The Journal of San Diego History
Summer 1997, Volume 43, Number 3
Richard W. Crawford, Editor

Book Reviews

Policing the Elephant: Crime, Punishment, and Social Behavior on the Overland Trail.

By John Phillip Reid. San Marino, CA: Huntington Library, 1997. Illustrations. Bibliography. Notes. 316 pages. $15.00 paper.

Reviewed by Mark R. Ellis, Ph.D. candidate in legal history at the University of Nebraska-Lincoln. His dissertation examines nineteenth century crime, violence, and punishment on the Great Plains.

When emigrants loaded their wagons for the overland trek, they included a wide variety of supplies, tools, and accoutrements to ensure a successful journey. A less visible but an equally important part of their baggage was a shared legal culture, which helped overland travelers maintain social harmony in a trying environment. In this study, John Phillip Reid examines the ways in which nineteenth century Americans reacted to crime on the overland trail and how they administered justice in a region that apparently had no law, courts, or police.

Reid needs no introduction to legal scholars. He is a law professor at New York University School of Law and has published widely on aspects of judicial, colonial, and Native American law. This book is the long awaited companion to his ground breaking study, Law for the Elephant: Property and Social Behavior on the Overland Trail. In that study Reid demonstrated that nineteenth century Americans had a keen understanding of the law and its functions. Overlanders carried this shared legal culture on the westward journey and applied their understanding of the law when necessary. In short, Reid forced historians to reevaluate the overland experience by showing that emigrants maintained much of their cultural, social, and legal behavior on the trek to Oregon or California.

In Policing the Elephant, Reid further explores the theme of a carried legal culture by examining crime and punishment on the trails. The author discusses property crime, organized crime, homicide, criminal trials, and punishments. He notes that property crime was uncommon and violence occurred less frequently than previously assumed. There does not seem to be enough evidence, however, to draw substantial conclusions about property crimes because emigrants rarely recorded their thoughts about such behavior. Much of the evidence for this study, then, comes from emigrants views on overland murders and trials.

Using evidence from hundreds of emigrant diaries, the author finds that overland travelers readily participated in detecting, trying, and punishing criminal behavior. This is surprising given the danger and inconvenience of hunting down criminal suspects, halting travel to prosecute defendants, and in administering punishments to fellow travelers. As Reid demonstrates, however, emigrants believed it their civic duty to see justice carried out. When putting a suspected culprit on trial, emigrants applied the law as they knew it in their eastern courts. Defendants could usually expect a judge, jury, prosecutor, and a defense lawyer at their trials. To ensure impartial trials, emigrants went to extreme efforts to draw jurors and lawyers from other wagon trains. Thus trials were sometimes delayed until a sufficient jury pool could be obtained. To further demonstrate the level of justice provided in overland trials, Reid points out that lynchings were rare and defendants occasionally obtained acquittals.

Policing the Elephant is more than a simple history of crime and punishment on the western trails. Reid believes that the diarists were representative of nineteenth century middle class Americans. Thus, the legal behavior of emigrants reflected the legal behavior of their home towns. Much can be learned, then, about nineteenth century legal culture in the United States from the experiences on the overland trail. Reid’s conclusions will also force scholars to rethink the legal history of the American West. For example, if later settlers carried a legal tradition with them when they moved west, historians will need to reevaluate the interpretation of a lawless and violent American West.

This book is well written, free of legal jargon, and exciting to read. Reid quotes liberally from the diaries he consulted, allowing the emigrants to give their views on crime and punishment. The author is careful not to read too much into his evidence and cautions his readers throughout the narrative that the sources are limited and not always reliable. Historians of the American West and legal scholars should read and think about what this book offers.