Lecture #18: Bounding Property: Survey and Sale

Suggestions for Further Reading:

Paul Wallace Gates, History of Public Land Law Development (1968). (Despite its uninviting title, this is the great narrative overview of the history of the public lands of the United States through 1968, an extraordinary act of synthesis. It's available as a PDF download from Hathitrust.

Sumner Chilton Powell, Puritan Village: The Formation of a New England Town (1963).

Hildegarde Binder Johnson, Order Upon the Land: The U.S. Rectangular Land Survey and the Upper Mississippi Country (1976).

Andro Linklater, Measuring America: How an Untamed Wilderness Shaped the United States and Fulfilled the Promise of Democracy (2002).

Bill Hubbard, Jr., American Boundaries: The Nation, The States, the Rectangular Survey (2009).

I. The 2016 Election

We won't speak about partisan politics today, though I do want to suggest that yesterday's results are something historians will be talking about for decades to come.

Notice patterns in maps of presidential elections by state since 1962: A pattern of regional alignments: Southern Confederate states (shifting from voting Democrat to voting Republican), New England, West Coast.

And notice patterns at the county level: An extraordinary rural/urban division has emerged over the past 30-40 years.

II. Bounding Property

My goal today is to talk about land as bounded stuff, about how boundaries get laid on landscape, particularly abou the boundaries that were established at the founding of this nation. How does land get bounded in private property? My goal is also to talk about jurisdiction: about how republicanism—the idea that a state should be organized by the will of its people, not by a political party, which yields the question of who should be included in that polity of landholders—has changed over time.

This is entirely a lecture about land, but it's also a lecture about property and the State.

Recall that different empires in North America had different ideas of how land should be bounded and distributed. Spanish landgrants from the 16th and 17th century shape how parts of New Mexico and California are carved up today. In New York, land and labor rights carved up by Dutch landgrants shape the proprety boundaries that, similarly, persist to today.

One of the themes of today is this: once a boundary gets created and inscribed on the landscape, it is not permanent but is pretty enduring over hundreds of years of time. We've looked at the long French Lots along the Mississippi River, and in Green Bay, Wisconsin.

Contrast this with the eastern United States, which was nowhere near as rigidly overseen by the English crown as was true in New France or New Spain. In New England, you would buy, say, 120 acres, hire a surveyor, and create a lot: the result were plots that look chaotic in an aerial view today, and lots where it was hard to ensure that boundaries were not overlapping. It is a way of bounding land made-to-order for creating conflict between neighbors.

In the 18th century, when the new American republic started looking for models of land surveys, it looked to New England. If you're interested in understanding more about colonial settlement in the north east, I highly recommend this work by Sumner Chilton Powell, which won the Pulitzer Prize for History in 1963: Sumner Chilton Powell, Puritan Village: The Formation of a New England Town (1963). To write the book, Powell studied every tract of land in Sudbury, Massachusetts. Powell mapped out each lot to show that each individual settler in Sudbury had the full array of needs mets by their allocations so that, say, one, member of the town would have several separate plots providing different functionalities. The problem was that this worked for the first generation, and maybe second generation of landholders, but it broke down over generations. That question of male land inheritance by non-eldest sons was one of the drivers of settlement in the western United States. So notice that the sexual assumptions and the age assumptions drove expansion.

One of the decisions that Powell uncovered was that later land divisions became more geometric, rather than being based on ecological functionality. So he tracked a movement from a way of thinking about land that was ecological and agriculturally functional to a more abstract way of thinking about land that was geometric. The Cartesian Coordinate System was being mapped onto the American landscape. One of the places you could first see this instantiated was in New Haven, Connecticut, set up in the 1630s.

So contrast these different set-ups: the rectangular survey, the French long lot, the "metes and bounds" survey that is likely more topographically or ecologically sensible, and the irregular rectangular system. All of these were different ways of surveying and bounding land.

With the American Revolution, the 13 colonies that decided to join the conflict yielded seven states that had claims to Western lands: New York (it claimed land wherever its Iroquois allies took scalps), Connecticut, South Carolina, North Carolina, Massachusetts, Georgia, and Virginia. All were claiming territory going west the Mississippi, and this was a set-up for conflict.

There were very few things that were more contested during the Articles of Confederation than what was going to happen to these western lands. Of the 13 original colonies, there were six states that had no Western lands; these six states were very worried that their political power would be undermined by larger states with greater populations enjoying greater Congressional representation. Those western lands looked like a ticking timebomb for greater claims to greater power to these six states.

The political gridlock was finally broken in January 1781, when Virginia agreed it will give up its western lands if it could retain enough to pay off its war veterans. So on March 4, 1784, the U.S. accepted the cession of Virginia's western lands.

The federal government has very few sources of revenue until the 1913 establishemtn of the income tax. Its two chief means of raising revenue until 1913 were the following: (1) the tariff—which is why import/export duties were so heated a topic in the 19th century; and (2) the sale of land owned by the federal government. Land sales were one of the most important sources of revenue that sustained the United States for the first 130 years of its existence. One way that the U.S. government paid soldiers was via "land scrip:" a piece of paper guaranteeing a certain number of acres to the holder. Soldiers would claim their land—or would sell their scrip to land speculating companies. That process of scrip-selling would drive the politics of land for a long time in this story.

The New England states gradually gave up their western lands. By the end of the 18th century, they had all ceded their western land to the Federal Government. Thomas Jefferson's vision of an "Empire of Libery" was of a republic sustained by small landowners, supported themselves on that land, where they were not forced to work for others and would not live in cities or factories. Individual landholders living on small farms scattered across the landscape: that was Thomas Jefferson's vision for who would constitute the backbone of America. Everything I'm about to narrate for you is in some way predicated on that vision.

Jefferson paid a crucial role in two laws passed in the 1780s that were as important to the history of the U.S. as the Declaration of Independence and the Constitution. Jefferson wanted any new states joining the United States of America to be free-standing republics. Here is Jefferson's sketchmap of the 14 states that would come into being that would be scattered across the Western landscape. How would that vision come into being? Via these two laws:

  1. The Ordinance of 1785 (the 1785 Land Ordinance)
  2. The Ordinance of 1787 (the Northwest Ordinance).

I'll speak about these two laws in reverse order.

III. The Ordinance of 1787:

The Ordinance of 1787 stated that there would be three stages that a territory wanting to join the United States as a state, would need to go through:

1) Congress establishes territory; President appoints territorial Governor and 3 judges with Congressional approval; Governor serves as Indian Superintendent and Chief of Militia; no legislative assembly at first.

2) When population became greater than 5000 free white men: territorial legislature takes over legislative duties from judges; Governor has veto and can dissolve assembly; bicameral legislature with lower house elected by property holders, upper appointed by Governor  and Congress; representative to Congress with no vote; no citizen participation in elections.

3) When population became greater than 60,000 free white men: Congress passes enabling act directing the taking of a census and the calling of a constitutional convention; ratification of state constitution; election of state officers; Congress votes to approve new constitution; President signs; new state representatives seated.

This process was first applied to the territory called "the Northwest Territory," the territory north of the Ohio river, which includes the state of Wisconsin today. The federal governmen at the time was taking account of several general considerations for Northwest Territory:

1) 3-5 states to be created

2) No interference with federal land disposal

3) No taxes on federal land

4) Bill of rights in territory: religion, jury, common law

5) Territorial officials paid by federal government

6) Territory responsible for paying its debts

7) No higher taxes for non-residents (protected interests of land speculators)

8) Slavery prohibited north of Ohio River [Recall: that's what Justice Taney would overturn in the Dred Scott case in 1857.]

So: that was the blueprint for all of the United States. All of the United States flowed from that document, which meant that it was a crucial document for understanding the founding of the U.S.

Wisconsin finally entered the United States as a state in 1848; the creation of its state boundaries is incredibly complicated and very interesting, but I'll let you look up that story yourselves.

III. The Ordinance of 1785:

This is an ordinance for a survey of public lands owned by the federal government. It is a surveyor's law: a surveyor using compass and chain (also known as Gunter's Chain, introduced in 1620, that is 66 feet long). 10 square chains is an acre. It is that set of units that are going to mapped onto territory west of the Ohio River. The goal was to take these lands that had been ceded by the States (and, in theory, by native peoples, or based on the assumption that their land right would be extinguished prior to surveying). Initially, the lands were going to be surveyed and sold to speculators in 36 square mile units (6 miles on a side). Surveyors would then divide those townships of 36 square miles into 36 units. Over time, these 36 units within the township were divided into even smaller units for people of even fewer means.

There were problems with this system. Recall, this was a system of square grids dropped onto a round earth. Ohio is the place to see the effects of this surveying best: if we look at aerial photography today, we can see the distinction between surveying via ordinance vs. survey metes and bounds.

Now think about the consquences of this grid: rectilinear fields, field boundaries, section lines that go marching across the landscape that are still visible today. Very big trees can bee seen in the middle of fields or off on the quartermarkers of fields. Fence lines going straight up hillsides can cause erosion until contour plowing became a phenomenon in the 1930s and 1940s.

I'll leave you with this one final example of bounding land and the effects of surveying: The railroad landgrants. The railroads were given lands in a checkerboard patterns, which has enormous consequences in the landscape today. Their ecological imprint on the landscape today is astonishing and is an ecological nightmare. Take Cottage Grove, Oregon. Trying to reassemble the grid in this space for, say, wildlife corridors not organized in neat rectilinear fashion is a nightmare.