Henry West to Abraham Lincoln, 16 June 18581
Leroy Ill June 16th 1858A Lincoln Esq.[Esquire]Springfield Ill.Dear SirYour letter of the 11th2 has just come to hand in which you say you dont think the 11th Article of the Constitution covers the case But was made to cover some old French
grants.3 The Constitution of the U States says No Legislative Boddy shall have power to pass Retrospective laws and here we have a Retrospective Constitution
if you are correct4 How ever I will not Bandy words on that subject I have something more explicite and directly to the point. The 13th article of the Constitution says No law impairing the obligation of contracts shall
ever be made5 Now Sir the Supreme Court has decided that Whatever Rights of property we have held derivatively are founded
in and Rest upon contract by force of which under the laws of society we may hold
enjoy and protect what we thus have And it matters not in
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Principle whether the property Rests in contract executory or executed in grant from
an individual or from Government in action or possession be it in lands or Rigts or obligations it is alike wither the protection of this clause and inviolate.6Now Sir is not the Stae[State] one party to this contract and the County an other and has one party the Right to change that contract without the consent of the other,
that is the question. If it has the power then it is no contract at all for the
Legislature can repeal the act at any time. it matters not how often the land may
Be sold or to whom sold it is all null and void7Now Sir if I am not correct I must say that I do not understand the meaning of languge and that I would not give one cent for all the contracts ever made. Suppose Sir
the State had given the Land to you and had invested all the Right title & interest
which she had or might acquire in you Could the legislature without
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your consent alter modify or Repeal that act. I think not Sir. The legislature
has no Right to do any thing in it, & therefore I conted[counted] that the act of the legislature & the appropriation of the County Coit[Court] is null and void
Now Sir if I am Rong[Wrong] will you Be so kind as to give some good Reasons for your thinking so. If I am Rong I certainly do not wish to Remain so, and would willingly pay you for the information
and convincing me of the fact8
I Remain Sir your Most ObedientHenry WestP.S. If it is contended that the County court is the agent of the county and that
it accepted the first contract and tharefore had the Right to accept the change of that contract without the consent of those
interested I Beg leave to discent from such decision. Now Sir I will suppose a case. Suppose the State had given
this land to ^a^ company & had specified to what purpose the proceeds should be applyed and vested the Right to sell the land in the pressent of that company and afterwards a subsiquent Legislature should
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Pass an act authorising the president of that company to apply the proceeds of those lands to any purpose
he may see fit and he applys them to some purpose entirely foireign to the origional intention of the first contract and not ^to^ the interest of the company at all Is there any court of Justice under Heaven that would sustain such an act. I think
not Sir. Then whare is the difference. The county court transacts the Business of the county and the
President the Business of the company. A county is a corporate Boddy as well as the company9 Is it not as plain as day that the Legislature had no power to pass such a law and
that the county Cort had no Right to put it ^in^ force without the concent of a majority of the Legal voters of the County It certainly appears so to meH West<Page 5>
I would not wish you to think Sir that I claim for my self more than a verry ordinary share of common sense or even that much But I wish you to under stand me
thouroly. I taket[take] it that all laws are nothing But contracts whether Betwen Nations States Countys or Individuals, and that an alteration By one party to a contract without the consent
of the other is a violation of that contract which the constitution says shall not
Be done
Now I take it that a county Court is nothing more than an agent of the County created
for the purpose of maintaining and prosecuting the interests of the County and has
no power to change a contract Between the county and the state without the consent
of ^the^ citizens of the county I think this a verry plain common sense view of the case
Now the only question is this Has my agent the power to transfer my property or my money to an other without my concent. I think not Sir; I dont
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Think any man can seriously entertain such an opinion on the subject
You will please excuse me Sir for thus intruding my opinion upon you after having
passed your opinion on the subject My only excuse for doing so is that some times a wise man learns more from a fool than a fool does from a wise man
I Remain yoursH West<Page 7>
[Envelope]
LEROY Ill[Illinois]
JUN[JUNE] 24Hon. A LincolnSpringfieldIll.
JUN[JUNE] 24Hon. A LincolnSpringfieldIll.
2Abraham Lincoln's letter to West has not been located. Lincoln apparently offered
West legal advice about a property issue, and this letter is West's response criticising
Lincoln's opinion.
Lincoln provided legal opinion, 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), https://lawpracticeofabrahamlincoln.org/Details.aspx?case=141370.
3"Old French grants" refers to eighteenth-century French land claims of old fur-trading
outposts along the Mississippi and Wabash rivers when it was part of the Northwest Territory. French immigrants settled in Illinois early in its history. At the founding of the United States, the land fell under federal
control, and it became the role of federal officials to interpret local practice and
French colonial land law to determine who owned proper titles to their land. During
the War of 1812, American forces burned Peoria and displaced its French settlers. In 1820 and again in 1823, Congress offered the French settlers claims to their former property. The land at the time
had very little value, and many immigrants had moved away and did not accept the offer.
However, land prices eventually increased, and by the 1830s and 1840s, surveyors made
plats based on the French claims, resulting in disputes between original settlers
and the current owners. Article eleven of the 1848 Illinois Constitution specified
that all land granted, as a common, to inhabitants of any town, village, hamlet, or
corporation by an individual or government body would remain common to the inhabitants
of said town, village, hamlet, or corporation forever.
“An Act for the Relief of the Inhabitants of the Village of Peoria, in the State of
Illinois,” 15 May 1820, Statutes at Large of the United States, 3 (1846):605; “An Act to Confirm Certain Claims to Lotts [Lots] in the Village of
Peoria, in the State of Illinois,” 3 March 1823, Statutes at Large of the United States 3 (1846):786-87; C. Ballance, The History of Peoria, Illinois (Peoria: N. C. Nason, 1870), 193-95; Gregory Ablavsky, "The Rise of Federal Title,"
California Law Review 106 (June 2018): 658-61; Ill. Const. of 1848, art. XI.
4Article one, section nine of U.S. Constitution forbids Congress from passing any
ex post facto ("law after the fact" in Latin) law. Section ten states the same in
regard to the states.
U.S. Const. art. I, § 9, 10; Wayne A. Logan, The Ex Post Facto Clause: Its History and Role in a Punitive Society (New York: Oxford University Press, 2023), 1.
5In addition to restricting states from enacting ex post facto laws, article ten of
the U.S. Constitution prohibited states from passing laws impairing the obligation
of contracts. Article thirteen, section seventeen of the 1848 Illinois Constitution
prohibited both ex post facto laws and laws impairing the obligations of contracts.
U.S. Const. art. I, § 10; Ill. Const. of 1848, art. XIII, § 17.
6The U.S. Supreme Court adhered to the contract obligation clause of the Constitution,
having to, in the words of Justice William Johnson in 1829, "toil up hill, in order
to bring within the restriction on the states to pass laws violating the obligation
of contracts, the most obvious cases to which the constitution was intended to extend
its protection."
Robert L. Hale, "The Supreme Court and the Contract Clause," Harvard Law Review 57 (April 1944): 513-14.
7Although the specifics of the case West is discussing are unknown, West did own land
in 1858. He moved from Kentucky to McLean County, Illinois, in 1850 and purchased 2,500 acres. He became one of the largest landowners in what
would become West Township, named after him. In 1858, the year this letter was written,
West was elected first supervisor of the township.
Jacob L. Hasbrouck, History of McLean County Illinois (Topeka, KS: Historical, 1924), 1:118-19; The History of McLean County, Illinois (Chicago: Wm. Le Baron, Jr., 1879), 663.
9According to the statutes of Illinois in force at the time, West is correct. In 1827,
the Illinois General Assembly enacted a law making all existing counties and all future counties established by
the state corporate bodies, with the same duties and responsibilities as other incorporated
bodies.
"An Act to Incorporate Counties," 1 July 1827, Revised Laws of Illinois (1827), 106-9.
Autograph Letter Signed, 7 page(s), Abraham Lincoln Papers, Library of Congress (Washington, DC).