Cross-Examination Blog: LINCOLN AND CONCESSION-SEEKING CROSS-EXAMINATION

Cross-Examination Blog: LINCOLN AND CONCESSION-SEEKING CROSS-EXAMINATION: Lincoln & McClellan October 3, 1862 Antietam There’s an old saying that you can take the boy out of the country, but...

ABRAHAM LINCOLN'S SECOND MURDER CASE--A NEWS REPORT AND A REMINISCENCE

Lincoln covered himself with glory in the defense of his first murder case. He didn't do so well in his second. The facts of the murder are set out in a news article from the Illinois State Register:

Murder.—A [ferr]yman named Neithamer, was murdered [illegible] (opposite Beardstown,) in Schuyler County on the 17th inst. It appears that some [illegible] crew of the steamboat Hero were at [illegible] when Neithamer entered with a segar in his mouth. One of the crew of the name of Frame, told Neithamer not to smoke in his face, when the latter replied, ‘he thought the country was free, and he would smoke where he pleased.’ Frame then lifted his hand to knock the segar from Neithamer’s mouth, when the latter also raised his for protection. Frame unobserved, drew a long butcher knife from his side, and drove it to the hilt in the breast of Neithamer, which killed him instantly. Frame was drunk.

I think the moral of this story is “don't blow cigar smoke in a drunk sailor's face.” William Fielding Fraim, sometimes known as Charlie Fraim, was promptly arrested and indicted for murder. Venue was changed to Carthage, Illinois, and Fraim was convicted as charged in a one-day trial. Lincoln tried to get the judgment arrested on grounds that the indictment was "informal," or improperly worded. That ploy had worked in Lincoln's first big criminal case, People v. Cordell, but his plea fell on deaf ears this time.

Three weeks after being found guilty of murder and sentenced to death, the sentence was carried out in a field just outside Carthage. In the first quarter of the twentieth century, Mrs. Eudocia Baldwin Marsh, an elderly citizen of Carthage, wrote and published an essay describing her recollection of the execution. She was seven years old when Fraim was hanged, and the event made a strong impression on her. Here is her account of the execution:

In 1854 a new brick courthouse was built in the center of the public square at Carthage. Soon after its completion a prisoner, Charlie Frame, charged with murder, was brought from an adjoining county on a change of venue to Carthage to stand his trial. This took place in May, and he was found guilty and sentenced to be hanged. as I remember, two or three months later. The jail was not yet built, so the condemned murderer was confined in the new courthouse, in the southwest jury room. This was almost directly opposite our log schoolhouse. Always at recess, and at the noon hour, when we were at play, Charlie sat at the window and watched us. We would go near, fascinated by the thought of the awful doom awaiting him. He frequently talked with us, always in a friendly, cheerful way. He was full of pranks and would sometimes tempt the boys to come under his window by throwing out nuts, candy or fruit. When they stooped to pick them up, he would throw out a cup of water. This practical joking always kept the girls too timid to try to get any of the dainties.

Charlie was fettered by a chain about his ankles, fastened to a large iron ball, which made a noise like thunder whenever he walked about the large, bare-floored room. He was never alone, for either the sheriff or his deputy was always in the room. They treated him with great kindness and leniency, however, for he was a pleasant and engaging boy, a red-headed Irishman, only twenty-one years old. He was full of the fun of his race, and continually teased his jailers and joked with them. It was under the influence of liquor that he had given way to anger and committed the crime for which he was required to forfeit his life.

On the day of the execution, long before sunrise, we heard the rumble of heavy farm wagons rolling into town from all directions. By sunrise the little town was thronged with men, women and children, afoot, on horseback and in wagons. Some came fifty miles, a few even a hundred, to witness the gruesome sight. School dismissed for the day. At our home the morning hours dragged slowly by. Everyone was too wrought up to work according to the usual ritual; Anne said she felt choked. In order, I suppose, to relieve the nervous excitement, the teacher, who was boarding at our house at the time,—Mr. French of the uncertain temper—proposed that we have some music. Lowell Mason's “Book of Sacred Music” was brought out, and we all joined in singing a number of hymns. Among others, we sang “Ariel”—“Oh, could I sing the matchless worth.” Our voices rose high and sweet, blending melodiously with the tones of the flute. The rhythm of the stately music, and the ecstatic nature of the words almost lifted me out of myself.

I'd soar to touch the heavenly strings

And vie with Gabriel while he sings

In notes almost divine.

***

Well, the delightful day will come

When my dear Lord will bring me home.

I wondered if, after they had taken poor Charlie Frame's life, he too would “soar” and call this a “delightful day.” It was quite sure my baby brother and Sister Alice were in that “home,” but I did not know whether poor Charlie's kindness to us children would make him good enough to be taken to be with them.

After dinner [we’d say “lunch” today], Father and my brothers saddled horses and made ready to go. I asked them to take me, but they all said, “Do you suppose we'd take a girl to a hanging? No, sir-ee; you stay at home with Mother like a good girl.” However, soon after they left, Mother, Anne and Mr. French decided to walk into town. To comfort me, they took me along. Mother and I went to call on a friend living on the north side of the square, and Anne and Mr. French went on a block or two farther to see some other friends.

While Mother and her friend talked I strolled out on the deserted street. Presently a man who frequently came to our house on business drove by. Seeing me alone, he stopped his horse and asked, “Sis, would you like to ride out and see the hanging?”

“Why, yes,” I hesitated. “Would you take me?”

“Of course,” he replied. “Jump in.”

Before I had time to think of what I was doing, he had taken me by the hand, lifted me to a seat by his side and was driving rapidly on the well-beaten way. The place of execution was less than a mile away, southeast of town, and we soon reached the edge of the crowd. From there, by slow degrees, he edged his light buggy through the press of people and the jam of vehicles, to the very heart of it all, to the piteous spectacle that had drawn together the vast throng. Fortunately for my peace of mind, we were only in time to see a perfectly still figure, whose face was covered by a black cap, and whose body was attired in a blue jacket and white trousers. For, at one time in his short life, poor Charlie had been a sailor. What a sight to take a seven-year-old girl to see! But in justice to my escort, I must say that he was an ex-sheriff and probably so inured to executions that he considered it no harm to gratify a child's curiosity.

We remained but a moment, then again forced a way through the throng. Driving rapidly back to town, my companion set me down where he had found me, and I went timidly into the house. My absence had not been noted; Mother and her friend were still talking.  Neither Father nor my brothers had seen me, so no one knew of my escapade. But I was unhappy, weighed down by the remembrance of poor Charlie's limp body and ashamed that I had gone without Mother's consent. After a time the burden grew too heavy to bear, so I told Mother the whole story. Much to my surprise, she was less vexed with me than with the man who took me. She was so shocked and grieved that my childish eyes should have looked upon such a sight that I assured her over and over again that “I would never do it again”—a promise that has never proved difficult to keep.

Having, in the line of duty, attended the executions of three men whom I have prosecuted, I must say that I found the execution of William Fraim disturbing. The method employed was an improvement over executions in Henry VIII’s England, where commoners were drawn, quartered, disemboweled, decapitated, and their heads stuck on a pole. Modern executions are conducted in a far more professional manner. There’s not really a painless way to kill someone who doesn’t want to die, but modern executions are carried out so as to minimize the pain as much as possible. They are also reserved for only the most atrocious murders. When I was a prosecutor, I would never have considered seeking the death penalty against William Fraim.

LINCOLN'S FIRST MURDER CASE: THE NEWS REPORTS

Lincoln Makes a Jury Argument

Less than two years after Abraham Lincoln was admitted to practice law, Lincoln's co-counsel trusted him with making the final argument to the jury in a sensational murder case. Their trust was not misplaced, and the jury returned a verdict of not guilty. Interestingly, Stephen A. Douglas, Lincoln's future opponent for the Senate, handled the prosecution.

Here are the contemporary news reports of the case:

“Deplorable Catastrophe.” Illinois State Journal. March 17, 1838. LPAL 84698.

Last week our town was the scene of a most deplorable catastrophe. On Wednesday evening last, Dr. J.M. Early, of his town, received a mortal wound from a pistol fired by Henry B. Truett. Dr. Early died on Saturday night, and was interred on Sunday afternoon. The gloom which this occurrence has thrown over our community can with difficulty be realized by those who have not witnessed it.

Several versions of this most fatal affair have already appeared—differing, in some points, essentially, from each other. In such a case as this, the ends of public justice can best be secured and the laws best administered, should public opinion be formed only on properly authenticated evidence. We therefore fully coincide in sentiment with the Republican, “that nothing should be said that could forestall public opinion, and prevent a calm, dispassionate and fair investigation by an impartial tribunal.”

We give the statement of the “Illinois Republican” on this subject:

From the Illinois Republican

It becomes our painful duty to record the lamentable death of one of our most useful and esteemed citizens, Doct. JACOB M. EARLY, who died on Saturday night last of a mortal wound inflicted by Henry B. Truett. As Mr. Truett is now confined in jail awaiting his trial for the awful deed, we are unwilling to say anything that would tend to increase the excitement that pervades the community, or that would by possibility forestall public opinion and prevent a calm, dispassionate and fair investigation by an impartial tribunal. But the melancholy affair having got into the public prints in other parts of the State, It will be expected of us to give a brief outline of the facts as they occurred. ON Wednesday last Dr. Early had been out on the rail road line and at night returned to Col. Spottswood’s Hotel, where he usually stopped when in town. He was seated in a chair in the sitting room, reading, when Truett entered the room and took a seat upon the settee on the opposite side of the fire place, and fixed his eye upon the Doctor, who did not seem to notice him. They remained in this situation until all the gentlemen present, ten or twelve in number, left the room but one. When Truett, rising to his feet, addressing himself to the Doctor, enquired if he was the author of a resolution passed at Peoria, disapproving of his (Truett’s) nomination as Register of the Land Office at Galena, and adding that he was informed that he was.  In reply the Doctor asked Truett who was his informant, to which Truett replied he was not at liberty to tell. Doct. Early then informed Truett that he declined saying wither he was or was not the author of the Resolution, but that he would do so as soon as he, Truett, would inform him who was his informant. Truett then pronounced the Doctor a d—d liar and scoundrel, &c. To which the Doctor replied that he wanted no difficulty with him and could not listen to his abuse. Truett again repeated the above, and added the epithet d—d coward, hypocrite, &c. Dr. Early then rose from his seat and took up a chair. Truett immediately stepped to the opposite side of the room passing round the Doctor, and he followed him with the chair before him, when Truett turned and shot him in the left side with a rifle pistol, dropped the pistol upon the floor and escaped from the house. The ball entered  the left side of Dr. Early, passed through the lower part of the stomach and the liver, and was taken out on the right side nearly opposite where it entered. This occurred about 8 o’clock on Wednesday Evening the 7th inst. And the Doctor endured his sufferings with Christian fortitude and firmness until about 12 o’clock on Saturday night the 10th inst. When he died with firm reliance upon the mercy of the Redeemer. Such is a brief sketch of this unfortunate occurrence, which has thrown a gloom over this community, and terminated in the untimely death of a valuable citizen, an affectionate husband, and a kind father.

Deeply we regret this melancholy affair, and much as we sympathize with the friends of the deceased, we hope that no undue excitement will prevail, that our citizens will refrain from the expression of their feelings and opinions, and let the law of the country have their course, and justice administered accordingly.

We have deemed it necessary to say thus enough to satisfy the expectation of the public and to correct the rumors and reports that are afloat, and are so well calculated to deceive.

On Sunday we attended the funeral: it was a solemn occasion. There was an unusually large concourse of People.

“The Springfield Affair.” Galena Gazette. March 23, 1838. LPAL 123271

The following account of an affair which has been the subject of much conversation for a week past, is copied from the Jacksonville Standard.— It may be necessary to explain the ground of the quarrel between Dr. Early and Mr. Truett, to state, that they belonged to different factions of the administration party now existing in this State—the former was a “Douglass man,” the latter a “May man.” Mr. Truett was appointed Register of the Land Office in this town, which appointment is understood to have given great party dissatisfaction. In the course of human events, a certain convention met at Peoria, to do some party business, and among other things, as it proved, to pass upon the following resolution:—

“Resolved, That in the opinion of this convention, the recent appointment of H.B. Truett to the office of register of the land office at Galena, was not in accordance with the wishes and feelings of the democratic party in this district, and that his standing is such as to require of us a recommendation to the president for his immediate removal.”

Which resolution, Mr. Truett deemed personally offensive—and about which the dispute arose, resulting unfortunately as it has. Dr. Early died on Saturday; and Mr. Truett was in jail, at the last accounts, awaiting his trial. There are many reports afloat respecting the affair,--the whole of which it will be safe to discredit, till they are judicially proven. It may be proper to state, that the account following, taken from a paper supposed to be under the control of the faction different from that to which Mr. Truett belonged; but may be strictly true for all that.

“Mr. Truett entered the bar-room of Col. Spottswood, sometime after night, and commenced abusing and using very provoking and insulting language to Dr. Early, in relation to some resolutions passed by the recent Peoria convention. The Doctor bore his insults for some time, and seemed disposed to explain, and not have a difficulty with him. But, when Mr. Truett continued his abuse, the Doctor requested him to desist, saying, if he did not he would be forced to compel him to do so, as he would not be insulted any more by him. The Doctor then rose from his seat, and took hold of the back of a chair; and Mr. Truett, being already upon his feet drew out his pistol and continued his abuse. The Doctor then raised the chair, but whether it was for the purpose of striking Truett or defending himself against Truett’s pistol, is not known; but while he had the chair raised in his hand, Truett shot him, and immediately dropped his pistol and made his escape through the back part of the house. The pistol ball passed in on the left side, near the lower rib, and was taken out on the opposite side, immediately above the hip bone.

“Mr. Truett is in custody of the law, and we hope will receive a fair trial. There are many reports in circulation in relation to this affair, not very favorable to him, and to the truth of which we know nothing; and as we do not wish to prejudge his case, or prejudice the public mind against him, we will not repeat them.”

“People vs. Henry B. Truett.” Peoria Register. October 20, 1838. LPAL 123275.

The trial of Truett for killing Dr. Early was concluded on Saturday night last, having occupied five days, two of which were consumed in selecting a jury. The following statement contains substantially and truly all the testimony in the case: It will be necessary to bear in mind that the dying declarations of the deceased were admitted by the court, in evidence, according to a well-known principle of law which admits such declarations, on the ground that the awful situation of a person apprehensive of immediate death, and standing, as it were, in the presence of his God, binds his conscience with as high an obligation as that of an oath.

It appeared in testimony that Truett had been for years in the habit of carrying pistols, and that he was generally considered a coward. He had been appointed to the office of Register of the land office at Galena, a short time before the Peoria Convention met in November last. Dr. Early was a member of that convention, and served on a committee which reported a resolution disapproving the appointment of Truett, and declaring it to be the opinion of the convention that his “standing was such as to require them to recommend his immediate removal.” The resolution was agreed to by the convention and published with the other proceedings. About the 4th or 5th of March last, Truett came from Galena to Springfield, during court in the latter place, he having suits to call his attention to court. He put up at the hotel of Maj. Spottswood. Dr. Early lived in the country four or five miles from Springfield. He was a rail-road contractor, and had business in town nearly every day. He sometimes put up overnight at said hotel. On the two evenings previous to the fatal occurrence, the overcoat of Truett was discovered by young Mr. Spottswood to have a pistol in its pocket, and said overcoat was both of those nights left carelessly about the house and used by said young Spottswood to sleep upon, the house being very full of guests. On the evening of the disaster, the overcoat, having the pistol still in the pocket, was hung up in the passage adjoining the sitting room. After supper that evening, Dr. Early, Truett and a number of gentlemen were in the sitting room. Most of the gentlemen left very soon, and Dr. Early, Truett, Gen. Ewing and two others remained. Early was sitting by a small table reading. Truett presented a paper to gen. Ewing about some private business and he and Gen. Ewing left the room to consult about said business; after which Ewing left the house and Truett returned to the room where Early was coming out of the passage where the pistol aforesaid had been in the coat pocket. Shortly after [the return of Truett, one man left] leaving in the room only one person besides Truett and Early. Truett had taken a seat on a settee by the fire, and now a remarkable expression in his countenance attracted the attention of the witness. Early soon finished reading, and also took a seat on the settee, and put his feet to the fire as if to warm them. Soon afterwards, Truett rose from the settee , passed over and placed himself standing immediately in front of Dr. Early, and with an expression and tone of deliberate energy, demanded of Early whether eh was the author of the Peoria resolution aforesaid. Early not answering immediately, Truett again made the same demand and added he was informed that Early was the author. Early asked Truett who was his informant, and promised to avow or disavow the authorship of the resolution as soon as Truett would give his informant. Truett then called Early a damned scoundrel. The witness thinking there might be serious difficulty, interposed and endeavored to check Truett. Then Truett continued in a less offensive tone and asked Early if they had not formerly been friends; to which the reply was yes. And Truett again asked if they were not friends when he left for Galena; to which the reply was, yes. Then Truett demanded again to know whether Early wrote the resolution. Early asked again for his informant, and Truett replied by calling Early a damned scoundrel and a damned rascal; but added, that if you (Early) are not the author of the resolution the language does not apply to you. Early then told Truett he could not take such insults, and remarked that he did not regard such a fellow. About this time the door opened, and the person who had last left the room came in, and walked to the corner of the rom some distance off, and was taking off his boots. A short pause ensued. Early still sitting; when Truett again, with greater energy and marked anger, demanded of Early whether he was the author of the Peoria resolution. Early made the same reply as before, promising to satisfy Truett whenever he would tell his informant. Truett then called Early a damned hypocrite and a damned coward. At this time Early saw the pistol of Truett, and according to the evidence of his dying declarations, was apprehensive of danger on account of Truett’s evident anger and apparent determination to urge on the controversy. In order, as Early’s dying declarations prove, protect him from the pistol, he then rose from his seat and took a chair in his hands and raised it bottom upwards, just in front of himself holding out his arms in nearly a horizontal position. Truett hastily passed round Early and performed a circle nearly around the room, passing near the door as if to get round Early, while early moved round also after Truett, with the chair still in the position as aforesaid, as if to keep it constantly facing Truett. Truett reached the corner of the fireplace, where the aforesaid settee [illegible] nearer the jam, when he suddenly fired his pistol and then dropped it and ran out of the house. It was the same pistol mentioned aforesaid as having been in the coat pocket of Truett that evening in the passage. The witness was firmly of the opinion that Truett brought the pistol cocked into the room, from the fact of his not hearing the click or seeing the motion of the hand, and from other circumstances. Truett was about three feet from Early when he shot. The ball passed through Early’s body, and he died on Saturday night following. It was also proven that Dr. Early was a stouter and much taller man than Truett. It was the opinion of one of the surgeons, from the range of the ball through the body, that Early must have held the chair in a striking position when he was shot. In addition to what the two eye witnesses said of the position of the char, Dr. Early’s dying declarations were that he lifted the chair to keep from being shot, and did not wish or intend to do more than prevent Truett from killing him.

This being the evidence, it was contended by the attorneys for the prosecution that a clear case of murder was made out—that the killing itself implied malice by law—that express malice was proven from the fact of his getting the pistol that night after seeing Early—the expression of his countenance before speaking to Early—the determined manner in which he spoke to Early—the abuse—the repeated insults—the provoking epithets—these too spoken by a cowardly man to one his superior in size, strength, and courage—all went to prove that he was prepared to execute vengeance, and had the advantage of Early in having a cocked pistol well loaded—which pistol he drew, and it was seen b Early before he rose from his seat. That Early evidently had a right to take a chair or anything else to protect himself from a man standing before him with a pistol, and calling him a damned scoundrel, an damned rascal, a damned hypocrite and a damned coward. The prosecution contended that Truett was the assailant from the beginning—that he sought the controversy—urged on the quarrel for the purpose of seeking an opportunity to take Early’s life—and that when Early lifted the chair before him Early passed round so that he might safely shoot after a sham appearance of retreat and that Early pressed towards Truett to prevent him from shooting rather than stand still and be shot down by the deliberate aim of his antagonist.

For the defense it was contended that Early had a deadly weapon, to wit, a chair, within striking distance of Truett—that Early could have immediately crushed Truett with the chair—that he intended to do so, or that Truett supposed he intended to do so—that Truett was authorized to make the demand about the authorship of the Peoria resolution—that his pride of character was much wounded by the resolution—that the frailties and passions of human nature should be somewhat indulged—that he had suffered in prison seven months, &c. &c.

The jury retired about seven o’clock in the evening, and in about three hours returned a verdict of NOT GUILTY!

“Truett’s Trial.” Illinois State Journal. October 20, 1838. LPAL 123274.

This case came up for trial on Tuesday morning the 9th inst. That day and Wednesday were spent in obtaining eleven jurors—The twelfth was got in about an hour’s trial on Thursday morning; after which the evidences were completed on that day. On Friday morning the argument commenced, and continued (a part only of Friday night excepted) until between 6 and 7 o’clock on Saturday evening, when it was concluded and the jury, after a retirement of one hour and forty minutes, returned a verdict of “Not guilty.”

In making the jury, about twenty persons were challenged peremptorily, and three or four hundred for cause.

   

LINCOLN'S FIRST SERIOUS CRIMINAL CASE

Becoming a lawyer in antebellum America was much easier than it is today. In Illinois you could practice law without a license if you didn’t charge for your services. If you wanted to charge for your services, you had to get a certificate of good character from a lawyer, get a license issued from the Supreme Court, and then get yourself enrolled with the clerk of the Supreme Court as an attorney. Abraham Lincoln received a certificate of good character from Judge Stephen T. Logan on March 24, 1836. On September 9, 1836, two Justices of the Illinois Supreme Court issued his license to practice law. For some reason, possibly inability to pay the fee, Lincoln did not get enrolled as a lawyer in the records of the Clerk of the Supreme Court until March 1, 1837. On April 15, 1837, the Sangamo Journal printed an announcement that Lincoln had gone into partnership with John T. Stuart. Not long after Lincoln was admitted to practice the Supreme Court started requiring “bar examinations” before they would issue a license. Lincoln became a bar examiner, and he was reputed to be a very lenient examiner indeed. One young lawyer who was “examined” by Lincoln claimed that Lincoln asked him not a single question about his knowledge of the law.

One of Lincoln’s first criminal cases involved the defense of a man named David Cordell on a charge of assault to murder. Stuart, who was an experienced attorney, probably took the lead in the case with Lincoln’s assistance. The actual indictment against Cordell is over 100 years old, handwritten on faded paper, and almost illegible. A facsimile of it is set forth below:

CORDELL INDICTMENT


After the indictment was written and signed by the state’s attorney, it was folded in quarters and the style of the case was written on the back. The foreman of the grand jury signed the back of the indictment attesting that the grand jury had found a true bill of indictment, and the names of the witnesses who testified before the grand jury were written below the foreman’s signature. Before it was folded, the back of the indictment looked like this:

 

They didn’t have file folders back in those days. They had cardboard sleeves called “shucks.” Folded papers were slid loose into the shucks.  When you pulled the papers out you identified them by the description written on the outside quarter of the back page. It was a good system if there were not a lot of papers to go into the court file. When I started with the public defender’s office back in the early 1970’s, they were still using shucks in the circuit where I practiced.

In Florida most prosecutions are done by information rather than indictment, but the format was exactly as I have described. The charge was typed on one side, the paper was folded in quarters, and the style of the case and witnesses were endorsed on the back quarter. When we indicted Ted Bundy, that’s the format we used for the indictment.

Anyhow, getting back to Lincoln’s first significant criminal case: Back before the Civil War, the rules for wording charges were much more stringent than they are today. If all your I’s weren’t dotted and all your T’s weren’t crossed, the indictment would get dismissed. I won’t get into the details, but there were a lot of problems with the Cordell indictment besides the fact that they spelled his name wrong. The indictment got dismissed, and the state’s attorney declined to refile. Cordell’s victim filed a civil suit which was a little more successful. He recovered $100 for his broken arm. Lincoln recovered $50 for defending Cordell.

If you read the indictment above, you might be wondering what a "scythe sneath" is. I certainly did, so I looked it up. The first thing I learned was that Cordell’s name wasn’t the only thing the state’s attorney had trouble spelling. The correct spelling is “scythe snath.” The second thing I learned was that a scythe snath is a scythe handle. If you don’t think you can live without a scythe snath, you can buy one on Amazon for about $54.

SCYTHE SNATH

 

As you can see from the picture, a scythe snath can be a pretty mean weapon even without the scythe blade attached. When I was in high school I saw a news report about a pack of rabid wolves attacking a peasant village in one of the old Soviet republics. The reporter said that the villagers fought the wolves off with axes and scythes. Strict gun control laws can be a real problem when you’re attacked by a pack of rabid wolves.

SPEEDY TRIALS IN ANTEBELLUM ILLINOIS

 

 

Back in the 1950’s cartoonist Virgil Partch drew a character named Big George. Big George appeared in a syndicated comic strip and also in the pages of True: The Man’s Magazine. My fondest memory of Big George is a cartoon which depicts him standing arms akimbo and loudly announcing “I’m a big enough man to admit when I’m wrong, and I’ll do so if I ever am.”

I learned just the other day I learned that I might have been wrong about something I said in Lincoln’s Most Famous Case. I said that there was no speedy trial statute in antebellum Illinois. Then the other day I ran across a reference to the case of People v. Bantzhouse, which said Lincoln had gotten a murder case dismissed for violation the defendant’s right to a speedy trial. Strangely, the author did not cite a source for this proposition. I consulted a number of books on Lincoln and found many of them making the same claim—that Lincoln got Bantzhouse’s case dismissed for violation of the speedy trial rule. None of them cited a source for the claim.

 

 

 

Determined to find out the authority for the claim, I looked to the Bantzhouse file on the Law Practice of Abraham Lincoln website and found nothing in the record saying why the case was dismissed. I next scoured the antebellum Illinois Statutes on criminal law and court procedure and could find no support for the claim. I finally found the source in Union General John A. McClernand and the Politics of Command by Christopher C. Meyers. McClernand had been an Illinois lawyer before the Civil War, and he had been Lincoln’s co-counsel in the case.  The citation I found was to a master’s thesis written by John Lupton, who is now the ‎Executive Director of the Illinois Supreme Court Historic Preservation Commission. I corresponded with Lupton, and he pointed me in the direction of the Illinois law on habeas corpus, which provided:

If any person shall be committed for a criminal, or supposed criminal matter, and not admitted to bail, and shall not be tried on or before the second term of the court having jurisdiction of the offence, the prisoner shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. If such court; at the second term, shall be satisfied that due exertions have been made to procure the evidence for, and on behalf of the people, and that there are reasonable grounds to believe that such evidence may be procured at the third term, they shall have power to continue such case till the third term. If any such prisoner shall have been admitted to bail for a crime other than a capital one, the court may continue the trial of said cause to a third term, if it shall appear by oath or affirmation that the witnesses for the people of the state are absent, such witnesses being mentioned by name, and the court shewn wherein their testimony is material.

Gale’s Illinois Statutes, 1839, pp. 835-836. What this statute seems to be saying (I could find no cases interpreting it) is that a defendant can be held in jail without trial for up to a year. (Terms of court lasted six months). If at the end of the year the prosecution can convince the judge that the absent witnesses are likely to be procured by the next term, the defendant can be held another six months. Since the provision is in the habeas corpus statute and not in the criminal procedure statute, it seems to me that the proper way to raise this issue is by filing a petition for writ of habeas corpus, not by moving to dismiss the indictment.

So I was wrong. There was a sort of speedy trial statute in antebellum Illinois, but the defendant could avail himself of it only if he had not taken some action which delayed the trial of the case.

It does not appear in the record of the case that Bantzhouse was released on the authority of this statute, but in the absence of other evidence as to why the case was dismissed, the speedy trial rule is the best explanation available. There is, however, evidence of another reason, but you have to look close to find it and you have to know something about common law pleading to realize what you’re looking at.

A contemporary news article said the indictment was dismissed for “informality.” This term (“informality”) has gone out of use in modern pleading, and many modern lawyers might miss its significance. An “informal” indictment is one which is so poorly drafted that it doesn’t properly charge a crime. I read the Bantzhouse indictment and it looks to me to be the most poorly drafted antebellum indictment I have ever read.

Usually there would be no problem when an indictment was dismissed for informality. The state’s attorney would just march back into the grand jury room and get another indictment. That wasn’t possible in the Bantzhouse case because the venue had been changed to another county. Bantzhouse had to be indicted in the county where the crime occurred, and that county was far away. Of course the prosecutor could have gotten another indictment the next time they were holding court in the original county, and the prosecutor tried to do this very thing. The problem was that Bantzhouse had departed for parts unknown.

Some of the biographers who subscribe to the speedy trial interpretation also say that Lincoln engaged in some sneaky maneuvering to hoodwink an inexperienced state’s attorney. By their interpretation Lincoln timed the motion for change of venue so that if the motion were granted, it would extend the trial beyond two terms and run afoul of the speedy trial statute. I don’t think this interpretation can stand up because if Lincoln caused the delay, then his client couldn’t profit by it. It’d be like killing your parents and then asking for mercy because you were an orphan.

My “informality” interpretation opens Lincoln up for even greater criticism. The indictment was defective before the venue was changed. If Lincoln had moved to dismiss the indictment before moving for a change of venue, the state’s attorney would have had an opportunity to re-indict Bantzhouse in the county where the crime occurred. So it looks like Lincoln could have realized the indictment was defective and concocted a plan to get a change of venue, and then move to dismiss after he’d made it impossible for the state’s attorney to immediately re-indict.

There’s not enough evidence to accuse Lincoln of engaging in any kind of chicanery. We don’t really know why the indictment was dismissed, and we don’t know whether Lincoln inspected the indictment thoroughly before getting the change of venue. I’m in favor of giving Lincoln the benefit of the doubt and not accusing him of any kind of sharp practice. I say this because I once got accused of such shenanigans when I was completely innocent.

I was a young lawyer just out of law school and I was defending a man on a cattle rustling charge. It wasn’t until both sides had rested and we were in the instructions conference that we realized the legislature had repealed the cattle rustling statute. The judge thought I knew it all along and was trying to my client off by waiting until after the trial to point out that the statute was repealed, getting the case dismissed, and then moving to dismiss any refiled charge of grand larceny on grounds of former jeopardy. In one way of looking at the situation, it was flattering to have the judge think I was that smart. In another way of looking at it, I was offended that he thought I was sneaky enough to engineer such a situation. In reality I was neither that smart nor that sneaky.