having adulterous relationships with three different women, and so on. Lincoln also defended a number of men who had been cuckolded by their wives.
But he seemed to have strongly preferred to defend wronged women. Like other Illinois lawyers, he had a lively practice in divorce, because the states in the Northwest were far more liberal in their divorce laws than were most of the eastern states, where the requirements were, in general, stiff for procuring separation from one’s spouse. States with conservative divorce laws, such as New York, typically permitted divorce only in cases of adultery. Illinois, in contrast, allowed it as well for drunkenness, cruelty, or desertion. Due in large part to its highly mobile population, Illinois by 1857 had the highest divorce rate in the nation.
For these reasons, Lincoln and his partners handled a wide variety of divorce cases. Virtually any situation found in the sensational newspapers and novels of the day appeared for consideration by Lincoln the lawyer. He had particularly extensive experience with women who went to court. Women were plaintiffs or litigants in a full 20 percent of the cases he handled between 1837 and 1860.137 A large percentage of the 131 divorce cases he took on involved women who claimed to have been abused by drunken, cruel husbands.
In litigating such cases, Lincoln unwittingly found himself at the forefront of a progressive movement that was rapidly becoming of central importance to advocates of women’s rights. Reformers like Elizabeth Cady Stanton and Susan B. Anthony were active in both temperance and women’s rights. Closely associated, these movements grew in tandem, which accounts for the fact that both the Eighteenth Amendment, enforcing Prohibition, and the Nineteenth Amendment, which gave women the vote, were ratified the same year, 1920. The correspondence between the movements came from the fact that many American women found themselves trapped in marriages with abusive, alcoholic men. A whole genre of dark temperance literature traced the inexorable decline of once happy families after the husband took to the bottle. As early as 1831, a temperance pamphlet, Address to Females, demanded new divorce laws that would make it easier for abused women to separate from drunken husbands—only then “shall woman achieve her true rank and no longer be a slave, but companion, of man.”138 The 1844 novel Letters from the Alms-House, on the Subject of Temperance describes an alcoholic who descends into poverty while maltreating his wife and children, whom he leaves desperate and penniless after he dies in a drunken stupor. In The Autobiography of a Reformed Inebriate (1845) the narrator has nightmarish visions of inebriated husbands terrorizing those around them: one man drives his family outdoors with a club, another drags his wife by the hair, a third assaults his wife with tongs. Melville, in Moby-Dick, gave his version of dark temperance in his portrait of Ahab’s harpoon maker, the wretched blacksmith Perth, whose formerly blissful family had been destroyed by the “Bottle Conjurer! Upon the opening of that fatal cork, forth flew the fiend, and shriveled up his home.”139
Lincoln dealt with alcohol-ravaged families as a lawyer. Eliza Lloyd hired him and Stuart in her divorce suit against Peter Lloyd, who habitually drank and who “left her in a hopeless condition with a newborn infant.”140 Ann McDaniel retained Lincoln and Logan to pursue her divorce from Patrick McDaniel, who took her earnings and spent them on “reveling and drunkenness.”141 In a case in which Lincoln was involved (in an unknown capacity), Martha Jones charged that her drunken husband beat her, choked her, and said he would slit her throat.142 Cynthia Klein retained Lincoln and Herndon to sue for divorce from John Klein, an alcoholic who punched and whipped her, threatened to shoot her, and spent time in “every house of ill fame in Springfield.”143
The examples could be multiplied of family cases Lincoln handled, any of which could have produced a popular dark temperance tale. But alcohol-fueled cruelty was not the only family controversy Lincoln considered. Some women cited impotence, desertion, or verbal abuse as reasons for divorce. His overall success in family cases is extraordinary, even in light of the relatively relaxed divorce laws of Illinois. Among his many cases of women suing for divorce, he won an extraordinary 82 percent of the time. He helped Sarah Hill get a divorce from a husband who was “not a natural and perfect man” (that is, he was sexually inadequate).144 He and Herndon successfully represented Sarah Hook, who had been drugged and kidnapped by a man who forced her to marry him.145 Elzena Ray claimed that her husband was still married to another woman, by whom he had two children; represented by Lincoln and Herndon, she won a divorce on the grounds of bigamy and desertion.146
A case that reportedly stood out for Lincoln was that of “a very pretty refined & interesting woman” who sued for divorce on grounds of cruelty from a husband who was “a rather gross, morose, querulous, fault finding, cross, & uncomfortable person,” who showered her with “very offensive & vulgar epithets.”147 With no evidence of physical injury, all but one of the jury members favored the husband. But as in the film Twelve Angry Men, one member swayed the rest of the jury, holding fast to the belief that the husband’s verbal abuse was itself valid reason for divorce. The juryman announced, “[G]entlemen, I am going to lie down to sleep, & when you get ready to give a verdict for that woman, wake me up, for before I will give a verdict—against her, I will lie here until I rot, & the pis-mires carry me out of the Keyhole.” Indeed, the jury found for the woman, much to Lincoln’s delight. He “always regarded this as one of the most gratifying triumphs of his professional career.”
The abuse of women was a bête noire for Lincoln. During the Civil War, though known for his clemency toward erring soldiers, there was a crime he could not forgive: rape. A judge said of him: “There was only one class of crimes I always found him prompt to punish—a crime which occurs more or less frequently about all armies—namely, outrages upon women.”148 In reviewing Lincoln’s law cases related to abused women, one feels a distinct favoritism toward such women that was at odds with the objectivity he generally tried to maintain in the law.
That objectivity was also tested in the twenty-four cases in which he dealt with African Americans. His antislavery side impelled him to defend the rights of blacks, but he recognized that the law often limited these rights. Two law cases of the 1840s, Bailey v. Cromwell and In Re Bryant et al., illustrate Lincoln’s conflicting loyalties to the higher law—that is, the natural law view that slavery is unjust and immoral—and positive law, or man-made laws, that condoned slavery.
These differing approaches to slavery had been played out before a national audience in two previous cases, handled by other lawyers, involving slave ships: the Antelope, a Spanish-licensed ship transporting nearly three hundred enslaved Africans that was intercepted off the coast of Florida by a US federal cutter in 1820; and the Amistad, a Cuban-bound vessel that in 1839 became the scene of a revolt by enslaved blacks who were later captured and taken into custody in the United States. The natural-law-versus-positive-law debate raged when these cases went through the legal system and reached the US Supreme Court. In the Antelope case, at issue was the fate of the enslaved people aboard the ship: should they be freed or held in bondage? Lawyers including Francis Scott Key (of “Star-Spangled Banner” fame) and William Wirt argued that the Antelope blacks were free under the law of nations, or natural law. Lawyers for the opposing side, notably John M. Berrien, held that slavery was determined by human laws in individual locales, and because the Antelope blacks had been originally enslaved by Spanish captors, they should be treated as property. Chief Justice John Marshall agreed with the latter claim. He argued that although slavery was “contrary to the law of nature,” natural law did not trump human law. And so, Marshall declared, “This Court must not yield to feelings which might seduce it from the path of duty, and must obey
the mandate of the law.”149 Some of the Antelope blacks were sold into slavery in the United States; the remainder were shipped to Liberia.
The Antelope case was on the mind of the ex-president and congressman John Quincy Adams when in 1841 he defended the Amistad rebels before the Supreme Court. Pointing to a copy of the Declaration of Independence on the wall of the court chamber, Adams said, “In the Declaration of Independence the Laws of Nature are announced and appealed to as identical with the laws of nature’s God, and as the foundation of all obligatory human laws.”150 Adams’s eloquent appeal to natural law was effective, and the Amistad rebels were set free.
The conflict between positive (or statute) law and natural law framed Lincoln’s attitudes toward slavery. On the one hand, he knew that the Constitution could be interpreted as a proslavery document, with its clauses about three-fifths representation and the return of fugitives from labor. The latter clause explains why he reluctantly accepted the Fugitive Slave Act during the 1850s. At the same time, he was strongly attracted to the argument of antislavery politicians that the natural law of human equality, grounded in the Declaration, was enforced by the Constitution, with its advocacy of justice and human rights. This antislavery view of the Constitution was promoted vigorously by politicians like Adams and Salmon P. Chase, who would become Lincoln’s first secretary of the treasury. In his legal practice during the 1830s and ’40s, Chase became known as the Attorney General of Fugitive Slaves. Chase used law to preach morality and justice, as in the 1846 case of the Ohio abolitionist John Van Zandt (the model for John Van Trompe in Stowe’s Uncle Tom’s Cabin). Van Zandt was brought to trial for helping nine fugitives from Kentucky to flee north. Chase, serving as cocounsel with another future Lincoln cabinet member, William Henry Seward, used the case to promote natural law. In a speech before the Supreme Court, Chase declared, “No legislature can make right wrong, or wrong right.”
The Supreme Court, however, did not accept Chase’s argument that the Constitution embodied antislavery natural law. Van Zandt lost his case.
In time, Lincoln as a politician would make these kinds of moral pronouncements on slavery, but as a lawyer he avoided generalizations about the institution. The closest he came to promoting natural law was when he argued for the freedom of Nance Legins-Cox in the 1841 case Bailey v. Cromwell. Nance was an enterprising black woman who in 1827 had been purchased as a servant by the wealthy Illinoisan Nathan Cromwell but who thereafter sued several times for freedom. By 1836, she was still considered the property of Cromwell, who left Illinois that year on a trip and quickly arranged to sell her services to David Bailey, who gave him a promissory note of $376.48. Cromwell died during the trip, and his son, Dr. William Cromwell, sued Bailey for payment on the promissory note. Bailey, an abolitionist from New England, refused to pay, insisting that Nance was now a free woman. After losing his case in a lower court, Bailey hired Lincoln to represent him in the state supreme court.
Lincoln argued that before being purchased by Cromwell, Nance was a free black, which made the sale illegal. The court agreed, and ruled that Nance was free. In support of this argument, Lincoln cited the Northwest Ordinance of 1787, which barred slavery and involuntary servitude in territories northwest of the Ohio River, and the Illinois state constitution of 1818, which also prohibited slavery and involuntary servitude. Lincoln also cited an obscure 1705 British decision in Smith v. Brown and Cooper, which posited that an enslaved person brought into a free country automatically earned freedom. This principle underlay the antislavery arguments of William Blackstone in his Commentaries and the Somerset decision of 1772, which made natural law the antislavery basis of English common law. For Lincoln to cite the little-known 1705 ruling shows that he had dug deep to find sources of antislavery thought.
More than a century after Bailey v. Cromwell, Supreme Court justice William O. Douglas commented on the case: “Thanks to Lincoln, the courts had been supplied with a mass of data supporting the principle of freedom. Certainly this was one of the most far-reaching of the nearly 250 cases in which Lincoln was to appear before the state’s highest tribunal.”152 In the case, Lincoln won a ruling that anticipated the Thirteenth Amendment, whose language mirrors that of the antislavery documents he cited in his address to the court, including the Illinois constitution. Illinois would be closely connected to the Thirteenth Amendment in other ways as well: one of the US senators from the state, Lyman Trumbull, sponsored the amendment in the Senate, while the Illinois representatives Isaac Arnold and Owen Lovejoy cosponsored it in the House. After the Thirteenth Amendment was passed by Congress, it was sent to Illinois governor Richard Yates, who promoted it so persuasively that the state became the first to ratify it.
Lincoln continued to help African Americans when he could in court. Twice he successfully defended operators of the Underground Railroad who had been arrested for assisting fugitives. He periodically provided legal help to William de Fleurville (known as William Florville), his African American barber in Springfield. Not only did Lincoln represent Florville in court, he voluntarily paid his taxes for a number of years.153
This problack lawyerly activity on Lincoln’s part contrasts with his performance in the 1847 trial of the Kentucky slaveholder Robert Matson in In Re Bryant et al.154 Matson had brought five of his enslaved people—Jane Bryant and her four children—to live for a time in Illinois. The family, upon hearing that Matson planned to sell several of its members into the Deep South, had fled for protection to the abolitionists Hiram Rutherford and Gideon M. Ashmore. Matson sued to retrieve the family, hiring the lawyer Usher Linder, who in turn took on Lincoln as counsel.
Although it is unclear why Lincoln accepted Linder’s offer to join him in representing Matson, he apparently had second thoughts about doing so. After joining Linder, he was approached to represent the enslaved blacks by Hiram Rutherford, who said, “I had known Abraham Lincoln several years, and his views and mine on the wrong of slavery being in perfect accord, I determined to employ him; besides, everyone whom I consulted advised me to do so.”155 Rutherford noticed a tense, perplexed look on Lincoln’s face when he pondered the request. Lincoln initially refused Rutherford’s offer, seemingly out of deference to the “cab rank rule,” by which a lawyer remains committed to the party that first approached him. But Lincoln soon decided to switch sides. He informed Linder that he would prefer to represent the blacks, and he approached Rutherford. However, Rutherford’s pride had been wounded by Lincoln’s initial rebuff, and he rejected the offer.
The trial saw the spectacle of the African American family being defended by two proslavery lawyers, Orlando B. Ficklin and Charles Constable, with the antislavery Lincoln on the side of the slaveholder. Some of the same sources Lincoln had cited in representing Nance Legins-Cox—British common law, the Northwest Ordinance, and the Illinois state constitution—were used by Ficklin and Constable in the Matson case. Lincoln, according to one report of the trial, “winced” when he heard the antislavery statements made by Ficklin and Constable.156 The statements were persuasive to the court, for the five blacks were awarded freedom.
Lincoln’s arguments for Matson differed significantly from that of his cocounsel. In addressing the court, Linder used the Matson case to make a generalization about slavery; the enslaved were property, Linder said, and Matson had been deprived of what he rightfully owned. In effect, Linder was voicing a proslavery higher law, which viewed slavery as a natural, justified institution. Lincoln, in contrast, stuck to the technicalities of positive law. Because Matson had made clear from the start that he brought the Bryant family to Illinois for only a temporary stay, he was protected by Illinois law, which provided that enslaved workers who stayed briefly in the state were deemed to be “in transit” and were thus still the property of their owners.
The Matson trial occurred just a week before Lincoln left Illinois on his trip east to Washington, where he would assume his seat in the US House of Representatives. The Mexican War, which was then approaching its end, had fanned the controversy over slavery, which had been intensifying for decades. Lincoln’s clinging to positive law in the Matson case was not out of keeping with his trepidation over opposing versions of the higher law, which on the national scene was already breeding predictions of civil war.
If positive law was a stabilizing influence for Lincoln, so was the political position of the Whig Party, which struggled to maintain national unity at a time when the nation seemed on the verge of fragmenting.
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