Lincoln Legal Briefs

July - September 1998, Number 47

Ralph G. Newman

Ralph Newman's death in Chicago on July 23 elicited great sadness in the Lincoln community, and warm tributes for his many accomplishments and services during a long and eventful life. As John Y. Simon declared at the memorial service, Newman was "an American original, a self-made man, and a public relations master."

Other media recounted his success as a book and manuscript dealer, and as a Lincoln authority. To those accolades we will add mention of his keen interest and support for the "Lincoln legals," as our work has been nicknamed for years. Ralph championed the idea long before its implementation, and he was a charter member of our Advisory Board. As late as last spring, when poor health troubled him, Newman facilitated our search of the business papers he had given to the Chicago Historical Society. To us, therefore, he remained a friend and counselor to the end.


The Lincoln Calendar

At this year's Illinois History Symposium in Springfield, December 4-5, one session will feature papers related to Lincoln's law practice. Moderator Eric Freyfogle (University of Illinois School of Law) and commentator William Novak (University of Chicago) will hear presentations by staff members John Lupton Inheriting the Earth: The Law of Succession in Antebellum Illinois and Daniel Stowell Staggering toward Reform: Temperance and Prohibition in Antebellum Illinois.

"Lincoln's Nationalism" is the theme of the Abraham Lincoln Symposium, to be held during the afternoon of February 12, 1999. Presenters include William Lee Miller (University of Virginia), Olivia Mahoney (Chicago Historical Society), Drew R. McCoy (Clark University), and Gerald Prokopowicz (Lincoln Museum). That evening, at the annual banquet of the Abraham Lincoln Association, celebrated author James B. Stewart will speak. For further information about these events, contact Thomas Schwartz (217) 782-2118.


Theft Report

At separate trials during August and September in the Morgan and Sangamon County Circuit Courts, Sean Brown pleaded guilty to stealing hundreds of court documents over a period of several years, including the time he had spent as a project employee. Sentencing in both trials is scheduled for later this fall. Staff members continue to assist county officials and archivists in identifying and returning documents that have been recovered.



We acknowledge with deep appreciation the generosity of the following recent donors: Richard Chrisman, James L. Kappel, Esq., Sylvia Larson, Stephen Mudge, Ravenswood Lakeview Historical Society, and Benjamin Shapell. Sally Schanbacher made a contribution in memory of Ralph G. Newman.  


Complete Edition Update

Much work remains to be done, but progress on The Complete Documentary Edition has reached the point that we can forecast a publication date. This massive electronic corpus of over 100,000 document images and 1.5 million data bits will be released at the end of 1999. Users will benefit from ready access to case and documents facts, a comprehensive name and subject index, short descriptions of every case and non-litigation transaction, and digital images of more than 200,000 pages of records pertaining to Lincoln's law practice. Reference information will include an original essay on Lincoln the lawyer; a description of the antebellum Illinois and federal court systems; an explanation of the prevailing forms of pleading; biographies of many lawyers, judges, and public officials; a Lincoln legal chronology; and a legal glossary, plus background essays on the project's technical and editorial practices and a tutorial to help users efficiently conduct their own searches.

Editor Martha Benner is busy monitoring staff progress on numerous tasks and testing successive prototypes of the CD-ROM product. Extensive proofing of the data and images and testing of the data base will consume much of 1999. Certain technical specifications and the edition's price are yet to be determined, but a product of this magnitude will be of principal interest to academic, law, and special libraries. Readers interested in seeing a descriptive brochure may contact the office for a copy.


Staff News

Assistant Editor William Beard resigned his position in July. Bill was the project's senior employee in service. He designed and oversaw the comprehensive search plan that yielded many more Lincoln documents and cases than anyone had expected, including several hundred previously unknown items in Lincoln's handwriting. He also played an important role in developing and implementing the editorial policy for our four volume book edition. We offer him thanks and best wishes.

At the 20th anniversary meeting of the Association for Documentary Editing (ADE) in St. Louis early in October, Cullom Davis will complete his term as president and Susan Krause will gratefully relinquish her duties as local arrangements chair. Incidentally, previous ADE presidents include Lincoln Legal Papers Editorial Board members Charles Cullen, John Kaminski, and John Simon.


Top Ten Trials

This is the season for compiling and then arguing about lists--the 100 all-time best movies, the 100 best English language novels, etc. In that spirit your intrepid editorial staff has voted its own list, of the ten most important Lincoln cases out of 5,000, including our case briefs. We invite your comments of approval or dissent.

Ashmore for use of Bryant et al. v. Matson (Coles County Circuit Court, October 1847)

In 1845, Matson brought five of his slaves, Bryant and her children, into Illinois. In 1847, he planned to take these slaves back to Kentucky. The slaves believed that they were free because Matson brought them to a free state, and they sought refuge with Rutherford and Ashmore. Matson declared that the slaves were runaways, and the sheriff took them into custody and placed them in jail, from which the court would sell them to the highest bidder. Ashmore, on behalf of the slaves, sued for a writ of habeas corpus to free the slaves. Matson retained Lincoln, who used the doctrine of comity to argue that slave owners could use their slaves for labor in Illinois as long as the slaves were in transit. The court ruled that bringing slaves into Illinois was in "contravention of the Constitution of Illinois" and that Matson forfeited all title to the services of Bryant and her children. The court ruled for Ashmore and declared Bryant and her children free.

Barret v. Alton & Sangamon RR (Sangamon County Circuit Court, November 1851; Illinois Supreme Court, December 1851)

The legislature chartered the Alton and Sangamon Railroad to construct and operate a railroad between Alton, Illinois, and Springfield, Illinois. The charter provided that the railroad could issue stock for $100 per share, with a subscriber paying 5 percent down and the balance in installments called for by the board of directors. Barret subscribed for thirty shares. He also owned 4,215 acres of land in southwestern Sangamon County which bordered the proposed route. Before Barret paid the balance on his stock, the legislature authorized the railroad to shorten the line, thus bypassing Barret's property. Barret refused to pay the installments, and the railroad retained Lincoln and sued to collect the full subscription. Barret pleaded that the charter's alteration voided his subscription agreement. The court disagreed, ruled for the railroad, and awarded $1,351. Barret appealed to the Illinois Supreme Court, which affirmed the judgment and established an important precedent for subsequent stock subscription cases. The development of Lincoln's argument is clear from a series of letters with Martin. Justice Treat relied on Lincoln's citations in writing the opinion and reasoned that unforeseen construction problems concerning a public improvement could not be fully known when the legislature granted a charter. Therefore, the legislature might remedy the situation by amending the charter without the consent of all the incorporators. Treat concluded that a "few obstinate stockholders should not be permitted to deprive the public and the company of the advantages that will result from a superior and less expensive route."

Browning v. Springfield, IL (Sangamon County Circuit Court, November 1853; Illinois Supreme Court, December 1855; Sangamon County Circuit Court, May 1857)

While walking in Springfield, Illinois, Browning fell and broke his leg. Browning retained Lincoln and Herndon and sued the city of Springfield. Browning charged that the city was negligent in keeping its streets in repair. The court ruled for the city, and Browning appealed to the Illinois Supreme Court, which reversed and remanded the judgment. Justice Scates noted that English common law had no remedy against a city for failure to act. However, he cited many authorities in ruling that a municipal corporation, having a specific duty and the means to accomplish it, was liable for negligence if it failed to do so. Specifically, the city charter made it responsible for keeping its streets in repair, and its power to levy taxes and to call all male inhabitants, 21 years or older, to work three days per year on the streets provided the adequate means to perform the duty. Scates realized that the decision was innovative but was "based upon sound sense in accordance with strict morality, and keeping pace with the progress of the improvements of the age." The jury found for Browning and awarded $700 in damages after the case returned to the circuit court. Municipal records show that Herndon received a $150 fee and that the city's attorneys, E. B. Herndon and McClernand, received a $75 fee.

Clark & Morrison v. Page & Bacon (Macoupin County Circuit Court, December 1859)

Clark and Morrison, stockholders in the Ohio and Mississippi Railroad Company, complained that Bacon and Alexander, leading officers of the St. Louis banking house of Page and Bacon, made fraudulent deals in taking over contractors' interest in building the railroad. As a result, Bacon, who was also the railroad's Board president, submitted a bill for $1,158,484.61 as a representative of Page and Bacon. The railroad gave him a promissory note and a deed of trust as collateral. The railroad failed to pay, and Alexander, who was also the treasurer of the railroad, took possession of the railroad and promptly advertised for its sale. Clark and Morrison filed a bill in chancery in the St. Clair County Circuit Court for a receiver to manage the railroad's affairs, for an injunction to stop Alexander from selling the railroad, and for a cancellation of the $1.1 million promissory note and deed of trust. The court granted a change of venue to the Macoupin County Circuit Court because Sidney Breese, the judge in St. Clair County, was a named defendant. Bacon and Alexander retained Lincoln, who responded to the 102-page bill of complaint with a forty-three-page answer and argued that the railroad company rather than the stockholders was the proper plaintiff. After several years of continuances, the court ruled that Bacon and Alexander's conflict of interest voided the promissory note and deed of trust. In a separate federal case, Lincoln secured a favorable settlement for Bacon.

Cowls v. Cowls (Edwards County Circuit Court, April 1846; Illinois Supreme Court, December 1846; Edwards County Circuit Court, April 1848)

Ann Cowls obtained a divorce from her husband, Thomas Cowls, but the court made no provisions for the two children, who remained with their father. Later, Ann Cowls sued Thomas Cowls to gain custody of the children and to obtain an increase in alimony for the children's maintenance. Ann Cowls claimed that Thomas Cowls was living with a prostitute, whom he married two weeks before the custody suit began, that he fought with his new wife and swore in front of the children, and that he was habitually intoxicated. The court granted Ann Cowls custody of the children, and maintenance of $60 per year for five years. Thomas Cowls retained Lincoln and appealed to the Illinois Supreme Court, which affirmed the decree. Thomas Cowls argued that the circuit court refused to allow him to take depositions, but the supreme court ruled that the lower court had allowed him to present any evidence and that the case did not warrant a continuance for depositions after the court had sufficient evidence for a ruling. The supreme court confirmed that a chancery court had an ancient right to interfere and control the estates, persons, and custody of all minors. The court also implemented the "best-interest-of-the-child" doctrine, which recognized that it was the special duty of a republican government to oversee the care and education of children so that they might become useful citizens. Lincoln and Herndon received $20 for their legal services.

Hurd v. Rock Island Bridge Co. ( U.S. Circuit Court, Northern District of Illinois, August 1857)

The steamboat Effie Afton was traveling on the Mississippi River to St. Paul, Minnesota, and tried to pass under a newly-built railroad bridge at Rock Island, Illinois. The steamboat hit one of the piers, hit another pier, caught fire, and sank into the river. Hurd and others, captain and owners of the Effie Afton, attempted to secure the legal services of Stephen A. Douglas, but Douglas apparently did not accept. Hurd and others sued the Rock Island Bridge Company in an action of trespass on the case for damages to recover the value of the lost ship and cargo. The case was one of several lawsuits pitting the two main transportation interests--river and railroad--against each other. Hurd and others argued that the bridge was an obstruction to navigation because the piers were not parallel to the river current. The bridge company retained

Lincoln, who argued that the ship operators had acted incompetently in moving the Effie Afton between the piers and showed that fewer than one percent of the boats passing under the bridge had had an accident. The jury failed to agree on a verdict. Apparently, the court did not try the case again.

Illinois Central RR v. Allen (Macon County Circuit Court, August 1863; Illinois Supreme Court, January 1866)

Allen claimed that the Illinois Central Railroad created a pond by damming a gully and that the stagnant pond caused illness in his family. He sued the railroad and requested $1,000 in damages. The railroad retained Lincoln and argued that the issue had been decided at a previous trial and that the railroad had paid the judgment. The court granted a change of venue to the Macon County Circuit Court, where the jury found for Allen and awarded $25. The railroad appealed to the Illinois Supreme Court. The court reversed the judgment, citing a previous judgment for Allen on the same issue. The court ruled that the injury was against a former owner of the land, that Allen had requested new drainage to clear the pond, but it did not work, and that Allen could not maintain an action against a performance he requested. be continued......

Illinois Historic Preservation Agency
Springfield, Illinois