Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Lincoln’s Minnesota Legacy

On February 12 the nation celebrates the 200th anniversary of the birth of Abraham Lincoln, the first president to take office following Minnesota’s becoming a state.  His presidency was marked by events arising in Minnesota, and our state’s legal and cultural history bears his stamp and commemorates his contributions. 

It’s time for another historical celebration.  After Minnesota’s Sesquicentennial last year, the 200th birthday of Abraham Lincoln is now being commemorated around the country.

The nation’s 16th president was born on February 12, 1809.  His bicentennial thus was celebrated on February 12, 2009, in advance of President’s Day on the third Monday, which honors all of the nation’s chief executives.  Lincoln’s position at, or near, the top of the pantheon of great Americans is well-established.  He apparently never visited Minnesota, but his role in this state is prominent.  He rose from humble beginnings to lead the nation through its greatest adversity, the Civil War.

He was the first president for whom Minnesotans voted after admission to statehood in 1858.  In the election of 1860, the Republican nominee garnered a majority of the votes from the state, beating his old arch-rival, Democratic Senator Stephen Douglas of Illinois, by nearly two to one: 22,069 votes to 11,920 in the newest jurisdiction, which then had just four electoral votes.

The victory in Minnesota helped the Republican win the presidency, although he captured less than 40 percent of the overall national vote in a four-way race against Douglas and two other minor party candidates.  In 1864, when he was reelected, Minnesota’s voter base had grown by nearly one-third and the state was, again, convincingly in his column. Although the margin over his Democratic challenger, former Union General George McClellan, was smaller than that in 1860—25,055 to 17,367—it was nonetheless slightly greater than his 56 percent of the vote nationally.

Lincoln’s legacy has been played out not only in the lore of Minnesota, but in its litigation as well.  To commemorate his 200th birthday, here’s a glimpse at some Lincoln-related litigation in this state.

Dreadful Decision

The evil of slavery forms a linchpin in the litigation legacy of Lincoln’s presidency, and Minnesota was at its roots.  Even before Minnesota became a state, facts in the Territory gave rise to the infamousDred Scott case, in which the U.S. Supreme Court validated slavery and insulated it from legal challenge.1 Known officially as Scott v. Sandford, the case raised what one high court jurist termed:  “[C]onstitutional principles of the highest importance… .”2

The Dred Scott litigation itself arose in both the Missouri state and federal court systems, was argued twice before the U.S. Supreme Court, and was decided in 1857, one year before Minnesota became a state.  The holdings of Dred Scott ‘that slaves are not “citizens” under the Constitution, that residing in “free” territory does not emancipate a slave, and that the Due Process provision of the 5th Amendment prohibits Congress from legislating against slavery’ had dreadful consequences, precipitating the Civil War four years later. Historians have rightfully excoriated the Court for exhibiting an “amazing lack of moral or political wisdom,”3 have regarded the decision as a “monumental indiscretion”4 and lambasted it as the “most disastrous ever handed down by the Supreme Court.”5

Minnesota’s connection to the case was that Dred Scott, originally a slave in Missouri, sued for his freedom on the basis that he and his wife had lived in “free” territory from 1836 to 1838 while enslaved to a military doctor, before being returned to Missouri, a “slave” state.  The “free” area in which they had spent the two years was then known as the Upper Louisiana Territory, where slavery had been proscribed by Congress in the Missouri Compromise Act of 1820.  The particular place where Scott and his wife resided during that two-year period was an isolated military outpost—Fort Snelling—described by the high court as sitting “on the west bank of the Mississippi River.” 6

It took the Civil War to bind the “self-inflicted wound” of the case.  The legal damage caused by the Dred Scott decision was rectified by the Civil War amendments to the Constitution:  the 13th (barring slavery), the 14th (Privileges and Immunities, Equal Protection, and Due Process clauses), and the 15th (right to vote); but the economic, human, and political suffering has lasted for more than 150 years.

A former Illinois state legislator, one-term Congressman, and unsuccessful aspirant twice for the U.S. Senate, Lincoln was propelled back into politics by the Dred Scott decision, which he expressly described as relaunching his political career.  After 18 months in office and following the Battle of Antietam, Lincoln issued the Emancipation Proclamation, freeing all slaves in Union-occupied military territory while preserving the practice elsewhere, including border states loyal to the Union.  It took the 13th Amendment to the Constitution, enacted shortly after the end of the Civil War and Lincoln’s death, to abolish slavery and involuntary servitude throughout the nation.

Slavery Suits

Although never practiced in Minnesota—and expressly prohibited by law—the institution of slavery played a role in Minnesota’s birth.  When Minnesota entered the Union in 1858, it was joined by Kansas, where the legitimacy of slavery was an open issue.  The open warfare over slavery in Kansas, which prompted the term “bloody Kansas,” was a factor together with the Dred Scott decision in precipitating the Civil War.

Coincidentally, partisan disputes in both Minnesota and Kansas led each state to draft two versions of their state constitution.  In Minnesota, the two documents actually coexisted, distinguished only by minor grammatical, punctuation, and slight semantic differences, until consolidated in 1974.

The abolition of slavery, one of Lincoln’s legacies of the Civil War, is reflected in some Minnesota cases.  In 1970, the ban on slavery and involuntary servitude was found not to extend to compulsory military service in U.S. v. Crocker.7 In this case, the 8th Circuit affirmed a ruling by Judge Philip Neville of Minnesota, upholding the constitutionality of the military draft over 13th Amendment objections, which had been “squarely faced, and rejected”8 by other courts as well. Judge Harry McLaughlin of the Federal District Court in Minnesota more than two decades later held that the 13th Amendment prohibitions do not extend to work performed by prison inmates “who have been convicted of crimes.”9

Indian Issues

While Lincoln never set foot in Minnesota, it was not too long before he played a role in the law in this state.  Shortly after his presidency began, he welcomed to the White House one of Minnesota’s first two senators, then elected by the State Legislature, Morton Wilkinson.  Lincoln expressed his praise for the “the rapid advance of everything desirable in that young sister in the Republic–Minnesota … [where] the people up your way have very correct political views … .”10

A short time later, Lincoln had to deal with his first major legal issue in Minnesota, arising out of strife between some Native American Indians and white settlers in the southwestern part of the state in the summer of 1862.  The discord culminated in the deaths of a number of homesteaders in the New Ulm area, prompting Lincoln to dispatch his personal secretary, John Nicolay, and the Commissioner of Indian Affairs to assess the situation and quiet growing hysteria.

Minnesota militia captured and tried 303 Indians, who were sentenced to death by a military tribunal without counsel.  They were tried and convicted as “belligerents of a sovereign nation,” rather than as domestic criminals.

Lincoln intervened, imposing federal authority to stay their executions until he could review their cases.  Beseeched by conflicting advice, Lincoln concurred that 39 of the group warranted the death sentence, while the rest were imprisoned indefinitely, which proved fatal to many of them due to brutal conditions of confinement.  To calm protests, Lincoln agreed to monetary compensation and to move the remaining members of the tribe from Minnesota, although the latter had not participated in any violence but were disliked by Minnesota settlers.

The sanctions were viewed as too harsh by many, while others, including the state’s governor, Alexander Ramsey, criticized Lincoln for being too lenient. Ramsey, for whom the county was later named, told Lincoln that he would have received more political support from Minnesota if he “had hung more Indians,” to which Lincoln replied:  “I cannot afford to hang men for votes.”11

More than a century later, Lincoln’s legacy was reflected in a case decided by the Minnesota Court of Appeals regarding jurisdiction of state courts over activities conducted on Native American tribal reservations.  In Granite Valley Hotel Limited Partnership v. Jackpot Junction Bingo and Casino,12 the appellate court affirmed a ruling of the Redwood County District Court, upholding jurisdiction over contracts and decisions regarding those documents, deeming the exercise of judicial authority not unduly intrusive on the Indian tribal government.  But Judge James Randolph, concurring specially, ruminated at length about the independence of Native American tribes and social justice for the sovereign entities.  His missive of nearly 50 pages discussed Lincoln’s moral doubts about slavery, noting that “[h]istory graciously has vindicated Lincoln … 100 percent, 500 percent, 1,000 percent.  At the time [Lincoln] spoke, contemporary history was not so kind.”13

Another military clash also prompted a Minnesota jurist to refer to Lincoln’s legacy.  The case of ExParte Ortiz14 arose after the United States obtained Puerto Rico from Spain at the end of the Spanish-American War.  The U.S. District Court in Minnesota encountered the issue of what to do with Puerto Ricans who were captured and sentenced to death for murder.

After his sentence was commuted by President McKinley and he was confined at the state prison in Stillwater, the convicted killer brought a habeas corpus proceeding in Federal District Court here.  The tribunal denied the petition, reasoning that the Puerto Rican was properly tried and convicted by an ancillary tribunal for crimes committed during wartime.  But, in so doing, the judge quoted from Lincoln’s Gettysburg Address “in language not yet forgotten” of the authority of the “government of the people, by the people, for the people.”15

Abe Adoration

There are a number of reasons why Lincoln is adored, including his eloquent and acute observations about the human condition.  One of his most well-known aphorisms was reflected in State v. Craig.16 Accused of terroristic threats and fifth-degree domestic assault, the defendant sought to represent himself despite several warnings by the Stearns County District Court judge.  At a pretrial hearing, after the defendant sought to discharge his assigned public defender, the judge asked him “You know what Lincoln said?”  The defendant answered affirmatively, “Yes.  I do,” although neither the judge nor the defendant explicitly stated the remark.17

But it could have been the saying attributed by some to Lincoln that it is “better to be silent and be thought a fool, than to speak and remove all doubt.”18 More likely, the judge was discouraging pro serepresentation, based upon Lincoln’s recognition that if one is “resolutely determined to make a lawyer of [one]self, the thing is more than half done already.”19  The phrase has been rearticulated over time to a more familiar phrase:  “A person who represents himself has a fool for a client.”

Lincoln also served up some other pithy phrases that offer valuable advice to attorneys in Minnesota and everywhere else for that matter.  Among the most oft-cited:

  • “It is a good policy to never plead what you need not, lest you oblige yourself to prove what you cannot.”20
  • “Never stir up litigation.  A worse [person] can scarcely be found than one who does this.”21
  • “The leading rule for the lawyer as for [those] of every other calling, is diligence.  Leave no thing for tomorrow which can be done today.”22

Despite the adoration, Lincoln’s birthday is not recognized as an official holiday.  In some states, notably Illinois, Lincoln’s birthday, on February 12th, is a holiday.  But, under federal law, the anniversary of Lincoln’s birth has never been a national holiday, probably due to age-old antagonism to the South.  Efforts to legislate it at the federal level have failed, most recently in 1968.

Instead, the Great Emancipator’s birthday is incorporated into President’s Day, a celebration derived from the birthday of George Washington that has been expanded to recognize implicitly all presidents of the United States.  In Minnesota, both Washington’s and Lincoln’s birthdays are treated as holidays on the “third Monday in February.”23  Since it is a holiday, the courts are closed.24 Also because it is a holiday, and most employees do not work, they are not entitled to unemployment compensation benefits for that day25—a proscription that probably would not be warmly welcomed by Lincoln, who was considered a great friend of working people.

Although Lincoln’s birthday has thus yielded stature to President’s Day, Minnesota’s schools have preserved his place in their curricula, prompted in part by the State Legislature and undoubtedly also reminded by the number of schools and school districts bearing his name.  A special statute addressed to educational institutions, a provision in the state education code, Minn. Stat. §120A.42, requires that at least one hour of the school day program must be devoted to “a patriotic observance” on Lincoln’s birthday.

Happy Holiday!

Scott v. Sandford, 60 U.S. 393 (1857).
2 60 U.S. at 454 (Wayne, J. concurring).
3 Nowak, John E., Constitutional Law (St. Paul: West Publishing, 1983), p. 614.
4 McCloskey, Robert G., The American Supreme Court (Chicago: University of Chicago Press, 1960), p. 97.
5 Abraham, Henry J., Justices and Presidents: A Political History of Appointments to the Supreme Court, 2nd ed. (New York: Oxford University Press, 1985), p. 101.
6 Scott, 60 U.S. at 397.
U.S. v. Crocker, 420 F. 2d 307, (8th Cir. 1970).
8 420 F.2d at 309.
McMaster v. State, 819 F. Supp. 1442, 1442 (D. Minn. 1993).
10 The Lincoln Press Institute, Abraham Lincoln and Minnesota, in “Abraham Lincoln State by State,”
11 Recounted in E. Henty’s “Abraham Lincoln” the Jurist of the Civil War,” 14 N.Y. L.Q. Rev. 473 (1936-37).
12 Granite Valley Hotel Limited Partnership v. Jackpot Junction Bingo and Casino, 559 N.W.2d 135 (Minn. App. 1997).
13 Id. at 177.
14 ExParte Ortiz, 100 F. 955 (D. Minn. 1900).
15 100 F. at 957.
16 State v. Craig, 2002 WL 1050344 (Minn. App. May 28, 2002) (unpublished).
17 Id. at *5.
18 Lincoln is one of a number of sources credited with this quotation.  Some suggest Proverbs 17:28 as an early source of the line: “Even a fool, when he holdeth his peace, is counted wise: and he that shutteth his lips is esteemed a man of understanding.”
19 Letter from Abraham Lincoln to Isham Reavis (Nov. 5, 1855).
20 Letter from Abraham Lincoln to Usher Linder (Feb. 20, 1848).
21 Abraham Lincoln, Notes for a Law Lecture, July 1, 1850.
22 Id.
23 Minn. Stat. §645.44.
24 City of Eagan v. O’Neil, 437 N.W.2d 736 (Minn. App. 1989).
25Jasnoch v. Schwab Co., 495 N.W.2d 204 (Minn. 1993).

MARSHALL H. TANICK and PHILLIP J. TROBAUGH are attorneys with the law firm of Mansfield, Tanick & Cohen, P.A., in Minneapolis and St. Paul.  They frequently write, lecture, and occasionally litigate about history-related cases.  Mr. Tanick is a graduate of the University of Minnesota and Stanford Law School.  Mr. Trobaugh is a graduate of Ripon College, in the town of Ripon, Wisconsin, where the Republican Party was purportedly formed, and Hamline University School of Law.  They want to thank Patrick Donaldson and Emily Boucher, law clerks with the firm, for their assistance in preparing this article.

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