Note: posted on History for the Present, January 5, 2017
All significant biographies of Abraham Lincoln mention the “Sandbar Case” as important in Lincoln’s legal career. The case garners attention mostly because it is one of the rare Lincoln cases for which there is a complete trial transcript, as court reporting was not a professionalized or regulated practice in antebellum courtrooms. The transcript of the case of Johnston v. Jones & Marsh is, indeed, a wonderful resource, because it gives us historical documentary evidence of Lincoln’s deductive reasoning, his smart and crafty questioning of witnesses in open court, and his use of humor. One of my particular favorite Lincoln quips from this transcript is in the testimony of John H. Kinzie, who in 1803 settled with his family in the place that would become Chicago. When an opposing attorney at the trial asked Kinzie about his residency in the city, Lincoln, who was a friend of the man, interjected: “I believe he is common law here, as one who dates back to the time whereof the memory of man runneth not to the contrary.”
But while the trial transcript offers great glimpses of Lincoln’s character as a lawyer and the case is illustrative of the sophistication of Lincoln’s legal mind and the caliber of his legal practice, the historical importance of the case is often overshadowed by Lincoln’s role within it. Few cases capture the imagination of antebellum America and illustrate so beautifully the rapid rise of a great American city. Because that “sandbar” of land at the heart of the “Sandbar Case” is today a part of Chicago that sits along the “Magnificent Mile.” That “sandbar” did not even exist until after the U.S. Army Corps of Engineers completed the construction of a channel they dug in order to make a navigable connection between the Chicago River and Lake Michigan. So before I can get into the details of the “Sandbar Case,” I first need to offer a short version of a very long environmental history of the land in question. In 1830, Chicago had just 100 or so residents, but early and very influential Chicago boosters, like John H. Kinzie, had a vision that far exceeded the natural qualities of the volatile Lake Michigan waters at “Chicagoua.” The location of Chicago was ridiculously unnatural for a viable harbor, but the federal government nonetheless undertook a massive engineering effort to improve the mouth of the Chicago River, create a navigable harbor, and connect Chicago and the emerging Midwest to the Great Lakes and the Eastern Seaboard. They dug the channel and built northern and southern piers to create the new inlet and then dredged the harbor. Work continued throughout the 1830s and 1840s, even as the rough waves and undercurrents of Lake Michigan and the heavy, lakefront winds fought against their efforts. But in the end, humanity triumphed over nature, and the Chicago harbor project was successful beyond anyone’s wildest dreams. The harbor boomed, and so did the rapidly growing city of Chicago, which exceeded 112,000 residents by 1860.
The construction of the piers and the channel combined with the undercurrents of Lake Michigan resulted in a 1,200-foot wide accretion of new land along the north pier, signficantly altering the shoreline of land that by 1860 was already worth a fortune. While the U.S. Corp of Army Engineers was fighting nature in the constant dredging and redredging of the harbor, landowners began fighting with each other over ownership of the accreted lands and the new lakefront. William S. Johnston and William Jones owned adjoining lakefront lots on land through which the new channel crossed. In the federal court in Chicago, Johnston sued Jones and Sylvester Marsh, who also had interest in the property in question, in an action of ejectment. Basically, Johnston was claiming ownership of six acres of new land and wanted to evict Jones and Marsh from the property. Johnston claimed that after the government built the new channel, his property continued to border Lake Michigan, entitling him to the new land. However, Jones argued that Johnston no longer had a lakefront border and, therefore, was not entitled to any of the new land. The legal proceedings were long and complicated, but at the fourth trial, the jury found for Johnston. Jones then appealed to the U.S. Supreme Court, which reversed the judgment, arguing that if Johnston believed there was a defect in his deed to the land, he should have corrected it in chancery. But, of course, that’s just a boring legal technicality, and Johnston was not having it. Remember, this is NEW land in downtown Chicago. Johnston was holding tight to his hope for a claim on that valuable property.
So here is where our Mr. Lincoln finally enters the story. After the case returned to the federal circuit court in Chicago, Johnston continued the ejectment case, and both parties engaged new attorneys. A company who stood to benefit from Johnston’s defeat, retained Abraham Lincoln to represent Jones, whose team of Chicago heavy-hitters was eager to get Lincoln on board for the jury trial. Lawyers were more numerous in this case than litigants and witnesses, and observers in Chicago had noticed this fact. One of the wittiest newspaper articles from the Lincoln era that I have ever read was an anti-lawyer rant that made a very convincing argument that the “Sandbar Case” was more about the greed of the lawyers than it was about the property rights of the land owners:
“Sand bars, whatever they may be deemed by mariners, deserve to be embalmed in the deepest and tenderest regard of Chicago lawyers. Between our bar legal and the bar at the harbor mouth, there should by this time have sprung up the most perfect good feeling. Those reaches of barren sand have been a rich El Dorado to the lawyers, Pike’s Peak and California at their very feet.”
The three historical references to the search for gold was not so far off the mark, as nineteen lawyers (yes, 19!) were employed during the dispute. The roll of attorneys was a Who’s Who of the Chicago bar and also included a couple of nationally renowned lawyers, as well. Along with Lincoln, you might recognize Isaac N. Arnold, Salmon Chase, Grant Goodrich, Reverdy Johnson, J. Young Scammon, and Elihu B. Washburne, as all are characters in the Lincoln story. In the “Sandbar Case,” Lincoln himself earned a whopping $350, and he was only actively engaged for the trial in March of 1860. Ogden, Fleetwood & Co., a real estate firm in Chicago which had interest in the accreted land, had paid Lincoln’s fee, also paid the law firm of Scammon, Ezra B. McCragg, and Samuel W. Fuller $1,800 that we know about, spent at least $380 for witnesses, and footed the hotel bill for eight witness who came to testify all the way from Milwaukee. The people who got money from Ogden, Fleetwood & Co. were no doubt happy to oblige, but we can also thank the company for the 482-page trial transcript, because they paid Robert Hitt $346 to sit through the trial and create that document. Ergo, as a Lincoln scholar and legal historian, I am grateful that the little sandbar in Chicago raised such a ruckus.
Ok, but what the hell happened? Who got the land? Well after an eleven-day trial, the jury found for Lincoln’s client, Mr. Jones, in March 1860. While Lincoln returned to Springfield and got nominated as the Republican Party candidate for president just a couple of months later, Mr. Johnston still refused to admit defeat. There was far too much value in the land to give up the fight, so he appealed to the U.S. Supreme Court, which affirmed the judgment against him in February 1862. In this final opinion, Justice Noah H. Swayne, whom then President Lincoln had nominated to the Supreme Court just a month earlier, wrote the opinion that settled the damn case once and for all. By then, the country was entering a second year of Civil War, Camp Douglas in Chicago would soon become home to nearly 5,000 Confederate prisoners of war, and, I suppose, Johnston was all out of steam or had more pressing things on which to focus his time and to spend his money.
Lincoln’s “Sandbar Case” is so much more than just a Lincoln case. It is one of thousands of cases in the legal history of America that provide a vivid landscape of the past, capturing a point in time and space that speaks specifically of its era and yet speaks directly to us in the present, as well. It has always been my habit to understand something of the history of all of the places I have lived and have had an opportunity to visit. Knowing the history of a place helps you to understand it better. Knowing about the “Sandbar Case” enhances my appreciation for the modern space in Chicago of which that 1,200-foot accretion of land is now so very much a part. I love that little “sandbar” in Chicago, and knowing the history of it makes me love it all the more. It is awesome to know that just underneath the glitz and glamor of Chicago’s commercial district lies the fascinating historical details that made all of that glitz and glamor possible in the first place.
The next time you are in Chicago, and you’re strolling along Michigan Avenue at the southern end of the “Magnificent Mile,” pause a moment on the northeast side of the bridge there, overlooking the canal. Look slightly northeast, and then imagine Chicago in 1830, when the churning waters of Lake Michigan hit the shore about where the Tribune Tower stands today. Then imagine Chicago in 1860, after that shoreline had so dramatically shifted to the east and when an energetic and new, urban metropolis bustled all around that new channel of the river. And then pause…for just a moment…to appreciate how rich the history of our physical environment and recognize the simple but awesome truth that our tangible connections to the past are sometimes lying right underneath our feet.
Johnston v. Jones & Marsh, The Law Practice of Abraham Lincoln: Complete Documentary Edition, Second Edition, online (2008); “Johnston v. Jones and Marsh,” The Papers of Abraham Lincoln: Legal Documents and Cases, 4 vols. (Charlottesville: University of Virginia Press, 2008), 3:384-453; Eleanor Lytle Kinzie Gordon, John Kinzie: The “Father of Chicago” (1910), 7 A. T. Andreas, History of Chicago from the Earliest Period to the Present Time, 3 vols. (1884); Chicago Press and Tribune 26 March 1860, 1:4-5; Appointment of Noah H. Swayne as Associate Justice of the Supreme Court of the United States, 24 January 1862, RG 59, Entry 785: Appointment Records, Commissions, Commissions of Judges, 1837-1888, National Archives, College Park, MD.