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LAW AND THE CONDITIONS OF FREEDOM IN THE NINETEENTH-CENTURY UNITED STATES JAMES WILLARD HURST THE UNIVERSITY OF WISCONSIN PRESS ~~ The University of Wisconsin Press 2537 Daniels Street Madison, Wisconsin 53718 3 Henrietta Street London WC2E &LU, England Copyright © 1956 Northwestern University Copyright renewed 1984 James Willard Hurst All rights reserved Printings 1956, 1964, 1967, 1971, 1975, 1979, 1986 D4 3) 2 Printed in the United States of America Library of Congress Cataloging-in-Publication Data Hurst, James Willard, 1910- Law and the conditions of freedom in the nineteenth-century United States. Includes bibliographical references and index. 1, Law—United States—History and criticism. 2. Sociological jurisprudence. I. Title. KF366.H87 1986 349.73 56-9304 ISBN 0-299-01360-X 347.3 ISBN 0-299-01363-4 (pbk) THE RELEASE OF ENERGY INE day in February of 1836, in the scarce-born village of Pike Creek on the southeastern Wisconsin shore of Lake Michigan, Jason Lothrop—Baptist minister, schoolteacher, boarding house proprie- tor, and civic leader—set up on a stump a rude press of his own construc- tion and with ink which he had made himself printed a handbill setting forth the record of the organizational meeting of “The Pike River Claim- ants Union . . . for the attainment and security of titles to claims on Government lands.” The settlers whose Union this was had begun to move into the lands about Pike Creek beginning in the summer of 1835. They were squat- ters; put less sympathetically, they were trespassers. They might not ~ lawfully come upon the lands before the federal survey was made, and this was not completed in this area until about February 1, 1836; they might not make formal entry and buy until the President proclaimed a sale day, and Presidents Jackson and Van Buren withheld proclaiming these newly surveyed lands until 1839; they might not establish claims by pre-emption, for the existing pre-emption law expired by limitation in June, 1836, and was not immediately renewed because of objections to speculators’ abuses. These were formidable legal obstacles. The settlers’ reaction tells us some basic things about the working legal philosophy of our nineteenth-century ancestors. Jason Lothrop recalled twenty years later: Much conilicting interest was manifest between the settlers, from the first, in making their claims. Some were greedy in securing at least one section of 640 acres for themselves, and some as much for all their friends whom they expected to settle in the country. Before the lands were surveyed, this often brought con- fusion and disputes with reference to boundary lines, and still greater confusion followed when the Government surveys were made in the winter of 1835-36. These contentions often led to bitter quarrels and even bloodshed. ~~ The settlers met several times to discuss the need of a more orderly frame- work within which growth might go on. Finally their discussions pro- 3 4 Law and the Conditions of Freedom duced a meeting at Bullen’s store in Pike Creek on February 18, 1836, where they adopted the constitution of their Claimants Union. They created the office of Clerk and set the terms on which claims might be — recorded with him, and they established a Board of Censors to adjudicate claims disputes. Through the turgid grandiloquence of their Constitution’s preamble shows a pattern of attitudes and values which explains much about nineteenth-century law in the United States, reaching to concerns far greater than those of the tiny frontier village. ‘Whereas, a union and co-operation of all the inhabitants will be indispensably necessary, in case the pre-emption law should not pass, for the securing and protecting of our claims; And whereas, we duly appreciate the benefit which may result from such an association, not only in regulating the manner of making and sustaining claims, and settling differences in regard to them, but in securing the same to the holders thereof against speculators at the land sale; and being well aware that consequences the most dangerous to the interests of settlers will follow, if such a union be net formed; and as Government has heretofore encouraged emigra- tion by granting pre-emption to actual settlers, we are assured that our settling and cultivating the public lands is in accordance with the best wishes of Cov- ernment; and knowing that in some instances our neighbors have been dealt with in an unfeeling manner, driven from their homes, their property destroyed, their persons attacked, and their lives jeopardized, to satisfy the malignant dis- position of unprincipled and avaricious men; and looking upon such proceed- ings as unjust, calculated to produce anarchy, confusion and the like among us, destroy our fair prospects, subvert the good order of society, and render our homes the habitations of terror and distrust—those homes, to obtain which we left our friends, deprived ourselves of the many blessings and privileges of so- ciety, have borne the expenses, and encountered the hardships of a perilous journey, advancing into a space beyond the bounds of civilization, and having the many difficulties and obstructions of a state of nature to overcome, and on the peaceable possession of which our all is depending; We, therefore, as well meaning inhabitants, having in view the promotion of the interest of our settlement, and knowing the many advantages derived from unity of feeling and action, do come forward this day, and solemnly pledge ourselves to render each other our mutual assistance, in the protection of our just rights... 2 Frontier communities have often been described as “lawless” or at Jeast careless of law. It is too glib a characterization. True, the Pike Creek story was typical of many in the settlement of the Mississippi Valley. Fror the survey Ordinance of 1785 on, squatters settled large areas of tho” The Release of Energy 5 wublic lands in defiance of law, ahead of official survey, without color of title other than that created by the impact of a popular feeling that would not be denied. At government auctions, they assembled in force unlawfully to frighten off free outside bidding and prevent competition from forcing any of their company to pay the public land office more than the legal minimum to regularize his holdings. But, as at Pike Creek, while they waited for the public sale day, these settlers all over the central and midwestern states set up local governments in the form of “claims associations,” elected officers with whom to record their land claims and from whom to obtain decisions of conflicts, and then generally abided among themselves by these records and decisions. Often unlawful in origin, settlement nevertheless quickly brought effective demand for law. The preamble of the Pike Creek Claimants Union reflects in miniature two working principles by which we organized the relations of legal order and social order in the nineteenth-century United States. I speak particularly of “working” principles, principles defined and expressed primarily by action. It is in this aspect that the Pike Creek document is most relevant to our purpose. For these essays seek to understand the law not so much as it may appear to philosophers, but more as it had meaning ~~ for workaday people and was shaped by them to their wants and vision. Of course, this is not the only viewpoint from which to appraise the legal order. Nor is law that is formed largely by the imperatives of action neces- sarily the best law. We are simply trying one angle of vision provided by history for the distinctive reality it may disclose. Whatever its limitations, it is a point of view warranted by the central principle of our legal order, that law exists for the benefit of people and not people for the benefit of Jaw, Such a legal order cannot in the long run be true to itself and at the same time be better than the values or vision of its beneficiaries. More- over, emphasis on “working” principles seems peculiarly in point when we are trying to understand ourselves. Our history amply validates Tocque- ville’s observation that we have been a people not given to general theory; one usually senses that he is closer to apprehending the decisive faiths and beliefs of our nineteenth-century ancestors when he reads these out of what they did and said as they acted, rather than out of their self- conscious philosophizing. The base lines of nineteenth-century public policy implicit in the Pike Creek document are three: (I) Human nature is creative, and its meaning lies largely in the expression of its creative capacity; hence it is ~ socially desirable that there be broad opportunity for the release of crea- tive human energy. (II) Corollary to the creative competence which

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