sangamon County attorneys, we were able to winnow down that list. The judge's dockets for the Lincoln period included more than eight hundred appearances of cases handled by McClernand and Herndon. Initially, we were uncertain whether or not the Herndon in those cases was William H. Herndon, Lincoln's third law partner. We soon found that Elliott B. Herndon, William's brother, was the attorney who practiced with McClernand, and were able to remove all of those cases, considerably reducing the original number. As well, throughout the accessioning process we collapsed many cases from the seed list, reducing the number yet again. Although the number will vary slightly as we continue to refine our data, we are decidedly closer to an accurate count.

Although 336 Sangamon County cases in our database originated in Justice of the Peace (JP) courts, only 30 of those cases ended there. At first glance, one might interpret this statistic to mean that litigants were quick to appeal a JP's decision to a higher court. However, most JP records were kept by the individual JP, and few of those records have survived. Fortunately, we do have a good sampling of cases that appeared at the lower courts--336 at the Justice of the Peace Courts, 15 at the County Court, 10 at the Municipal Courts, and 5 at the County Commissioners' Court. These cases will help researchers understand the structure and functions of various antebellum Illinois courts, even though they do not adequately reflect the scope of the lower court dockets.

As with Lincoln and his partners' overall practice, over two-thirds of his Sangamon County caseload was concerned with common law cases. Another quarter (27 percent) were from chancery (equity) law, while only 1 percent was concerned with probate. Initially more surprising is the fact that only 3.3 percent of their Sangamon County caseload was criminal cases, a substantial difference from the 5.4 percent for the overall practice, which is itself well below earlier historians' estimates. However, this statistic must be interpreted with special caution. Because the Sangamon County Circuit Court criminal case files have not survived for us to examine and the judges' dockets rarely listed defendants' attorneys, we have undoubtedly undercounted the number of their criminal cases, based only on the surviving documentation.

As with their practice as a whole, much of Lincoln and his partners' Sangamon County practice was devoted to lawsuits involving breaches of contracts and the collection of debts. Among the twelve most frequent legal actions, seven (assumpsit, debt, foreclose mortgage, petition and summons, attachment, sell real estate [to pay debts] and trespass on the case) were devoted to these issues and accounted for 51 percent of the cases. Divorce accounted for 3 percent of the cases, bills in chancery 4 percent, partition 3 percent, and replevin another 2 percent. The ten most common actions in Sangamon County were the same as for the practice as a whole, with one exception. In Sangamon County, attachment replaced ejectment as one of the most common actions. The most common criminal action was larceny, the offense in twelve cases.

Sangamon County courts dismissed 26 percent of the cases that came before them. Plaintiffs won in an overwhelming 56 percent of the cases, while defendants triumphed in only 7.5 percent of the cases. The dramatic success rate for plaintiffs reflects at least two facts about antebellum Illinois law. First, because many of these suits were to collect debts, the defendants had little defense. They had gone into debt, their creditor sued, and the court ruled for the plaintiff-creditor. Second, in some cases, defendants defaulted (did not appear in court). In the absence of any answer from the defendant to the plaintiff's complaint, the courts rendered a judgment for the plaintiff.

The remaining 10 percent of cases were a combination of appeals and unknown judgments.

The cadence of Lincoln and his partners' Sangamon County practice followed the general trends of their overall practice. Two periods of greater activity--in the late-1830s/early-1840s and through most of the 1850s--were separated by a lower volume of cases between 1845 and 1850. Much of this trough is attributable to Lincoln's absence from November 1847 to

March 1849 to serve in Congress. The volume of Lincoln's practice also dipped during the 1854 and 1858 elections. In the latter year, Lincoln filled in as judge for David Davis in ninety-five cases (primarily in Champaign County), which masks the total number of cases that he and Herndon handled as attorneys.

While the overall number of Sangamon County cases that Lincoln and his partners handled stayed relatively consistent between 75 and 150 per year, the total number of cases that the practice handled grew over time. As the practice expanded in the federal courts, the Illinois Supreme Court, and perhaps on the circuit as well, the relative importance of the Sangamon County practice diminished. Sangamon County also declined as a venue for Lincoln's practice after 1857, when the legislature removed Sangamon County from the Eighth Judicial Circuit and transferred it to the newly created Eighteenth Judicial Circuit. Lincoln continued to concentrate his practice on the reduced Eighth Circuit, while his partner Herndon handled many of the cases in Sangamon County. Accounting for nearly two-thirds of the Stuart-Lincoln case load in the late-1830s, the Sangamon County practice composed nearer one-third of the larger Lincoln-Herndon case load in the late-1850s.

Illinois Historic Preservation Agency
Springfield, Illinois