Collected Works of Abraham Lincoln. Volume 2.
Lincoln, Abraham, 1809-1865.

Notes of Argument in Law Case [1]

[June 15, 1858?]

Legislation and adjudication must follow, and conform to, the progress of society.

The progress of society now begins to produce cases of the transfer,Page  460 for debts, of the entire property of Railroad corporations; and to enable transferees to use, and enjoy, the transfered property, legislation, and adjudication, begins to be necessary.

Shall this class of legislation, just now beginning with us, be general or special?

Section Ten, of our constitution, requires that it should be general, if possible. (Read the section)

Special legislation always trenches upon the judicial department; and, in so far, violates Section Two, of the constitution (Read it).

Just reasoning---policy---is in favor of general legislation---else the legislature will be loaded down with the investigation of special cases---a work which the courts ought to perform, and can perform much more perfectly. How can the Legislature rightly decide the facts in dispute between P. & B. and S. C. & Co.

It is said that, under a general law, whenever a R. R. Co. gets tired of it's debts, it may transfer fraudulently, to get rid of them.

So they may---so may individuals; and which---the legislature or the courts is best suited to try the question of fraud in either case?

It is said, if a purchaser have acquired legal rights, let him not be robbed of them; but if he needs legislation, let him submit to just terms to obtain it.

Let him, say we, have general law in advance (guarded in every possible way against fraud) so that when he acquires a legal right, he will have no occasion to wait for additional legislation---and if he has practiced fraud, let the courts so decide.

Page  461


[1]   AD, ORB. An exception to the rule of excluding law cases has been made for this document because of its bearing on Lincoln's philosophy of law. The date assigned by Nicolay and Hay (II, 366-67) has been retained for want of evidence in the document or concerning the case involved. The identical document appears again in Nicolay and Hay (XI, 112) and in Hertz (II, 737) dated December (?) 1858. A note in Herndon's handwriting on the last page of the document specifies that it was written ``about the year 1858.'' Another pencil notation in an unknown hand labels it a ``Brief of a legal argument in a case of appeal to the Supreme Court of Illinois in a Rail Road Case,'' and a typewritten notation on the same page reads ``ARGUMENT BEFORE THE SUPREME COURT OF ILLINOIS BY MR. LINCOLN IN ILLINOIS CENTRAL CASE.'' No case which Lincoln argued for the Illinois Central has been discovered to which the argument seems fitting. Herndon's vagueness suggests that he did not know. Lincoln's reference in paragraph seven to ``P. & B. and S.C. & Co.'' suggests that the case involved Page & Bacon, for whom Lincoln handled a few cases (see letter of May 31, 1856), but the identity of S.C. & Co. has not been determined. A case involving Henry D. Bacon of Page & Bacon, and the Ohio and Mississippi Railroad (see letter to Koerner, July 19, 1857) seems an excellent possibility except for the fact that none of the principals named in the suit can be identified with Lincoln's ``S.C. & Co.'' Pending further discoveries, the identity of the case remains uncertain.