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.
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.
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,
and faced a judge's summary ruling.
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 1844, 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.
Americans' legal system provided a sharp contrast to Native American
practices beyond the realm of crime and punishment as well. 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.
The American legal system influenced economic development far more
decisively than lawless behavior. 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, and placed attorneys like Lincoln in increasingly important
Where private law had once revolved around a conception of natural
law based upon abstract ideas of justice and right, 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 unsystematic
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 sawmill, 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 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 the slave Dred
Scott 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.
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©Copyright 2000 Abraham Lincoln
Historical Digitization Project