Almost immediately, the federal government worked to marginalize and penalize these squatters. They were ardently attacked in the debates surrounding the adoption of the Northwest Ordinance. William Butler of New York wrote: “I Presume Council has been made acquainted with the villainy of the People of this Country, that are flocking from all Quarters, settling & taking up not only the United States lands but also this State’s, many Hundreds have crossed the Rivers, & are dayly going many with their family’s, the Wisdom of Council I hope will Provide against so gross and growing an evil.”52
Heavily influenced by such sentiment, members of Congress worked to dislodge squatters, often by violent means. In 1785, Congress passed a resolution explicitly prohibiting squatting in the public domain and giving the secretary of war authority to remove unlawful settlers from federal lands in the Northwest Territory. This policy went into effect in the spring of 1785 at the juncture of the Muskingum and Ohio rivers where the U.S. Army dispossessed ten families by destroying their homes while constructing a fort to prevent them from returning.53 Four years later, President Washington ordered the destruction of cabins and the removal of families who settled on Pennsylvania frontier land owned by Native Americans.54
However, although most politicians wanted to uphold the established law of the new sovereign nation, some already doubted that it could be enforced in such a way that it would suit the best interests of the country. That is why the question of preemption came up almost at once.55 During the very first session of the new Congress, in 1789, one member poignantly outlined the choices that squatters faced:
There are, at this moment, a great number of people on the ground, who are willing to acquire by purchase a right to the soil they are seated upon. What will these men think, who have placed themselves on the vacant spot, anxiously waiting its disposition by the Government, to find their preemption right engrossed by the purchase of a million acres? Will they expect themselves to be preyed upon by these men?…They will do one of two things: either move into the Spanish territory, where they are not altogether uninvited, and become an accession of power to a foreign nation forming to us a dangerous frontier; or they will take this course, move on the United States territory, and take possession without your leave. What then will be the case? They will not pay you money. Will you then raise a force to drive them off? That has been tried; troops were raised, and sent…to effect that purpose. They burnt the cabins, broke down the fences, and tore up the potatoe patches; but three hours after the troops were gone, these people returned again, repaired the damage, and are now settled upon the land in open defiance of the Union.56
Typical of the ambivalence in Congress at the time were the views of the Public Lands Committee of the House of Representatives. Recommending in 1801 that Congress refuse requests by squatters for preemptive rights, the committee acknowledged that the squatters had “with much labor and difficulty, settled upon, cultivated, and improved certain lands…[and thereby] not only enhanced the value of the lands respectively settled, but of the land in the vicinity of the same, to the great benefit of the United States.” Regardless, the committee argued that to grant “the indulgence prayed for would operate as an encouragement to intrusions on public lands, and would be an unjustifiable sacrifice of the public interest.”57 And so the prevailing sentiment among congressmen was to deny them any rights.
In the two decades following its institution according to Article One of the U.S. Constitution, Congress steadfastly held to its antagonism toward settlers residing illegally on the public domain. In 1796, it raised the minimum price for public lands from the $1 per acre set in the Land Ordinance of 1785 to $2 per acre.58 In 1807, Congress passed a measure that provided for fines and imprisonment for any squatter who failed to comply with the law once notified and authorized force to remove illegal settlers if necessary.59 An 1812 document of the House Committee on Public Lands noted, “Promiscuous and unauthorized settlement on public lands are in many respects, injurious to the public interest.”60
The problem, however, was that Congress, as is the case in many countries today, was out of touch with reality: It had no conception of the sheer dimension of the pressure from squatters, nor did it have the means to impose its mandates. Even the General Land Office, established in 1812 to survey, sell, and register the public lands, could not do its job. Charged with confirming land patents sent in from the district offices, the new federal agency also had to oversee the record keeping of purchases made on credit. Lawmakers hoped that the Land Office would operate as an information center serving citizens requiring land. But all these tasks soon overwhelmed its small staff, which quickly fell behind in most of their duties.61 As Patricia Nelson Limerick points out, congressmen themselves contributed to the Land Office’s problems: “On behalf of their constituents, congressmen complained of the slowness with which the office worked; on their own behalf, congressmen made many of the requests for information that ate up the clerks’ time; and for the sake of economy and retrenchment, congressmen refused to increase the office’s appropriations.”62
In addition, in the early days, the United States possessed limited financial resources and had to resort to land grants to compensate certain sectors of the population. Various historians felt that by the practice of issuing “land scrip,” which has been described as “the nineteenth-century equivalent of food stamps”—paper that was redeemable in land—the government encouraged lawlessness and squatting.63 From 1780 to 1848, Congress provided 2 million acres of land for the soldiers who fought in the Revolution, 5 million to veterans of the War of 1812, and 13 million for those who fought the war with Mexico. Between 1851 and 1860, Congress added another 44 million acres for service in the Revolutionary War, the War of 1812, the Indian Wars, and the Mexican-American War.64 When first conceived by the Continental Congress during the War for Independence, the land scrip policy had a certain logic in that it allowed the American government to pay officers and soldiers for their service. Congress also feared the continuing military threat that indigenous populations, either on their own or as paid mercenaries of the English or French, posed for the new republic. The aim of settling former soldiers on the frontier was to solve both problems at once.
By the middle of the nineteenth century, however, a thriving black market in land scrip emerged that fueled both squatting and speculation. For every hundred soldiers who received land scrip, eighty-four sold their rights in the black market—a situation not unlike the one that occurs today in many developing and former communist countries, which have provided public housing for some groups of citizens.65 As one historian puts it, “no one expected the half million widows and elderly men who received [scrip] to form a barrier against foreign invasion.”66
The federal government also gave millions of acres of free land to the new railroad crisscrossing the continent. During the nineteenth century, over 318 million acres—almost one-fifth of all federal lands—were handed out, either directly to private railroad companies or to states who would then redistribute the land to the railroads. The rationale for this massive giveaway was that it would promote orderly settlement of the frontier. Although much of the land was of little value, a sizeable portion did contain minerals or was arable.67 The lion’s share went to the transcontinental railroads who received only every other section of land along their routes, creating a checkerboard pattern of alternating government and railroad land. Congress believed that the railroads would sell the land they didn’t need quickly and cheaply to encourage settlement.68 Yet once again, the realities of land settlement conflicted with the hopes of politicians. The checkerboard arrangement, according to one scholar, “delayed settlement on millions of acres of the best lands and had closed them to acquisition.”69 Sometimes it even led to open warfare. Stephen Schwartz reports on the conflict that arose in 1880, in the San Joaquin Valley of California, in an area called Mussel Slough, when farmers and ranchers who had established themselves on railroad properties objected to the mod
ification in the sales agreement when the time came to pay. The railroad companies had decided that the sales prices must include all improvements such as buildings and canals. This led not only to court action which could not resolve the case but also to the shooting deaths of five settlers and several evictors,70 in which the responsible marshal admitted he was “not certain who fired first.” Editorializing on the incident, the San Francisco Chronicle condemned the railroads, stating that “Whatever might be their strictly legal rights, it is undeniable that all the equities were in favor of the settlers.” Physical force was also on the side of the settlers. Officials estimated that dislodging them would require between 200 and 1,000 good soldiers.71
The federal government’s efforts to construct an orderly land system could not overcome the will of the common people to assert their right to the national domain. One articulate squatter argued: “I do certify that all mankind agreeable to every constitution formed in America, have an undoubted right to pass into every vacant country and…Congress is not empowered to forbid them.”72 During the first several decades of the nineteenth century, politicians and squatters battled over how property rights would be conveyed. Among politicians, “the question arose: ‘What is to be done with it?’ ‘Give it to the soldiers,’ demanded some. ‘Use it to pay off the national debt,’ said others. ‘Keep it for future use,’ still others counseled, and there were those who held that any who desired should have the right to settle on it.”73
Lawlessness or a Clash of Legal Systems?
At the beginning of the nineteenth century, the property system of the United States was in a state of disarray. Existing property law and antagonistic legislators only exacerbated the crisis facing the nation’s migrants. In his seminal study of squatters and land laws in Virginia and Kentucky, Paul Gates argues that the formal law contributed to “ever growing costs of litigation to clear titles, eject persons with rival claims, and protect land from intrusion and plunder.” Combined “with court fees and the high interest on borrowed capital,” the inadequacy of formal law was a “constant threat to the security of investments and kept litigants in continued turmoil.”74
Predictably, the migrants who settled these lands, more often than not, did not have formal title to their property and usually ended up having to negotiate for the title with not one but two owners; and then even after they had purchased the land and made their improvements, they were likely to be faced with ejectment proceedings brought by others with prior rights to their tracts.75 One foreign visitor traveling through Kentucky in 1802 noted that at every house he stopped in, the owner expressed doubt about the soundness of his neighbors’ titles.76
Between 1785 and 1890, the United States Congress passed more than five hundred different laws to reform the property system, ostensibly based on the Jeffersonian ideal of putting property into the hands of private citizens. The complicated procedures associated with these laws, however, often hampered this goal. To confuse matters further, individual states developed their own rules of property and land distribution that largely benefited and protected only their own propertied elite. As a result, attempts to reform the property system only served to heighten the nation’s land difficulties while making migrants extremely wary about losing what semblance of title they may have possessed. Commenting on reform in Kentucky, one contemporary emphasized that “many of the inhabitants derive the security of their estates from this confusion…[and consequently] many dare not assert their rights, from a fear of being obliged to pay considerable indemnifications.”77 During the eighteenth century and the early nineteenth, “as old problems were solved, new ones emerged. There were chronic difficulties in determining title…[as title became a] concept more elusive than longitude, more nebulous than a tree stump or stream. Title became as vexatious and intractable a subject as the abolished law of tenure.”78 Quite simply, the legal institutions of the United States failed, in fundamental ways, to deal effectively with the burgeoning migrant population.
By 1820, the original U.S. property system was in such disarray that Supreme Court Justice Joseph Story wrote: “Ages will probably lapse before litigations founded on [the U.S. property laws] will be closed…. It will forever remain an unknown code, with a peculiar dialect, to be explored and studied, like the jurisprudence of some foreign nation.”79 The irony was not lost on Justice Story that the United States was “not an old conservative society but a new state at the legal periphery.”80
U.S. laws had become so cumbersome that they constituted a major stumbling block for settlers who wanted to secure their property rights and thus break out of their status as “squatters.” They were left no alternative but to begin fashioning their own “laws,” especially those pertaining to property, fusing English law and the homegrown American legal traditions with their own common sense. The result was “a phalanx of vested property rights”81 in two legal and economic systems, one sitting codified and in the statute books, the other operating on the ground. And thus the United States found itself with a pluralistic legal system in which many rights over property and ownership arrangements came to be defined by extralegal law.
The political and legal establishments were caught between their allegiance to formal law and their sympathy toward the settlers’ need to create their own arrangements. A speech by Thomas Jefferson captures perfectly the ambivalence politicians have always felt toward the extralegal arrangements in their midst. “So multifarious were [these arrangements]…that no established principles of law or equity could be applied for their determination; many of them being built on customs and habits which had grown up in that County, being founded on modes of transmission peculiar to themselves, and which, having entered into almost every title could not be absolutely neglected.”82
State Efforts to Lift the Bell Jar
American politicians thus had three choices. They could continue to try to thwart or ignore extralegals, grudgingly make concessions, or become champions of extralegal rights. The expansion of occupancy laws—recognizing a right to land based on improvements made on it—throughout the United States during the first sixty years of the nineteenth century suggests that politicians increasingly followed the last course. The history of the adoption of occupancy laws in the United States is the history of the rise of extralegals as a political force.
The turning point came in the new state of Kentucky, whose property system, like that of many states, was in complete disarray. Its governor complained that land claims in the new state added up to three times its area. The historian Paul Gates argues that this was due to politicians’ passing legislation that catered to extralegal constituencies between 1797 and 1820. These measures contributed to “the two great principles of equity in [American] statutory law: The right of occupants…to their improvements and the right of settlers on privately owned land, unchallenged for seven years and paying taxes thereon, to a firm and clear title to their land no matter what adverse titles might be outstanding.”83 The importance of the Kentucky legislation, however, lay not in its contribution to legal doctrine but in its reflection of the growing political power of the pioneers. Significantly, the pressure these extralegal settlers exerted on elected officials would lead many state governments to reject a U.S. Supreme Court decision antagonistic to the nation’s large extralegal population.
In 1821, the Court declared Kentucky’s occupancy law unconstitutional.84 The case involved the heirs of large landowner, John Green, and Richard Biddle, a squatter who had settled upon Green’s land illegally. The disputed land had originally been in Virginia but was now part of Kentucky. In Green v. Biddle, the Supreme Court ruled against Kentucky’s occupancy law by pointing to “rules of property” established under the precedents of English common law.85
The decision explicitly favored only those people who held legal title to the land they occupied. According to the Court, the Kentucky law “operated unjustly and oppressively because the lawful owner is compelled to pay, not merely for the actual amelior
ations in the land, not its increased value only, but the expense incurred by the occupant in making pretended improvements, whether they are merely useful or fanciful, and matter of taste or ornaments only dictated by his whim and caprice.”86 After rehearing Green v. Biddle, the Court, in 1823, reaffirmed its previous decision, emphasizing that the occupancy laws deprived “the rightful owner of the land, of the rents and profits received by the occupants.”
Politicians who had been cultivating the support of their extralegal constituents lambasted Biddle as “most ruinous” and causing “great alarm” for Kentuckians.87 The Supreme Court might be oblivious to the new political—and legal—reality taking shape in the rapidly expanding American frontier, but Western politicians only had to look out their windows to see how quickly the country was changing. At that time, tens of thousands of hardy migrants had trudged westward from the original colonies over the Appalachian Mountains to settle on fertile, virgin lands in the early decades of the nineteenth century. The U.S. population had been doubling every twenty years. In 1620, there had been approximately 5,000 settlers in all of British North America. In 1860, the U.S. population would be more than 30 million and counting. Fifty percent of the American population lived west of the Appalachians.
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