Law and Society

by Drew VandeCreek

Americans established their dominion over the Illinois country with the organization of their legal system. In an environment with little central authority, Native American tribes left the pursuit of justice to the families of those wronged by criminal behavior. Native Americans seeking retribution for a murder or assault could mete out violent judgments. Because Indians embraced a communal understanding of property, they had developed no sense of the concepts that comprised the heart of Americans' private law: torts, contracts, property, and commercial law. As Americans poured into Illinois and eventually made it a part of their nation, they replaced these notions with a justice system emphasizing due process in criminal matters and firm rules governing economic life. The emergence of this legal system placed lawyers like Abraham Lincoln at the leading edge of frontier settlement.

Most antebellum lawyers handled all sorts of cases, from the defense of accused criminals to preparing wills. Although attorneys like Lincoln maintained home offices, many traveled the judicial circuit. In a time in which most counties did not have population enough to support their own courts, judges and lawyers journeyed from one county seat to the next, trying cases as they went. This "circuit" provided far-flung frontier residents with access to courts and attorneys.

County court house at Petersburg, Illinois

The American law proved more effective for some Illinoisans than others. Women ceased to exist as individuals before the law when they married, and could not own property or sue. Illinois' severe Black Codes prevented African-Americans from testifying in court against a white person. Similarly, African-Americans accused of crimes could not receive a jury trial.

Although settlers' letters and diaries have revealed little deep-seated fear of crime or violence, the frontier did witness its share of lawless behavior. In 1837 an anti-abolitionist mob murdered the anti-slavery newspaper editor and minister Elijah Lovejoy in Alton, Illinois when he refused to stop publishing his beliefs.

Most crime remained much more prosaic. In the years before Illinois became a state, bandits occupied Cave-in-Rock along the Ohio River and robbed passing boatmen. Other travelers often faced the threat of "land pirates" or other robbers throughout the frontier era. Horse theft and counterfeiting remained popular crimes as well. A number of counties responded to patterns of crime when volunteer "regulators" enforced vigilante justice.

In 1844 western Illinois became the site of the so-called Mormon War. Tension between the large Mormon settlement at Nauvoo and neighbors who disapproved of their religion, social practices, and political clout boiled over in the summer of that year, when attackers murdered the Mormon leader Joseph Smith and his brother Hyrum. A period of general lawlessness followed in which Mormon forces battled anti-Mormon militias in the Illinois countryside. Illinois' government had proved itself unable, or unwilling, to stop the conflict. In 1846 the Mormons fled Illinois for the West, finding new home in Utah's Salt Lake Valley.

In the decades between the founding of the American republic and the Civil War's outbreak Americans remade their legal system to promote entrepreneurial behavior and economic growth.

Private law had once revolved around a conception of natural law based upon abstract ideas of justice and right, but American judges and lawmakers increasingly sought to fashion a set of uniform and predictable rules for economic development. In this atmosphere entrepreneurs could move forward without the threat of legal pitfalls stemming from unanticipated laws.

Most judges understood this change by defining the law as an expression of the democratic popular will in this era. Seeing themselves as trustees or spokesmen for the public, judges increasingly interpreted the public interest in terms of economic growth, and rewarded entrepreneurs willing to take on risks with wide latitude.

A change in the understanding of private property lay at the heart of this development. Americans had once understood property ownership in terms stressing an owner's right to the undisturbed enjoyment of his land or other property. After 1800 judges increasingly emphasized a new, more abstract interpretation of property that emphasized its productive use and development.

One upshot of this doctrine was a trend in rulings discouraging property owners from collecting judgments when a neighboring entrepreneur's activities interfered with the enjoyment of their own property. Thus if an entrepreneur built a saw mill, and his mill-pond withheld the flow of water from a downstream neighbor, judges were likely to emphasize the mill's service to the public and minimize the unlucky neighbor's legal recourse. Historians have argued that such rulings constituted farmers, workers and other non-entrepreneurs' "forced investment" in economic development projects.

The growth of such business law and the United States' rapid economic development made lawyers like Abraham Lincoln indispensable. By the mid-1850s Lincoln increasingly represented railroads, insurance companies, and other large businesses.

While judges proved themselves able to remake the United States' system of commercial law, they failed to quell the constitutional crisis that led to the Civil War. In 1857 the United States Supreme Court attempted to settle the sectional crisis once and for all with its controversial Dred Scott decision. In it Chief Justice Roger Taney ruled that African-American slaves were property, and could never be citizens. Thus Scott the slave had no standing to sue for his freedom when his master removed him to free territory. Taney's decision provoked a storm of controversy in the North and exposed the Court to harsh criticism and charges of political and sectional partisanship. It also precipitated the rise of the Republican Party that resurrected Abraham Lincoln's political career and sent him to the White House.