January 21, 2012
“The Land Belongs to
the People!”[1]
Or Does it?
Introduction
Jacksonian America
had been a time in history that Americans came into their own in regards to
land use and laws. Prior to this time most of America worked within the
boundary of the old English common laws. Ideas of the best common use of
farming came into dispute. Decency laws changed. Land companies became
important and the Government no longer had primary rights. This was when land came
to belong to the people, or so they thought.
British Land Laws
came to America with laws of primogenitor and entail. Men and women could
initially own land, but it had to be purchased outright. At first aristocratic
British men came to America to purchase property as an investment. Later, they
would move to, and live on, their property. The law of entail required lands to
go to the eldest male son when they were inherited. Purchased property could go
to any male descendent. But, whichever son inherited, the rule of primogeniture
did come into effect.[1]
This rule changed in Jacksonian America.
Other changes
occurred in America during the Jacksonian era. Land no longer had to be
purchased with cash. Mortgages abounded. Land spectators and hawkers became a
norm. Corporations could purchase property, where only people could in the
past.[2]
As things changed,
the main idea behind the reason of land ownership did not. The right of best
use remained the single most idea behind priority. Conquering British
bequeathed this idea to their American descendents. The British used this idea
to apprehend territories all over the world for its Empire. The Americans then
followed suit with this same idea in the use of Eminent Domain. While Americans
claim to have forsaken British common law with the changing of times, the
reality is that it had still been relevant throughout Jacksonian American
history.
Background on British Land Laws
Land
has been important to the British people for centuries. This may have gone back
to before the Roman conquest, or perhaps the Romans brought that idea with
them. When this began is uncertain. But what is certain is that some old
beliefs, and also laws, did survive the Norman Conquest. Others the Normans
brought with them. One is that the worth of a man had been seen to be equal to
the quality and quantity of property that that individual owned. Others the Normans brought with them. It was
a Henry II law that became a foundation of land law for centuries. This was the
regulation of the greater right to the land.[3]
The
rights to land had been assessed from one direction. Farming use had always
been first.[4] There had
been the belief that anyone “whom owned but did not exploit land forfeited his
claim to it”[5]. These had
been the two pieces of wisdom that created most of Britain’s Empire building.
These rules were what Britain used to take over continents from their native
inhabitants. This is also how rules of water usage worked.
Water
rights would have also followed the greater right rule. Agriculture had been
number one.[6] Then it
would follow as to whom the water flowed first. Given that point if a stream
flowed through a town through fields to a farm. The farm would have had primary
use, then the city. If the stream flowed through a farm to a town and the
farmer needed to dam the creek for the use of his farm, then the farm would
still technically have come first as long as that farm had actually needed that
water.[7]
Water
and land rights went to the Crown first, then the aristocracy. A yeoman farmer
had been last with regards to ownership. If a person had been leasing his
property, they could look further to the King himself, if need be.[8]
Even with this point, there still had been a class bias to the aristocracy.[9]
Aristocratic land holding had definitely been the rule.
The rule of the
King had also been a consideration in regards to ownership. The Crown could
confiscate property. So too, could Parliament. There had to be some sort of
litigation, but this could mean as little as writ signed by the King. Any
reason could be justified with a fabricated or ambiguous explanation.[10]
Explanations of
inheritance had been one way for the crown to take property. Another had been
wardship. If someone of high land worth died leaving a young heir, the King could
take the minor until they reached their majority, and make them the Ward of the
State. This would mean that their property and all of its value also went to
King to do with as he chose. He could in fact sell marriage rights and/or
property rights to the highest bidder.
Bidding had been a
maneuver that suited the monarchal purse well for centuries. Some of those that
inherited would not have seen this to their gain. Others would see this as a
profit to marring into another wealthy or high status family. Those that inherited usually had been the
eldest son, but the eldest daughter could also be an inheritor.[11]
The law of Primogeniture had been prevalent, most of which had entail rules.
Entail regulations required that only the eldest male would inherit. If there
had not been a male heir, then the next male relative would be able to have
title.[12]
Younger male
descendents would possibly have some sort of annuity. The widow and female
could also have an annuity. However, these would have had to be set up prior to
the Widow’s marriage. And, in some instances, this would have to have been part
of the Widow’s dowry.[13]
Most women did not own land, even though not illegal.
What had been
illegal was to consider any mineral rights the landowner’s property. All
minerals belonged to the Crown. The British government kept minerals found on,
or in, the land. The landowner could petition the crown for rights to mine and
market. But, the King had first rights, as well as monies. Common law kept any
potential profit within the rights of the British government.[14]
Common law was a
set of laws that had been handed down from generation to generation. These laws
had not been created in a court, but by what had been considered common sense
to the majority over time. Some had originated from Wales, others from
Scotland, and still others from the Anglos and the Saxons. Whatever the origin,
the common law system held courts in Britain and then in America for centuries.[15]
Jacksonian American Changes to Land Laws
British common
laws in America held up in the judicial systems. This had been the regulation
that the states followed. These had changed little from the beginnings of the
British Colonies until the 1830s. Because of the very nature of common law, the
creation of new laws did not occur often, and when they did, they occurred
slowly.[16]
Some basic American amendments were the fact that women and blacks could not
own property, and sometimes not be able to hold a lease either.[17]
Another was the right to “free use of his property without interference” with
the rights to the minerals it contained.[18]
Nationalism became
a part of politics early on in American history. Owning property only being a
privilege of the wealthy had become a
thing of the past. Americans believed that this rule had had a direct
association with feudalism. Even so, owning land had still been associated with
power, riches, and personal honor.[19]
It also came to mean personal independence to the Jacksonian American.[20]
Personal
independence came to be thought of as a right of being an American. This along
with land that was so cheap that many considered it almost free brought about a
title wave of ownership during the early years.[21]
Every American male began to think that it was his own personal liberty to own
property. This created changes of the inheritance of land. No longer were lands
being entailed. Property became divided equally between all male children.[22]
As the populace of
the East rose spectacularly, more families chose to move West. They did this
instead of breaking up the farmstead into parcels that would not bring in
enough food. As most farmers had still had a subsistence living, the amount of
land needed to feed the growing family had been great. The more mouths to feed
created a larger need for land. Moving across the Appalachian Mountains opened
up areas that had previously only been for the French and Indians.[23]
The French had
little farming in this new territory. The Indians had been farmers, but they
did not cultivate their fields as greatly as the Americans.[24]
The American version of the British common law took effect. Americans believed
that this property had not been exploited to its full potential. So, they took
it to mean that it was now theirs to do so.
Subsistence farms
began in locations that had been easily accessible via waterways. But, as
technological advances with roads and railways occurred more frequently, this
changed. Land that had been too remote was now accessible. The new
transportation brought with it ways to transport goods East that had been more
affordable than at any other time in American history. [25] Subsistence farming started becoming larger
farms, or even plantations.
One way that small
subsistence farmers decided to purchase more land had been by attaining
mortgages. This American idea had allowed people to buy land that they would
never have been able to purchase under the old system. Mortgage regulations
were different by area, and also by lender. All mortgages, however, held the
land and any holdings on the land as collateral. [26]
Every borrower agreed to certain conditions, one was that if a payment was
late, the mortgager had the right to call in the full amount owed. Defaulting
could have been anywhere from a week, to a month, to three months delinquent.
This depended upon the agreement.[27]
Mortgage
agreements made land available to many more people than before. No longer was
cash the only way to purchase. A man’s worth could be associated with the land
that he sat upon, not what he owned outright. Independence was free as long as
the mortgage was up to date. A man could do with the land whatever he wanted,
but only if it was free of encumbrance. There had been many cases, however that
no “improvements” were to be made to the land without the mortgagor’s
permission. The mortgagor could demolish any building or other improvement if
that permission had not been obtained prior. Or, the mortgagor could repossess
if he chose for that reason.[28]
A new thought had
occurred to Jacksonians. Land was now considered a “commodity rather than a
basis for family wealth and continuity.”[29]
“Merchants, bankers and manufacturers” came to be speculators and become
wealthy with land sales.[30]
Land hawkers could be seen at every corner in the big cities.[31]
A man would only have to come up with one-twentieth of the purchase price for
any public land being sold by a land hawker.[32]
It was then the responsibility of the purchaser to register at the land office
nearest the said property.[33]
Speculators came
in the form of individuals, and also in the form of groups. Land companies
sprang up to purchase cheap public land. The idea was to buy low, and sell
high. Land companies would take title immediately, and use hawkers to sell on
the street in the larger cities such as Charleston, Philadelphia, and the most
profitable New York. Immigrants and Yankee farmers wanted the opportunity to
own fertile farmland.[34]
Farmland had to be
worked by hands that wanted to keep their own reward. Samuel Clesson Allen
remarked that “all wealth is the product of labor and belongs of right to him
who produces it.”[35]
While this had been stated in regards to manufacture, the idea had been the
same for landholders. The Jacksonian believed that mineral rights were his by
default. Therefore, any type of coal, gold, or silver was his without having to
ask the government to work his property.[36]
A new legal entity
began to be recognized as being able to own property. Corporations purchased
land where only people could own before. [37]
Companies wanted land for the location of their businesses as well as investment.
They wanted land and water rights as well. Mills began creating damns for a
flood pool that would create the needed hydraulic energy that they needed.[38]
Corporations justified this by the same way that farmers had done so in the
past. It was best use of the resources being confirmed by the Supreme Court.[39]
Farming no longer held that authority.
Authority of the
government in regards to land had also been questioned. The U.S. President, or
Congress, could not confiscate property.
Americans had begun to question whether they could pass laws on their
property. The Supreme Court decided that it did have jurisdiction on March 20,
1816.[40]
But, did the farmers hold the complete right to their property in perpetuity?[41]
The answer was no.
Another answer to
Americans and immigrants was the fact that people, and now groups of people,
could purchase land for communal use. Utopian ideals flourished[42].
Societies sprang up, and they chose to purchase land specifically for their
cult. This could never have been allowed under the mother country laws. Beliefs
in communal love ran along side communal farming.[43]
Farmers and
priority use collided with the law system. The right of Eminent Domain had come
into the American system. Eminent domain was the best use policy for the
community, not the landowner. Property had now been considered active. Emphasis
changed to from the “old uses to promoting new ones”.[44]
Most cases did not entail the confiscation of property by a corporation. These
were the government taking possession for the communities greater good.[45]
State and local
governments were the ones that took control. Eminent Domain was used for many
reasons. Toll roads were built via county Eminent Domain. Canals had to be dug
through property, so states took possession. The U.S. Government had even
engineered Post Office Roads and used Eminent Domain for that purpose.[46]
States had been
the most involved with this clause, though. Massachusetts took property via
Eminent Domain for the use of manufacturing.[47]
New York allowed it.[48]
Georgia pursued it. Specifically, Georgia wanted the land that the Cherokee
Nation claimed.[49]
The Cherokee had
lived on the land that they had been annexed from, from time immemorial. The
Great Spirit had given them the right to reside there.[50]
But, the Americans being direct descendents of the British in regards to the
use of land, deemed that they could make better use of this area. Legalized
treaties had to be agreed upon by “civilized nations”.[51]
According to this doctrine, the Cherokee were civilized, and they were a
nation, so the treaty should have held firm. They had also farmed the land in
contemporary Anglo-American fashion.[52]
This confiscation had been a case of legalized greed. This is the case that
came the closest to the British common law of Crown confiscation in American
history.
Conclusion
American
land laws are direct descendents of the British common laws. British
aristocrats brought with them their law of primogenitor. Entailed properties
could not go to the younger sons, much less the daughters, of the landowner.
Elites controlled who owned the land by requiring the purchase to be made in
cash. Rights of the Crown came before that of the landowner. Profits of mineral
rights went to the King first. Confiscation of the land could occur at any time
for any dreamt up legitimate reason. Agriculture had been the primary use of
property. And, the lack of proper use could be a significant reason that an
individual, or group of individuals, lost the title to their land.
Changes
in land laws within Jacksonian America began with the idea that owning property
brought a sense of worth and independence. Changes allowed all sons to inherit
equal divisions of a father’s land. Cash purchases became a thing of the past
with mortgages allowing men to purchase more than they could before.
Speculators began purchasing government lands at low costs with the idea of a
high return. Land companies bought titles in bulk and hawked them on street
corners in the big cities. Priority and best use moved from farming to mills,
manufacturing and governmental developments. Eminent Domain was a term that
many Jacksonian Americans lost their property to. An entire nation of Indians
had been forcefully ejected from land that they had lived on since time began.
Land laws did change, but the idea behind them did not. British common law
still held on long after the English had been removed.
Bibliography:
Beam,
Chris. “HIST404 Lecture, Week 2: The
Impact of the War of 1812 on American
Society”.
N.d. https://edge.apus.edu/xsl-portal/site/159252/page/6c0dc46d-b118-4797-bd1e-eadab3f0e98b. (accessed January 22, 2012 0.
---- “HIST404 Lecture, Week 5: The Reformers of the 1820s
and 1830s” n.d.
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(accessed January 22, 2012).
Borodkin, Lisa. In “Does the use of British Common Law as
Precendent in United States
Courts Carry with it a Class Bias
in Favor of the Rich?” Quora.
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Cecil, Evelyn. Primogeniture. London: Spottiswoode
and Co., 1895.
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(accessed January 12, 2012).
“The
Cherokee Nation v. The State of Georgia”, United States Supreme Court.
1831.
http://bulk.resource.org/courts.gov/c/US/30/30.US.1.html.
(accessed January 21, 2012).
Clarke,
Frank G. The Greenwood Histories of the Modern Nations: The History of
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2002.
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/CommonLaw.aspx. (accessed January
17, 2012).
Dunlap, John Robertson. Jeffersonian Democracy: Which
means the Democracy of Thomas
Jefferson, Andrew Jackson and
Abraham Lincoln.(Oxford: Oxford University Press, 1923.
Feller, Daniel. The Jacksonian Promise: America, 1815-1840. Baltimore:
Johns
Hopkins University Press, 1995.
“Head v. Amoskeag Manufacturing Company” United States
Supreme Court. 1885.
http://scholar.google.com/scholar_case?case=10866301704079095478&q=Massachusetts+eminent+domain+1823&hl=en&as_sdt=2,14
(accessed January 14, 2012).
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http://www.bbc.co.uk/history/british/middle_ages/henryii_law_01.shtml.
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James, Lawrence. The Rise and Fall of the British Empire.
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1994.
“Johnson and Graham’s Lessee v. William M’Intosh”, United
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http://scholar.google.com/scholar_case?case=3104237999990733260&q=Massachusetts+eminent+domain+1823&hl=en&as_sdt=2,14.
(accessed January 21, 2012).
“Martin v. Hunter’s Lessee”, 14 US 304 – United States
Supreme Court. 1816.
http://scholar.google.com/scholar_case?case=2949122041407056724&q=land+lawsuits+in+1830&hl=en&as_sdt=2,14.
(accessed January 12, 2012).
“McCluny
v. Silliman”, 28 US 270- United States
Supreme Court. 1830.
http://scholar.google.com/scholar_case?case=5666769405297422905&q=land
+lawsuits+in+1830&hl=en&as_sdt=2,14.
2011. (accessed January 12, 2012).
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History of the United States to 1877.
Boston: Houghton Mifflin,
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(accessed January 19, 2012).
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1790-1900: Legal
Thought before Modernism.
Cambridge: Cambridge University Press, 2011.
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land%20law&f=false . (accessed January 18, 2012).
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Readers Digest, 1971.
Sanborn, Vic. “The Regency Estate” How it was Apportioned”, Jane
Austen’s World Blog,
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(accessed January 18, 2012).
Sellers, Charles. The Market Revolution: Jacksonian America, 1815-1846. Oxford:
Oxford University Press, 1991.
Wiecek, William. Lost World of Classical Legal Thought:
Law and Ideology in America,
1886-1937. Oxford: Oxford
University Press, 1998.
Originally
written for class at American Military University.
[1] Cecil, Evelyn. Primogeniture.
London: Spottiswoode and Co., 1895.
http://books.google.com/ebooks/reader?id=qXMuAAAAIAAJ&printsec=frontcover&output=reader.
(accessed January 12, 2012).
[2] Charles
Sellers, The Market
Revolution: Jacksonian America, 1815-1846, (Oxford:
Oxford University Press, 1991), 4, 5, 52, 53, 287, 354.
[3] John Hudson, “Common Law –
Henry II and the Birth of a State” in BBC History.
http://www.bbc.co.uk/history/british/middle_ages/henryii_law_01.shtml.
(accessed January 17, 2012).
[4] Frank G. Clarke, The
Greenwood Histories of the Modern Nations: The History of Australia.
(Westport, CT: Greenwood Press, 2002), 56.
[5] Lawrence
James, The Rise and Fall of the British Empire. (New York: St. Martin’s
Griffin, 1994), 143.
[6] Sellers, 52.
[7] Hudson.
[8] Ibid.
[9] Lisa Borodkin, In “Does the
use of British Common Law as Precendent in United States
Courts Carry with it a Class Bias in Favor of the
Rich?” Quora.
http://www.quora.com/Does-the-use-of-British-Common-Law-as-precedent-in-United-States-courts-carry-with-it-a-class-bias-in-favor-of-the-rich.
(accessed January 17, 2012).
[10] Hudson.
[11] Evelyn Cecil, Primogeniture. (London: Spottiswoode
and Co., 1895), Introduction
http://books.google.com/ebooks/reader?id=qXMuAAAAIAAJ&printsec=frontcover&output=reader.
(accessed January 12, 2012).
[12] Vic Sanborn, “The Regency
Estate” How it was Apportioned”, Jane Austen’s World Blog,
January
14, 2009,
http://janeaustensworld.wordpress.com/2009/01/14/the-regency-estate-how-it-wa-apportioned/?blogsub=confirming#blog_subscription-3.
(accessed January 18, 2012).
[13] Ibid.
[14] Clarke, 56.
[15] “Definition of Common Law”,
Duhaime.org n.d. http://www.duhaime.org/LegalDictionary/C/
CommonLaw.aspx.
(accessed January 17, 2012).
[16] Kunal. Parker, Common Law, History, and Democracy in
America, 1790-1900: Legal
Thought
before Modernism. (Cambridge: Cambridge University Press, 2011), 208.
http://books.google.com/books?id=we6DsU02F-kC&pg=PA123&dq=change+in+land+law+in+
Jacksonian+America&hl=en&sa=X&ei=NwsbT7r-NYfo0QHvhtnXCw&ved=0CDsQ6AEwATgK#v=
onepage&q=land%20law&f=false.
(accessed January 18, 2012).
[17] Mary Beth Norton, et all. A People and a Nation: A History
of the United States to 1877.
(Boston:
Houghton Mifflin, 2005).http://books.google.com/books?id=C1R1WFk45lAC&pg=RA1-PA16&dq
=changes+in+land+law+in+Jacksonian+america&hl=en&sa=X&ei=Ew0bT4WgJsr50gH53OCeCw&ved=0CE4Q6AEwBA#v=snippet&q=%20land%20law%20&f=false.
(accessed January 19, 2012).
[18] Sellers,
52; Clarke, 56.
[19] Sellers, 4.
[20] Ibid, 39.
[21] Ibid, 4
[22] Sellers,
52, 287.
[23] Chris Beam,
“HIST404 Lecture, Week 2: The Impact of the War of 1812 on American Society”.
N.d.
https://edge.apus.edu/xsl-portal/site/159252/page/6c0dc46d-b118-4797-bd1e-eadab3f0e98b.
(accessed January 22, 2012 0.
[24] Chris Beam,
“HIST404 Lecture, Week 5: The Reformers of the 1820s and 1830s”. n.d.
https://edge.apus.edu/xsl-portal/site/159252/page/6c0dc46d-b118-4797-bd1e-eadab3f0e98b.
(accessed January 22, 2012).
[25] Sellers, 5.
[26] Henry Poor,
ed., You and the Law. (Pleasantville, NY: Readers Digest, 1971), 328.
[27] Ibid, 332.
[28] Ibid.
[29] William
Wiecek, Lost World of Classical Legal Thought: Law and Ideology in America,
1886-1937. (Oxford: Oxford University Press, 1998), 185.
[30] John
Robertson Dunlap, Jeffersonian Democracy: Which means the Democracy of
Thomas Jefferson, Andrew Jackson and Abraham Lincoln. (Oxford: Oxford
University Press, 1923), 433.
[31] Ibid, 432.
[32] “McCluny v.
Silliman”, 28 US 270- United States
Supreme Court. 1830. http://scholar.google.com/scholar_
case?case=5666769405297422905&q=land+lawsuits+in+1830&hl=en&as_sdt=2,14.
2011. (accessed January 12, 2012).
[33] Ibid.
[34] Sellers,
354.
[35] Samuel
Clesson Allen in Sellers, 339.
[36] Clarke, 56.
[37] Feller, 37.
[38] Wiecek,
106.
[39] “Head v.
Amoskeag Manufacturing Company” United States Supreme Court. 1885.
http://scholar.google.com/scholar_case?case=10866301704079095478&q=Massachusetts+eminent+domain+1823&hl=en&as_sdt=2,14
(accessed January 14, 2012).
[40] “Martin v.
Hunter’s Lessee”, 14 US 304 – United States Supreme Court. 1816.
http://scholar.google.com/scholar_case?case=2949122041407056724&q=land+lawsuits+in+1830&hl=en&as_sdt=2,14.
(accessed January 12, 2012).
[41] Daniel
Feller, The
Jacksonian Promise: America, 1815-1840, (Baltimore: Johns Hopkins University
Press, 1995), 34.
[42] Beam, Week
5
[43] Ibid.
[44] Feller, 34.
[45] Chris Beam,
Reply to author, January 2, 2012.
[46] Sellers,
53.
[47] Ibid.;
Feller, 35.
[48] Head v.
Amoskeag
[49] “The
Cherokee Nation v. The State of Georgia”, United States Supreme Court.
1831. http://bulk.resource.org/courts.gov/c/US/30/30.US.1.html. (accessed
January 21, 2012).
[50] Ibid.
[51] “Johnson
and Graham’s Lessee v. William M’Intosh”, United States Supreme Court.
1823.
http://scholar.google.com/scholar_case?case=3104237999990733260&q=Massachusetts+eminent+domain+1823&hl=en&as_sdt=2,14.
(accessed January 21, 2012).
[1] John Quicy
Adams in Charles Sellers, The Market Revolution: Jacksonian America, 1815-1846, (Oxford:
Oxford University Press, 1991), 292.
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