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By Root 1629 0

and McNaughton, argued in 1841, revolved around whether a black person could still be sold in Illinois. David Bailey had signed a promissory note for the purchase of a black woman, Nance Legins-Cox, from Nathan Cromwell. The parties agreed that Cromwell would provide proof of her status as an indentured servant or slave. Thirteen years earlier, Legins-Cox had unsuccessfully sued for her freedom. Clearly a determined individual, she now refused to work for Bailey without being paid wages, and abandoned him altogether after six months, “asserting and declaring all the time that she was free.” Subsequently, Cromwell died and his estate sued Bailey for payment of the promissory note. Bailey refused, and retained Lincoln and his partner, John Todd Stuart, to represent him.

Lincoln argued that Cromwell had never provided the required proof of the woman’s slave status and therefore violated the contract; hence Bailey did not have to pay. The local court, however, ruled that Bailey had to satisfy the debt and he appealed. The circuit court reversed the decision. The judges noted that in their previous term they had decided that in the absence of evidence to the contrary, “the presumption of law was, in this state, that every person was free, without regard to color.” Since no countervailing proof had been offered, this presumption must apply to Legins-Cox, and “the sale of a free person is illegal.” Legins-Cox subsequently gave birth to eight children, all of them, she proudly affirmed late in life, “born in freedom.” The decision did not outlaw slavery or servitude in Illinois, but placed the burden of proof squarely on those claiming ownership of such persons.32

In October 1847, six years after obtaining Legins-Cox’s freedom, Lincoln represented a slaveholder who sought to regain possession of runaway slaves. Robert Matson, a resident of Kentucky, in 1836 purchased a large tract of land in Coles County, Illinois. Each year he brought slaves to work his farm and then returned them to Kentucky, bringing another contingent the following year so as to avoid legal difficulties. One slave, Anthony Bryant, however, remained in Illinois for an extended period, obtained his freedom, and acted as Matson’s foreman. In 1845, Anthony’s slave wife Jane joined him with their five children. Evidently, some time in 1847 an altercation took place between Jane Bryant and Matson’s white housekeeper, who threatened to have Bryant and her children sold “down South in the cotton fields.” Matson then sent one child back to Kentucky. The alarmed Anthony Bryant sought the aid of two local abolitionists, Gideon Ashmore, an innkeeper in Oakland, Illinois, and Hiram Rutherford, a physician. They advised Bryant to bring his family to the inn, even though harboring fugitive slaves was a crime under the Black Laws of Illinois. Bryant did so, and to recover them, Matson engaged as his lawyer Usher F. Linder, the former attorney general who a decade earlier had led the mob that broke up the first meeting of the state antislavery society. Formerly a Democrat, Linder had recently joined the Whigs and become a friend of Lincoln’s. (In the 1850s Linder would return to the Democratic fold.) Linder persuaded a local justice of the peace to lodge Jane Bryant and her children in the local prison, where they remained during the fall of 1847. In accordance with another provision of the Black Laws, Matson sued the abolitionists for $2,500 for enticing his slaves to escape.

The two cases, In Re Bryant and the suit against the abolitionists, came before the Coles County Circuit Court in October 1847. The abolitionists asked Lincoln to represent them. He replied, according to Rutherford’s later recollection, that he could not do so, as he had already been approached by Linder to represent Matson. Shortly afterward, Lincoln obtained his release from Matson, but Rutherford, from a sense of injured pride, refused Lincoln’s offer to represent him. So Lincoln took Matson’s case, serving as co-counsel with Linder regarding both the legal status of Jane Bryant and her children