Review
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Title: Prairie Justice: A History of Illinois Courts Under French, English & American Law
Author: Roger L. Severns
Editor: John A. Lupton
Publisher: Southern Illinois University Press
Genre: Legal history, Regional history
Year Published: 2015
Number of Pages: 250
Binding: hard, with dust jacket
ISBN: 0-8093-3369-4
Reviewed by Laura Bayer for the Association for Mormon Letters
The narrative that begins this volume may seem familiar: fearing that the authorities would prosecute their religious leaders, believing that they would find no support in the laws of Illinois, settlers reluctantly packed their belongings and set off west again, across the Mississippi River, to a frontier where they hoped they might live freely, following their customs and beliefs. Except that these were not the followers of Joseph Smith leaving Nauvoo in 1840, but the French habitants of Kahokia, Kaskaskia, and other scattered villages who fled the arrival of British sovereignty a century earlier.
Roger L. Severns, a practicing attorney and a professor of law at Chicago Kent, undertook this research as part of a project of the Illinois State Bar Association Committee on Legal History and Bibliography. The manuscript, which appeared serially in the Chicago Daily Law Bulletin in 1959, remained unpublished in book form at his death in 1961. In the 1990s, Dennis Rendleman began gathering photographs and transcribing the original articles in the hope of publication. Editor John Lupton added material to the notes to create “a connection with modern historiography” and “strengthened the manuscript by improving Severns’s writing style and by modernizing some archaic language that was commonplace in the 1950s.”
The result is a book written by an attorney for attorneys, which, though generally well organized and readable, creates some hurdles for readers with more general interests. If your knowledge of first year law consists, like mine, of what you remember of The Paper Chase, you will find yourself plummeting often down the Wikipedia rabbit hole to clarify a host of legal terms and concepts. Those who have no detailed interest in the history of Illinois may well want to speed through the numerous short biographies of the state’s early attorneys and justices.
Mormon readers, whose interest is focused on the period when LDS pioneers settled in Nauvoo, will find no extensive evidence or new research here. Severns devotes only four pages to the incidents at Nauvoo, concluding that “what occurred revealed how short a way the legal system had progressed toward the goal of peaceful settlement of controversies according the rules of law.” Neither author nor editor cites extensive resources, relying on Bushman’s *Biography of Joseph Smith* (2005), Jeffrey N. Walker’s *BYU Studies Quarterly* article on Joseph Smith’s use of habeas corpus (2013), and Dallin H. Oaks and Marvin S. Hill, *Carthage Conspiracy* (1975) for commentary on the Mormon incident.
The value of this volume lies instead in offering a new perspective, with a consistent focus on the evolution of a system of law adequate to meet the challenges of the series of new residents who came to the prairie state in the eighteenth, nineteenth, and twentieth centuries. It explores the relationship of legal traditions, cultural expectations, political realities, and economic priorities to the development of a legal framework, as well as the impact of the law – or its absence – on the frontier.
The earliest French villagers relied on their priests to settle disputes, but by 1722 the French had established 7-man judicial tribunals operating under Royal Charter and the Customs of Paris. Until the Treaty of Paris transferred jurisdiction of the territory to Britain, these councils kept a careful register of their decisions, which primarily involved recording marriage contracts, wills, and property transfers, but also included criminal cases such as the molestation of a young girl and the robbery of a warehouse.
With the arrival of “new kinds of settlers” came differing conceptions of “the relation of law to life.”(17) Lacking an organized plan for civil government and preoccupied with hostilities with the native peoples, the first British colonists left “the administration of justice” to their “military commanders, most of whom were interested only in personal gain” (19). After the American Revolution, the Republic of Virginia initially allowed Illinois residents to select their officials and retain the laws and customs that had governed them. This policy succeeded in Cahokia, which remained predominantly French, but did not fare as well in settlements like Kaskaskia, where the “mutual mistrust of widely different elements in its population, which lacked even the bond of common language,” soon resulted in chaos. French law, which “depended upon strong central authority,” was of little use “when the more vital element in the population believed that the least law was the best law.” (43)
English common Law “moved west with the widening authority of the United States,” but the frontier remained “essentially lawless.” Common law, Severn points out, “was not acclaimed, as is sometimes stated, by the American settlers as their birthright. Even the judges of the first territorial court were not convinced that its advent was desirable.” The next surge in court activity focused on the effects of widespread fraudulent land dealings; the early nineteenth-century Board of Land Commissioners rejected many land claims as a result of “the incredible forgeries, fraud, subordination and perjuries which the commissioner uncovered.” (58) Rotating circuit courts proved inadequate to handle the growing number of complaints involving local “farmers and merchants.” (64). A host of politically motivated suits and charges of libel joined criminal cases of murder, theft, horse-stealing, and assault on the docket.
As settlers and settlements increased, the courts heard increasingly complicated cases involving new areas of dispute: slavery, indentured servitude, “commercial paper,” transportation, complex land titles, grazing livestock, vandalism against presses run by abolitionists. But until mid-century, “the basic idea still prevailed that the least law was the best, and personal arguments were better settled with fists or knives, or sometimes even with guns, than in the courts.” (126)
By the 1870s the development of Chicago and other large cities, the construction of railroads, the expansion of industry, and a surge in immigration soon transformed the courts, which increasingly devoted time to such urban issues as price regulation, freight tariffs, bank rates, monopolies, price regulation, labor disputes, and the prosecution of anarchists and socialists. As Severns concludes, “the very speed with which the prairies and woodlands became prosperous farms, pleasant villages, and great cities intensified every problem that could confront a developing legal system.” (206)
*Prairie Justice* offers a useful reminder that law is not static but constantly evolving in a dynamic relationship with its context.