Reviews of "The Papers of Abraham Lincoln: Legal Documents and Cases"

Lincoln Herald 110, no. 2 (Summer 2008)

Reviewed by Allen C. Guelzo, Gettysburg College

Lincoln Herald 110 (Summer 2008): 143-47.

The Papers of Abraham Lincoln: Legal Documents and Cases
Daniel W. Stowell, General Editor.
Four volumes, 1434 pages (glossary, index, biographical directory, appendices).
University of Virginia Press, Charlottesville, VA, 2008
Price: $300.00

The Lincoln Legal Papers project has, like Roy P. Basler's Collected Works of Abraham Lincoln, acquired a history of its own in the 25 years, since Illinois governor James Thompson first urged the creation of the project.  At first, it was conceived largely as an addendum to the Basler edition, providing the legal paper-trail of Abraham Lincoln, which Basler had deliberately chosen to exclude.  Over the next two-and-a-half decades, the 'Lincoln Legals' have gone through three directors (George Curtis, Roger Bridges, and Cullom Davis) and are well into the tenure of the fourth (the amiable and tenacious Daniel Stowell) and have mushroomed from a supplement into an editorial behemoth, which now overshadows the Collected Works and is slated to become the core of an even more mammoth undertaking, The Papers of Abraham Lincoln.

The beginnings of the 'Lincoln Legals' were anything but promising.  The archives of the federal district and circuit courts, where Lincoln practiced in the 1850s, were consumed in the Great Chicago Fire of 1871; other Lincoln documents, routinely filed by clerks in the 100 county courthouses across Lincoln's Illinois, were easy to filch and disappeared into the hands of souvenir hunters.  Others had been damaged in storage or simply promised to yield little beyond the most tedious procedural details of Lincoln's life.  Nor did William Herndon help matters by giving away legal documents in Lincoln's hand to numerous collectors and autograph-seekers.  This left students of Lincoln's legal practice, not to say biographers, who wanted to make sense of the profession that Lincoln devoted most of his life to, hamstrung for materials.  Either the materials were assumed not to have survived, or they survived in such condition or such places as to be unusable, or they could be of no real consequence anyway to readers who had no idea of what distinguished a nolle prosequi from a nolo contendere.  The result was that, in the handful of books which did focus on Lincoln's legal career---Frederick Trevor Hill's Lincoln the Lawyer or John Paul Frank's Lincoln as a Lawyer---a handful of well-known cases (like the Beardstown "almanac trial") and a broad amount of lawyerly speculation had to bear the weight.  If anyone outside the professional circles of lawyers read these books, their numbers were disappointingly few.

This began to change in the 1990s, as American legal history moved out of the cocoon of legal professionalism and started to establish bridgeheads on the shores of American cultural and political history, beginning with Morton Horwitz's The Transformation of American Law (two volumes, 1977 and 1992).  From the other side, cultural and political historians began to understand how deeply connected political ideology and cultural formation was with the development of American legal theory, an understanding given dramatic color in Charles Sellers' famous comment in The Market Revolution (1991) that American lawyers of Lincoln's day were "the shock troops of capitalism."  American law in the age of Jackson, Sellers argued, underwent a significant and ominous reconfiguration, from being the enforcer of public morality (as it had been in colonial times) to becoming the enforcer of private contract; and it did so at just the moment when the Industrial Revolution was sacrificing E. P. Thompson's "moral economy" on the altar of private capitalist accumulation.

There have been plenty of critics since then, pointing to the flaws and sensationalism in Sellers' quasi-Marxist argument (the best of the critics being Mark Steiner's An Honest Calling: The Law Practice of Abraham Lincoln in 2006).  The image of Lincoln, deeds and depositions in hand, leading the charge of the bourgeoisie against feudal Jacksonian agrarians, was too refreshing and too radical not to suffuse the entire picture of the pre-presidential Lincoln with unsuspected color.

The 'Lincoln Legals' project provided more than enough oil for the color.  The singular achievement of the 'Lincoln Legals' was its refusal to accept the prevailing judgment that little of Lincoln's legal paperwork had survived, or if it had, that it would tell no interesting tales.  Spreading out across the Illinois countryside to courthouse after courthouse, the 'Lincoln Legals' research assistants were resolute in their disbelief that everything to see had been seen (a principle which had also animated a large part of the surge of Lincoln research in the 1990s); and that resolution was rewarded by the discovery of 96,000 documents bearing Lincoln's impress in some form, and case record of 5600 cases, from the smallest trespass-and-assumpsits to appeals all the way up to the U.S. Supreme Court.  For the first time, the sheer volume of the Lincoln legal record permitted the outlines of Lincoln's law practice to emerge clearly and distinctly: a civil lawyer (with little or no interest in criminal law), pre-occupied mostly with property litigation and debt collection, and frequent figure in railroad cases (both for and against railroads).

There was no question about transcribing and publishing all this into the book-format of the Basler Collected Works; no question, either, about even being able to accommodate it all as images on microfilm.  So in 2000, the Lincoln Legal Papers Project took the unprecedented step of committing the vast traces of the Lincoln law practice to three DVD-ROMs as The Law Practice of Abraham Lincoln: Complete Documentary Edition, from the University of Illinois Press, creating what amounted to an enormous slide show for computer screens of every legal document with a Lincoln connection.

Still, even in the Age of Digits, there remains a shamefaced longing to pull down a re-assuring codex from a library shelf.  Stowell and the project's assistant editors never quite bring themselves to the point of admitting that the lure of the letterpress is still considerable, or that far fewer technical or mechanical obstacles stand in the way of leafing through a book than downloading a DVD.  Nostalgia is, after all, a poor excuse of hard-copy, especially considering hard-copy's production costs.  Nevertheless, with the Complete Documentary Edition behind them and the Papers of Abraham Lincoln before them, Stowell and the project staff have, with a great conservative sigh of satisfaction, produced a four-volume print edition of prominent selections of documents from Lincoln's legal practice, transcribed and annotated, and published this spring by the University of Virginia Press (the University of Illinois Press having blanched ignominiously, but prudently, at the costs of production).

Prefacing the documents in volume one is a brilliantly-concise preface of forty-two pages, describing Lincoln's entrance into lawyering in 1837 and carrying a historical description of his practice to 1861; this is followed by a section of extracts from Lincoln's letters and recollected sayings about the practice of law.  From there, we move at once into the cases, arranged so as to provide samples and illustrations of the most important segments of Lincoln's legal practice---divorce, breach of contract, bankruptcy, inheritance, slander, personal injury, railroads, patent infringement, conveyancing, and debt.  There are, almost unavoidably, documents representing the most high-profile of Lincoln's cases:

  • the Matson slave case (volume two, containing the texts of the original writs, public notices, suits, costs, habeas corpus petitions, final decree, plus correspondence and reminiscences from Hiram Rutherford and Orlando B. Ficklin)
  • the Rock Island Bridge case (volume three, containing eighty pages of newspaper reports, affidavits, letters, transcripts of testimony, cross-examination, and Lincoln's closing argument)
  • the Beardstown "almanac" case (volume four, containing the indictment, instructions to the jury, and letters and reminiscences)

But there are fifty other cases, too, presented with the same meticulous assemblage of documents, each case enjoying explanatory introductions and substantial footnoting, to give a broader sense of Lincoln's law practice.  This includes Dungey v. Spencer from 1855 (a suit in which Lincoln acted as counsel for William Dungey, a white man suing Joseph Spencer for slander because Spencer had claimed that Dungey "is a negro"), People v. Vandeventer from 1850 (a rare criminal case involving a nearly-fatal family quarrel), and Grable v. Margrave, from 1840 (a paternity suit).

Interspersed between cases and documents are occasional narrative chapters on "A Term in the Sangamon County Circuit Court" and "A Tour of Two Circuits with Lincoln" (to give some sense of the context of the 8th Judicial Circuit), plus appendices on Lincoln as a court official (temporary judge, guardian, commissioner), the hierarchy of the various courts of Lincoln's Illinois, and even a biographical dictionary of the principals in all the cases.  This follows the pattern of the DVD-ROM Complete Documentary Edition, but without the pull-down menus, keystrokes, and search processes which have been known to befuddle scholars suckled on an index.

There is, in the end, nothing to satisfy the ultimate Lincolnian but the full collection of the Complete Documentary Edition, despite its forbidding cost ($500 from the University of Illinois Press)---and given that the four volumes of the print edition price-out at a hefty $300, the value per case is surely on the side of the DVD edition.  Nor will the print edition settle the larger question of the cultural and political meanings of Lincoln's law practice.  Was he a legal paladin of the corporations?  Or was he a Robin Hood who protected the Hannah Armstrongs and Melissa Margraves from the powerful and arrogant?  The purpose in this selection is illustration, ranging as comprehensively and topically as possible, not the assembling of a case in itself for Lincoln-as-this or Lincoln-as-that.  Perhaps, in the end, Lincoln was neither paladin nor crusader, but simply a lawyer earning a lawyer's keep as best he could.  Of course, the fact that four volumes of sampling could turn up no over-riding ideological pattern in Lincoln's law practice is itself an argument---or perhaps merely the place to begin one.