Monday, August 20, 2012

The Preemption and Homestead Acts - Ellen O'Connell


Among the things I researched for the new romance I hope to have out in September was the Homestead Act of 1862. My guess is everyone who reads here is like me and has some knowledge of the act and of homesteading, but facts I turned up in my research surprised me and of course started me digging deeper.

Where I was wrong was in a romantic notion that the Homestead Act sprung full blown as a unique idea in the middle of the Civil War. In truth the Act was the culmination of a long  series of laws passed from the time of the Revolution attempting to deal with transfer of the millions of acres of the Louisiana Purchase and other public lands to private hands.

Hard as it may be to believe in these days of political amity, policy changed as the government of the time changed hands from one party to the other. Early on the government sold public lands in parcels of no less than 640 acres at a price no less than $2 an acre. What this meant was wealthy speculators bought the large parcels and made fortunes dividing it into smaller parcels and selling those. (Things just don’t change over the centuries, do they?)

Over time, pressure grew to allow purchase of smaller and smaller parcels for smaller sums. The full section (640 acres) fell to 320 acres, to 160, and even to 40. The price fell to $1 an acre.

Pressure also grew to allow squatters, individuals who forged ahead onto public lands, often before they were even surveyed, to purchase the land. So Congress passed a series of “preemption” laws allowing just that until in 1841 it passed a general preemption law allowing settlers to acquire title to land they squatted on by meeting certain conditions. The settler had to be:
  •     a "head of household" or a single man over 21, or a widow;
  •     a citizen of the United States (or a non-citizen intending to become naturalized); and
  •     a resident of the claimed land for a minimum of 14 months.
The settler also had to pay the government a purchase price of at least $1.25 an acre, which increased to as much as $2.00 an acre in some circumstances. Eventually a graded scale was introduced pricing by desirability of the land and some land was priced as little as 12½ cents an acre (desert anyone?).

So the Homestead Act of 1862 followed in the footsteps of the preemption laws. It allowed a settler to claim 160 acres for a filing fee of $18. Requirements resembled those of the Preemption Act but were expanded, so the homesteader had to be:
  •      a "head of household" or a single person over 21;
  •      a citizen of the United States (or a non-citizen intending to become naturalized);
  •     live on the claimed land for five years and make prescribed improvements.
The residence required had to be at least 12 by 14, which tells you the size of most of those sod houses described in a recent blog.

There were some twists on this law, which was, remember, passed in the middle of the Civil War. Anyone who had borne arms against the United States was not eligible. (Former Rebel Matt Slade in my romance Sing My Name could not have homesteaded.) Those who served in the Union armies could get credit against the five-year residence requirement. Freed slaves were eligible.

Harking back to preemption (and the Preemption Act stayed in effect after passage of the Homestead Act), title could also be acquired after a 6-month residency and the required improvements, provided the claimant paid the government $1.25 per acre.

The Homestead Act was of course riddled with all sorts of political conflict. New England states were against it fearing loss of cheap labor. Southerners opposed it for fear the lands would be settled by anti-slavery elements. The Act passed when it did because after secession, Southern representatives and senators weren’t there to stop it.

The Preemption Act was repealed in 1891. The Homestead Act was modified by other acts over the years until it was repealed as to the lower 48 states in 1978 and as to Alaska in 1986.

The Act was one more weapon in the government’s arsenal to subdue native tribes by taking their land, and it was certainly a success there. In a time when women couldn’t serve on juries or vote, they could, and did, homestead and acquire land in their own name, which must have increased economic power for at least some women.

Only 40% of all homestead claims were “proved up” and the homesteader given title, and there was considerable abuse and corruption surrounding the act, leading to it being referred to by some as a “magnificent failure.” However, 10% of all U.S. lands were settled under these acts, which doesn’t seem much like a failure to me.

Oh, and the book that required me to look into the Preemption and Homestead Acts? It’s titled Beautiful Bad Man, and I hope to have it out in September.

The photo above is of a South Dakota homestead and is by Chitrapa (Creative Commons license).

15 comments:

Caroline Clemmons said...

This was an informative post. I didn't realize that at one time homesteaders had to pay for land by the acre. Thanks for sharing your research. I'll be looking forward to your new release.

Lyn Horner said...

Another keeper, Ellen. Thanks for sharing your research. Oh, and I love the title of your WIP!

Devon Matthews said...

Great info, Ellen. I also didn't realize homesteads eventually had to be paid for. The whole concept has always been a little confusing to me because of the different laws at different time periods. What really surprised me is that it wasn't done away with until 1978. When I lived in Texas, there was something about the land laws, but I never did get the straight of it. A person could file their property as a homestead and it gave you added protection in certain ways, but I never did look into it because it was something current and not historical, I guess. ;)

Ellen O'Connell said...

Hi ladies, If I gave the impression homesteads had to be paid for, I wasn't clear. These were 2 separate paths: (1) settlers who used the Preemption Act had to pay for the land, (2) settlers who used the Homestead Act didn't have to pay except for filing fees.

So before 1862, a settler would have to get his title through preemption and both meet the requirements and pay. After the Homestead Act was passed in 1862 much less land was acquired through preemption and more chose to use the Homestead Act. Under the Homestead Act a settler COULD pay instead of meeting the five-year residency requirements.

@Devon - The only current benefit as to "homestead" I know of is in bankruptcy law where you're allowed to keep a certain amount of equity in your house as a homestead exemption. It was very low when I dealt with it (working for a lawyer who did bankruptcy work decades ago). There were always other ways to acquire the land by paying - land speculators acquired large tracts from the government and resold in parcels and the railroads sold the huge tracts they were given as lures to get them to extend service west. Even in the homesteading era, some people paid for railroad land because they got a certain amount of support from the railroad companies.

@Lyn - Thanks. Unlike others where I agonized the whole time I wrote and afterwards over the title, this one just popped out early on, and I never felt any doubts about it.

Ramona Lockwood said...

Great information. A few years ago I research the ownership of the 100+ year old farm I live on and it was originally owned by the Railroad Co.

Ellen O'Connell said...

Hi Ramona - That's interesting (both that you did it and what you found out). Is there a rail line near your property? I know the railroad companies were given full sections of land alternating on each side of the routes, but I don't know if they were given other land or if they were, say, allowed to keep land along routes they never actually developed.

Ginger Simpson said...

Very informative and interesting. Thanks for sharing.

Jacquie Rogers said...

It's great to have all this information in one spot. Thanks so much, Ellen. I knew some but not all, so it's always good to get the big picture. As for the 12x14 houses--my office is 12x15. Good grief. And to think a family with multiple children would be living in a space that won't even hold all my books and stuff. I'm such a wuss.

Ellen O'Connell said...

You do have to wonder how those big families made it through winters in such small houses. It would be standing room only, and you'd think they'd kill each other by spring, but I suppose they grew up like that and tolerated it in ways we wouldn't.

Ramona Lockwood said...

There were many tracks around here, but about 15-20 years ago they started converting them to bike trails, ATV trails, and snow machine trails. Now there are very few tracks left and they are used for historic train rides. The closest one to our property is several miles. I was looking at some plat maps from the late 1800s and the railroad company owned almost everything. I'm in Northwest Wisconsin (near the Minnesota border). They must have gobbled up all the land and then sold what they decided not to use.

My husband and I think they should have left the tracks in place and we should use trains for transporting heavy items (lumber, etc.) instead of trucking everything (fuel is expensive, it's hard on the roads, and fuel is non-renewable). I'm sure they could retro fit some trains to use solar panels, or some other renewable resource. I grew up in a town dominated by trains and our mascot is the "Railroaders" or the "Rails" for short. It was a vital part of the community I grew up in and as I grew older I watched them fade away.

Ramona Lockwood said...

They were tough back then! We have the foundation from the original homestead on our property. The house was about as big as a modern day bathroom or a very small bedroom. Attached was a very small barn. The animals were part of the family! We had two other old sheds, but one fell down. The only building that has survived 100+ years besides the house we live in right now is the outhouse, and it still works!!!

mesadallas said...

I guess I didn't know as much about the rules of homesteading as I thought. I know many ex-confederate soldiers made their way west as a means of starting over after losing everything in the war. I just assumed they were able to homestead.

Troy D. Smith said...

Very well done. I taught about this in my environmental history class last spring, but my lecture didn't provide this much detail :-)

Ellen O'Connell said...

@Ramona - That's interesting info. I was raised in NJ, and there were unused train tracks threaded through our towns too. We used to ride our horses along them. When I was a girl, I remember my mother and grandmother taking me for a train ride, saying they wanted me to have the experience while it was still possible. Of course, they were wrong, and it's still possible to take train rides.

A lot of freight does still get moved by rail. Here in Colorado, if you get near a rail line, you see freight trains regularly.

Also here in Colorado you sometimes see the tiny old houses off by the sides of some roads, empty and deserted. However, to my surprise there is still a sod house on the tax rolls, privately owned, here in Colorado. From the photos, it has had a lot of work. It looks like stucco on the exterior now.

@mesadallas - I learned in my research for Sing My Name that ex-Confederates were banned from taking part in a lot of civic activities, such as holding office and serving on juries. How long it lasted and how severe it was seems to have been a region by region thing (the South was divided into regions administered separately), but of course the Homestead Act was federal and was passed in the middle of the war. I never looked to see if subsequent amending acts removed that provision but even if so, it would have been after Reconstruction ended. In the 1862 Act it made no difference whether the individual took the loyalty oath at the end of the war or was "unreconstructed," it simply forbids anyone who ever bore arms against the government from filing a homestead claim. Since the local land offices would have no databases of Confederate soldiers, you have to wonder if some simply lied afterwards, but I think people tended to take things like oaths a lot more seriously than our relatively decadent modern society.

There were other ways the ex-Rebs could have gotten land. The Preemption Act, passed long before the war, didn't have such a provision, and they could have bought from the railroads or from land speculators or from homesteaders who proved up and then sold. And of course I'm sure a lot of people just squatted in the big empty lands and never worried about title.

@Troy - Thank you.

Cheri said...

I'm a little slow on the draw, but glad I got to your post. You sure did your research, very informative. Didn't know it wasn't abolished until 1978. You can bet I'll be in line to buy Beautiful Bad Men - great title!