OVERLAND TRAIL CONSTITUTIONS
Travelers on the Overland Trail to the Pacific, after crossing the Missouri River, entered a territory without enforceable law, courts, or police. Those who journeyed in companies soon discovered the need for government, and, until about 1854, most companies drafted constitutions and sometimes bylaws.
Constitutions were seldom-detailed codes of government. They did not seek to regulate specific behavior but to obtain a reasonable degree of conformity within a social, economic, and legal environment conducive to democracy. Although a few companies had members sign their charters, implying that they thought constitutions were compacts and perhaps even personal contracts, the dominant legal theory was that overland constitutions were organic acts outlining the procedures for identifying and judging unacceptable conduct. Another common operative theory was that companies were organic wholes, peripatetic governments possessing all sovereign authority, a fact demonstrated by those constitutions establishing representative legislatures and authorizing capital punishment. Punishment was seldom inflicted, as offending parties could avoid most physical sanctions (except for the death penalty) by departing from the company. That reality did not undercut but instead reinforced the purpose of constitutions, because they sought social cooperation, not legal discipline. Once a wrongdoer left, harmony was restored. Lack of harmony was the chief cause terminating company governance. When pressures of overland travel destroyed harmony, emigrants knew the constitution no longer functioned.
The legal and social principles shaping constitutional policy on the Overland Trail were based on mediation, not legislation, to obtain harmony within diversity, not unanimity through legislation. These constitutions have a unique importance for American history. There is no more reliable way to measure the constitutional notions of average nineteenth-century citizens than to examine Overland Trail constitutions.
See also TRANSPORTATION: Oregon Trail.
John Philip Reid New York University School of Law
Reid, John Phillip. "Governance of the Elephant: Constitutional Theory on the Overland Trail." Hastings Constitutional Law Quarterly 5 (1978): 421–43.
Reid, John Phillip. Policing the Elephant: Crime, Punishment, and Social Behavior on the Overland Trail. San Marino CA: Huntington Library, 1996.