Stephen A. Douglas, Lawyer, Legislator, Register and Judge: 1833-1843
Part 2 Douglas did not allow his duties as Register of the Land Office e to interfere with his interest in politics his law practice or speculation in lots in Springfield, Bloomington, Clinton and other owns in central Illinois. He attended the Sangamon and Morgan courts during their three sessions each year and all the courts of the First Circuit in September and October, 1837. He formed a law partnership with john d. urquhar in Springfield in April, 1838. Writing to Levi Woodbury, secretary of the treasury, October 6, 1837, Douglas declared that he had attended no political meetings since his appointment as register seven months before. However, he expected to attend such meetings in the future. A week later, the Whig sangamo journal accused Douglas of working toward a nomination for congress, but concluded that “electioneering was one of the implied duties of a government officer” His plans for nomination to congress by a convention of carefully selected delegates were then maturing. When the convention, with delegates from approximately half of the thirty-four countries of the third district, met at Peoria on November 20, he was nominated by acclamation. His vigorous campaign during the first seven months of 1838, over an area of some 25,000 square miles, cannot be treated here in detail. Traveling much of the time in company with john t. Stuart, his Whig opponent, he spoke once in each of the thirty-four counties, and twice in the counties near Sangamon where Stuart had practiced law for nine years, and the Whig vote was the strongest. The sangamo journal bitterly assailed Douglas in nearly every issue. The Illinois republican, the Democratic paper, of which he was one of the eight owners, replied with counter charges. Douglas lost Morgan County by 103 votes, and was defeated by 35 votes in a total of 36.495 in the district, despite the large majorities he received from the alien Irish employed on the Illinois and Michigan canal. There probably was fraudulent voting by both parties. Douglas, canvassing all the legal possibilities of gaining the congressional seat, consulted Senator Thomas r. Benton and challenged Stuart to run the election over. He considered going to Washington to protest Stuart’s right to represent the district, but in the end gave it up. He held no office from March, 1839 to November, 1840 dividing his time between politics and law. The first circuit in which he served as states attorney was changed by the legislature in 1839, the northern counties becoming part of the English circuit, and pike, Cass and Scott being added to the old first circuit. Douglas could now attend the March term of the Sangamon court in the eighth circuit. As no courts were held in this circuit in April, he could attend the Morgan, pike, Calhoun and Greene courts in the first circuit, returning to attend the courts in the remaining seven counties of the eighth circuit, in May and June. This plan was also followed by Lincoln, Edward d. baker and other Springfield attorneys in 1839-1840. Douglas formed a local partnership with William r. archer in Pike County. This firm and a similar partnership of Edward d. baker with Milton hay, handled more than half of the cases in pike in 1830-1840. Lincoln may have attended this court in September, 1839 for the purpose of starting hay, a student in the Stuart and Lincoln office, in the practice of law. Soon after Douglas and Lincoln returned to Springfield from attending courts they got into a discussion of politics in the back of the store of which Joshua f. speed was the junior partner. On Douglas’ suggestion a public debate was held and the public interest was so great that it continued for a week, with Douglas and john Calhoun meeting the arguments of Lincoln, baker, alexander p. field and Cyrus walker. Pleased with the interest aroused, the Whigs challenged the democrats to repeat the debate when the legislature met for the first time in Springfield in December, 1839. New talent was recruited among the members of the legislature and the discussion continued. These debates inaugurated the local presidential campaign of 1840. Douglas and Lincoln continued their debates while attending the courts of the eighth circuit in the spring of 1840, devoting part of the opening day of each court to them. At the close of the discussion in Clinton, in Dewitt County, the antagonists joined in the successful defense of spencer turner, indicted for murder. This case is the only one on record in which Lincoln and Douglas appeared on the same side. Douglas appeared alone in six cases in the Illinois Supreme Court from 1835 to 1841. In ten cases in the same period he appeared with Cyrus walker, john a. Mcclernand, john d. caton, William Thomas, Jesse b. Thomas, Murray McConnell and James McDougall. In percentage of cases won he achieved a remarkable record, losing only five out of twenty. Three cases were heard during the December, 1840 term when he was secretary of state, and busy lobbying to secure the three Mormon charters, and to affect the passage of the bill reorganizing the Supreme Court. He was not an attorney again before the court for ten years. In June, 1851, at the meeting of the court in the northern division of the state at Ottawa, he appeared in four cases. In smith et al v. Harris et al., an appeal from jo Daviess county, involving a note for $2,000, the judgment of the circuit court in favor of his client was upheld. In James Dunlap v. David smith et al., assignees of the bank of Illinois, Douglas appeared with Logan and mcclernand for Dunlap and Lincoln for smith. Dunlap’s petition to be allowed to discharge a large indebtedness to the bank in its own depreciated paper was upheld by the court. Douglas was not successful in two cases in which speculators in lands along the Illinois and Michigan canal sought to obtain large tracts of valuable lands under preemption rights. The court recognized their only to lands upon which some improvement had been made. Isaac n. Arnold of Chicago, an opposing attorney, had great admiration for Douglas’ ability as a lawyer. Thirty years later he wrote; “Douglas was bold, unflinching, impetuous, denunciatory and determined. He possessed, in an eminent degree, the qualities which create personal popularity, and he was the idol of his friends… distinguished… in seizing and bringing out, distinctly and clearly, the real points in a case… Douglas had a wonderful faculty for extracting from his associates, from experts, and others, by conversation, all they knew of a subject he was to discuss, and then making it so thoroughly his that all seemed to have originated with himself. He so perfectly assimilated the ideas and knowledge of others, that all seemed to be his own, and all that went into his mind came out improved. Two of Douglas’ cases in the Supreme Court in 1839-1840, were indirectly responsible for his appointment as secretary of state, and his election as a judge of the Supreme Court. Thomas spraggins v. Horace h. Houghton, an appeal from Jo Daviess, was an attempt to get the Supreme Court to rule against the right of unnaturalized aliens to vote. Such a decision would reduce the democratic vote among the Irish workers along the Illinois and Michigan canal. Judge the ophilus smith, the only democratic member of the court, pointed out to Douglas an error in the record of the case, and he entered a motion at the June, 1840 term to dismiss the case. He met with a counter motion asking leave to amend the record. Douglas then entered a motion to dismiss the case as fictitious, unsupported by fact. The court continued the case to the December term, and it became an issue of the presidential campaign then being waged. Douglas led the democratic campaign orators in denunciation of the Supreme Court. The second case which affected Douglas’ career was alexander p. field v. the people et al. field had been appointed secretary of state by governor ninian Edwards in 1828. He was then a Jackson democrat but later became a Whig. By virtue of the undefined tenure he had continued to hold the office until 1838, when Thomas carlin, a democrat, became governor. Carlin appointed john a. mcclernand but the senate refused to ratify the nomination. When the legislature adjourned, the governor reappointed mcclernand; but field refuses to give up the office. The issue was decided against field in the circuit court and he appealed to the Supreme Court. The case was heard by the court at the December, 1839 term. Field appeared for himself and employed Justin butterfield, Cyrus walker and Levi Davis; Douglas and Jesse b. Thomas assisted mcclernand. The court held the governor could not appoint a secretary of state unless there was a vacancy, and field was entitled to hold the office. This decision was denounced by the democrats and the issue of life tenure for Whigs, made votes for the democrats in the election of 1840. Soon after the decision retaining field in office, carlin made a second attempt to oust him by appointing Douglas, but the senate again notified the governor that it was not aware of vacancy. The democrats successfully carried Illinois for van buren in 1840, and elected a majority of legislature. Although the party’s success was, in a measure, due to the Supreme Court action in the alien voter and field cases, the leaders of the legislature determined to eliminate the possibility of future decisions against the interests of the Democratic Party. Field had resigned and Douglas had been appointed secretary of state, November 30, 1840. The Whig sangamo journal sarcastically noted Douglas’ advent to office; “Mr. Douglas is duly installed in the secretary’s office. The coronation took place on Monday night. The lords and bishops of the party, who carried the train, it is said, performed their duties most satisfactorily to themselves.” A bill to reform the court by the addition of five judges was introduced, and though it met vigorous opposition by the Whigs and a few democrats, it passed both houses. Vetoed by the council of revision, it was repassed by a large majority in the senate, and in the house by three votes. Five new judges were then elected. A protest signed by thirty-five Whigs, including Lincoln, had been spread on the journal of the house, but there was little criticism as to the caliber of the five democrats chosen to pack the court. The judges selected were Douglas and Sidney Breese, both future United States senators; Thomas ford, elected governor the following year; Samuel h. treat, subsequently United States district judge; and Walter b. scates who became assistant adjutant general in the civil war. The extent of Douglas’ practice in the united states court at Springfield cannot be determined because the records were removed to Chicago in 1855 and lost in the great fire of 1871. Records of several cases involving land ownership were copied prior to removal; four of these were Douglas’ which heard at the June term in 1840. The law providing for five additional judges on the Supreme Court turned the circuit judges out and directed that the chief justice and eight associate justices shall perform circuit duties in said circuits. Douglas was assigned to the fifth circuit, which was composed of nine counties in the center of the military tract, bounded on the east and west by the Illinois and Mississippi rivers. The courts met in the following order; Fulton, Schuler, brown, Adams, Hancock, mcdough, Henderson, warren and Knox. With his accustomed political foresight, it is probable that Douglas chose this circuit because it included Hancock county where the large and rapidly increasing Mormon population could yield the votes that would send him to congress. He had successfully wielded his political influence and that of his position as secretary of state to secure three charters sought by the Mormons. Unlike the other judges, Douglas did not take his seat on the Supreme Court until March 1, 1841, the last day of the term. Only twenty-seven years of age, he was the youngest justice ever to sit on the court. A partisan estimate of his ability as a lawyer at this time is found in the Jacksonville Illinoisan of April 10; “he has not the reputation of possessing a great stock of legal lore”. Undaunted by such comments Douglas removed his personal belongings to Quincy, which became his home for six years. He opened his first circuit court in Lewistown, county seat of Fulton, March 8, 1841. It was not the lack of legal learning that caused so much wonder as to what kind of a judge he would make, as his free and easy manner, his animal spirits, and fondness for all grades of society, from the saloon to the ballroom. Elevation to the bench did not change his habits. However, at the close of the three week term, the lawyers pronounced him satisfactory. He was expeditious, resourceful and sane, admitted his shortcomings, and resentment faded away under his magnetic personality. His first court over, Douglas wrote to James shields; “I have cleared the docket in this county for the first time for seven years, having disposed of between 300 and 400 cases. The members of the bar and the people generally have received and treated me with great kindness and courtesy and seem to be entirely satisfied with the judicial change. Cyrus walker of Macomb, one of the ablest attorneys on the circuit, tried to take advantage of Douglas’ inexperience and rule the court. Failing, he declared he would never practice again in Douglas’ court, and he kept his word. Douglas‘ habit of leaning back in his chair with his feet elevated upon the bench, angered walker. Arising to argue a case he addressed the court; “your honor, I much prefer to address my argument to that end of the court in which Intelligence is presumed to reside.” The judge took his feet down. Nevertheless, walker convinced that there was a prejudice against him, practiced in the Iowa courts as long as Douglas remained on the bench. Two-story brick court houses – some square with cupolas, others rectangular with Greek columns and pediment, but all with the court room on the second floor – were replacing the old log cabin and clapboard structures on the circuit. The first floor contained the county offices and rooms rented to lawyers, doctors or land speculators. In the new county of Henderson, the court convened May 28, 1841, in the rear of a store in Oquawka. At the conclusion of the circuit, Douglas went to Jacksonville to hold the summer term of the Morgan circuit court in the absence of Judge Lockwood. Here Douglas heard his first murder cases. George Gardner and Thomas crew were indicted for killing an Irish man named Nash in a drunken brawl in Scott County. Both men were found guilty and Douglas sentenced them to serve three years in the Alton penitentiary. Gardner appealed his case to the Supreme Court, but Douglas’ ruling was upheld. Judge Douglas was criticized by the Whig papers for removing several circuit clerks and appointing ardent democrats. His appointment of john c. Bennett, mayor and major general of the Nauvoo legion to the office of master in chancery in Hancock, angered non-Mormons of both parties in the county. Governor l.w. Boggs of Missouri made a requisition on governor carlin of Illinois for the arrest and delivery of joseph smith, jr., the Mormon leader as a fugitive from justice, in the spring of 1841. The warrant was not served but returned to the governor. On the second attempt smith was arrested and brought before judge Douglas, then holding court at Carthage. Smith was discharged upon the ground that the writ upon which he had been arrested had been once returned before it had been executed, and was functus officio. This decision made Douglas very popular with the Mormons and smith pronounced him a master spirit. In Quincy, Judge Douglas heard the case of the people v. Richard eells, indicted for harboring and secreting a slave escaped from Missouri. Dr. Eells, a radical anti-slavery man, active in the “underground railroad,” was a defendant in several suits brought against him for aiding escaped Negroes. The black laws dealing with escaped slaves were severe in Illinois and Douglas vigorously upheld the law, fineing eels $400 and costs. On appeal to the Supreme Court, Douglas and the majority of the court upheld the decision. When debating with Lincoln in 1858, Douglas described the over-ruling importance of public opinion in enforcement of the law. His understanding may have dated back to 1843, when his rulings upheld the legislative act creating a new county of Marquette out of the eastern part of Adams County, but which were disregarded by the local officials, backed by public opinion. George c. bates, a law student with Douglas in Canandaigua, New York in 1833, visit-ed in Chicago soon after Douglas had presided over the cook circuit court in July, 1842. Meeting Justin butterfield, who had practiced before Douglas, bates said he supposed Douglas had made an ass of himself on the bench. Butterfield replied: “no, no – by no means. I thought I could handle him, but damn that little squatty democrat, Douglas! He is the very best and most acute judge in all this democratic state. He listens patiently, comprehends the law, and grasps the facts by intuition then decides calmly, clearly and quietly, and then makes the lawyers sit down. No, no – Douglas is the ablest man on the bench today in Illinois. Butterfield was given to exaggeration but there is tribute in it, coming from a Whig. Another contemporary description, by a lawyer recently arrived in Illinois, emphasizes Douglas’ informality in court. He wrote; “the judge of our circuit is s.a. Douglas, a youth of 28, who was the democratic candidate for congress in 1838, in opposition to Stuart, the late member. He is a Vermonter, a man of considerable talent, and, in the way of dispatching business, is a perfect steam engine in breeches, this dispatch is the only benefit our circuit will derive from the change. He is the most democratic judge I ever knew. While a case is going on, he leaves the bench and goes among the people, and among the members of the bar, takes a cigar and has a social smoke with them, or often sitting in their laps, being in person say five feet nothing, or thereabouts and probably weighing about 100 pounds. I have often thought he would cut a queer figure, if one of our Suffolk bar should accidently drop in. Douglas earned his yearly of $1,500 as a judge. When his own circuit courts were over he filled in the time before the July meeting of the Supreme Court, presiding in the circuit courts for other judges. When the fall term closed there was only two weeks’ vacation until the Supreme Court convened for its winter term. Douglas presided over thirty-eight sessions of the circuit courts during his two years as member of the Supreme Court. Twenty-six cases decided by him in the circuit courts were appealed to the Supreme Court. In eleven cases his decisions were upheld, while fifteen were reversed. The nine justices on the bench did not share equally in preparation of the opinions of the court. Chief justice William Wilson and Justice Thomas c. Browne had been on the bench since Illinois became a state, and justice smith and Lockwood, since 1825. Neither of the four older men wrote many opinions, nor did justice ford. Justices treat, Breese, scates and Douglas, in order, wrote the bulk of the opinions. Douglas prepared twenty-one opinions, and dissented in seven cases, in the four terms he was a member of the court. The estimate of lawyer Douglas given by William h. Herndon is not without interest. He wrote: “I always found Douglas at the bar to be a broad, fair, and liberal-minded man. Although not a thorough student of the law his large fund of good commonsense kept him in the front rank. He was equally generous and courteous, and he never stopped to gain a case. I know that Lincoln entertained the same view of him.