Lincoln's Biography

Law and Society

By Drew E. VandeCreek, Ph.D.

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 positions.

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 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 judgements 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 witheld 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.


Belleisen, Edward J. Navigating Failure: Bankruptcy and Commercial Society in Antebellum America. Chapel Hill: University of North Carolina Press, 2001

Cover, Robert. Justice Accused: Antislavery and the Judicial Process. New Haven, CT: Yale University Press, 1975

Davis, Rodney O. "Judge Ford and the Regulators, 1841-1842." Selected Papers in Illinois History 1981. Springfield, IL: Illinois State Historical Society, 1982. 25-36.

Fehrenbacher, Don E. The Dred Scott Case, Its Significance in American Law and Politics. New York: Oxford University Press, 1978.

Frank, John P. Lincoln as a Lawyer. Urbana, IL: University of Illinois Press, 1961.

Horowitz, Morton J. The Transformation of American Law, 1780-1860. Cambridge, Mass.: Harvard University Press, 1977.

Hurst, James Willard. Law and the Conditions of Freedom in the Nineteenth-Century United States. Madison: University of Wisconsin Press, 1956.

Hurst, James Willard. Law and Social Order in the United States. Ithaca : Cornell University Press, 1977.

Morris, Thomas. Free Men All: The Personal Liberty Laws of the North, 1780-1861. Baltimore: The Johns Hopkins University Press, 1974.

Nye, Russell. Fettered Freedom: Civil Liberties and the Slavery Controversy. East Lansing, MI: Michigan State College Press, 1949

Paludan, Phillip S. A Covenant with Death: The Constitution, Law, and Equality in the Civil War Era. Urbana, IL: University of Illinois Press, 1975.

©Copyright 2000 Abraham Lincoln Historical Digitization Project