1800-1860: Law and Justice: Overview

Land Law. The migration of hundreds of thousands of Americans into the Trans-Appalachian West gave birth to a multitude of legal problems regarding land. States were anxious that the land be settled and developed by their citizens. As a result state legislators sponsored internal improvements such as roads and canals, which raised the value of the land since then it could be developed more profitably. Further, state politicians wanted land under their control because land held by the federal government generated no income for the state. Movements that favored land reform and settlement gained support on a number of levels as a result. For example, Illinois passed laws that favored profitable settlement. The Preemption Act of 1830 helped the squatters who had moved to, occupied, and developed land held in the public domain without ownership. Under the act these illegal settlers could purchase up to 160 acres for a minimum price of $1.25 per acre. The Preemption Act further encouraged westward movement even though it seemed to condone the ongoing criminal activity of settling land without a legal title. Congress continued to authorize preemption acts throughout the 1830s, further evidence that migration into the public domain was a constant and active process.

Economic Development. Government on the local, state, and national levels worked increasingly to facilitate westward expansion through land grants for railroad construction and internal improvements such as the building of roads and canals. Between 1850 and 1855 more than 2,200 miles of track were laid, terminating in Chicago and linking more than 150,000 square miles of territory to that city. Legal questions relating to patents, contracts, charters, land rights, franchises, and lawsuits accompanied all these developments. Courts faced a growing number of cases dealing with the rights and demands of businesses and corporations in the West. Demands on the legal system attracted an impressive group of highly trained and polished lawyers. It was not uncommon to find the most lucrative practices dealing with issues of transportation in service to the railroads. The role of the law in the process of westward expansion was enormous.

Indian Removal. In 1828 approximately one hundred thousand Native Americans occupied large territories throughout the Southern and Eastern territories of the United States. Westward migration and land greed placed greater and greater pressure on these tribes to leave, opening the land for white settlement. The Five Civilized Tribes—Creeks, Choctaws, Seminoles, Chickasaws, and Cherokees—occupied ancestral lands that whites wanted to use in order to expand their commercial agriculture. Justifying their demands on the foundations of white supremacy and states’ rights, white settlers appealed to the states to evict the tribes. Some of the natives fought while others surrendered their ancestral lands peacefully and retreated further to the West. A few resisted through legal means. The Cherokees, acting as a sovereign nation, established a constitution, legal system, and representative government. When Georgia’s legislature declared the Cherokee’s constitution and laws void and attempted to expel the Native Americans, the nation appealed its case to the Supreme Court. In Cherokee Nation v. Georgia (1831) Chief Justice John Marshall determined that the Cherokees constituted a “domestic dependent nation” and not a sovereign nation, and as such the natives could not sue the state of Georgia. In Worcester v. Georgia (1832) the Court declared that Georgia’s laws could not be enforced against the Cherokees. According to Marshall, only the national government could determine Indian affairs. President Andrew Jackson—whose enmity toward Native Americans and sympathy for the white Georgians and states’ rights were both well established—ignored the Court’s decision. He supposedly challenged the chief justice with the declaration: “John Marshall has made his decision: now let him enforce it!” Passed by Congress in 1830, the Indian Removal Act facilitated the eviction of tens of thousands of Cherokees and other Native Americans along the infamous Trail of Tears to the Oklahoma Territory.

Slavery in the Territories. Differing interpretations of the Constitution dramatically effected political conflicts over the expansion of slavery into the Western territories. The case of Dred Scott v. Sandford (1857) represented the most critical moment of this controversy. Scott, a slave, sued for both his and his family’s freedom based on the fact that he had spent several years in free territories in the West. The case moved slowly through Missouri’s court system until Scott finally appealed to the Supreme Court. In presenting the majority opinion, Chief Justice Roger Taney attempted both to render a judgment on Scott and to settle the legal controversy surrounding slavery in the West. Taney declared that regardless of their status—free or slave—blacks could not be citizens of the United States. The Court rejected Scott’s claim that his residence in free territory made him a free man. More important for the West, Taney declared that the Missouri Compromise of 1820 was unconstitutional because Congress did not have the power to ban slavery in the Western territories. The decision exacerbated the sectional conflict dividing the North and South over the future of the West and quickened the nation’s descent into the Civil War.

Frontier Justice. Somewhat unfairly, the frontier is frequently associated with unconstrained lawlessness. Although it was often crude, frontier justice quickly assumed recognizable forms—judges presided in courtrooms and over juries, and lawyers, plaintiffs, and defendants followed established legal practices. Recent scholarship demonstrates that learned jurists entered the westward movement and effectively brought order to the territories, but their impact was uneven. Often in distant or isolated regions, individuals and groups attempted to maintain the rule of law within a framework characterized by an absence of established and strong civil authority. Here there were incidents of local people taking the law into their own hands. Dueling provides the most dramatic example. Andrew Jackson was involved in several famous duels, including one in 1813 in which the future president exchanged shots with Thomas Hart Benton, a future senator, and his brother. Jackson carried bullets in his shoulder and chest that plagued him for much of his life. A debate in Kentucky’s legislature in 1809 led to a duel with pistols between Henry Clay and Humphrey Marshall. Although they fired three rounds at each other, neither man was seriously injured. An unlawful act in much of the nation during this period, efforts to discourage the practice proved to be futile, especially where civil authority was weak. Vigilante movements enforced local laws in the West through extralegal means. In San Francisco in the 1850s mobs punished criminals by staging public trials, corporal punishment, and executions. They also upheld more-loosely defined codes of morality, evicting from the city people whom the vigilance committees considered to be morally suspect.