Blockchain Papers

Mark E. Steiner

After John J. Duff and John P. Frank published books on Abraham Lincoln’s legal career in the early 1960s, more than forty years passed before another book on the subject appeared.1 This remarkable drought for the fecund soil of Lincolniana ended, however, when the Lincoln Legal Papers project (LLP) revitalized interest in lawyer Lincoln. Under the leadership of Cullom Davis and Daniel Stowell, the LLP collected, cataloged, and scanned thousands of documents. A complete edition was published in 2000 in DVD format; it has been superseded by an online edition that appeared in 2009.2 A four-volume selected edition was published by the University of Virginia Press in 2008.3 Moreover, members of the LLP staff—the late William D. Beard, Davis, Susan Krause, John A. Lupton, Stacy Pratt McDermott, Christopher A. Schnell, and Stowell—also were producing much of the new scholarship on Lincoln’s law practice or, more generally, law in Lincoln’s Illinois.4In the antediluvian era, biographers paid little attention to Lincoln’s law practice. Lincoln biographies usually included a couple of chapters that touched on his legal career. Albert J. Beveridge, in his 1928 biography, mentioned a fair number of cases but discussed at length only a handful; those cases have become canonical. Until the onset of the LLP, most biographies only mentioned the same cases that Beveridge had highlighted: In re Jane Bryant (the Matson case); State v. Armstrong (the Almanac Trial); Illinois Central Rail Road v. McLean County; McCormick v. Talcott (the Manny Reaper case); and Hurd v. Rock Island Bridge Company (the Effie Afton case).5Biographers had neglected Lincoln’s law practice for a couple of reasons. First, as Herndon once wrote, “a law office is a dull, dry place.”6 Biographers weren’t interested in the legal practice, because they believed the legal practice wasn’t interesting. But there were other reasons as well. J. G. Randall, in 1936, noted how important sources for Lincoln’s law practice “still remain difficult of access.”7 Mark E. Neely, in 1993, concluded that “Lincoln’s professional life remains surprisingly inaccessible to the historian as well, though the problem in this realm is largely archival.” Neely also believed that “more specialized studies” of the “arcane legal practices” of Lincoln’s day were needed.8 Those two problems—accessibility of documents and demystifying specialized studies—have been met by the publication of the legal papers and by the extensive scholarship by the LLP staff and others.Although David Donald’s 1995 biography was written while the LLP was still collecting and sorting documents, it nonetheless showed the LLP’s impact on Lincoln scholarship. Donald hailed the LLP as “perhaps the most important archival investigation now under way in the United States.” Donald had been able to examine unpublished documents from the LLP files and thus gave the most complete accounting of Lincoln’s law practice in a biography. The benefits of the LLP were again seen in Michael Burlingame’s magisterial biography, published in 2008. Recent books that have focused on the pre-presidential years also reflect the influence of the LLP in their treatment of the law practice.9Other writers also have benefited from LLP’s vast riches. At least fourteen books on Lincoln’s law practice have been published since 2000. There have been two general treatments of the law practice, a study of Lincoln’s cases involving the medical profession, an analysis of Lincoln’s murder cases, a collection of articles on different aspects of the law practice, and two books examining Lincoln’s circuit riding.10 Seven books have focused on one particular case handled by Lincoln. Five are on canonical cases: two on the Almanac Trial, two on the Effie Afton case, and one on the Matson case.11 The other two books explore relatively overlooked murder cases.12Both Dekle and McGinty have taken great advantage of the materials collected by the LLP. McGinty notes that “all modern studies of Lincoln’s legal practice are indebted to the Lincoln Legal Papers project.” After noting the Legal Papers are “indispensable sources of information,” McGinty states, “This book could not have been written, nor could the story of the Effie Afton case have been told—or told as well—without them” (10). Dekle reproduces all the legal documents from the LLP case file on the Almanac Trial as an appendix (151–64). Both cases were included in The Papers of Abraham Lincoln: Legal Documents and Cases.13Dekle and McGinty have very different goals for their books. Dekle calls the Almanac Trial Lincoln’s “most famous case.” He does not argue that the case was particularly important for Lincoln or that it has any wider significance for American history. He is interested in trying to uncover what actually happened at the trial. McGinty calls the Effie Afton case the “most significant of Lincoln’s career” and “one of the most important ever heard in Illinois.” If anything, McGinty believes that this “strangely neglected” case should be more widely known. His goal is not only to tell the story of the Effie Afton case but to explain Lincoln’s role and to place the case in a broader context of the “epochal clash of the railroads and the steamboats at the river’s edge” (2). Both authors achieve their aims in writing these books. And both books share something else: well-chosen illustrations.Most of the documents uncovered by the LLP yield little without great effort. Docket entries, pleadings, and subpoenas are all mostly formulaic. The materials available for these two cases are markedly different, and the two authors capitalize on the differences. The Effie Afton case was one of only three cases handled by Lincoln that produced what would now be called a transcript of the trial (102).14 Because the Duff Armstrong murder trial was featured in Lincoln campaign biographies, participants and observers left behind many reminiscences.15 Dekle’s main task is sorting out these conflicting reminiscences to determine what probably happened at the trial.Both Dekle and McGinty are lawyers. James G. Randall in his 1936 essay “Has the Lincoln Theme Been Exhausted?” observed that “the hand of the amateur has rested heavily upon Lincoln studies.” Randall believed that Lincoln scholarship required “further critical development by historically trained scholars.”16 The hand of lawyers has rested heavily on studies of lawyer Lincoln. The first five books about Lincoln’s law practice were written by lawyers who had no historical training: Frederick Trevor Hill (1906); John T. Richards (1916), Albert A. Woldman (1936), Duff (1960), and Frank (1961).17 When Neely revisited Randall’s essay in 1979, he noted that “legal history is an area where professionalism has been slow to take command.” In 1979 this was still an area where Randall’s “trained historical specialist is rarely seen.”18Dekle in the preface to his book modestly admits he is “neither a historian nor a Lincoln Scholar” (x). Dekle practiced criminal law for thirty years as an assistant district attorney. He is now the director of the Criminal Prosecution Clinic at the University of Florida Levin College of Law. McGinty left the practice of law to become a professional writer and historian. Like Lincoln the lawyer, McGinty the historian is self-taught. Among his ten previous books are well-received studies of the Supreme Court during the Civil War and the case of Ex parte Merryman.19Both authors believe that their own experiences as lawyers help them understand lawyer Lincoln. This, in fact, is the central conceit of Dekle’s book. Dekle says that he “felt equal to the task of unraveling the Almanac Trial because if I had learned anything during my three decades as a criminal trial lawyer, I learned how to investigate, prosecute, and defend murder cases.” Dekle carries this argument of authority too far, and it sometimes leads him to presentism. He assumes throughout the book that practicing law in Illinois in 1850s is the same as practicing law now. Dekle often makes conclusions based on his own experience, assuming that his time spent in a Florida courtroom in the past thirty years are the same as Lincoln’s experiences in antebellum Illinois. For example, he says, “In my experiences as a trial lawyer, negative character evidence of this type is near worthless” (104).For example, Dekle points out that Duff Armstrong could have had a lawyer appointed to represent him if he couldn’t afford the services of one but that the lawyer wouldn’t have been paid. Dekle then asserts, “It is an unfortunate fact of life, however, that underpaid lawyers often do not defend their clients with the zeal displayed by well-paid lawyers” (3). But has this “fact of life” always been true? Armstrong’s case was tried when judges and lawyers rode the circuit. Each county of the circuit held two terms of court. Holding court was a form of public entertainment, and members of the community would turn out to see trials. With large crowds in attendance, wouldn’t even an unpaid lawyer have a lot at stake? Effective representation would be an advertisement for future legal services.This presentist viewpoint permeates the book. One example is the discussion of William Norris, who was charged with murder along with Duff Armstrong. Norris, who had been charged and acquitted of murder a year earlier in Macon County, did not attempt to change venue to another county, a move that might have benefited him. This fact has led to “unjustified criticism” of his lawyer, William Walker, according to Dekle, who explains that this “gross error” wasn’t his lawyer’s fault.The assumption is what is lawful or ethical for lawyers now was lawful or ethical in Illinois in 1857. The law of lawyering was not fully developed in antebellum America; there weren’t any laws or formal bar association rules that are analogous to modern codes of ethics or disciplinary rules.20Dekle rejects one version of Lincoln’s cross-examination of Charles Allen (which claimed Lincoln didn’t question Allen about the almanac but instead turned to the jurors and asked whom they believed), because it would have been “excellent theater but improper trial procedure. During the examination of a witness, the lawyers simply ask questions of the witness without making asides to the jury.” Lincoln’s purported behavior would have been a “breach of courtroom protocol” (88). While this behavior would undoubtedly be a breach of courtroom protocol in any modern courtroom, I’m not sure the rule applied in 1857. A complicating factor for Dekle’s assumption about courtroom rules is that in 1857, an Illinois statute said that the jury was to “be judges of the law and the facts.”21Dekle in his penultimate chapter is more careful about not applying twenty-first-century standards to the Almanac Trial. Some writers have characterized Lincoln’s final argument as inflammatory and unethical, as Lincoln assumed facts not in evidence and made emotional appeals based on his relationship with the Armstrong family. While Dekle concedes by “modern standards” Lincoln’s argument was objectionable, he answers this criticism by pointing out, “We have no business using a twenty-first-century yardstick to measure a nineteenth-century speech” (113). Another criticism of Lincoln is that he unethically refused to hear what a witness wanted to tell him about what he saw that fateful evening. Lincoln was planning to call Will Watkins to establish that he was the owner of the possible murder weapon. Watkins, who later said he had seen Armstrong strike Metzker with a wagon hammer, was afraid that once he got on the witness stand he would have to tell what he saw. According to one account, Watkins “began to tell Lincoln what he knew, and Mr. Lincoln would not allow him to tell him anything” (135). Dekle establishes that there would been no duty for a defense lawyer in 1857 to discover what Watkins knew. Finally, Dekle discusses whether the cross-examination of Watkins by the state would have been restricted to matters Watkins had testified about during Lincoln’s direct examination, as some writers have questioned whether that rule existed in antebellum Illinois. While Dekle can’t find a case on point from Illinois before 1929, he cites a U.S. Supreme Court opinion that in 1840 had recognized this rule as “well established” (115–16).Dekle presents three different versions of the Armstrong murder trial that he has found in the literature about the case. Version one has Lincoln securing acquittal by his masterful cross-examination of a key prosecution witness. Through the use of an almanac, Lincoln proves that the witness would not have been aided by moonlight to have seen what he claimed he saw. This version “has entered the pantheon of great moments in the history of American trial advocacy” (7). The urtext for the version was the novel The Graysons: A Story of Illinois (1887).22 Version two (which, chronologically, appeared first) has Lincoln securing acquittal primarily through an emotional appeal in his closing argument that mentioned Lincoln’s relationship in New Salem with Armstrong’s father, who had recently died. This version, which doesn’t mention Lincoln’s cross-examination or use of the almanac, was tied to Lincoln’s campaign for president; it first appeared in the Cleveland Leader the day after Lincoln was nominated for president at the Republican national convention. Lincoln’s representation of Duff Armstrong then figured prominently in campaign biographies, which obviously helps explain why it became Lincoln’s “most famous case” (13).23 Version three also was connected to Lincoln’s presidential campaign; it was the counternarrative advanced by Lincoln’s opponents. This version depicted Lincoln faking the almanac. Instead of the virtuous lawyer, there was “Lincoln the Trickster” (18–19).Dekle ultimately concludes that “the famous cross-examination” didn’t happen. He looks at the various versions of it. (That Dekle calls these versions “variant transcripts” is like calling a forged Monet painting a “variant Monet,” since none of them is a transcript of the cross-examination [87].) Some of these versions are rightly dismissed out of hand because they are fictional or dramatizations of what the writer believed likely happened. Others are dismissed because they are factually inaccurate. Irving Younger, an expert of the law of evidence, concocted a mixture of earlier versions (94).Dekle is convinced that Lincoln used an almanac to contradict Allen’s testimony. The dispute, for Dekle, “arises over when Lincoln did his contradicting” (87). Lincoln could have immediately confronted the witness during the cross-examination, or he could have waited to contradict the witness during his final argument. Dekle concludes Lincoln waited. J. W. Donovan, the first to claim that Lincoln confronted Allen during his cross-examination, did so in 1898 (over forty years later!) and appears to have appropriated the cross-examination from Eggleston’s fictional account.But what good did the almanac do? Dekle details the “precise nature of the contradiction Lincoln found in the almanac.” Charles Allen, the key witness against Armstrong, testified that he saw the by the of the Some sources claim that the almanac showed there was no in the that while claim Lincoln’s almanac showed the was near Dekle concludes that the almanac showed the was near He rejects those who the almanac no as their as they Dekle also rejects the which first appeared during the presidential campaign of for 1857 showed the on the the almanac would have been a because the for 1857 showed that the had not that the was a Dekle the that Lincoln used a almanac by pointing out that the would have him as Dekle had a McGinty the Effie Afton case on the The first five chapters the of the by the of the Effie Afton against the Bridge McGinty with a discussion of the of on the He also discusses Lincoln’s with and and his early for like and McGinty also details the of The chapter be the of Lincoln’s law chapter details the of the Rock Island In gave of way to public to any by a state to a The Illinois the Bridge it to a near Rock Island so as it did not the of the McGinty also does a good of the in and the legal in earlier One of the more aspects of Lincoln’s career is how some who would later prominently during the Civil War his years Davis the story as of the War Davis tried to the of the probably because he a to the The U.S. for Illinois to the but John McLean later in the McLean did that if were by any of by the then the would be chapter does a masterful of the which two after the The Effie Afton had and over of The of the the Effie Afton with a before for the When it was through the it one of the then and then a in the of the and The was also with the on the Illinois against the was The chapters are about that The were and had significant were also by in and other who for the After the was in court in for the of Rock Island Lincoln didn’t the defense after the was books are of how Lincoln often with other lawyers to In the Almanac Trial, Lincoln and William in Duff Lincoln the defense many had been and many had been was Lincoln’s McGinty fair with the evidence and concludes that the did not believe that Lincoln was to as Dekle’s book is based largely on McGinty on on the case that appeared in the trial for the and for the and later the McGinty notes that recognized the trial one of the most that had ever taken place in an American The trial in 1857. Lincoln does not to have taken in the The then over Lincoln does not to have made his during the case in was then the and McGinty were about to their by a lawyer from with a remarkable and a of trial as the lawyer for the Lincoln made his first in the trial an whether about the over the was The to this because it wasn’t to the of the first for the that “the good of the should be Lincoln then that the would not be a one in of the of the While the for an of the in Lincoln’s as they should to the nature and of McLean the evidence for the of the of the the evidence couldn’t be used to “the nature of the other significant to the defense was one of the closing to the closing and he only gave of what he the most important by the lawyers” McGinty is able to use to a of how good Lincoln was as a trial Lincoln by the jury did not to that he to as he but not Lincoln many used of two He that the of the the of railroads and and the of the Lincoln also that the was if the jury the would Lincoln are by the to the when a along it is for him to on of this which has been trial in a a for the since the had the of While the case wasn’t Lincoln’s tried their with other which didn’t One of the Effie Afton a which was dismissed in A to the was in Lincoln’s Afton career. He in my to the Effie Afton case a for Lincoln’s to the Because of the for Lincoln and at the state in were critical for Lincoln’s If Lincoln in then Lincoln wouldn’t have been the and there wouldn’t have been a and then Lincoln wouldn’t have been the Republican in explains that history two First, railroads over steamboats and a key role in a new Lincoln became a in an American The Effie Afton case how lawyer Lincoln to the with to the on the and to turn the an future of and books to Lincoln McGinty has written the of the Effie Afton case by not only the but also wider Dekle the of what probably happened at the Almanac the most famous cross-examination in American history didn’t actually But he written the on the trial. on Dekle’s a future of lawyer Lincoln to explain why this trial became Lincoln’s “most famous case.”

Eugenia Houvenaghel

espanolEstudiaremos en clave argumentativa la contribucion de Alfonso Reyes a la polemica acerca del “mexicanismo” o de la “espanolidad” de Juan Ruiz de Alarcon, debate que se inicia en pleno ambiente revolucionario mexicano. El aporte que el diplomatico nos brinda ofrece material para aproximarnos no solo a la evolucion del debate, sino tambien a la verdadera apuesta de la discusion a los ojos de Reyes. Para Reyes, el debate gira en torno al nivel cultural de la colonia en los siglos XVI y XVII y concierne las posibilidades de desarrollo de un espiritu americano en las primeras decadas que siguen a la hispanizacion del Nuevo Mundo. El ensayista aprovecha el debate para recalcar como las culturas de la metropoli y de la colonia se fomentan mutuamente desde el primer contacto. Rebatiendo el ambiente nacionalista en el que el debate se inicio, Reyes convierte el caso Alarcon en otra prueba mas del enriquecimiento cultural que trae el intercambio de doble sentido entre Espana y la Nueva Espana. EnglishFrom an argumentative perspective, we study the contribution of Alfonso Reyes to the polemic about the New Mexican or Spanish identity of Juan Ruiz de Alarcon, a debate initiated in the nationalist ambiance of the Mexican Revolution. Reyes’ part in the discussion offers elements which enable us to reconsider the debate’s evolution, but also gives us the opportunity to examine the real stake of the polemic in Reyes’ eyes. For the essayist, much of the debate revolves around the cultural level of the colony in the 16th and 17th centuries and concerns the development of an American spirit in the first decades after the colonization of the New World. The essayist makes use of the discussion to emphasize the way in which the cultures of both metropolis and colony have cross-fertilized immediately after the first contact. Going against the nationalist atmosphere in which the debate had originally started, Reyes turns the case Alarcon into one more proof of the cultural enrichment that the two-way exchange between Spain and New Spain has engenderes.

William J. Novak

The American present is at odds with representations of the American past. The American present witnesses the steady aggrandizement of executive, administrative, emergency, penal, military, and war powers as contemporary commentators such as Michael Hardt, Antonio Negri, and Giorgio Agamben contemplate the contours of American hegemony and superpower in a new era of empire.1 The global impact of present American politics, political economy, and foreign policy is obvious to any casual observer of current affairs. The story of the American past, on the other hand, continues to be told in narratives that seem to be heading off somewhere else. In place of the growth of power, the history that America most frequently tells itself highlights a story of relative powerlessness—a usually benign tale of legal-political self-abnegation, emphasizing constitutional restraints such as federalism, checks and balances, the separation of powers, limited government, the rule of law, and laissez-faire. When presented more positively, American history is usually framed as a quest for freedom—the struggle for political liberty, emancipation from bondage, the rise of civil, economic, and social rights. Property, contract, and freedom of speech, press, and association form the constitutional backbone of a free market, a vigorous civil society, and a democratic polity—hallmarks of a free people. Oddly, key elements of this tale are kept alive in both older political histories of the liberal tradition in America and newer histories highlighting the rights and agency of particular cultural communities. Coming to terms with the historical rise of the mechanisms of legal, political, economic, corporate, and technological power that currently shape so much of the globe is thus a more difficult task than it should be. A true philosophical and political history of the American present continues to elude historians.2 This disjunction between historical perception and political reality is not an entirely new phenomenon in the United States. As early as 1887, in a penetrating essay titled “The American State and the American Man,” Albert Shaw chided Americans for their laissez-faire fantasy: “The average American has an unequaled capacity for the entertainment of legal fictions and kindred delusions. He lives in one world of theory and in another world of practice … Never for a moment relinquishing their theory [of laissez-faire], the people of the United States have assiduously pursued and cherished a practical policy utterly inconsistent with that theory, and have not perceived the discrepancy.” Surveying thousands of regulatory laws passed by state legislatures in the late nineteenth century, Shaw concluded that “the one common and striking characteristic of this huge collection of new statutes is its utter disregard of the laissez-faire principle … They deal with the citizen in every conceivable relation. They seem to have left nothing for future Legislatures to regulate.” One hundred years later, in the middle of Ronald Reagan's America, Senator Ernest “Fritz” Hollings (D-SC) similarly observed the powerful role of government in the construction of modern life and its renunciation in the American historical self-conception. Seeking the 1984 Democratic nomination for president, Hollings delivered a stump speech deploying several different versions of a story about “a guy who came home from the Korean War, went to college on a form of the GI Bill, opened a business with a Small Business Administration loan, made sure his parents' farm was adequately wired through Rural Electrification and irrigated with assistance from the Army Corps of Engineers, saw his kids get subsidized school lunches at a school that received lab equipment from a National Science Foundation grant, got his mortgage from the FHA and hurricane disaster relief from FEMA, and one day, took AMTRAK to Washington to complain to his congressman about getting big government off people's backs.” Like many Americans, “the guy” never saw the role of collective power in the creation of his individual declaration of independence.3 Shaw and Hollings reveal a disconnect at the heart of the American experience—a tension between the story that Americans themselves like to tell themselves about individualism, self-reliance, voluntarism, associationalism, free labor, and the free market and the actual history of the “concrete national institutions,” as Shaw put it, that have been capable of wielding such broad interventionist, coercive, and regulatory power at home as well as abroad. Samuel Huntington once dubbed this yawning gap between facts and norms “cognitive dissonance”—an almost pathological tendency to confuse a fictional American ideal with historical political reality. From Thomas Jefferson's elision of slavery in the Declaration of Independence to Ronald Reagan's anachronistic invocation of John Winthrop's shining “city upon a hill,” examples are obvious and legion and not always merely rhetorical. At the turn of the last century, Roscoe Pound surveyed the damage done when the United States Supreme Court took a “long step into the past” and imposed the fallacy of “liberty of contract” on modern industrial labor relations, as if the parties were still individual “farmers haggling over the sale of a horse.” As Pound's example suggests, the problem is one not so much of psychology as of political economy. 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of power democratic and modern power more with a individual the the as well as into the of modern social and the problem of early American social The of and John the of and John the of and and the of Roscoe Pound and an for modern state One of the of the of John and their was to a about the of ideal and of legal as to the In place of the practical world to ideal a more and in the an and to and by actual and of and in As so put it, was that to an to from one place to another and to common of and historical In place of about and the actual social of an for The of the well In law, political and American social theory and social in the early In law, and an with of the of “the the of the of the of and a quest for a more of state and in John for the the of the state in of a more of the of the state as a by at it in the “the state in was more than its in In law, legal a the and of about and the of than He “The of about is the business of the people who have the in be are of the about is to the through of this are so as is their as The American and to the in other the of and that state that American state that one in at state of state The at policy was government to more about the of the the state through the of that the and of people in the This of is as power a much of the of the American The of A that American state power so is that it is so an of and are more than in the United States. the national government and state and school with powers and the national government the and of power be The and more than and The as well as a of The and more than and that in almost of and in the One an of the and of American state by at a of such as In almost and state were by such as the the of and and The and of and a that continues to state with and with The American more than a people. The in more than this is by the American and national This of is not the of a is it a at this of American and is of a The characteristic of the American state is key to both its and its In social theory, the state is through an of with of and The American in is more is and than frequently and is to of the power of school in the United States as well as the powers of The power of government to in the of and in the of than the national the terms of the the national government has The power for the for state for the people. to to the power of the American state the of American policy by at the national center the is to much of the the and state the As American government on the powers of from the This American state by mechanisms for an and Coming to terms with the American state a of this power on the state theory on state power at the it is not so at the of power to the power is by of the state to the of the The of and government are different from the of of different as the task of the of the at the center is from the of the people on the are frequently for and of power, and democratic and are not of state the in many are the of The American of government, with its of of state separation of powers, federalism, and the rule of for an of the state through civil to the for a and legal of rule that has of the most The rule of A to American state power thus an of the state in than in theory, from the than the of the as much as the as much as and the and of power as much as its and is another it is to for state power in the United and that is the rule of One of the of American is the place of in state and policy From the role of the in the creation of the to the of law, and legal in the United States is a legal as with the and separation of powers, the of the American state has been a of and the of constitutional the rule of is as a on American state to the of modern regulatory From the histories of to the the has been as of a to liberal of a and American tradition that the of a American as legal and legal have been for American has as more than a constitutional on state has been an and of political and power, a than role in the creation of the modern American has been the of such a and of power, that in place of a of to power should be as “the of upon histories the of in state from the of contract, and to market in the nineteenth century, to the of the power and and regulatory in the One to for the rise of a modern state in the United States in and and labor and and and and the of and laws and American state power is a of legal of and The of as state be into a of state through law, and other legal the power of the American state such as John and have been as an of American state is to be as another American for state through of the most policy in American and and the Americans with on as a of the and relative of such should the that law, and are of state the such examples the power of to a citizen into civil and the to the the of the When to this to its of have an of American state power and The a in an American of state the The to American state power the of civil is in the in it and the This the American state has the to The of through law, the and and is one The of the powers of to the of a national through the of powers such as to and is of the American and the American to a role in social and and collective into the than power, and policy in the of a the American state and powers through the its its and its in the the history of government and other of power to the is well the other of the role of the American state in the creation of the From the role of state in the of and to the role of in the of the the market, and cultural the powers of the state were to the and of American civil As observed about the market, history that the of national was in the of the and emancipation of the from the the market has been the of a and on the of social and cultural have been a about the construction of and The most of American power have always to the problem a the people the the state the the and to American state the of and of and in to this is the that American power has been a of and not as for of the of the American the American the American the American the the the American the American the the and the National The power at the of is of the of and in the United States. emphasizing the of the legal-political and the the the of in more and power, and and The of such a is by the of American such as and The of was on the of rights contract, and the market to to the of In a of and the role of and the state in and and rights. the of the hand, the state in the legal-political of the In the and the of and power that “the of as power and He of that the ideal of has never in been In through of the powers and He that the the role of the state in the that so much of the of and power in American on the of and power in the actual of the American state has it to the of state the to of the power over the of the to the of such of As and the of in the United States be as the of market that market was itself the of and political are difficult to from the of by the of contract, and in and politics, the the of to the of power in a democratic When are about the as well as the as well as be more As be as to that the of never be by as it be to that the of political power never be In his essay the of on the role of fictions and in the of power, as well as more to who with a philosophical the with the many are by the and the with their and to of their When by this is as is always on the of the the have nothing to From the of to to the of a government of laws than national and historical of and have kept the of from into the and of modern The of the American state is such a of both and In an era by both and state theory, the story of an and version of that state in the United States was the in politics, and global the last the of the American state as is should be The aggrandizement of power the American and historical as as well as new of and of state theory the of not be the for the new of power that in global political economy. is an In the early century, a of and and American social of at power in its economic, political, and to by of American that with and the and of American power is From and John to and John to and early American a of a and of American and the and of power in a United States. the problem of power in America as and not as it the of state and civil than the of the of the on of power in in the and that American than the of power to the of political theory the political of social a more of as is to are political and legal never the of and the that from American political the of the of legal and political They never the that state so at the of his and the that legal and political place a of and The of American state power are In a democratic should always be on the of the the history of that power has never been more

Timothy N. Thurber

For many observers of contemporary American politics, the Republican Party's nomination of Arizona Senator Barry Goldwater in 1964 signaled the arrival of Sunbelt conservatism as a potent political force. Once dismissed as historically insignificant given the magnitude of his loss to Lyndon Johnson, Goldwater now appears to many as the forerunner to Ronald Reagan, Newt Gingrich, and George W. Bush. There are indeed important roots of the contemporary Republican Party in the early 1960s, but narratives of conservative triumphalism overstate the degree of conservatives’ success within the party and the nation. Scholars must avoid painting too straight a line between Goldwater and later politics and policy. Rather, the history of the Republican Party in the mid-1960s should be viewed from the starting point of Goldwater's defeat rather than through the prism of subsequent Republican success. Such an approach foregrounds a sense of contingency and shows that conservatives’ takeover of the party, though real in the long run, was neither inevitable nor immediate. Sectional and ideological tension remained strong well after 1964. Goldwater made a breakthrough with conservatives across the nation and especially among whites in the Deep South, but, as Richard Nixon and others astutely realized, his approach could not be copied directly if the GOP wanted to overtake the Democrats as the majority party. This article will look at divisions within the Republican Party between 1965 and 1968 over racial matters. Race was one of several issues that figured prominently in a vigorous debate about the party's identity and future. In recent years, numerous scholars have crafted a rich history of the grassroots rise of Goldwater and battles to control the party in the early 1960s, but they have paid too little attention to the political and ideological tug-of-war within the GOP after 1964. The image of Goldwater delegates at the 1964 Republican convention booing Governor Nelson Rockefeller (New York) as he called for a more progressive stand on race and other matters symbolizes to many the death of liberal Republicanism. That was a moment of conservative triumph, but the next four years were a time of ebb and flow as various factions battled to define and control the party. Sunbelt conservatives, led at first by Goldwater and then by figures such as Strom Thurmond (South Carolina) and Ronald Reagan (California), scored some notable gains, but liberal Republicans, including figures such as Senator Jacob Javits (New York) and Governor George Romney (Michigan), continued to shape civil rights in and about the of race in Republican political such as and Senator to a with the of Richard Goldwater wanted to the of the party and not an on several including civil on racial issues from his conservative of the The Arizona was not a he and for the and with he in the he with by to that Goldwater was one of Republican to the 1964 of a he the and on the rights of and Goldwater more than Goldwater to a political by the to his that among whites across the Goldwater his party in to in the as some in of the Goldwater's that in the GOP from rather than political in the South, as with the Democrats to the and was to a though not to the South, and the Goldwater in a of Republican little for the of Goldwater the Republican the early 1960s, the of whites through to in the and the Goldwater across the from party in the for convention at the convention they to have the GOP a rights Goldwater racial matters for of the of a over in the of in several but in the he and in and of at a with Strom a over the stand on Goldwater's was on other racial but many whites to as an Goldwater among of the and the Republican by of racial and to in a Republican in to a Lyndon with The Republican Party in a at that and of of in and from the after the the American in several to American by that not be if they in with the on such as American at the to the for the Democrats by to to in on the Goldwater's to party in the and the in the of the 1964 that a between the on racial That the Republican Party one of the in American political Goldwater in the Deep and of the The Arizona were the South, and of were in conservative the a racial that Democrats in the but such to Richard Nixon in Goldwater in and among a than Goldwater of the a from the Nixon and the by in Republican well the of the as the party a of and in and the of by in and Goldwater's loss a debate over the Republican Party's identity as well as for to the for the Arizona as a to a Goldwater in the were by his in and the of was the first time that the GOP The first Republican in the to in the than in the Goldwater a majority of in across the Deep from the in one in and of the 1964 conservatives that Goldwater and a for the party in on and a conservative of The party, they to Goldwater's to in the and such as that was whites and are of will for then that one of will for should time and Republicans, to a strong for the on racial matters and from the that the that the were too on race and several other that Goldwater than Nixon in GOP in as on racial they viewed for civil rights especially the 1964 as with the of and for success. The of the to in the as well as in American that the Goldwater approach continued in the GOP a party. The a of Republican in that Goldwater's stand on civil rights more than his approach to other after the Javits an article for the that the party was at ebb Goldwater's of and as a for and for a of on civil will be the 1964 for years to if not to he Governor to that they are not Republican of the of for the 1964 in of the were There were many but to they the of a racial as an force. several defeat in on a defeat in the have to the party from an not to the South, the GOP that in the conservatives, continued as to a party that the for four of the years, Senator of a strong civil rights in 1965 that the party be to and in the of the to majority if the that to in that the GOP not control the of of the in the of the The Republicans, to look to the to in other of the that the arrival of the with conservatives on to Republican in the they that the party This was in by a to racial but by political with his of in and The that by 1968 an American the Goldwater of and to the Democrats the GOP The of American across the the and continued that a the will be as important to the as the in the in the in The party to of the to be he that could not to the of Democrats on racial a progressive Republican party could at some of the American as they in the first were to be an of the Republican the liberal to the party's to they as an Goldwater his success in and the Deep Thurmond well in his but he than in and Nixon in in and other that Republican at and in 1964. liberal Republicans, Goldwater the of the to to in the and in and was the of politics, the from on race as the continued and political with the of the nation. on the of have a will be paid in over the next several the not a the in 1965 he have to and the for were that whites in the and a Republican Party too with nor conservatives were to control of the party in the of Goldwater's Rather, remained of the from and the was for The Goldwater continued to in the Deep in The GOP a that to was to in the party and Goldwater's the of in after the Democrats of his for his of The Republican to a in the Republican to Republican he civil rights on the to in with and to from his he later to to liberal be of the of party were to success they could the conservative by to shape the party in after the 1964 Thurmond Nelson Rockefeller and other to the in the of 1965 that an from was the Governor that were they of to as in they the for he the of Republican was of several liberal as of and the of the and party to the party's stand on civil rights from of such as This a from of liberal he on to a Republican as long as he a Republican and the of his over party for at the in in 1965 by with to a Goldwater over the first a for the he a that that Nixon to a in that in in to through a was more in party than in in the ideological between and to the in and then to the of the to on the and to more attention and to American a in but he to the rather than a about in Republican not to a of to for the Party for and are to with For the was the to This liberal Republicans, that by the the for and the one liberal could the conservatives’ to in the by and progressive whites a that the then that was in to racial he Goldwater the of a but conservative across the nation in that was a but real of in the for for The Deep remained conservative but the to be more In the party from from the to the 1964 In GOP party of the to the The Republican for of of the on his to in In for the a Republican of the in and the first Republican to in the the 1964 through the of the of with of the In of on his to in the Goldwater's among and a liberal as that the party's among not and to in the South, in that the GOP to to some of that to not in but among progressive whites and across the nation as in American of the civil rights and over 1965 more for the of the party with the continued to In for and Republican a on the GOP and the The was a after the 1964 by of the Senator to Goldwater The in was of and at and to The liberal about was the to to a and racial among The over a Republican Party in the Deep and on Such a gains, they but that civil rights not the loss of to of racial they a strong for such as and as the continued in the to in the political The that the race a political in the of a of politics was at for the of a Republican Party the long of race as an in the of the that the rise of a Republican Party to racial to the of and to a the a for the party. such as to more to from Democrats the party if they and the made by The in the to an to party and a civil rights in the in as a the of a progressive Republican Party in The they to vigorous with and and liberal to conservative with a of The and for a of in the GOP and The the divisions over race in 1964 by in of racial Democrats but to liberal they the party. the political was in the and the and was time for the to a The of racial politics Republican the in that that Republican in as racial though he that the in the Deep was more must after the in the as well as in the he of the could be in a on by the Republican The to American and political in of the and and the GOP to more for through in the Deep continued to the of the Republican that the of the they The of are of the that are There are in the Republican party in the as the party Democrats for several and delegates at Republican in a by that in he called for a GOP from the that several for liberal were in the over and as and whites they as American for that they whites at they viewed as to to but to that whites that was too was strong in the South, of that some and for are many more to The rights on as for in several the to be The that of the the was too was the the in that especially whites in about for and as a for and other and at in the well to and that the to the GOP as the party in the and The as the of but was more of a strong racial was the astutely with the the Ronald Reagan the in the of in the race the from to civil rights in and over especially well in though race was not a in many of for liberal of the American That was from the the party in but from the Goldwater years The party of to 1964 among in several of the Republican were from the party's progressive and of the first American to in the in he the a in the for the 1964 was too to In the at the time was as a racial a George Romney and Nelson Rockefeller of American in the and to the from with of the of strong rights liberal Republicans, the from 1964 and were Republican by a though not a of American civil rights not from the line to at of the liberal Republican of be continued to in the Deep convention a and the of in to his racial an of in from Richard Nixon and other that be the Republican for in the made the a for civil rights he was with not conservative on racial conservative was The Republican Party was too across the to in many of the the point in for Republican between and were in the Deep South, but and across remained Deep Republicans, including and as well as such as as they could not to the of on racial matters. for in the was from in and in the South, Goldwater of that the of racial such as between and of the in a in a civil rights of the in his in and Rockefeller of Governor Nelson in a in the The over the party's on race was in the for the 1968 Republican from the liberal of the party George Romney and Nelson to Ronald Reagan, Richard the a given contemporary of the GOP by Romney many and at the time as a strong for the Rockefeller that he not for the Romney the of the liberal of the party. of the American Romney of in and in 1964 and to in the and Romney a to American of the in he on to in 1964 and years for some his to racial from and some of he his of racial Romney a progressive civil rights that of his could a of of the in the early 1960s, he for a civil rights and the of a civil rights he to that In he an and in a civil rights in an Romney the liberal Goldwater at the 1964 GOP convention and then to that after the Romney Goldwater a that he not the a Goldwater's Romney party's to more should be to the of the 1965 rights in he in a civil rights in he the convention of the Republican that a vigorous to Romney at the of racial politics in the and of a race that after a in an American more than were and of of was that the a to his the of politics with the by that the first not in the after he and a after a racial in the a to the of the of between and the nation that more than and led to the the nation from racial Romney a that he his of were as his about the of and he the to more about and on the Romney not his but was an that he the GOP over a he at one were that they look of his Romney more than that a the will be to time to the about his Romney continued to on the In early he called for a in the including in the and a in some of have Romney be by with the nation to from and and to the from the Such divisions between Romney and conservative Republicans, civil rights the and Democrats for in the For liberal Republicans, was and to be the the of Republican that Romney than Nixon and other Republican among Democrats and in a The to the more than after the one Romney to That be In early his a death he that he a by American a to that he was too in to in the he through was by the that the was Romney early on Rockefeller to the liberal on that he not be a but later he Rockefeller a progressive civil rights he the civil rights the of and the of the on Rockefeller given to the civil rights Nixon to a civil rights in the as too on racial and conservative for the the 1964 as and the and he the and the that by in and he called Governor to an of the that matters be at the in Rockefeller a for in Republican that to with to the of a on the a and as the of The that of and other in the for to in and that Rockefeller called the racial and about a civil Rockefeller his on the that a liberal Republican could in Rockefeller and his the to among Democrats and and the party in could from and early 1968 that Rockefeller in a The Rockefeller that in Nixon he in the to a in and as a of in the Rockefeller and a that a in Rockefeller that have over the and and the and he that and were to and a sense of to the Nixon and many other the in that to on to Rockefeller called the a of and the nation to the Such political in the Rockefeller a of in the civil rights by Rockefeller an in the Republican nomination that he could his in the in delegates and in the Republican a liberal could on from of the not the of of remained the control of conservatives and political Rockefeller to that he was a and that a strong among party his defeat in in That was a made by the that Rockefeller was among many the South, of Rockefeller more at the 1968 convention than in years to Goldwater's success four years The of the convention delegates to the of the from the and viewed Ronald Reagan as the to Barry Reagan was not a in the of but that not conservatives, especially from to Reagan his among the Goldwater of the party for the Arizona in and his conservative he politics years Reagan and other Republican on racial matters. was to the of Reagan the 1964 and the of his he the rise in civil rights of civil for a in civil as and and called for a of he as an on the rights of the that in the of Reagan continued to civil and called for a of and dismissed the as a and and an American that to have other but to a and for Democrats made that could not he For Reagan, the the for Richard Nixon the the conservative and liberal on racial Nixon a strong conservative stand on and by a for and for and be with Nixon and other including some liberal and that from and wanted a of civil many and to have racial viewed at in as on civil rights and American Nixon to through crafted that to rather than through to he the of by in in the next he in a that the nation to be and to with if and that the and of will be and the Nixon was civil Nixon the on as the of as on but the he a of by civil rights and Democrats with the of the that Nixon that the more to in the than the for on Nixon from Romney with for in the of 1968 that the as the and that the too the Nixon conservative on and must not from a he in to the Reagan in the for continued and The nation to for too Nixon and could not in given other he that not but for Nixon a of in and of a but in through to in the and to American and to the of the Nixon that the be and in the sense of that Nixon that to the Republican Party they that the of were and the not The of conservative was his of in the at a in though he than four years that the for the GOP by Republican in several In the of Goldwater's strong in the Deep and Nixon a line on racial issues in the one he continued to his for the the 1964 and the In he to and to to the George and to the of political from the of racial The Nixon were the party of racial conservatism for to such as and of and of Nixon that a in the and from and other liberal by that was and for the to of from his in the by for Republican in in 1965 and Nixon continued his to in the of 1968 by of to to and and by the that to and that he not for was more of the on he in with party and that he conservative to the the of from that were in and to the on his of a The next Nixon the of Strom to on his by to from Reagan at the Republican convention and his as an in the Nixon at a liberal on especially on matters. and he were issues that the of but not the of was the of Nixon some in for the he as of the on The was to in with the time he the Nixon of were at not that in Nixon signaled for racial by from the that in the have to have more than an and should be given a to for and in Nixon a that the 1964 and the 1965 were a that of but was now time for of through Nixon on in his were as as he in were more conservative than the by but they signaled a between Nixon and such as stand Nixon with conservative by of liberal on civil rights was in his for for the in the of Nixon continued to that a of especially among Reagan his as the Republican convention in in Nixon the by that he a in that the to more on racial and a not the party. that Nixon a liberal such as were with his of of and the Thurmond delegates to The Nixon paid as he the nomination was in of political nomination was not from the control of Republican first to Romney and then to Nixon to Nixon was among first was to were by party were to in the party by The was a in Nixon to at some if he were to be the the Nixon the racial he in the his for the and the civil rights of and but he on to he with the of and through such as and the of for was the and for the in and and not to racial and about and the Nixon that for and were not and that were not for the and of of his of to in but were to that some to but approach many American and liberal such as at one was by the of that he with Nixon about but he in one that on to the with an especially strong in the the South, and the among at Nixon liberal and conservative civil rights in and other the of on he an racial that was to liberal than to not as the important Republican of the racial politics and policy. Scholars have that approach to race in the 1968 a to an political to the political with George to his and liberal to his That as as but civil rights roots in the within the Republican Party Goldwater's a of the party's that conservative was to the but he that to a Goldwater on race in the was a were not as conservative on civil rights as Goldwater and not as to the the Arizona The of a a in the Goldwater of 1964 than Nixon conservative from the of That was in by the of in but not a Nixon have the conservative with more rights and but were and over and and the he with an approach that on and signaled a between whites in the and on racial matters. he was not a The debate within the Republican Party on the of the party's on the the as to political from grassroots In political to racial across the There to but the was a of and must be as of a political the could the in the of a the of the was not at that an of conservative within the party, and subsequent success in politics, was The with the of the Deep South, in 1964 racial across the nation. the from success at for The with the they the the Democrats made the and the Republican in to the of and were to some in but, as and others the party long in a of to be to the control was and that to the South, to the Party among whites for could the Republican Party in the The attention given to Goldwater and his conservative grassroots as well as to George the tension and within the GOP that in the and the of the The of a to be liberal many of politics the Race not be as to and issues as they and were the South, but, to they not a of and race remained a more potent among than among whites party could not as as that the of across the South, but they to that rise in of whites were by racial of but the be to the Republican success in especially at the from the The of the not be as for the party as at not liberal were about several other important and South, were not as progressive as they but nor were they of the racial politics that the of the for that the was a for as well as and in the mid-1960s that could a progressive Republican to especially in the such were not for racial There for the Republican Party in the South, at the and from a to a to Democrats not the they in among but more of Republican in the especially the about the of the GOP across the nation have Republican Party by conservatives to be a have to the party of with a conservatism on race and a of other with the a GOP that in the but in other of the nation. The in recent and the of the Republican Party in the in not have Jacob Javits Nelson whites have the especially in the George W. a majority of the in and in the political the Democrats not have a with have a he In the early the Republican with a as and to in an nation. and was not an that the Republican Party to at convention and that the made to that and in especially the of have the GOP to avoid the of liberal about contingency in the political history of the were after of to the more liberal of the party, but they were not Goldwater a of conservative important in the Republican Party in the and the point of 1968 and the early of the four for the 1968 Republican nomination and the Goldwater on race and other matters. was by that conservatism was the of the for the Nixon too liberal on race for the conservatives the party for the of Romney and Rockefeller in 1968 a to the Republican Party more progressive if not to of they in the that Nixon and in several Romney an Nixon for the party's 1968 but he several of about that a with Nixon Thurmond and his among party have long the in the Party the 1960s, as and a that figures such as Lyndon and should that divisions in the GOP well the Goldwater success of 1964. In the first scholars have divisions within the party of over race and should divisions over more in of the

Mark E. Steiner

Abraham Lincoln, as most antebellum lawyers, believed that lawyers should serve as peacemakers. His slander cases show that he often took advantage of opportunities for mediation and compromise. Lincoln was able to resolve many cases by repairing the damage to the plaintiffs' reputation. In several cases, the defendant attested to the good reputation of the slandered plaintiff, which settled the case. In some cases, the defendant consented to a large judgment, which the plaintiff then agreed to reduce to a much smaller sum. In others, the plaintiff, after a jury had awarded damages, agreed to remit most or all of the award. Lincoln acted as a peacemaker and showed sensitivity to what was actually at stake in those cases.Antebellum lawyers celebrated the 'sober judgements of Courts' as a means to maintain social order.1 At the same time, however, they also believed that they should serve as peacemakers who prevented disputes from going to court. Thus, they reflected a larger ambiguity in American culture about the use of courts to settle disputes. Americans acknowledge law as 'a vital part of culture and of the social order,' but the invocation of formal law often is viewed as an antisocial act and as a 'contravention of established cultural norms.'2 As Noah Webster explained in his American Spelling Book (1823), 'Somebody is always the worse for lawsuits, and of course society is less happy.'3Antebellum lawyers in general, and Lincoln in particular, did not want to resolve all disputes with a formal adjudication. Lawyers were not simply courtroom advocates for their clients; they also served a mediating role. As Robert W. Gordon notes, antebellum lawyers 'who took seriously their status as republican mediators were encouraged to run their office as little chancery courts.'4 That mediating role was particularly important in small communities where lawyers were keenly aware of the social context of purely local disputes.5 One of Lincoln's former law clerks recalled that 'the very character of this simple litigation drew the lawyer into the street and neighborhood, and into close and active intercourse with all classes of his fellow men.'6Lincoln himself described the lawyer's role as peacemaker. In his notes for a law lecture, he wrote: 'Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man.'7 That was a common conception of the lawyer's role in the nineteenth century.8 After the 1880 death of Stephen Trigg Logan, Lincoln's second law partner, John T. Stuart (Lincoln's first law partner), observed, 'Logan, in his office, was the just, ripe and safe counsellor, grasping with readiness the facts of the cases submitted to him, separating the truth from the coloring given it by the passion of the client, and readily seeing the point in the case, he was able to give sound advice, which his sense of justice directed to the right. He was not a promoter of litigations. He settled more controversies than he brought suits. He was a peace-maker.'9In 1834 Simon Greenleaf, a professor at the Harvard Law School, proclaimed that a lawyer 'concerns himself with the beginnings of controversies, not to inflame them but to extinguish them.... He is a peacemaker;—a composer of dissensions;—a blessing to his neighborhood.'10 In 1845 the New-York Legal Observer stated that 'the respectable attorney... is almost always a peace-maker and a settler of disputes, without litigation, where it is practicable.'11 Kentucky lawyer George W. Robertson similarly described the lawyer's role in his Scrap Book on Law and Politics, Men and Times (1855), a book Lincoln owned: 'He should never advise a suit unless it is the interest of his client to 'go to law' If the case be frivolous, or the right doubtful, he should advise forbearance or compromise. He should never encourage litigation.'12When faced with local disputes, Lincoln often tried to serve as a mediator or peacemaker. In 1850 he wrote client Abram Bale: 'I sincerely hope you will settle it. I think you can if you will, for I have always found Mr. Hickox a fair man in his dealings. If you settle I will charge nothing for what I have done, and thank you to boot. By settling, you will most likely get your money sooner; and with much less trouble & expense.'13In a case representing the Alton and Sangamon Railroad, he advised the railroad to settle with the defendant because 'it is better to get along peaceably if possible.'14 In 1859 he advised client Hay-den Keeling to drop his lawsuit: 'I do not think there is the least use of doing any more with the law suit. I not only do not think you are sure to gain it, but I do think your are sure to lose it. Therefore the sooner it ends the better.'15Lincoln helped to restore peace to the 'neighborhood' through his efforts to mediate and settle slander lawsuits. He handled at least sixty-eight slander lawsuits during the course of his career, representing plaintiffs thirty-four times and defendants thirty-four times.16 A self-educated lawyer, he became well versed in the law of slander.17 Those cases, however, involved much more than the sterile application of the formal law of slander to the facts of each lawsuit. Slander cases, by their very nature, were community-oriented, reg- ulating acceptable forms of behavior in small communities.18 Litigants in slander suits were involved in the 'small politics' of everyday life: reputation, gossip, and insult.19 In small communities, as anthropologist F. G. Bailey notes, there is a 'fund of common knowledge about all the members of the community' and that fund is made up of reputations.20 As one historian has observed, 'A person's standing in a small community depends on his or her reputation, and reputations are sustained or lost primarily through gossip.'21 Lincoln recognized the importance of reputation; he confessed in 1832 that his 'peculiar ambition' was 'being truly esteemed of my fellow men.'22The Illinois law of slander had both statutory and common-law elements. The Illinois General Assembly defined slander as criminal behavior that could be punished with a fine not exceeding $1,000.23 The next year, the legislature made 'certain words actionable' in civil proceedings. The legislature declared that falsely stating that any person had been guilty of adultery or fornication or had sworn falsely were actionable.24 That legislation thus rejected the English common-law rule that required 'an express imputation of some crime liable to punishment, some capital offence, or other infamous crime or misdemeanor.'25 Several other state courts did follow the English rule, which held that an imputation of adultery or fornication was not actionable.26 In Illinois, it was.Many of Lincoln's slander cases involved accusations of adultery or fornication; Lincoln thus was involved heavily in maintaining community reputations and relationships. In fact, he represented plaintiffs or defendants in at least eleven such cases, all of which concerned a woman accused of adultery or fornication.27 Lincoln and Herndon filed a slander lawsuit for Charles Cantrall and Emily Cantrall in 1849. They sued one John Primm for saying that 'William King screwed Charles Cantrall's wife twice while he was gone; and before that he crawled in bed with her and her husband and screwed her.' Lincoln and Herndon requested $1,000 in damages for their clients.28 In an 1845 slander case, Lincoln and Herndon represented the defendants, Jonathan Miller and Susan Miller. The plaintiffs, William Beaty and Martha Ann Beaty, claimed that Susan Miller had said that 'Mrs. Beaty and Dr. Sulivan were seen together in Beaty's stable one morning very early in the very act' and that 'Mrs. Beaty and Dr. Sulivan were seen in the very act.' The jury found Lincoln's client liable and assessed damages at $45.29 In an 1858 Vermilion County case, Lincoln was among lawyers representing Nancy M. Martin in a suit against Achilles M. Underwood. Martin charged that Underwood had boasted of having sex with her and had said that she 'has been fucked more times than I've got fingers and toes.'30 The jury found Underwood guilty and ordered him to pay $237 in damages.31Lincoln represented the plaintiff in a slander case that was first tried in Menard County in 1843 and then retried in Morgan County in 1844. Eliza Cabot sued Francis Regnier for saying that Elijah Taylor was 'after skin and he has got it' with Cabot, that Taylor had 'rogered' Cabot, and that 'the captain has got some skin there as much as he wanted.'32 When the case went to trial in Menard County, Lincoln delivered a 'denunciation' of Regnier that was 'as bitter a Phillippic as ever uttered'; nevertheless, Cabot received a verdict for only $12.33 Lincoln moved for a new trial based on jury misconduct, and the judge set aside the verdict.34 When the case was tried in Morgan County, Cabot received a $1,600 verdict, which was later sustained by the Illinois Supreme Court.35Lincoln also represented Ambrose P. Edwards and his wife in the appeal of their slander suit against William Patterson and his wife. The Edwardses had sued the Pattersons for Mrs. Patterson's remark that 'Mrs. Edwards has raised a family of children by a negro, and I can prove it.' The Edwardses claimed that those words, by innuendo, charged Mrs. Edwards with the crimes of adultery and The jury agreed and awarded in Lincoln represented the Edwardses after the Pattersons The the and the case to the trial that 'the words do not in their and or in common to a charge of fornication and In an 1850 County lawsuit brought by Lincoln represented the John claimed had her a The jury agreed and assessed damages at and Herndon similarly represented local reputations were vital for their community relationships. slander lawsuits with plaintiffs had been most concerned about accusations about plaintiffs were concerned about their and Lincoln's slander cases for plaintiffs involved accusations of or Lincoln filed his first slander case in on of George W. of Sangamon County, who sued Stephen because had said that he was guilty of also represented plaintiffs who sued because of accusations of In an County Lincoln and Herndon represented William who claimed that had slandered him by an crime against with a had said that my and he fucked her as as he He accused of the who was and will have some Lincoln and Herndon requested $1,000 in The case was with also represented in County lawsuits filed in The defendants in both cases saying that in fact, have intercourse or knowledge with a suit against George W. was tried with the jury both times to a After the second each agreed that the case could be The after the case was William W. the defendant in the second case, his and of an with the In an County Lincoln where their client sued accusations that he had a against with a to a and Lincoln a against the slander law to One explained in 1850 that 'the law is that words not in the case of a common of in to the office he or the or which he Lincoln represented fellow lawyer in a slander suit against Abraham Lincoln's claimed that had charged his of of of of and of that the accused The case went to and Lincoln the to the Those said that if the jury believed that said the words, then had to prove that all the were of will not the charge of of of and both the charge of with The jury also was that 'a of is to prove that the defendant the but that more then a that is a is to prove that the words were The jury awarded in a slander case, a defendant one of the defendant had not the words, or prove that the words were not If a defendant saying the words, then that defendant the of If a defendant claimed that the words were then the defendant had to the of In at least slander cases, Lincoln truth as a to the In cases, Lincoln that the plaintiffs in fact, In other cases, Lincoln to prove that the plaintiff had sworn In cases, Lincoln that the plaintiffs were guilty of In one case, Lincoln that he prove that the plaintiff was guilty of and in he that the plaintiff was guilty of was a the defendant had to the words by the the defendant a in that the charged words were before a jury in Illinois could be that a of the slander if the defendant to the In the Illinois Supreme held that the jury could the a of the slander and only the jury believed that the defendant had without any of The jury each case, the damages be because a is the of the cases that Lincoln the was he jury The other Lincoln's received jury in the cases that Lincoln with the of In cases, the was $1,000 in and in In both cases, however, plaintiffs agreed to remit part of the In other cases that Lincoln the jury awarded and In the cases, the of have helped In County cases that Lincoln his were ordered to pay only and Lincoln had the defendant was sued for the plaintiff a In those cases, Lincoln and filed lawsuits in County, that Robert and had him a and a infamous Lincoln represented both defendants and in both lawsuits that the plaintiff did and and His had the plaintiff a The suit against was tried in with the jury with they found his client not guilty of the second lawsuit in the of after to pay were The of for on a if the plaintiff to one of the Lincoln times but was never in that A defendant also could or damages by that the words were in and was the of a slander case, and if the words were in and then there was In at least cases, Lincoln submitted jury that said if the jury believed the words were but also believed were through of they are to for the In one of those cases, Lincoln submitted an that charged the jury that if they found that the words were much in the of passion as to be from all this is to in of A defendant could also by that he or she had what had said about the plaintiff and had not been by Lincoln that in Beaty Miller. Lincoln's any of the truth of the but claimed that the defendant was what her husband had from one she the said words as she litigation involved not only against slander but also that the damages awarded were In to that the defendant had not the words or that the words were not a lawyer could a of Illinois a defendant in a slander case could damages by the character of the and by any which to but do not to prove the truth of the In a County slander Lincoln's client was sued for saying that the plaintiff had sworn the jury found for the plaintiff, the was only In an Vermilion County case, Lincoln's client, who also was sued for saying the plaintiff had sworn was found guilty but was ordered to pay only in In case, a County jury assessed only in damages against Lincoln's In an 1850 suit in County, Lincoln represented the who had been charged with saying the plaintiff and The jury found for the plaintiff, but awarded That was more against Lincoln and Herndon in an Sangamon County case. Lincoln and Herndon represented the plaintiff, while Lincoln's former partner, Stephen Logan, represented the the jury found client guilty of they awarded one for In a case, Lincoln represented William against for that had said that was of and Lincoln requested in damages, but the jury awarded only in slander cases, Lincoln mediation and compromise. He did not slander he often was able to settle In several the settled the defendant agreed to a large judgment, which the plaintiff then agreed to remit in part or in one County for Stuart and Lincoln represented a plaintiff who sued because of an of The case was settled the defendant confessed to a and Lincoln's client agreed to remit the In an 1845 County case, the defendant agreed to a and the plaintiff then and agreed not to on the for That same year, Lincoln and Herndon represented the plaintiff in a Sangamon County slander suit. The case was settled the agreed to a judgment, which the plaintiff agreed to remit for Lincoln settled an Vermilion County case by having the defendant her and to a and having the plaintiff remit all but Lincoln an he represented Dr. in an 1859 County lawsuit. sued for The case was settled agreed in to a against him and agreed to remit all but and to for an lawyer who was often with Lincoln on the recalled one slander case in which Lincoln, one of the lawyers, most and efforts to compromise the case, which was by of his The case in County and involved a the community of and a from the community of In a accused of and to after the suit was were made for a to the not only the but the as for all became involved as or When the case was to County, their lawyers and and an of to The were and a large The case was tried twice and in a At the next of to and and the that their have to be Lincoln then that Lincoln that of litigation, in which was and he his with all and a After the to Lincoln the of which the and the defendant that he has ever or believed the plaintiff to be guilty of that he has said from which such a charge could be he said on the of others, his in the and that he any in the truth of such charge against said The agreed to and to the of cases that Lincoln settled before or after trial that slander suits were more to restore or reputation than to Lincoln settled at least slander cases by having his client the good reputation of the plaintiff, thus repairing the reputation in the As Lincoln later is the against In an case in County, Ann sued and for claimed that had said Ann is a and Ann her fine by Lincoln, who represented the defendants, settled the case by having his in that or of them ever made any charge against the of the and that of them has ever had any or or any want of on the part of the The then the case by slander case, the plaintiff agreed to the lawsuit Lincoln filed into the the by his this case, the defendant that he has never the words in the that he always has and the plaintiff to be an that he never has and not that the plaintiff ever or in any to his any of and that he this to be the as the most and that he can of the reputation, against such a a case, Lincoln wrote a in which the defendant said that he had not any accused the plaintiff of and not him guilty of such Lincoln's client had of a by the plaintiff 'as being but that he has not said a as from a Lincoln's client agreed to pay and the plaintiff agreed to the Lincoln thus showed sensitivity to what was actually at stake in those he settled each cases by repairing the damage to the was the of other In an case brought in County, John M. and claimed that had slandered by saying she a that she been of fornication with a and had a of an intercourse with a Lincoln represented the The case was later by of the with the plaintiffs not to for same of In an 1845 case, Robert G. sued Lincoln's client John in on the case in Sangamon moved for a of and the case was to Menard then a of that had said that he was a and a The case later was by the with each a of Lincoln acted as a peacemaker in slander he a role of Illinois and at least slander lawsuits were filed in Sangamon County, only went to a was involved in of the cases and of the the settled of the cases without a cases were by the or from the while were settled by agreed the cases, the want of and for to for sustained a to a to and a in the to before Lincoln was involved in at least cases where plaintiffs settled after the had against the were not an by the Illinois Supreme the jury on the of plaintiffs most or all of the that the of slander suits was to restore or reputations in the In cases, plaintiffs all of the for In an slander case in County, for Lincoln was able to settle the case after the jury a verdict against his Emily had sued Lincoln's client, for that had said that had sworn had run with a and had in a The jury agreed that had slandered and assessed $1,000 in The judgment, however, that the of said In an 1843 County case, Lincoln's client was accused of saying that the plaintiff had into a with his his and a from a while he was The jury awarded the plaintiff but the into and the for other cases the plaintiff most of the In a County slander case Elijah and wife sued that had a and had said 'the have her in the of the many a The plaintiffs in Lincoln and represented the defendant Lincoln the which stated that his client was not only not guilty but prove at trial that guilty of fornication with said Elijah before they were When the case was tried in the jury awarded in damages, of which the plaintiffs Lincoln represented the who received an of John claimed that Abram had said that he had before a Lincoln in his claimed that had had and before the jury he that and had together without being The jury found for but Lincoln an of the and the of and of said Thus, Lincoln was able to mediate and settle some cases after had in of Lincoln the of an appeal to reduce an jury In the County the plaintiff claimed that Lincoln's client had slandered him by an of and The jury agreed and awarded Lincoln then filed a for new that the jury had a in verdict and that his client had not received a fair When the plaintiff of the judgment, the for new trial was also a after the verdict in an slander case in In that case, Lincoln represented the plaintiff William who that his had said that he was 'a that 'it was the of the that was and in The however, found that had slandered and awarded in one of later recalled that Lincoln said that his client did not want to money out of the the he could do be to get to remit some of the damage and be Lincoln and his client agreed to of the verdict in for the defendant which in the many slander cases, Lincoln was able to his neighbors to In some cases he settled cases by repairing the damage to the plaintiffs' reputation in for to the good reputation of the In other cases, the defendant consented to a large judgment, which the plaintiff agreed to reduce to a much smaller sum. That also the damage to reputation and settled the case. In others, the plaintiff agreed to remit most or all of the award. Lincoln advised that 'as a peacemaker the lawyer has a superior opportunity of being a good His slander cases show that he often took advantage of such the Lincoln Legal in Illinois, I acknowledge the of William and I also to F. Illinois state Illinois Robert and of the of of the of of and of of on and

Harry N. Scheiber

Historians have recently given much attention to the active, formative role of state governments in the American economy before the Civil War.1 The states exercised nearly exclusive control over many aspects of economic life, and in such areas as labor, banking, and corporation policy the federal government interfered relatively little. The consequence was considerable decentralization of power in policymaking, together with variations in policy from state to state.2 Perhaps in no policy area were variations so dramatic as in state legislation on banking. In some states banking was prohibited outright, while in others the state government itself established and operated banks, sometimes on a monopoly basis. Elsewhere, safety funds were established and banks required to meet minimum standards of specie reserve and the like; and in a few states, stringent regulatory policies were pursued, with public commissioners given considerable discretion in administering policy.3