A fancy name for squatter’s rights
When an ancestor benefited from federal preemption laws, just what exactly was he getting — and why?
The Legal Genealogist is off deep into the federal land laws as the result of a reader question — and there will be more to come on that question — but realized quickly that the word preemption itself has very different meanings in the law, and only one of them applies here.
So let’s look at preemption in the different contexts where we might come across it as genealogists.
There are four definitions to the word preemption in the law:
• In U.S. law, it can mean “a doctrine in law according to which federal law supersedes state law when federal law is in conflict with a state law.”1 The Constitution makes federal law the supreme law of the land,2 so whenever there’s a direct irreconcilable conflict between laws, the feds win. We’ll come across that occasionally in genealogy, but it’s not the usual issue for us.
• In international law, it’s “the right of a nation to detain the merchandise of strangers passing through her territories or seas, in order to afford to her subjects the preference of purchase.”3 In other words, you bring that ship full of salt into our waters, and we make you sell it to us. But not an ordinary genealogical problem, for sure.
• In English law, it’s “the first buying of a thing. A privilege formerly enjoyed by the crown, of buying up provisions and other necessaries, by the intervention of the king’s purveyors, for the use of his royal household, at an appraised valuation, in preference to all others, and even without consent of the owner.”4 In other words, it was really good to be King. Especially in times of shortage. And also not the usual issue for genealogists. Unless you happen to be King.
• And back in the U.S., “the right of pre-emption is a privilege accorded by the government to the actual settler upon a certain limited portion of the public domain, to purchase such tract at a fixed price to the exclusion of all other applicants.”5
It’s that last one that we’re talking about when it comes to federal land laws, of course. The public domain, in this context, is all the land the federal government owned and hadn’t yet given or sold to a private owner.6 And how exactly would someone come to be an actual settler on such land?
Easy. It’s when you’re a squatter: “one who settles on another’s land, particularly on public lands, without a title.”7 And if you’ve got Scots-Irish ancestors, as I do, you’ve probably got squatters somewhere in your line.
The history of early American westward expansion is chock full of squatters — and conflicts between squatters and land owners, particularly land speculators. In Virginia, those who finished their terms of indentured servitude often squatted on “unclaimed land on the edge of settlement.”8 In Ohio, there was armed conflict between the early government and squatters, and in the 18th and 19th century, “many of the court cases in the Northwest Territory and then the state of Ohio involved land disputes between the actual owners of the land and the squatters.”9
By 1807, the problem had reached the point where a federal law made it a crime to squat on public lands and federal marshals or troops could be called out to remove the squatters, although it did provide that actual settlers could apply to be tenants at will of the government.10
More than once, what the Federal Government did when confronted with squatters, was extend what were called “pre-emption rights” — effectively giving legal recognition to squatter’s rights — and allowed those who’d settled on and built improvements on unsurveyed public lands the right to buy that land before it was offered to anybody else.
Starting with a law affecting only the Michigan Territory in 1807,11 and ending with the Preemption Act of 184112— which remained in effect for 50 years,13 Congress gave various groups of squatters this one legal leg up in acquiring good title to the lands on which they’d settled.14
Lots of people took advantage of the preemption laws to gain good legal title to land they’d settled on, built houses on, raised their families on, though homesteading became the system of choice after the Homestead Act was adopted in 1862.15
So don’t be surprised if you come across a preemption claim for your ancestors… and find that what they were doing was exercising squatter’s rights.
- Merriam-Webster Online Dictionary (http://www.m-w.com : accessed 15 Feb 2018), “preemption.” ↩
- U.S. Constitution, Article VI, Clause 2. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 925, “pre-emption.” ↩
- Ibid. ↩
- Ibid. ↩
- Ibid., 962, “public domain.” ↩
- Ibid., 1117, “squatter.” ↩
- “How Colonists Acquired Title to Land in Virginia,” Virginia Places, George Mason University (http://www.virginiaplaces.org/ : accessed 15 Feb 2018). ↩
- “Squatters,” Ohio History Central (http://www.ohiohistorycentral.org/ : accessed 15 Feb 2018). ↩
- “An act to prevent settlements being made on lands ceded to the United States, until authorized by law,” 3 Stat. 445 (3 Mar 1807). ↩
- See “An Act regulating the grants of lands in the territory of Michigan,” 3 Stat. 437 (3 Mar 1807). An earlier 1801 act giving preemption rights to people who bought land from John Symmes or his associates in the Northwest Territory wasn’t really for the benefit of squatters: these were people who’d actually bought rights to their land — but the man who sold those rights turned out not to be the legal owner. See 2 Stat. 112 (3 Mar 1801). ↩
- An Act to appropriate the proceeds of the public lands, and to grant pre-emption rights, 5 Stat. 453 (4 Sep 1841). ↩
- The Preemption Act was repealed in 1891. “An act to repeal timber-culture laws, and for other purposes,” 26 Stat. 1095 (3 Mar 1891). ↩
- See generally Kimberly Powell, “A Timeline of US Public Land Acts,” ThoughtCo.com (https://www.thoughtco.com/ : accessed 15 Feb 2018). ↩
- See “The Homestead Act of 1862,” National Archives, Teaching With Documents (https://www.archives.gov/education/ : accessed 15 Feb 2018). ↩