Legal Systems in Conflict: Property and Sovereignty in Missouri, 1750-1860

Legal Systems in Conflict: Property and Sovereignty in Missouri, 1750-1860. By Stuart Banner. (Norman: University of Oklahoma Press, 2000. Pp. xiii, 206. Maps. $39.95.) In this brief book, Stuart Banner, a law professor at Washington University, compares the legal systems of the region of Louisiana that would become the state of Missouri before and after the Louisiana Purchase. This comparison, the author notes, addresses "five historiographical gaps" (4). Aside from challenging the anti-Spanish bias of local historians, who accepted the conclusion of American settlers that under Spain the region had no law, the focus on Upper Louisiana counters the emphasis on the Atlantic seaboard colonies perpetuated by most colonialists. Western historians are aided by the book's examination of why American lawyers migrated and became such influential figures in the territories. For economic historians, Banner explores the shift in land usage from open fields to enclosed private holdings. Finally, as a legal historian, the author addresses the basic but often-neglected question, "What causes the law to change?" (6) Prior to the Purchase, civil and criminal procedure for the French-dominated population of Spanish Upper Louisiana relied upon oral presentations to local officials, who would interrogate parties and witnesses before issuing decisions that were deemed final. Despite this seemingly imperious structure, Banner contends that the territory's inhabitants accepted these decrees because officials based their judgments upon community mores and local customs. Finding only minimal reference to the legal texts that governed the Spanish empire further south, the author concludes that "cases were decided according to an intuitive sense of justice shared by the community, or at least by a large enough fraction of the community to make the decision acceptable" (52). Banner points to low court costs, quick decisions, and effective enforcement to demonstrate that the residents of Upper Louisiana seldom resorted to informal settlements, and he concludes that the large proportion of civil suits among the population reflected widespread acceptance of a legal system in which judgments were made "with reference only to the unwritten norms of the community" (56). Reliance on local custom provided residents with a degree of control despite the absence of a representative assembly or elected officials. Property rights reinforced this sense of self-government. Contrary to the American concept of public ownership, inhabitants understood common lands to be "owned by the public directly, without the intermediation of any government as the public's agent" (74). Spanish officials "tended to permit the French residents to regulate the commons themselves" (76), and residents clung to this privilege, despite the commons' economic inefficiencies, because control of the commons provided them with "a way of recapturing a sense of political participation" (80). "The commons," Banner concludes, "was thus a zone of self-government, against the background of a political system that otherwise contained few formal representative institutions" (77). The transfer of the Louisiana Territory to the United States brought a flood of American settlers to Upper Louisiana. Many of these migrants were lawyers trained in the Anglo-American legal tradition, and they came because the federal government established "an American court system in St. Louis and needed judges with legal training immediately" (86). Those who failed to secure appointments usually profited by setting up successful practices, by entering politics, and by using their knowledge of titles to speculate in frontier lands. …