Nine-tenths of the Law - Hannah Dobbz

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dispelled the American notion of democracy for many nineteenth-century contemporaries who questioned how, in a country of “free” people, the violence of the state could be utilized as an arm of private tycoons to silence the majority. Even when every lawmaker in Congress agreed that feudal tenures were outmoded in modern society, they still shrugged their shoulders at the legal roadblocks and avoided alternatives suggested by logic and practicality.[e] As late as 1884, 300 leases in perpetuity were still active in the Hudson River Valley. Even today, traces of this failure of democracy are evident when astonished homebuyers in Albany County are compelled to pay a nominal rent charge every year to some remote assignee of Stephen Van Rensselaer III.[18]

      The story of Rensselaerwyck is indeed an unusual property tale for the United States. But that the story grew from Dutch property law does not make it impertinent to American law. If nothing else, it reflects an important trend of what could be called trickle-down land distribution and the refusal to allow settlements to occur organically. Instead, land is used as a buy-and-sell commodity that one is paternally granted the right to use. Patricia Nelson Limerick describes the phenomenon this way: “Conquest basically involved the drawing of lines on a map, the definition and allocation of ownership (personal, tribal, corporate, state, federal, and ­international), and the evolution of land from matter to property.”[19]

      This transition from matter to property, as Limerick describes, was the cornerstone of the development of the United States as a country. After the revolution, property began to be discussed in terms of fee simple—a concept antithetical to feudal ownership systems that tethered individuals to pieces of land. The United States prided itself on its freedom to accumulate and dispose of land at will, and property owners’ freedom from meddling feudal or royalty lords. James Howard Kunstler points out the advantages and disadvantages of such a system in The Geography of Nowhere: “America’s were the most liberal property laws on earth when they were established.... Our laws gave the individual clear title to make his own decisions, but they also deprived him of the support of community and custom and of the presence of sacred places.”[20]

      Kunstler points to a developmental oversight that is endemic throughout U.S. history. The haphazard methodology of land distribution was a federal scheme; only the government and speculators were able to profit from the mammoth raw resource that was North America. Nearly anyone else who gambled at real estate entered into a perpetual state of debt. In fact, while pioneering the West remains romanticized to this day, settlers were sometimes more realistically trapped by the credit-debt ­system than they were forging a lawless frontier.[21]

      Settlers of the West were often poor, and those who couldn’t afford to enter into a credit-debt arrangement resorted to squatting the public land rather than buying it. With great hordes of these squatters occupying farms in the West, their communities became difficult for authorities to disperse. The squatters formed what they called “settlers’ associations,” which not only lobbied state and federal governments under the banner of squatters’ interests, but also used direct action—and often violence—to protect their land. At auctions, if a speculator attempted to purchase the squatted land, he would be “knocked down and dragged out” of the room. As a last resort, squatters threatened to “burn powder in their faces.” If squatters went to jail for these types of actions, everyone in the association would chip in to pay the bail. If squatters went to court, a jury of their peers would consistently acquit.[22]

      Settlers’ associations—also known as “squatters’ associations” or “claimants’ clubs”—became so popular beginning in 1824, that on March 31, 1830, Congress banned group intimidation tactics, threatening potential lawbreakers with $1,000 fine and two years in prison. One attendee of an Alabama auction at which claimants’ club members were present wrote, “The general opinion is…that these men will murder any man, or set of men, who bid for this land against their body.” Because of this mean reputation, many settlers’ associations earned the respect of land officers, moneylenders, speculators, and potential claim-jumpers, and eventually formed a larger Squatters’ Union in 1936.[23]

      Settling on federally owned land had been criminalized by the Jefferson administration in 1804, and squatters were threatened with fines and imprisonment. Yet, “there is little evidence that Western people were intimated by the laws.”[24] Easterners tended to view squatters as “lawless land-grabbers,” a result of the growing absentee landlordism that was problematic both to squatters and legal settlers of the West alike. Absentee landlords consistently failed to improve their land, preferring to wait until tenants or squatters did it for them. Furthermore, owner-occupied lands tended to yield more affluent communities because residents felt a sense of direct investment in their surroundings, while absentee-owner properties made way for poorer communities, even decades later.[25]

      In response to the problem of absentee landlords, local governments began to write their own property law as a method of undermining federal policy. Examples of this included raising taxes on unoccupied land and requiring the taxes to be paid in coins only, which was near impossible for absentee owners. Lawmakers also sometimes compelled landowners to reimburse evicted squatters for any improvements that they made to the land during their occupancy under color of title.[26]

      Eduardo Moisés Peñalver and Sonia K. Katyal posit in their book Property Outlaws that disgruntled settlers were actually able to alter the written law by pushing the envelope in a tenuous social climate. Without squatters intentionally breaking the law, legislation like adverse possession would have never been accepted into the legal compendium. Further, all of the legislative alterations that comprised a series of preemption acts from 1815 until the most famous in 1841 were brought about through petitions and general public unrest.

      The preemption statutes incrementally awarded illegal settlers land on a case-by-case basis according to certain conditions, including but not limited to the magnitude of improvements made on the land by those settlers. Between 1820 and 1829, the federal government awarded 179,717 acres to settlers without title in Mississippi, Louisiana, Arkansas, Florida, and Alabama (data on other states is not available before 1830). Between 1830 and 1836, the government awarded over two and a half million acres in Alabama, Missouri, Louisiana, Michigan, Arkansas, Florida, Ohio, Indiana, Illinois, and Mississippi—the highest number in any individual state in one year being Alabama in 1824 with 338,985 acres awarded.[27]

      The argument against preemption was that such allotments “would forgive and reward men who had violated anti-intrusion laws.” The Premption Act of 1830, however, addressed this concern by requiring that settlers pay $1.25 an acre for land that was not already reserved by another buyer—though these preemptive measures only lasted for one year. What settlers really wanted was land for free and to be able to compensate the government later after they had drawn income using the land’s resources. Conditions such as this one prompted settlers to appeal to the government with petitions and stories of poverty. In many cases, a profusion of objections to land legislation actually effected change: In 1815, for example, James Madison attempted to eject all illegal settlements in Indiana, but overwhelming public outcry compelled him to legalize every settlement in the territory. In Thomas Jefferson’s proclamation in December of the same year, he decried occupiers of the public domain as “uninformed and evil-disposed persons,” threatening them with military force. Few squatters were intimidated by such proclamations, and a delegate from the Indiana Territory, Jonathan Jennings, argued to Congress that squatting resulted from the government’s own failing to put the land on the market.[28] So in 1819, Congress passed the Occupancy Law, which mandated that squatters either get paid for the improvements they made on a property or have an opportunity to buy it minus the cost of the improvements.[29]

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