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105 LincolnandIllinoisRealEstate The Making of a Mortgage Lawyer Roger Billings When Kentucky was part of Virginia the holders of land warrants had to provide a survey and description of their claims at their own expense. The surveys were unprofessional, using marks on trees, movable stones, and dry creeks to show division lines. By the time Lincoln’s father began to buy land in Kentucky, the titles were almost bound to be disputed, and those who could afford lawyers were the most likely to succeed. Thomas Lincoln bought his first 238 acres in 1803 near Mill Creek, another 348½ acres near Hodgensville in 1808 (called the Sinking Springs farm), and another 230 acres near Knob Creek in 1811. He lost thirty-eight acres of the Mill Creek purchase because of an erroneous recording of the survey, and he lost the Sinking Springs farm in litigation over the title; he similarly lost the Knob Creek farm over a claim to prior title in an “ejection suit” against Thomas and nine neighbors by the Middleton heirs of Philadelphia.1 Louis A. Warren reports, and most historians agree, that Thomas Lincoln left Kentucky for Indiana to settle in a state “where land once purchased could be retained.”2 It is also true that he much preferred a free state, for he was an antislavery man.3 There is no evidence of just how much the young Lincoln understood his father’s troubles with titles. It seems, however, that he must have learned something about them and they must have been on his mind as an element of his family history when he left his father and settled in the frontier town of New Salem, Illinois. In any event, he soon learned about real estate matters in his capacity as assistant to the county surveyor, John Calhoun. To get that job he taught himself the principles of trigonometry, read books to learn the surveyor’s trade, and eventually conducted complicated surveys. 106 Roger Billings According to historian David Donald, “all his work was careful and meticulously accurate.”4 Thus, in his mid-twenties and not yet a student of the law, Lincoln was skilled in determining the metes and bounds of a parcel of land, ironically a skill that would have been invaluable to his father. And surveying was not the only thing he did in New Salem that supported a possible future as a lawyer. New Salem residents called upon Lincoln to draft basic legal documents for them. And so, when John T. Stuart of Springfield suggested that Lincoln should study law the idea sounded good. As Benjamin Thomas wrote, “Lincoln had always liked the law,” having read the Revised Statutes of Indiana and listened to the trials in the Spencer County, Indiana, courthouse.5 Lincoln probably first learned about mortgages after he acquired four volumes of Blackstone’s Commentaries and set about reading them from cover to cover. William Blackstone was an English lawyer who saw that there was a need to organize the common law. The common law is law that is made by judges, not by legislatures. If there is no legislative act on a particular legal issue, a judge is supposed to find the leading judicial decision and follow it. Blackstone simply collected the decisions and explained them. Sir William Blackstone wrote an analytical treatise on the common law entitled Commentaries on the Law of England. They were originally a course of lectures on the laws of England that he read in the University of Oxford. The Commentaries were published in four volumes over 1765–1769. An American edition was published in Philadelphia in 1771–1772 and sold out on its first printing of 1,400 copies.6 A number of other editions followed. Lawyers in antebellum Illinois relied on Blackstone as the primary source of law. The reason this treatise on English law was so important in America is that when the United States began its existence as a new country in 1789 the states adopted the common law of England as the law of the United States. Courts in the United States as well as state legislatures could make their own laws, so that the English law, which was frozen as of 1789, would be replaced eventually. But when Lincoln practiced law most of the English common law was still valid. The precise edition of Blackstone that Lincoln studied is not known, but it might have been the one suggested in The Law Practice of Abraham Lincoln: William...

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