by Terry Hogan

Living in Galesburg, the first thought of Abe Lincoln probably is "The Debate" at Knox College 139 years ago this week. However, Lincoln had an earlier significant tie to this area. It was a court case that would go all the way to the U.S. Supreme Court­­ Lincoln's first of six Supreme Court cases and perhaps the one he would care least to remember. Not only did Lincoln lose the case but he was reprimanded by one of the justices on his handling of the case. Additionally, the attorney who won for the plaintiff was the same man who had defeated Lincoln two years earlier for a contested federal appointment in Washington. It was not a good showing for the future President.

One of the defendants represented by Lincoln was Harmon Hogan. Harmon, the son of Phillip Hogan and Elizabeth Pate (Payte, Paite) was born in Virginia about 1792. Harmon married Margaret Elliot in 1813 in Virginia. They moved to Harrison Co., Ind. where she died in 1820. Harmon then married Elizabeth Miles in April 1823. They moved to Warren County, Ill. Nancy Hogan, a daughter of Harmon and his first wife, Margaret, married Harmon Greathouse Brown in Warren County in 1840. Harmon Hogan died September 18, 1864. At Harmon's death, the country was being torn apart by the Civil War. One of his sons, Harbard Hogan had already served his country in Company E, 17th Illinois Volunteer Infantry. Abe Lincoln was President.

But prior to his death, Harmon Hogan would be brushed by history, forgotten, and recently be rediscovered as having been defended by a promising lawyer from Springfield in that lawyer's first case before the U.S. Supreme Court: Abe Lincoln, for the defense.

The case is known as Joshua J. Moore v. James Brown, Alfred Brown, Harmon Hogan and Joseph Froward1. Moore sued the four men in June 1847 to settle a land ownership dispute over 320 acres, the south half of Section 35 in Kelly Township, Warren Co. Brown's attorneys, Orville H. Browning of Quincy and Nehemiah Bushnell, due to travel difficulties, requested that Stephen T. Logan of Springfield argue the case in Springfield. Logan was a former law partner of Lincoln and he asked him to assist in the matter. Archibald Williams was the attorney representing Moore in Springfield.

The defendants held possession of the land and had a deed based on a tax sale of the property. One of the previous owners of the land in Moore's chain of ownership had not paid taxes on it in 1821 and 1822. As a result, the land was sold by the Illinois State Auditor to Stephen Davis on December 9, 1823 for the amount of taxes due, $10.81. It appears that the Illinois State Auditor may not have followed the law strictly in the sale of the property. Williams argued that the date of the sale indicated that the property was sold prior to its legal occurrence and therefore the tax title was not admissible in the court case.

Lincoln and Logan, representing the defendants in the Springfield Circuit Court, conceded that the deed was invalid but argued that it gave Brown et al. "color of title" to establish the required seven years residence. The court apparently sustained William's objection that the tax title was not admissible.

The court ultimately ruled for Moore. However, the issue of the deed's admissibility was "certified" to the U.S. Supreme Court. The two Circuit Court judges "agreed to disagree" on the admissibility of the tax deed, thereby forcing the issue to the U.S. Supreme Court. This process allowed limited points of law to be resolved by the Supreme Court when the two circuit court judges disagreed. However, the Supreme Court could only rule on the specific point and not the broader issues of the case. The Circuit Court clerk sent the certificate of division in Moore v. Brown to the U. S. Supreme Court in November 1848.

In January, 1849, Orville Browning**, Brown's attorney, wrote to Lincoln, who was then in Washington, to file the case record with the clerk of the Supreme Court. Lincoln complied with the request but the case was continued to the next term. It has been suggested that perhaps Lincoln had anticipated remaining in Washington; he was a candidate for the Commissioner of the General Land Office in Washington in 1849 but the job ultimately went to Justin Butterfield, who also actively campaigned for the appointment. To add insult to injury, Butterfield was destined to represent Moore in the Supreme Court case of Moore v. Brown. Lincoln returned to Illinois and pursued law on the Illinois circuit.

During the summer of 1849, Lincoln made a trip to Washington and inquired of the clerk of the Supreme Court when Moore v. Brown would go to trial. On February 11, 1851, Justin Butterfield, representing Moore, authorized the clerk of the Supreme Court to place the case on the record and his (Moore's) printed argument.

Neither Lincoln, Browning, nor Bushnell appeared before the Supreme Court to represent Brown et al. nor did they file any written argument. On March 11, 1851, Justice Wayne ruled that the Brown deed, obtained from the tax sale, was void and was therefore not admissible as evidence in the case. Chief Justice Taney, and Justices Grier and Catron dissented.

Catron wanted to dismiss the case­­ as he noted in his dissenting opinion. He questioned the validity of Moore v. Brown. The plaintiff's attorney (Butterfield) had submitted a written brief, while the defendants "Šmade no appearance here by counsel, set up no defense but give the plaintiff every advantage he may desire or can possibly have." Based on the above, Catron believed that the case should not have been heard. Nevertheless, since it was, Catron believed that the deed should have been admitted as evidence since it was issued by an officer of the State of Illinois as the 1835 law required. Catron believed that western land buyers needed to be protected from eastern land speculators. He also argued that western land buyers should be able to rely upon the actions of an authorized state official as acting in a legal manner in the selling of land. In essence, Catron, while being very critical of Lincoln for making no defense, agreed with his legal position.

Catron, in reviewing the disadvantaged position of the defendants resulting from the Springfield Circuit Court ruling, wrote the following critical comments concerning Lincoln's legal defense:

"It is agreed, that they [Brown et al.] held under a void deed; that it was not made according to law and void on its face. They admit that the auditor did an act which he could not possibly do as auditor. Thus the defendants by this agreement made the worse case for themselves that they could make and the best case for their adversary that could be made up for the purpose of having a decision against the defendants on the act of limitations. This is manifest and not open to dispute. No power is left to this court to inquire whether the auditor had, or had not, authority to sell for taxes due in the years 1821 and 1822, by advertising in advance of October 1, 1823, for three weeks, and selling afterwards, in December, when the 82 days required by the act of 1823 had expired from the first advertisement. The 26th section of the act declares that the first sale of lands made by the auditor shall take place in December, 1823; at what time in December, the act does not provide."

I do not know why Lincoln or another attorney did not represent Brown et al. before the Supreme Court. However it appears that Lincoln did accept responsibility for the case he failed to represent. After the Supreme Court decision, the court's clerk, William Thomas Carroll, sent Lincoln the fee bill for $15.93. Lincoln made payment.

It is known that Lincoln had other issues on his mind. In 1849, in addition to his appointment aspirations mentioned previously, he received word in May that his father, Thomas Lincoln was dying. Despite his campaigning to secure appointment as Commissioner of the General Land Office, Lincoln traveled to Coles County to see his father, who was not dying. In December 1849, his second son, Edward Baker became ill with pulmonary tuberculosis. After an illness of nearly two months, the 4-year-old son died on February 1, 1850. Within a few weeks of his death, Mary Lincoln gave birth to William Wallace Lincoln.

Beyond his personal difficulties, Lincoln was also becoming what one might call a "corporate attorney" at about this time. Lincoln took on a case in 1851 for the Alton & Sangamon Railroad. He was successful in the case, and it reportedly "Šestablished Lincoln as one of the most prominent and successful Illinois practitioners of railroad law." (Donald, 1995).

Lincoln was lucky that the "press" of the late 1850s was not as aggressive as our contemporary media. A failure to represent clients before the Supreme Court in contemporary times would easily halt presidential aspirations as the "scandal" was broadcast around the world. As history recorded, this event in no way reflected Lincoln's abilities to lead the country through the Civil War.


1"Joseph Froward" is the name listed in the official Supreme Court citation. It is likely, however, that the correct name is " Joseph Froman." The latter spelling is used by Orville Browning in a filing with the Court in 1849 and the Froman name was also present in Warren County.

2 Mr. Orville Browning, attorney from Quincy, would become a longtime friend and advisor to Lincoln. It was Browning in a letter to President-elect Lincoln that advised him how to have the South initiate aggression. Browning wrote, "In any conflictŠ between the government and the seceding States, it is very important that the traitors shall be the aggressors and that they be kept constantly and palpably in the wrong. The first attemptŠ to furnish supplies or reinforcements to Sumter will induce aggression by South Carolina and then the government will stand justified, before the entire country, in repelling that aggression, and retaking the forts." This was the course taken by Lincoln and the South responded. Lincoln is quoted as saying to Browning "They attacked Sumter; it fell, and thus, did more service than it otherwise could." (Donald, 1995).

Additional Reading & Acknowledgment

Lincoln's role in the Supreme Court case of Moore v. Brown was only recently discovered during research for The Lincoln Legal Papers: A Documentary History of the Law Practice of Abraham Lincoln, 1836-1861, a project of the Illinois Historic Preservation Agency, Springfield. John Lupton, Assistant Editor provided relevant materials and a portion of a manuscript that he has written. His generosity is acknowledged and greatly appreciated.

Carr, Clark E. 1906. The Illini, A Story of the Prairies. A. C. McClurg & Co. Chicago (Carr was a resident of Galesburg. Note that the book is a mix of fact and fiction)

Donald, D. 1995. Lincoln. Simon & Schuster, New York.

This article posted to Zephyr online October 9, 1997
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