The Fiery Trial (9 page)

As an Ohio lawyer, Chase strove to persuade the courts to adopt his outlook, without much success. He took so many cases defending blacks who had escaped from bondage that he became known as a kind of “attorney general for fugitive slaves.” In his 1837 defense of Matilda, who had accompanied her owner from Missouri and escaped in Cincinnati, and ten years later in
Jones v. Van Zandt
, a case involving an Ohio farmer fined for harboring nine fugitives, which Chase took all the way to the Supreme Court without a fee, he argued that despite the Constitution’s fugitive slave clause, the moment an escapee entered a free state, he or she became free. Not surprisingly, Chase lost these cases. Matilda was returned to her owner and most likely sold at a slave market. Van Zandt paid his fine. Yet, as Charles Sumner, a young Massachusetts lawyer just embarking on a career in antislavery politics, commented about the Van Zandt ruling, Chase’s argument “will seriously influence the public mind.”
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In one legal context, the Somerset principle slowly came to be recognized in northern courts. This concerned the right of “transit”—that is, whether southern slaveholders had the right to bring their slaves into states that had abolished the institution. Until the 1830s, northern states generally recognized the right of transit, although some limited the amount of time an owner could keep a slave within their borders. Increasingly, however, northern courts began to deny that slave law reached into the free states. Chief Justice Lemuel Shaw of Massachusetts in 1836 declared free all slaves entering the state, except for those who were fugitives. Connecticut courts adopted the same principle the following year, as did New York’s legislature in 1841. Other states soon followed.
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In Illinois, the courts whittled away at the legal defenses of slavery, but very slowly. As late as 1843, the state supreme court explicitly affirmed the extraterritorial reach of the laws of slave states, noting that “thousands [of owners] from Kentucky, Virginia, Maryland,” and elsewhere had “sought and found free and safe passage with their slaves” across Illinois. At this point, Illinois accorded more recognition to the right of slave transit than any northern state except New Jersey. But the 1843 decision proved to be the last of its kind. Two years later, for the first time, the Illinois Supreme Court declared that no person born after the date of the Northwest Ordinance—that is, 1787—could be held as a slave in Illinois and that any slave brought into the state by his or her owner automatically became free.
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These victories arose from the determined efforts of a group of lawyers who risked public odium by defending fugitive slaves in court and challenging the long-standing system of black indentured servitude. John M. Palmer, Gustave Koerner, and Orville H. Browning, all future Republican politicians, argued that blacks held to long-term indentures were free, and fought their cases in court without charge. In the 1850s, Lincoln’s law partner William Herndon represented fugitive slaves pro bono. The state’s most prominent antislavery lawyer was Lyman Trumbull, a native of Connecticut who taught in Georgia in the 1830s before moving to Illinois, where he established a law practice and entered Democratic party politics. In the 1840s, Trumbull represented numerous blacks held to servitude under indentures. Like Lincoln, Trumbull lived in a part of the state settled by migrants from Kentucky and Tennessee. His battle against the remnants of slavery in Illinois required political courage, but his experience also demonstrated that it was possible to be identified as a friend of the slave and still win elections. Trumbull ran successfully for the state supreme court in 1848 and won reelection with virtually no opposition in 1852.
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After 1842, when he decided not to run for reelection and his legislative career ended, Lincoln’s livelihood derived from his law practice. Any lawyer in states bordering the Ohio River could, if he wished, devote part of his practice to cases involving fugitive slaves. Lincoln was not among those who in the 1840s and 1850s sought out cases involving blacks, or who volunteered to aid the antislavery cause. During his legal career, he handled more than 5,000 cases, mostly minor disputes about debts, land titles, and marital difficulties. Only 34 of these cases involved black persons in any way. Most were routine matters—a divorce, debt collections, issues relating to contracts, and several property transactions involving William Florville, a Springfield barber Lincoln befriended and whose tax matters he sometimes handled.
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Two of Lincoln’s cases reflected how “whiteness” possessed concrete legal significance in Illinois. Thus, white persons accused of having intimate relations with a black person, or of being black, took action to defend their reputations and legal status. In 1844, Lincoln represented Ambrose Edwards and his wife, who sued another couple for slander for saying that Mrs. Edwards had “raised a family of children by a negro.” A jury concluded that this accusation did indeed constitute slander and ruled in the Edwardses’ favor. When the other couple appealed, the Edwardses hired Lincoln to represent them. Lincoln urged the Illinois Supreme Court to consider the accusation of engaging in interracial sex in the context of the almost universal disapproval of miscegenation in the state. But the court rejected his argument and reversed the judgment, arguing that the words themselves did not necessarily accuse Mrs. Edwards of fornication across racial lines or adultery, both of which would have subjected her to criminal penalties.

In a similar 1855 case, Lincoln represented William Dungey, a dark-complexioned man who sued his brother-in-law for slander on the grounds that he had referred to Dungey as “Black Bill,” a “negro.” Lincoln challenged the veracity of depositions presented to the court claiming that Dungey was known to be of mixed racial ancestry. Dungey was actually Portuguese, Lincoln told the jury. “My client is not a Negro,” he added, “tho it is no crime to be a Negro—no crime to be born with black skin.” Lincoln won an award of $600 plus legal costs. Had he lost the case, Dungey would have been stripped of the right to vote and been subject to penalties under the Illinois Black Laws, since he had married a white woman. Illinois law did make it a crime, under certain circumstances, to be “born with black skin.”
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Many of Lincoln’s cases left only a fragmentary historical record. He seems to have represented a few individuals indicted for harboring fugitive slaves; in one such case, in 1845, a jury acquitted the accused and Lincoln and Herndon received a fee of five dollars.
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On two well-documented occasions, Lincoln became involved in the contentious issue of whether residence in Illinois automatically made a slave free.

The first such case,
Bailey v. Cromwell and McNaughton
, argued in 1841, revolved around whether a black person could still be sold in Illinois. David Bailey had signed a promissory note for the purchase of a black woman, Nance Legins-Cox, from Nathan Cromwell. The parties agreed that Cromwell would provide proof of her status as an indentured servant or slave. Thirteen years earlier, Legins-Cox had unsuccessfully sued for her freedom. Clearly a determined individual, she now refused to work for Bailey without being paid wages, and abandoned him altogether after six months, “asserting and declaring all the time that she was free.” Subsequently, Cromwell died and his estate sued Bailey for payment of the promissory note. Bailey refused, and retained Lincoln and his partner, John Todd Stuart, to represent him.

Lincoln argued that Cromwell had never provided the required proof of the woman’s slave status and therefore violated the contract; hence Bailey did not have to pay. The local court, however, ruled that Bailey had to satisfy the debt and he appealed. The circuit court reversed the decision. The judges noted that in their previous term they had decided that in the absence of evidence to the contrary, “the presumption of law was, in this state, that every person was free, without regard to color.” Since no countervailing proof had been offered, this presumption must apply to Legins-Cox, and “the sale of a free person is illegal.” Legins-Cox subsequently gave birth to eight children, all of them, she proudly affirmed late in life, “born in freedom.” The decision did not outlaw slavery or servitude in Illinois, but placed the burden of proof squarely on those claiming ownership of such persons.
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In October 1847, six years after obtaining Legins-Cox’s freedom, Lincoln represented a slaveholder who sought to regain possession of runaway slaves. Robert Matson, a resident of Kentucky, in 1836 purchased a large tract of land in Coles County, Illinois. Each year he brought slaves to work his farm and then returned them to Kentucky, bringing another contingent the following year so as to avoid legal difficulties. One slave, Anthony Bryant, however, remained in Illinois for an extended period, obtained his freedom, and acted as Matson’s foreman. In 1845, Anthony’s slave wife Jane joined him with their five children. Evidently, some time in 1847 an altercation took place between Jane Bryant and Matson’s white housekeeper, who threatened to have Bryant and her children sold “down South in the cotton fields.” Matson then sent one child back to Kentucky. The alarmed Anthony Bryant sought the aid of two local abolitionists, Gideon Ashmore, an innkeeper in Oakland, Illinois, and Hiram Rutherford, a physician. They advised Bryant to bring his family to the inn, even though harboring fugitive slaves was a crime under the Black Laws of Illinois. Bryant did so, and to recover them, Matson engaged as his lawyer Usher F. Linder, the former attorney general who a decade earlier had led the mob that broke up the first meeting of the state antislavery society. Formerly a Democrat, Linder had recently joined the Whigs and become a friend of Lincoln’s. (In the 1850s Linder would return to the Democratic fold.) Linder persuaded a local justice of the peace to lodge Jane Bryant and her children in the local prison, where they remained during the fall of 1847. In accordance with another provision of the Black Laws, Matson sued the abolitionists for $2,500 for enticing his slaves to escape.

The two cases,
In Re Bryant
and the suit against the abolitionists, came before the Coles County Circuit Court in October 1847. The abolitionists asked Lincoln to represent them. He replied, according to Rutherford’s later recollection, that he could not do so, as he had already been approached by Linder to represent Matson. Shortly afterward, Lincoln obtained his release from Matson, but Rutherford, from a sense of injured pride, refused Lincoln’s offer to represent him. So Lincoln took Matson’s case, serving as co-counsel with Linder regarding both the legal status of Jane Bryant and her children and Matson’s lawsuit against the abolitionists. The abolitionists’ lawyer, Orlando B. Ficklin, a Democratic member of the U.S. House of Representatives from Illinois, cited the English precedent that any person who sets foot on free soil automatically becomes free. Lincoln argued that the principle of “transit” applied: The Bryants were only in Illinois temporarily and Matson intended to take them back to Kentucky. Therefore, they should be returned to Matson. Lincoln also presented testimony showing Matson to be, as the court put it, “an extremely kind and indulgent master.”

The Coles County judges insisted that the case involved the law, not “the abstract question of slavery.” Slavery, they continued, echoing Ficklin’s argument, was a local institution, and except for fugitives from other states, the moment a slave arrived in free territory “the rights of the master cease, and the slave becomes free.” (Since Matson had brought the Bryants into Illinois, the Constitution’s fugitive slave clause did not apply to them.) The Bryants’ two years in Illinois far exceeded any conceivable right of transit, but even if they had remained “but a day,” their status as slaves ended. The judges also dismissed Matson’s suit against the abolitionists. Thus, thanks to Orlando B. Ficklin, not Lincoln, the Somerset principle came to Illinois. Ironically, Lincoln’s position—that residence in a free state did not automatically make a slave free—was adopted, to widespread dismay in the North, by Chief Justice Roger B. Taney in the
Dred Scott
decision ten years later. Eventually, the Bryant family made its way to Liberia, an outcome that may have affected Lincoln’s subsequent belief that emancipated slaves would be willing to be colonized outside the United States.
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Overall, in his few cases involving blacks, Lincoln stuck to the facts and the letter of the law rather than seeking to establish antislavery principles or make a political point. In the Dungey slander case, Lincoln argued on the basis of the evidence; he did not challenge the Black Laws, but in effect got his client exempted from them. In the Bailey case he concentrated on the lack of evidence that Legins-Cox was a slave. The Matson case remains perhaps the most controversial of Lincoln’s career. Lincoln not only sought to return a woman and her four children to slavery, but also represented a client who claimed damages under the Black Laws from those who had assisted the family. Lincoln did not mind working with Linder, an extreme anti-abolitionist, as co-counsel. He took a position at odds with recent precedents throughout the northern states. As Frederick Douglass noted about this case (without mentioning Lincoln by name), “We should suppose that this whole subject had been rendered so clear by repeated decisions, all going to confirm the same principle, that not another case of the kind would ever again come up.”
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Lincoln’s willingness to represent Matson does not mean that he was a supporter of slavery. Dr. Rutherford later recalled that he sought out Lincoln, “his views and mine on the wrong of slavery being in perfect accord.” Yet unlike antislavery lawyers such as Lyman Trumbull and Salmon P. Chase, Lincoln made a sharp distinction between his personal outlook and his practice of the law. Of course, lawyers frequently represent clients whose beliefs and interests are at odds with their own sentiments. The adversary system depends on every person called to court enjoying legal representation. On the other hand, nothing required Lincoln to take this particular case. In an effort to exonerate him, Lincoln’s late-nineteenth-century biographer Jesse W. Weik claimed that the future president, uncomfortable with his role, in effect threw the case, presenting a weak argument on Matson’s behalf. If true, this would represent a serious violation of legal ethics. In fact, the court’s opinion noted that on both sides, counsel had presented their arguments “with unusual ability.” In any event, if Lincoln represented Matson because he needed to pursue his livelihood, he ended up disappointed. Matson left Illinois in disgust, without paying Lincoln’s fee.
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