Papers Of Abraham Lincoln

Abraham Lincoln to Gustave P. Koerner, 7 February [1858]1
Springfield, Feb. 7. 1857[1858]2Hon: G. KoernerMy dear Sir:
The Court, on yesterday, overruled, the Demurrer to Hatch’s Return in the mandamus case–3 They merely announced that they over-ruled the demurrer, stating no ground, or reason for doing so– Let this be confidential, but Peck told me that in the consultation room, they unanamously declared in his presence, that if the Gov^r had signed the Bill purposely, ^he^ had the right to change his mind and strike his name off, so long as the Bill remained in his control–4

M^cClernand was present when the decision was announced, said nothing about pleading over; & I presume the matter is ended5
Yours as everA. Lincoln 6

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[ docketing ]
02/07/1858
Koerner, Gustave P.

A. Lincoln
feb.[February] 7. 58[1858]
Springfield Ill[Illinois]7

1Abraham Lincoln wrote and signed this letter.

2Lincoln mistakenly gave the year of composition for this letter as 1857. Based on his similar letter to Joseph Gillespie dated February 7, 1858, and on the lawsuit under discussion having been decided in the Illinois Supreme Court in February of 1858, this letter was composed in 1858, and not in 1857.
People ex rel. Lanphier & Walker v. Hatch, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, 2d edition (Springfield: Illinois Historic Preservation Agency, 2009), http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=139920.

3The mandamus case under discussion is People ex rel. Lanphier & Walker v. Hatch. A mandamus is a writ by which a court exercises its authority over a public official and compels them to perform an official duty. In this instance, the official was Illinois Secretary of State Ozias M. Hatch, who had been sued in the Illinois Supreme Court for a writ of mandamus to furnish state printers Lanphier & Walker of the Democratic Illinois State Register with a true copy of an 1857 bill apportioning representation in the Illinois General Assembly. The bill had been drafted and supported by the Democrats with an eye towards maintaining their party’s majority in the General Assembly. The Illinois House of Representatives passed the bill on February 16, 1857, and the Illinois Senate concurred on February 18. Republican Governor William H. Bissell mistakenly signed the bill then cancelled his signature after his secretary had already reported his approval to the House. Hatch was represented in this case by Lincoln, Orville H. Browning, and Jackson Grimshaw. Neither Koerner nor Gillespie were attorneys of record on this case, although Lincoln had earlier written similar letters to both requesting their consultation on the matter.
A demurrer is an exception by either party of a lawsuit to the points of law made by the other party. Judges either sustain or overrule the demurrer, and if the demurrer is overruled, the demurring party can re-plead on the facts of the case. In People ex rel. Lanphier & Walker v. Hatch Secretary of State Hatch had answered the charges against him with a return in which he stated that Governor Bissell had never intended to approve the apportionment bill, had stricken his signature and issued a veto when he realized his mistake, and that Hatch himself had never had possession of the bill prior to Bissell’s signature being cancelled. John A. McClernand, one of the Democratic attorneys representing the plaintiffs, had demurred this return on the grounds that it was insufficient in law.
People ex rel. Lanphier & Walker v. Hatch, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=139920; “Mandamus”; “Demurrer,” Reference, Glossary, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Reference.aspx?ref=Reference%20html%20files/Glossary.html; Daniel W. Stowell et al., eds., The Papers of Abraham Lincoln: Legal Documents and Cases (Charlottesville: University of Virginia Press, 2008), 4:64-91; Illinois House Journal. 1857. 20th G. A., 907-10, 1004, 1018; Illinois Senate Journal. 1857. 20th G. A., 760; Abraham Lincoln to Joseph Gillespie; Abraham Lincoln to Gustave P. Koerner.

4Illinois Supreme Court Chief Justice John D. Caton stated in the opinion on this case that the apportionment bill had never become law because it had remained in Bissell’s possession until he realized his mistake and struck his signature. Justice Sidney Breese entered a separate opinion on the case in which he agreed on this point and maintained that government departments had the right to reconsider a decision as well as the power to correct mistakes. Breese further argued that since the bill remained in Bissell’s custody until he discovered his error, the governor was only bound by his final action upon a bill, in this case returning it with his signature cancelled and with an objection, rather than by the actions of his secretary in reporting the governor’s approval.
Opinion, Document ID: 122253, People ex rel. Lanphier & Walker v. Hatch, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=139920.

5No evidence has been found of McClernand repleading this case.
People ex rel. Lanphier & Walker v. Hatch, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=139920.

6No further correspondence between Lincoln and Koerner on this subject has been located.

7Koerner wrote this docketing.