Lincoln legal and political colleague William Pitt Kellogg recalled: “During the canvass of 1860 I met, at Pekin, Judge T. Lyle Dickey, a prominent Democratic lawyer and judge. He related to me that as early as 1855 on one occasion when he was attending court, he and Mr. Lincoln slept in the same room, in which there [were] two beds, each near the other. He occupied one, and Mr. Lincoln the other. They argued a long time over the slavery question, Lincoln insisted that slavery could not continue to exist in the nation; Dickey contending that slavery was an institution recognized by the Constitution. Finally Dickey said: ‘Lincoln, let’s go to sleep.’ Early in the morning, before the sun had fairly risen, Dickey awoke, and to use his expression, there was Lincoln sitting on the edge of his bed, in his nightshirt, looking through the window at the rising sun, and he said: ‘I tell you, Dickey, I am right. It is not possible for slavery to continue to exist in the nation; it’s got to go.’”1
Nevertheless, in Mr. Lincoln’s legal career, he had argued both sides of the slavery question. Lincoln biographer Noah Brooks wrote that a “celebrated case was that which Lincoln tried in 1841, and was known as that of Baily vs. Cromwell. A negro girl named Nancy had been sold, as a slave, or indentured served, by Cromwell to Bailey, and a promissory note taken in payment. The note was not paid when it became due, and suit was brought in the Tazewell County Court, Illinois, to recover the amount, and judgment was given for the plaintiff. The case was then taken to the Supreme Court of the State, and Lincoln appeared for the maker of the note, Bailey. He argued that the girl could not be held in slavery, since, under what was known as the Ordinance of 1787, slavery was prohibited in the Northwestern Territory, of which Illinois was a part, as well as by the constitution of that State, which expressly prohibited slavery. He insisted that, as the consideration for which the not was given was a human being, and under the laws of Illinois, a human being could not be bought and sold, the note was void. A human being could not be an object of sale and transfer in a free State. It will be noticed that this involved some of the questions which Lincoln afterwards took so large a part in discussing. His argument, covering as it did the existence and the rights claimed for human slavery under the constitution of a State, the Ordinance of 1787, and the law of nations, was very carefully construction. The court reversed the judgment and note was thus declared void, as Lincoln had alleged that it was. At that time, the case attracted great attention from its novelty as well as its importance. Lincoln was then thirty-two years of age, and his connection with so weighty and grave a suit undoubtedly occasioned him a very careful and thorough examination of the questions related to slavery.”2
According to John J. Duff in A. Lincoln: Prairie Lawyer: “Judgment was rendered by Judge William Thomas in favor of the plaintiff for $431.97. An appeal was taken to the Supreme Court, where Lincoln, representing the defendant, argued that the note was without consideration and hence void, inasmuch as it was given, in a free state, as the purchase price of a human being who was not legally the subject of sale. He maintained that the girl was free by virtue of both the Ordinance of 1787 and the constitution of the state prohibiting slavery. The Court, in an opinion by Judge [Sidney] Breese, reversed the lower court. The case, in which Lincoln was opposed by Logan, established the broad principle that ‘the presumption of the law in Illinois is that every person is free without regard to color,’ and ‘the sale of a free person is illegal.’”3
Dan W. Bannister wrote of the appeals decision: “The court cited an Illinois Supreme Court case, Kinney v. Cook….decided at the December term 1840 which decided the presumption of law, was in Illinois, that every person was free, without regard to color. There was no evidence she had been indentured to Cromwell, and she asserted her freedom ‘in the only modes she could, by doing as she pleased, making purchases, contracting debts, and controlling her own motions’ [proving human nature hasn’t changed much since 1841). Since the sale of a free person is illegal, and that was the consideration for the note, the note was illegal as well.”4
Noah Brooks, who developed a close relationship with his erstwhile Illinois friend when Brooks covered the Civil War White House for a California newspaper, wrote: “Another slave case in which Lincoln was concerned was more interesting, because his heart was was engaged when the legal aspect of the affair had disappeared. An old slave woman, living near Springfield, had been born in slavery in Kentucky, and, with her children, had passed into the possession of a man named Hinkle. Hinkle had moved into Illinois, bringing his slaves with him; but, as he could not hold them there, he had given them their freedom. In course of time, a son of the woman had hired himself as a cabin waiter on a steamboat and had voyaged down the Mississippi. At New Orleans the boy had gone ashore, forgetting, or not knowing, that he was liable to arrest. In accordance with the custom of the times, he was seized by the police and locked up, the rules of the city requiring that any colored person found at large, after night, without a written pass from his owner, should be confined in the ‘calaboose.’ After some delay, the boy brought out, tried, and sentenced to pay a fine. Meanwhile the steamboat had left, and the boy was liable to be sold into slavery to pay his fine. Word was sent to the boy’s mother, in Illinois, and, in her extremity, she came to Lincoln, who had gained some reputation as being one of the very few lawyers in Springfield who dared to undertake a case involving what were called the rights of slavery. Lincoln was very much moved, and he besought his partner, Mr. W. H. Herndon, to go and see the Governor and ask if there was no way by which a free negro held in duress in New Orleans, could be brought home. The Governor regretted very much to say that there was no remedy provided by the constitution or the laws for such a state of facts. He could do nothing. Lincoln rose to his feet, in great excitement, and said: ‘By the Almighty! I’ll have that negro back soon, or I’ll have a twenty years’ excitement in Illinois until the Governor does have a legal and constitutional right to do something in the premises!’ The twenty years excitement came in due time, but, meanwhile, the two lawyers sent money of their own to New Orleans, entrusting the case to a correspondent; the fine and other expenses were paid and the boy sent home to his grateful mother.”5
There was a third , more controversial case involving slavery in which Mr. Lincoln defended the other side of the slavery cause – just shortly before he left Illinois to take up congressional duties in Washington.. “Lincoln’s opposition to slavery did not prevent his accepting a fee from a slave-holder, any more than his opposition to murder kept him from accepting a fee from a murderer. In the Matson Slave Trial in Charleston, in 1847, Lincoln represented a slave-holder in an effort to send a mother and her children back into slavery,” wrote Lincoln biographer William E. Barton.6
John J. Duff wrote in A. Lincoln: Prairie Lawyer: “In 1843, Robert Matson, an unmarried Kentuckian of aristocratic background, who had served in his state’s legislature, purchased a tract of farmland in Cole County, known as Black Grove, which he worked with the aid of slave brought from his plantation in Bourbon County, Kentucky, each spring, to be returned there after the harvest. In this manner preserved their legal status as slaves, not permanently situated in the State of Illinois, and hence in no danger of acquiring the status of free men. According to Orlando B. Ficklin, one of the attorneys who opposed Lincoln in the litigation, Matson, in order to make certain that there would be no confusion on this score, ‘invariably’ called a witness to ‘his solemn declaration that the slaves were here temporarily and to be returned shortly to his plantation in Bourbon.’ There was one exception: Anthony Bryant, a former slave, who remained continuously on Black Grove, acting as overseer of the others, and who thus became, in contemplation of law, a free man.”7
One day in 1847, there was an altercation at the Matson farm where Matson’s housekeeper threatened to have Jane Bryant, wife of overseer Anthony Bryant, shipped back to Kentucky and perhaps sold into slavery deeper in the South. Jane Bryant suspected that the housekeeper was capable of carrying out her threat. Her husband arranged to have Jane and their four children sheltered by the friendly owner of a nearby inn, Gideon M. Ashmore. A local doctor, Hiram Rutherford, also took an interest in helping the Bryants. Matson first tried to persuade Jane Bryant to return to his farm and then tried to get the courts to intervene on his behalf. He engaged Democratic attorney Usher F. Linder, who was a friend but also a political opponent of Mr. Lincoln. Linder was unsuccessful in getting a judge to return the escaped slaves, but the justice did order them kept in jail until further legal proceedings could decide their fate. When a habeas corpus hearing initiated by the Bryants’ white allies was hearing in Circuit Court, Mr. Lincoln joined Linder on Matson’s side when Mr. Lincoln arrived in Charleston to conduct other legal business. There is some confusion over which side of the case Mr. Lincoln wanted to represent. Biographer Albert Beveridge relates the most detailed story:
The time arrived for holding the Circuit court at Charleston and Lincoln came with the Judges. The litigation had attracted wide and keen interest and Justice Wilson of the Supreme Court accompanied Justice Treat from Springfield to sit with him in the trial. Linder secured Lincoln to assist in prosecuting Matson’s case against Rutherford, and Lincoln attested the bond for costs given by friends of Matson in that case.
Dr. Rutherford, who knew Lincoln well, rode to the county seat to employ him in his defence. Their views on slavery were in accord, and besides his friends advised him to secure Lincoln his lawyer.
“I found him at the tavern sitting on the veranda,’ Rutherford relates, ‘his chair tilted back against one of the wooden pillars entertaining the bystanders and loungers gathered about the place with one of his irresistible and highly-flavored stories. My head was full of the impending lawsuit and I found it a great test of my patience to await the end of the chapter then in process of narration. Before he could begin another I interrupted and called him aside.
“I told in detail the story of my troubles, reminded him that we had always agreed on the questions of the day, and asked him to represent me at the trial of my case in court.” But Lincoln hesitated. “He listened attentively,” testifies Rutherford, “as I recited the facts leading up to the controversy with Matson but I noticed that a peculiarly troubled look came over his face now and then, his eyes appeared to be fixed in the distance beyond me and he shook his head several times as if debating with himself some question of grave import.”
Lincoln replied ‘with apparent reluctance,’ that he could not defend him, “because he had already been counseled with in Matson’s interest and was therefore under professional obligations to represent the latter unless released.”
Rutherford was angry and said things to Lincoln in a “bitter tone.” Lincoln tried “in his plausible way to reconcile me,” narrates the doctor, who, however, would not be appeased. Some hours later Rutherford received word from Lincoln that ‘he had sent for the man who had approached him in Matson’s behalf and if they came to no more decisive terms than at first he would probably be able to represent me.” Soon another message came from Lincoln, that “he could now easily and consistently free himself from Matson and was therefore in a position, if I employed him, to conduct my defense.
But it was too late. The irate young doctor would now have nothing more to do with Lincoln and, instead, employed Charles H. Constable. So Lincoln agreed to appear for Matson as associate of Linder, Matson’s original attorney. [Orlando B.] Ficklin represented Ashmore.8
John J. Duff wrote in A. Lincoln: Prairie Lawyer: “No one can guess what went on in Lincoln’s mind when he accepted the defense of the Kentucky planter; his motives will probably always remain open to conjecture and dispute. It may be, as Beveridge suggests, that he had misgivings about taking the case – certainly one may imagine that such a sensitive man as Lincoln had soul-searching moments of doubt, when the promptings of his heart urged him to an opposite course; yet, there is no contemporary evidence to prove it.”9
Lincoln biographer Reinhard H. Luthin wrote that the “hearing on the writ of habeas corpus began in the Coles County Circuit Court at Charleston on October 16, 1847. No jury would decide it; only the judges, Wilson and Treat. In that emotionally charged courtroom, Ficklin and Charles H. Constable acted for the slaves. Ficklin argued that th Ordinance of 1787 and the state Constitution of Illinois conferred freedom upon former slaves. Constable gave forth a lengthy dissertation on Anglo-Saxon concepts of freedom. Linder, co-counsel with Lincoln for Matson, argued that every citizen must be protected in the protection of his property.”10
Since it was a habeas corpus hearing, there was no testimony from witnesses – only arguments from attorneys. “Abraham Lincoln, with the Supreme Court decision in the Baily vs. Cromwell case still fresh in his mind, then arose to make the closing argument. He was the cynosure of all eyes in the crowded courtroom. His anti-slavery sympathies were well know, “ wrote Albert A. Woldman in Lawyer Lincoln. “‘But strange to say,’ relates Duncan T. McIntyre, a member of the Coles County bar, ‘he did not once touch upon the question of the right of Matson to take the negroes back to Kentucky. His main contention was that the question of the right of the negroes could only be determined by a regular habeas corpus proceeding, and not by a mere motion, as was then attempted. His argument was masterful in that he was carefully and adroitly shunning the vital question at issue in the case.’”11 Mr. Lincoln focused on arguing that Mrs. Bryant was a seasonal worker who was simply in Illinois to help with the crops – and not a permanent resident of the state.
Lawyer Lincoln was asked by Judge Wilson: “Now, if this case was being tried on issue joined in a habeas corpus, and it appeared there, as it does here, that this slave-owner had brought this mother and her children, voluntarily, from the State of Kentucky, and had settled them down on his farm in this State, do you think, as a matter of law, that they did not thereby become free?’” Mr. Lincoln replied: “No sir, I am not prepared to deny that they did.”12
Biographer Albert Beveridge wrote: “Lincoln argued weakly, declared hearers, that the sole question was whether the slaves were in transitu or were meant to remain permanently on Matson’s farm.13 Lincoln chronicler Woldman concluded: “Lincoln was pitiably weak. His arguments in behalf of a cause his conscience detested were spiritless, half-hearted, and devoid of his usual wit, logic, and invective. He lost the case. Jane Bryant and her four children were released from imprisonment.”14 Beveridge wrote: “All thought that Lincoln’s speech was fatal to his client. Seemingly Lincoln thought so too.”15 Historian Luthin wrote: “Lincoln and Linder lost their case for Matson. In rendering decision on the habeas corpus hearing, Judges Wilson and Treat found that the slaves should ‘be and remain free and discharged from all servitude whatever to any person or persons from henceforth and forever.”16
Beveridge wrote: “The slaves were released and the court order ‘that they shall be and remain free and discharged from all servitude whatever to any person or persons from henceforward and forever.’ Rutherford says that on Saturday night, when the decision was announced, Matson hurriedly left the State of Kentucky, crossed the Wabash, evaded his creditors and never paid Lincoln his fee. Next morning ‘after a wholesome breakfast,’ Lincoln unconcernedly threw his saddle-bags across the back of ‘his old gray mare,’ and rode on to the next county seat where court was to be held.”17
Matson was a big case and Mr. Lincoln evidently wanted to be part of it. But his participation was a mistake and it was evident that Mr. Lincoln knew it. Historian Kenneth J. Winkle concluded: “Taken together, the two slave cases say little about Lincoln’s attitude toward slavery and race but everything about his reverence for the law. Throughout Lincoln’s rhetoric and later his policy on slavery and antislavery ran a profound commitment to do everything possible to enforce the law. As a lawyer he felt a sacred obligation to defend the interests of his clients, whatever they might be.”18 Historian David Donald wrote: “Neither the Matson case nor the Cromwell case should be taken as an indication of Lincoln’s views on slavery; his business was law, not morality.”19
- Paul M. Angle, editor, “The Recollections of William Pitt Kellogg, The Abraham Lincoln Quarterly, Volume III, No. 7, September 1945, p. 326.
- Noah Brooks, Abraham Lincoln: The Nation’s Leader in the Great Struggle through which was Maintained the Existence of the United States, pp. 124-125.
- John J. Duff, A. Lincoln: Prairie Lawyer, pp 86-87.
- Dan W. Bannister, Lincoln and the Common Law, p. 20.
- Noah Brooks, Abraham Lincoln: The Nation’s Leader in the Great Struggle through which was Maintained the Existence of the United States, pp. 125-126.
- William E. Barton, The Life of Abraham Lincoln , Volume I, p. 335.
- John J. Duff, A. Lincoln: Prairie Lawyer, pp. 130-131.
- Albert J. Beveridge, Abraham Lincoln, 1809-1858, Volumes I , p. CHECK
- John J. Duff, A. Lincoln: Prairie Lawyer, 135
- Reinhard H. Luthin, The Real Abraham Lincoln, p. 75.
- Albert A. Woldman, Lawyer Lincoln, p. 67 (Duncan T. McIntyre, “Lincoln and the Matson Slave Case,” Illinois Law Review (1906).
- Albert A. Woldman, Lawyer Lincoln , p. 67.
- Albert J. Beveridge, Abraham Lincoln, 1809-1858, Volume I, p. 396.
- Albert A. Woldman, Lawyer Lincoln, p. 68.
- Albert J. Beveridge, Abraham Lincoln, 1809-1858, Volume I, p. 396.
- Reinhard H. Luthin, The Real Abraham Lincoln, p. 75.
- Albert J. Beveridge, Abraham Lincoln, 1809-1858, Volume I, p. 397.
- Kenneth J. Winkle, The Young Eagle: The Rise of Abraham Lincoln, p. 259.
- David Herbert Donald, Lincoln, pp. 103-104.