Friday, January 30, 2009

Tirres on Law and Community in the Nineteenth Century

Allison Brownell Tirres, DePaul University College of Law, has posted a new essay, The View from the Border: Law and Community in the Nineteenth Century. It is forthcoming in TRANSFORMATIONS IN AMERICAN LEGAL HISTORY: ESSAYS IN HONOR OF MORTON J. HORWITZ, VOL. 2, Alfred L. Brophy, Daniel W. Hamilton, eds., Harvard University Press, 2009. Here's the abstract:
This book chapter traces the efforts of the citizens of El Paso, Texas, to bring the power of the American state to the border in the 1850s. It looks at two areas in particular: property rights and border enforcement. Because of the marked lack of state or federal involvement in the borderlands during this period, residents had to take extra steps to ensure the involvement of the state in both these areas. To support land rights, they actively sought state recognition of land titles, something that should have been self-enforcing and yet instead required their active participation. To protect their persons and property, they sought to force the federal government to uphold its treaty obligations, particularly Article 11 of the Treaty of Guadalupe-Hidalgo, which guaranteed protection from cross-border raiding Indian tribes. In both these areas - property rights and treaty compliance -state and federal governments should have taken the lead. Instead, in El Paso we see that border residents had to take action were there to be any hope of enforcement. What is remarkable about the petitions and requests that are the subject of this essay is that they came not only from Anglo-American recent arrivals but also from those of Mexican and Native American descent in the El Paso area. This contradicts the prevailing scholarship in the history of law and colonization in the western United States, in which law is seen as a tool of conquest wielded by American occupiers.