Abstract
The rights any person has to occupy and use land are fundamental to securing a place to live and work—a physical, concrete fact—as well as more intangible status of a place in a community’s political, economic and social life. The history of the Half Breed Tracts shows that the people of the American frontier, the politicians who represented them and the political economists who aimed to explain the production and distribution of goods in a society initially had no simple, single answer to the land question. The consensus that seemed to emerge, that individual ownership with an absolute right to deny access to others and to use however the owner wished would remain an uncomfortable one for those Americans who felt an emotional connection to the places where they lived.
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Notes
- 1.
Autobiography of Ma-ka-tai-me-she-kia-kiak, or Black Hawk, embracing the traditions of his nation, various wars in which he has been engaged, and his account of the cause and general history of the Black Hawk war of 1832, his surrender, and travels through the United States, (Oquakwa, Ill.: J.B. Patterson, 1882), pp. 57–58.
- 2.
Congress passed its first preemption act—a law giving squatters a chance to secure their land even if another person held title to it—in 1813, to protect settlers in Illinois (Act of February 5, 1813, 2 Stat. 797). It passed similar legislation for the Missouri Territory in 1814, (Act of April 12, 1814, 3 Stat. 121) and a more general act for all the public domain but intended as a temporary measure, in 1830. (Act of May 29, 1830, 4 Stat. 420) This act was extended in 1832, 1833 and 1834 (Act of January 23, 1832, 4 Stat. 496; Act of April 5, 1832, 4 Stat. 503; Act of July 14, 1832, 4 Stat. 603; Act of March 2, 1833, 4 Stat. 663; and Act of June 19, 1834, 4 Stat. 678) before it was made permanent in 1841 (Act of September 4, 1841, 5 Stat. 453). Tennessee’s first state constitution, where Section 31 of its Bill of Rights declared “that the people residing south of French Broad and Holsten between the Rivers Tennessee and Big Pigeon are entitled to the right of Preemption and Occupancy of that tract.” Constitution of Tennessee of 1796 http://teva.contentdm.oclc.org/landmarkdocs/transcripts/90.transcript.pdf 1796 Vermont and Virginia enacted laws allowing settlers to preempt paper claims; Laws of Vermont to 1807, Randolph, 1808, Vol. 1, pp. 204–8; Hening’s Statutes at Large, Richmond, 1821, Vol. 9, p. 349. Acts of Kentucky, 17th General Assembly, Frankfort, 1809, p. 85. For early law on hunting and trespass, see Thomas Lund, American Wildlife Law (Berkeley: University of California Press, 1980) p. 25. In one of the few early nineteenth-century decisions on trespassing, Virginia’s Supreme Court held in 1837 that trespassing was not a crime in common law and in 1851 that it was a crime only when it involved a breach of the peace. Commonwealth v. Powell, 8 Leigh, 719 (Virginia Supreme Court, 1837) Henderson’s Case 8 Gratt. 708 (Virginia Supreme Court, 1851). Judicial skepticism about damages from alleged trespass can be seen in Cheney v. Ringgold, 2 H. & J., 87, 91 (Maryland Supreme Court, 1807) Carson v. Blazer 2 Binn. 475, at 494 (Pennsylvania Supreme Court, 1810) Lessee of Bonnet v. Devebaugh and Smith, 3 Binn. 175 (Pennsylvania Supreme Court, 1810); Bowles v. Sharp 7 Ky. 550; (Kentucky Court of Appeals, 1817) M’Conico v. Singleton, 2 Mills S.C. Const. R 244 (South Carolina Constitutional Court, 1818). Broughton v. Singleton, 2 Nott & McCord’s R. 338 at 340 (South Carolina Constitutional Court, 1820). James Childress against Francis McGehee; 1 Minor 131 (Alabama Supreme Court, 1823) Barton’s Lessee v. Shall, 7 Tenn. 214 (Supreme Court of Tennessee, 1823) Poindexter v. Henderson 1 Miss. 176 (Supreme Court of Mississippi, 1824) Fail and Nabb v. Goodtitle, 1 Ill. 201 (Supreme Court of Illinois, 1826) Seeley v. Peters, 5 Gilman 142 (Illinois Supreme Court, 1848); Conger v. Weaver, 6 Cal. 548 (California Supreme Court, 1856).
References
Act of February 5, 1813, 2 Stat. 797.
Act of April 12, 1814, 3 Stat. 121.
Act of May 29, 1830, 4 Stat. 420.
Act of January 23, 1832, 4 Stat. 496.
Act of April 5, 1832, 4 Stat. 503.
Act of July 14, 1832, 4 Stat. 603.
Act of March 2, 1833, 4 Stat. 663.
Act of June 19, 1834, 4 Stat. 678).
Act of September 4, 1841, 5 Stat. 453.
Barton’s Lessee v. Shall, 7 Tenn. 214 (Supreme Court of Tennessee, 1823).
Bowles v. Sharp 7 Ky. 550; (Kentucky Court of Appeals, 1817).
Broughton v. Singleton, 2 Nott & McCord’s R. 338 at 340 (South Carolina Constitutional Court, 1820).
Carson v. Blazer 2 Binn. 475 (Pennsylvania Supreme Court, 1810).
Cheney v. Ringgold, 2 H. & J., 87, 91 (Maryland Supreme Court, 1807).
James Childress against Francis McGehee; 1 Minor 131 (Alabama Supreme Court, 1823).
Commonwealth v. Powell, 8 Leigh, 719 (Virginia Supreme Court, 1837).
Conger v. Weaver, 6 Cal. 548 (California Supreme Court, 1856).
Constitution of Tennessee of 1796 http://teva.contentdm.oclc.org/landmarkdocs/transcripts/90.transcript.pdf
Constitution of Vermont of 1777. Laws of Vermont to 1807 (Randolph, Vt.: 1808), Vol. 1, pp. 204–8.
Fail and Nabb v. Goodtitle, 1 Ill. 201 (Supreme Court of Illinois, 1826).
Henderson’s Case 8 Gratt. 708 (Virginia Supreme Court, 1851).
Hening’s Statutes at Large, Vol. 9 (Richmond, 1821).
Lessee of Bonnet v. Devebaugh and Smith, 3 Binn. 175 (Pennsylvania Supreme Court, 1810).
M’Conico v. Singleton, 2 Mills S.C. Const. R 244 (South Carolina Constitutional Court, 1818).
Poindexter v. Henderson 1 Miss. 176 (Supreme Court of Mississippi, 1824).
Seeley v. Peters, 5 Gilman 142 (Illinois Supreme Court, 1848).
Black Hawk, Autobiography of Ma-ka-tai-me-she-kia-kiak, or Black Hawk, embracing the traditions of his nation, various wars in which he has been engaged, and his account of the cause and general history of the Black Hawk war of 1832, his surrender, and travels through the United States (Oquakwa, Ill.: J.b. Patterson, 1882).
Lund, Thomas, American Wildlife Law (Berkeley: University of California Press, 1980).
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Ress, D. (2019). Conclusion. In: The Half Breed Tracts in Early National America. Palgrave Pivot, Cham. https://doi.org/10.1007/978-3-030-31467-5_9
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