is filled with conspicuous obscurities. These are facts that, while
undisputed and accessible, remain in analytical limbo. A modern
example is the Soviet Unionís role in the Nuremberg trials, "where
Stalinís 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 isnít contested
as a factual matter; itís just ignored for the most part.
it goes with American history and especially Lincoln historiography
(idolatry?). Lincolnís 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." Lincolnís 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.
Lincoln was an extremely versatile lawyer. Biographer Stephen B.
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."
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.
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.
Lincolnís 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.
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:
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."
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.
David Donald gives a vocational explanation for Lincolnís conduct:
business was law, not morality." Oates similarly writes of
Lincolnís "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 Lincolnís "pragmatic
approach to problems."
rationales raise two issues. First, thereís 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 lawís 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 Lincolnís 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 doesnít create an exemption of conscience.
second issue of Lincolnís pragmatism is crucial. "Pragmatic"
refers to a temperament, but it entails a philosophy that rejects
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 Lincolnís 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.")
Lincolnís role in the Matson case doesnít 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 Lincolnís voluntary enmeshment with returning
people to a plantation-prison isnít trotted out by his amen corner.
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, Lincolnís betrayal of principle and freedom
doesnít belong in conspicuous obscurity. Let it spotlight the orthodoxies
of his adulators.
Kantor is a law student at Stetson University.