The Later Land Acts, 1796-1862

For a decade after the passage of the Land Ordinance of 1785, pioneering in the area north of the Ohio River was restricted as much by Indian troubles as by the high price of government land. The British, who persisted in maintaining posts on American territory in the Northwest, for years encouraged the Native Americans to make war on American settlers. By a treaty of 1794, the British agreed to evacuate the posts in the Northwest, and in August of that year, “Mad Anthony” Wayne and his forces defeated the Native Americans at the Battle of Fallen Timbers. The time was then ripe for the establishment of new land policies by the Congress of the United States.

The Land Act of 1796 represented another victory for the conservatives. A system of rectangular surveys substantially the same as the one established by the Ordinance of 1785 was made permanent. The minimum purchase allowed by the Act of 1796 was still 640 acres, but the minimum price per acre was raised to $2, the only concession to the cheap-land advocates being a credit provision that permitted half the purchase price to be deferred for a year. Only a small amount of land was sold under this act before Congress changed the minimum acreage to 320 in 1800 and permitted the buyer, after a cash payment of one-half the value, to pay one-fourth the value in two years and the final fourth in four years. A law of 1804 further lowered the minimum purchase to 160 acres. By 1820, the liberal forces had clearly won the battle: The minimum purchase was reduced to 80 acres and the price per acre to $1.25, but the credit provisions, which had resulted in losses to the government, were repealed. Twelve years later, the minimum purchase was reduced to 40 acres, so in 1832, a pioneer could purchase a piece of farmland for $50 (less than two months’ wages for a common laborer). It merits emphasis that these prices were government-set prices. Actual prices paid by many settlers were undoubtedly less than these “list prices,” however, because military veterans were often paid in “land warrants” to help them buy land at a discount. Because these warrants were transferable and were typically sold at discount, others as well as veterans paid less in cash than the official list prices suggest.

Settlers who were brave enough to risk their lives in a pioneering venture usually were not deterred from action by legal niceties. From the beginning, pioneers tended to settle past the areas that had been surveyed and announced for sale. As the decades passed and the West became “crowded,” this tendency increased. Unauthorized settlement, or “squatting,” resulted from the attempts of the pioneers to find better soils and the hope that they could settle on choice land and make it a going proposition before they were billed for it.

Squatting was illegal, of course, but it was an offense that was hard to police. Moreover, there were those who argued that by occupying and improving the land, a squatter gained the rights to it—“cabin rights,” “corn rights,” or “tommyhawk rights,” as they were variously called on the frontier. At first, federal troops tried to drive squatters from unsurveyed land, but successes were only temporary. Gradually, the government came to view this pioneer lawbreaking less and less seriously. Against those who would purchase the squatter’s land when it became available for public sale, informal but effective measures were taken by the squatters themselves, who formed protective associations as soon as they settled in a particular locality. When the public auction of land in that locality was held, the members of the protective association let it be known that there was to be no competitive bidding for land preempted by them. The appearance of well-armed frontiersmen at the auction ordinarily convinced city slickers and big land buyers that it would be unwise to bid. Even in places where there was no organized action, squatters who found their farms bought out from under them often could charge handsomely for the “improvements” they had made, and frontier courts were inclined to uphold their “rights.”

As early as 1820, Congress began to give relief to squatters, and scarcely a year went by after 1830 in which preemption rights were not granted to settlers in certain areas. In 1841, a general Preemption Act, called the “Log Cabin Bill” by its proponents, was passed. This law granted, to anyone settling on land that was surveyed but not yet available for sale, the right to purchase 160 acres at the minimum price when the auction was held. No one could outbid the settler and secure the land, provided the squatter could raise the $200 necessary to buy a quarter section. Technically, squatting on unsurveyed land was still illegal; because of this and because there was still no outright grant of land, the westerner (and anyone else who could make money by buying land and waiting for it to rise in value) was not satisfied. Nevertheless, the land policy of the country was about as liberal as could be consistent with the demand that the public domain provide a continuing source of revenue.

Pressure remained on Congress to reduce the price of “islands” of less desirable land that had been passed over in the first surges to the West. In 1854, the Graduation Act provided for the graduated reduction of the minimum purchase price of such tracts, to a point at which land that remained unsold for 30 years could be purchased for as little as $0.125 an acre. Settlers quickly purchased these pieces of land, attesting to the fact that people were willing to gamble a little on the probable appreciation of even the most unpromising real estate.

In the 1850s, as agitation for free land continued, it became apparent that the passage of a homestead law was inevitable. Southerners, who had at one time favored free grants to actual settlers, became violently opposed to this as time went on. The 160-acre farm usually proposed by homestead supporters was not large enough to make the working of slaves economical, and it seemed obvious to southern congressmen that homesteading would fill the West with antislavery people. On the other hand, many northern congressmen who normally might have had leanings toward a conservative policy joined forces with the westerners; they, too, knew that free land meant free states.

In 1860, a homestead act was passed, but President James Buchanan, fearing that it would precipitate secession, vetoed it. Two years later, with the Civil War raging and the southerners out of Congress, the Homestead Act of 1862 became law. Henceforth, any head of a family or anyone older than 21 could have 160 acres of public land on the payment of small fees. The only stipulation was that the homesteader should either live on the land or cultivate it for five years. An important provision was that settlers who decided not to meet the five-year requirement might obtain full title to the land simply by paying the minimum price of $1.25 an acre.

Although much land was to pass into private hands under the Homestead Act of 1862, it was not the boon that it was expected to be. Most of the first-class land had been claimed by this time. Furthermore, it was so easy to circumvent the provisions of the law that land grabbers used it, along with the acts that still provided for outright purchase, to build up great land holdings. By 1862, the frontier had reached the edge of the dry country, where a 160-acre farm was too small to provide a living for a settler and his family.