In the two decades after the Constitution was adopted, 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. 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. 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."
But Congress didn’t understand 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. All these tasks soon overwhelmed its small staff, which quickly fell behind in most of their duties.
In addition, the young nation had limited financial resources and often resorted to land grants to compensate certain sectors of the population. 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 in the Mexican-American War. Between 1851 and 1860, Congress added another 44 million acres for those who had performed military service. By the mid-19th century, a thriving black market in land scrip emerged, fueling both squatting and speculation. For every 100 soldiers who received land scrip, 84 sold their rights in the black market.
The federal government also gave 318 million acres -- almost one-fifth of all federal lands -- to the new railroads crisscrossing the continent. Although much of the land was of little economic value, a sizeable portion did contain minerals or was arable. The lion’s share went to the transcontinental railroads, which 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. Yet once again, the realities of land settlement conflicted with the hopes of politicians. The checkerboard arrangement, according to historian Richard White, had "delayed settlement on millions of acres of the best lands and had closed them to acquisition." In certain cases it even led to open warfare between the railroad companies and settlers.
One conflict arose in 1880, in California’s southern Joaquin Valley, then called Mussel Slough, when farmers and ranchers establishing themselves on railroad properties could not come to a sales agreement with the rail companies. This eventually led to a shootout in which five settlers died; the responsible marshal admitted he was "not certain who fired first." Editorializing on the incident, the San Francisco Chronicle condemned the railroads: "Whatever might be their strictly legal rights, it is undeniable that all the equities were in favor of the settlers." In any case, physical force was also on the side of the settlers: Officials estimated that dislodging them would require between 200 and 1,000 good soldiers. The 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.
The turning point came in Kentucky, where the property system, as in many states, was in complete disarray. (The new state’s land claims added up to three times its area.) In 1821, the Supreme Court declared Kentucky’s occupancy law -- which recognized a right to land based on improvements made on it -- unconstitutional. The case involved the heirs of John Green, who was a large landowner, and Richard Biddle, who had settled on Green’s land illegally. 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 ameliorations 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." After rehearing Green v. Biddle, the court reaffirmed its previous decision in 1823, 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. The Supreme Court might be oblivious to the new political and legal reality taking shape on the rapidly expanding frontier, but Western politicians only had to look out their windows to see how quickly the country was changing. Tens of thousands of hardy migrants had trudged westward from the original colonies over the Appalachians to settle on fertile, virgin lands. In 1620, there had been approximately 5,000 settlers in all of British North America. By 1860, the U.S. population was more than 30 million and counting. Fifty percent of that citizenry lived west of the Appalachians.
In the minds of many politicians and newspaper editors, the villain was now the Supreme Court. One local paper spoke of the "treacherous conduct" of justices who threatened to "exterminate" the rights of "nonresidents and aliens." In the midst of the furor over the court’s authority, Kentucky’s powerful Sen. Richard M. Johnson declared that the decision would lead "to much litigation where questions had been settled for years, and put everything respecting landed property into the greatest confusion." Kentucky’s other senator -- the even more influential Henry Clay, who generally opposed liberally extending squatter rights -- conceded the point: "They build houses, plant orchards, enclose fields, cultivate the earth, and rear up families around them....In this way, thousands and tens of thousands are daily improving their circumstances and bettering their conditions." Both the governor and the state legislature joined the chorus.
In an extraordinary turn of events, even Kentucky’s courts rejected the decision. In a similar case two years later, a Kentucky judge noted that Biddle could not be followed because the case "was decided by three only of the seven judges that composed the Supreme Court of the United States; and being the opinion of less than a majority of the judges cannot be considered as having settled a constitutional principle." In 1827, another Kentucky judge rejected Biddle, emphasizing that the occupying claimants law was constitutional in "cases too numerous to be quoted."
In the middle of the dispute over Biddle, Andrew Jackson, a vocal supporter of the pioneers, almost won the presidency. Four years later, he did become president. During his two-term administration, sympathy for the rights of squatters increased. So did public animosity toward judges and attorneys, who were perceived as eager agents of the rich and the powerful. Between 1834 and 1856, Missouri, Alabama, Arkansas, Michigan, Iowa, Mississippi, Wisconsin, Minnesota, Oregon, Kansas, and California all adopted occupancy laws similar to the Kentucky law rejected in Green v. Biddle. Paul Gates writes, "No case decided by the Supreme Court had been so completely overturned by state legislation and state courts, by failure of the federal courts to make use of the case, and finally by the unchallenged act of Congress extending the coverage of federal courts to occupants."
By 1830, the 13 original states were 24, including seven in the West whose representatives in Washington were fully committed to policies favoring the squatters. To gain the support of this increasingly influential bloc, Northern and Southern states competed to show how pro-Western they were. Members of Congress began drafting legislation that helped ease the way for settlers’ arrangements to be absorbed into the legal system. At its center was preemption. In 1830, a coalition of Western and Southern congressmen passed a general preemption act that applied "to every settler or occupant of the public lands...who is now in possession, and cultivated any part thereof in the year one thousand eight hundred and twenty-nine." A squatter could claim 160 acres of land, including lands he had improved, for $1.25 per acre. Payment was required before the land was set for public auction, and transfers or sales of preemptive rights were strictly forbidden.
In 1832, 1838, and 1840, Congress renewed the General Preemption Act of 1830. Each time it attempted to strengthen further the rights of the lowest squatter, while trying to block some of the abuses of the preemption principle. For instance, the 1832 act lowered the minimum amount of land a squatter had to purchase from 160 acres to 40 acres. By 1841, the preemption principle had become so firmly established that Congress enacted a general prospective preemption bill. The 1841 act covered not only existing squatters but "every person...who shall hereafter make a settlement on the public lands." The settled land had to be surveyed, but even this provision was eventually overturned.
Settled Issue
As the 19th century progressed, Congress continued to play catch-up, absorbing extralegal arrangements in official statutes. The California Gold Rush, for example, produced a rich system, organized from the bottom up, to let miners stake their claims and adjudicate disputes with other fortune-seekers. Legally, they were trespassers, since most of the land they were prospecting had hundreds of competing interests: Mexican land grants, absentee owners, rival settlers, and the absence of a federal law that could be enforced. But most politicians came to support the miners’ claims, and the courts proceeded to sanction their extralegal arrangements. In 1861, a justice of the California Supreme Court commented on the legitimacy of the miners’ extralegal arrangements in Gore v. McBreyer: "It is enough that the miners agree -- whether in public meeting or after due notice -- upon their local laws, and that these are recognized as the rules of the vicinage, unless some fraud be shown, or some other like cause for rejecting the laws."
At the end of the 19th century, American politicians and judges had come a long way in the area of property law -- and it was the squatters who led them there. This was also true for housing: In 1862, when the celebrated Homestead Act gave 160 free acres to any settler willing to live on the land for five years and develop it, it was only sanctioning what settlers had already done by themselves. "Between 1862 and 1890," writes Richard White, "the population of the United States grew by 32 million people -- but only about 2 million of them settled on the 372,649 farms claimed through the Homestead Act." By the time Congress finally approved it, the settlers already had many legal alternatives for gaining title to public lands.
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