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 remains the best single volume summarizing this topic, and is available as a free PDF download from Hathitrust:
https://babel.hathitrust.org/cgi/pt?id=uc1.32106000891595
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).
Irene D. Lippelt, Understanding Wisconsin Township, Range, and Section Land Descriptions (revised edition, 2002). A helpful 4-page handout from the Wisconsin Geological and Natural History Survey explaining how the public land survey works in Wisconsin, available for free download here:
https://wgnhs.uwex.edu/pubs/es0442002/
Wikipedia has an extensive entry on the Public Land Survey System of the United States that does a good job of summarizing a number of the major themes of this lecture, with very helpful maps accompanying it. Highly recommended for review:
https://en.wikipedia.org/wiki/Public_Land_Survey_System
Given their importance to all subsequent legal records relating to real property ownership in much of the United States, the records of federal land sales have been digitized to an unusually great extent. You can access many of them through the Bureau of Land Management's website at
https://glorecords.blm.gov
For Wisconsin, the original notes of made by the first federal surveyors in the state can all be accessed on this website:
http://digicoll.library.wisc.edu/SurveyNotes/
You might try checking out a place you know well to see what it looked like to the first surveyors.
There's also an excellent page on the website of UW-Madison's Lakeshore Nature Preserve curating and interpreting the original land survey records for Picnic Point and other parts of the Preserve. It's a great place to get a sense of the powerful ways these records can be used:
https://lakeshorepreserve.wisc.edu/original-land-survey-notes-for-the-lakeshore-nature-preserve-vicinity-december-1834/
My goal today is to talk about land as bounded stuff, about how boundaries get laid on landscape, particularly about the boundaries that were established at the founding of this nation. How does land get bounded into 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 monarch, which yields the question of who should be included in that polity of landholders (as the polity was originally conceived)—has changed over time.
This entire lecture is about land, but it's also about property and the State.
Recall that different empires in North America had different ideas of how land should be bounded and distributed--which were also different ideas about individuals, community, and the state. Spanish land grants from the 16th through 18th centuries shape how parts of New Mexico and California are still divided today. In New York, land and labor rights established by Dutch land grants shape proprety boundaries that also persist today. Spanish and Dutch grants of land tended to be very large, establishing the quasi-feudal relationships between landlords and tenants that the elites receiving such grants expected to rely on in generating income from their lands. As we've seen, the linear, river-fronting long lots of New France were focused more on facilitating trade and transport from smaller farms situated along major waterways like the St. Lawrence and the Mississippi. Very different social assumptions were articulated in these patterns of land allocation.
One of today's themes is this: once a property boundary gets inscribed on the landscape, it may not quite be permanent, but it is pretty enduring, often decades and even centuries. Another theme is that systems of land survey and distribution (sometimes referred to as "cadastral systems") often an embody social and political visions of how landowners and communities should relate to each other and to the state. Trying to decide the appropriate land system for the new United States would be among the biggest challenges facing the new republic, and that's a big part of the story I want to tell today, along with the legacies that story has left scattered across the American landscape.
https://en.wikipedia.org/wiki/Cadastre
https://en.wikipedia.org/wiki/Cadastral_surveying
We've already seen that in the English colonies that would eventually become the United States, the Crown was remarkably laissez-faire in what it permitted for land surveys and transactions in different colonies. In the southern colonies, for instance, the typical survey method was called "metes and bounds."
https://en.wikipedia.org/wiki/Metes_and_bounds
Under this system (if it deserves to be dignified by that name), you could go to a courthouse and purchase the rights to, say, 120 acres of land, hire a surveyor, and trace on the ground boundaries that contained within them your allotted 120 acres. Metes and bounds resulted in plots that look chaotic today in an aerial view, since different purchasers conducted their surveys indepedent of one another. It was very difficult to ensure that boundaries were not overlapping. It is a way of bounding land made-to-order for creating conflict between neighbors...and future lawsuits!
The situation was very different in New England, where the communal settlement processes encouraged by Puritan church organization led to the systematic distribution of lands by individual towns to the male heads of household who were their chief citizens. Different towns adopted different approaches for doing this, partly depending on which part of England they came from (one key difference was the extent to which they allocated common lands for collective use, something that varies a good deal across different parts of England).
If you're interested in understanding more about how this process of land distribution worked in New England at a fine-grained level, a good place to start is the classic book 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 the history of 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 met by their allocations so that, say, one, member of the town would have several separate plots providing different functionalities: house lot, cropland, pastureland for grazing, meadowland for mowing hay, woodlot. The problem was that this worked best for the first generation of collonists, and perhaps for the second, but it began to break down as the best arable land became scarcer with each succeeding generation. Eventually, some residents (often younger sons) felt compelled to look elsewhere for land. The question of male land inheritance by non-eldest sons (in a system of primogeniture where the oldest son inherited most or all of a family's property) became one of the drivers of western settlement in the United States. Legal rules governing the inheritance of property relative to gender and age helped shape movement onto new land.
One of the decisions that Powell uncovered was that later land divisions became more geometric, moving away from earlier divisions of land that had tended to emphasize ecological attributes relative to potential agricultural uses. 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--"the grid"--was beginning to be mapped onto the American landscape. Among the places where the grid made its first appearance for laying out a town was New Haven, Connecticut, first platted in 1638 by a group of colonists breaking away from Massachusetts Bay in hopes of establishing a community in which the church would play a more central role in the government.
Think about the implications of the different land systems we've seen thus far:
Of the 13 colonies that participated in the American Revolution, seven of the states that emerged afterwards laid claim to Western lands:
All these states claimed territory going west the Mississippi, which laid the stage for significant conflict. But that wasn't all. Crucially, six of the 13 new states had no western land claims: Rhode Island, Pennsylvania, Delaware, New Jersey, New Hampshire, and—most important of all—Maryland. When the states met in 1777 to ratify the Articles of Confederation, the original draft said that no state would be deprived of territory by the new United States. The six states without western lands were 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.
As a result, Maryland refused to sign the Articles of Confederation until the issue of western lands was resolved. By some interpretations, this was a disinterested act of patriotism on behalf of the new nation. By other interpretations, it reflected the fact that a powerful group of land speculators (including the governor and two representatives to Congress) dominated the state's politics and had strong self-interested reasons for wanting the western lands to be resolved for their own benefit.
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 (while also trying to block private speculators like those in Maryland from gaining access to private grants they had acquired by negotiating directly with tribes in the West). So on March 1, 1784, the U.S. accepted the cession of Virginia's western lands.
A feature of the early republic that we tend to forget is that the federal government had very few sources of revenue until 1913, with the establishment of the income tax by the 16th Amendment. Its two chief means of supporting itself until 1913 were the following: (1) the tariff—which is why import/export duties were often such a heated a topic in the 19th century; and (2) the sale of public 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. For instance, 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 either claimed their land—or sold their scrip to companies of land speculators who then used the scrip to assemble large parcels of real estate for themselves. This process of scrip-selling would drive the politics of land for a very long time in the nineteenth-century United States.
The New England states gradually gave up their western land grants as well. By the end of the 18th century, they had all ceded their western land to the federal government, the most important of which for our purposes--because it set the stage for all subsequent land policy in the United States--lay northwest of the Ohio River in what came to be called the Northwest Territory. Here's a useful overview map of the process whereby these western lands were ceded to create the federal public domain:
https://commons.wikimedia.org/wiki/File:United_States_land_claims_and_cessions_1782-1802.png
Thomas Jefferson's envision the new United States as an "Empire of Libery" whose republican virtues could be protected by its abundance of land if ownership of that land were widely distributed among its (white male) citizens. Properly distributed, western lands could guarantee for the United States:
Jefferson's vision of yeoman democracy 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 the citizens he believed would constitute the backbone of America. Everything I'm about to narrate is in some way predicated on that vision.
Jefferson played a crucial role in helping author two laws passed during the 1780s that I believe were no less important to the history of the United States (and especially the history of the American landscape) 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 sketch map of the 14 states that would come into being that would be scattered across the Western landscape, along with the report he submitted for how the western lands could be divided into territories that would eventually become states in their own right:
https://founders.archives.gov/documents/Jefferson/01-06-02-0420-0001
(scroll down to see his maps)
How would that vision come into being? Via these two laws:
I'll speak about these two laws in reverse order.
The Ordinance of 1787 stated that there would be three stages that a territory seeking to join the United States as a new 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 that 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 were 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 by arguing that the property rights of slaveowners could not be infringed anywhere in the United States.]
So: that was to be a blueprint for the entire United States, including all the future new states taht might join that federation. All of the United States flowed from that document, which makes it a crucial document for understanding the founding and expansion 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. Try this interactive map if you're interested:
https://publications.newberry.org/ahcbp/map/map.html#WI
You can track these county-by-county changes for the entire country using this astonishingly detailed website:
https://publications.newberry.org/ahcbp/index.html
The other great law passed in the middle of the 1780s that is arguably among the most important every written for its impact on the American landscape is the great Land Ordinance of 1785, which laid out the rules for surveying the western lands prior to their being put up for sale by the federal government (through the work of the General Land Office, forerunner of the modern Bureau of Land Management).
The 1785 Ordinance is a surveyor's law, offering instructions for how the American wilderness was to be subdivided into the square-mile units of the grid. The chief tools for accomplishing that task were a compass and a chain of iron links known as Gunter's Chain, invented by the English mathematician Edmund Gunter in 1620.
https://en.wikipedia.org/wiki/Gunter%27s_chain
Gunter's chain measures 66 feet in length. 80 chains stretched end to end make 5280 feet--which, if you've ever wondered, is how the modern mile came to have the length it does. 10 square chains make an acre--another unit of measure we all know without having a clue where it came from. One square mile contains 640 acres.
It is this set of units that the 1785 Ordinance used to lay a square-mile grid onto the new federal territories west of the Ohio River. The goal was to take these lands that had been ceded by the eastern states (and, in theory, by native peoples as well, or at least based on the assumption that their right to such land would be extinguished before surveying began). Initially, the lands were 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 each one mile square. Over time, these 36 units within the township were to be divided into even smaller units for people of even smaller means. A quarter section, for instance, was 160 acres, the amount of land that would be made famous by the Homestead Act of 1862.
There were inevitably problems with this system. For instance, remember that this was a system of square grids being dropped onto a spherical earth. Because the square-mile grid can't actually fit the curve of the Earth's surface, "correction lines" must be introduced to the U.S. survey system on a regular basis to keep the lines running reasonably straight. Surveyors working in the field also encountered obstacles everywhere they went, and sometimes just introduced mistakes of their own, so that the lines they surveyed don't always run true.
Still, the consequence of the 1785 Ordinance was to make the checkerboard grid the nearly universal norm of the American landscape west of the Ohio River, except in places where prior land systems (for instance, those of the Spanish or the French) had already laid their patterns on the land. Ohio is a great place to see these surveying differences on the ground: if we look at aerial photography today, we can instantly see areas that were surveyed according to Virginia's metes and bounds system as opposed to the grid of the 1785 Ordinance:
https://goo.gl/maps/Dcr8s1cGQR62
In this view, north of Prospect, Ohio, the area in the upper-right-hand corner was surveyed according to the grid; the area on the left-hand side was surveyd according to the metes and bounds system of the land Virginia reserved to survey for paying its Revolutionary War soldiers. The straight north-south line of Highway 203 north of Prospect follows the western edge of the grid; the lands to its west are irregular metes-and-bound survey lines.
The consquences of the grid for the American landscape have been innumerable:
All of these and many more are all still visible in the grid today.
I'll leave you with this one final example of bounding land and the effects of surveying: The railroad land grants. The railroads were given lands in checkerboard patterns, with the idea that they could sell off land along their routes to pay for their own construction. By doubling the price of sections in the checkerboard, the federal government at least in theory wouldn't lose any revenue from having made the land grant.
https://en.wikipedia.org/wiki/Checkerboarding_(land)
These checkerboard land grants have enormous ecological consequences in the landscape today, since they divide natural ecosystems into the wholly artificial cells of the grid. Peruse the lands around Cottage Grove, Oregon, and you'll get an idea of the impacts:
https://goo.gl/maps/yY565jaz3tF2
Trying to reassemble the alternating cells of private agricultural and public forested land in this gridded landscape--to create, for instance, wildlife corridors that aren't organized in a neat rectilinear fashion--is truly a nightmare.