Lincoln's Slavery Lacuna

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by Myles Kantor

History is filled with conspicuous obscurities. These are facts that, while undisputed and accessible, remain in analytical limbo. A modern example is the Soviet Union's role in the Nuremberg trials, "where Stalin's judges and prosecutors – seasoned veterans of the purges of the 30s – participated in another great show-trial," as Ralph Raico observes in The Costs of War. Soviet participation isn't contested as a factual matter; it's just ignored for the most part.

So it goes with American history and especially Lincoln historiography (idolatry?). Lincoln's conspicuous obscurity is his legal conduct vis-Ã -vis slavery. Gore Vidal observes regarding Lincoln and slavery in general, "[H]e was averse, rather than adverse, to the institution but no Abolitionist." As he put it in an 1837 statement while a member of the Illinois legislature, "[T]he institution of slavery is founded on both injustice and bad policy; but that the promulgation of abolitionist doctrines tends rather to increase than to abate its evils." Lincoln's later derision toward John Brown – "An enthusiast broods over the oppression of a people till he fancies himself commissioned by Heaven to liberate them" – was consistent with this position.

Abraham Lincoln was an extremely versatile lawyer. Biographer Stephen B.

Oates writes:

"As an all-purpose attorney, Lincoln argued cases that ranged across the entire legal spectrum, from divorce, murder, and rape cases to contests involving disputed wills, maritime law, the right of way of railroads [a major client was the Illinois Central Railroad], actions for injunctions, foreclosures, debts, trespass violations, slander suits, and patent infringements."

Lincoln argued over three hundred cases before the Illinois Supreme Court And also argued before the United States Supreme Court. Indeed, a thoughtless insult that should never be hurled at Lincoln is that he was a backwoodsy cretin. It is precisely his intellectual amplitude that made him so powerful a force.

Slavery was another area Lincoln encountered as a lawyer. He served as counsel in two slavery cases: Bailey v. Cromwell (1841) and Matson v. Rutherford (1847). In the 1841 case, Lincoln victoriously argued for the presumption of freedom regarding an attempt to sell a black woman. (The converse presumption would have considered her a slave until she proved her freedom.) The 1847 case involved a slave owner named Robert Matson claiming return of fugitive slaves. Matson was from Kentucky and brought slaves to Coles County, Illinois, for part of the year. Jane Bryant escaped with her four children from the Coles County plantation and found refuge with local abolitionists. They were soon after found and jailed as fugitive slaves.

Given Lincoln's 1837 description of slavery as "founded on both injustice and bad policy" and his 1841 advocacy, one would guess he came to aid of the runaways. In fact, Lincoln represented Matson in his desire to re-enslave Bryant and her children. He predicated his argument upon Illinois law that allowed ownership in slaves to be maintained if they were brought into the state in transit. The Illinois circuit court was unconvinced, and the disgruntled tyrant returned to Kentucky in default on his attorney fees; the Bryants left to make a new start in Liberia.

Lincoln's conduct here not only diverged from but defied his actions in Bailey. It was one thing to abstain from Garrisonian positions; it was another to assist a slave owner in pursuit of his "property." Added to which, consider what Lincoln wrote to his friend Joshua Speed in 1855:

"In 1841 you and I had together a tedious low-water trip, on a Steam Boat from Louisville to St. Louis. You may remember, as I well do, that from Louisville to the mouth of the Ohio there were, on board, ten or a dozen slaves, shackled together with irons. That sight was a continual torment to me; and I see something like it every time I touch the Ohio, or any other slave-border."

Indeed, the 1841 sight was so much of "a continual torment" that in 1847 he went on to represent a man who would have put Jane Bryant and her children in those very shackles. Just to top things off, the attorney who defended Matson with Lincoln was Usher F. Linder, who as Illinois Attorney General had encouraged the mob that murdered abolitionist Elijah Lovejoy in 1837.

Biographer David Donald gives a vocational explanation for Lincoln's conduct:

"[H]is business was law, not morality." Oates similarly writes of Lincoln's "cold and brutal logic" that would mean "sending a family back to bondage," yet explains this was the conduct of "attorney Lincoln" who had an "essentially pragmatic approach to the law." Donald also notes Lincoln's "pragmatic approach to problems."

These rationales raise two issues. First, there's the false dichotomy of law versus morality. These realms are, if anything, intertwined. For example, when the Bolsheviks seized power they abolished trial by jury. If law's separate from morality, this was nothing more than a formalistic alteration. Such an interpretation seems self-evidently shallow; this procedural transformation pointed to a political (im)morality that would eliminate any cornerstone of justice to insure entrenchment. Likewise, rationalizing Lincoln's defense of Matson as the action of "attorney Lincoln" operating in a plane apart from morality is weak. (Bear in mind Lincoln was under no compulsion to take Matson as a client; it was an elective act, not some deterministic imperative.) The courthouse doesn't create an exemption of conscience.

The second issue of Lincoln's pragmatism is crucial. "Pragmatic" refers to a temperament, but it entails a philosophy that rejects principled conduct.

As William James affirmed, "The art of being wise is the art of knowing what to overlook." Wisdom through intentional disregard is already problematic, and the Matson case shows how this ersatz sagacity leads to hideous conduct. Once consistency and logic are divorced from behavior, calamity is never too far. Indeed, the Matson case is a precedent for Lincoln's presidential inconsistency, and we know how that turned out. (As a representative example, Lincoln responded to charges that West Virginia came about through secession, "[T]here is still difference enough between secession against the constitution, and secession in favor of the constitution." So much for his sentiment in the First Inaugural that secession was "the essence of anarchy.")

Discovering Lincoln's role in the Matson case doesn't require archival toil. Historians as varied as Oates, Lerone Bennett, Jr., and M.E. Bradford have addressed it. Yet it remains one of those conspicuous obscurities. Unlike the Gettysburg Address or the Second Inaugural – cited eagerly as humanitarian gestures – Lincoln's voluntary enmeshment with returning people to a plantation-prison isn't trotted out by his amen corner.

Ludwig von Mises observed in Human Action that "The supremacy of public opinion determines the whole process of human history." If American history is to regain some clarity, Lincoln's betrayal of principle and freedom doesn't belong in conspicuous obscurity. Let it spotlight the orthodoxies of his adulators.

Myles Kantor is a law student at Stetson University.

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