| All interpretations of nineteenth-century American legal history include a central assumption: that the basic theory of American property law, derived from the English common law, gave the title owner of land total control over the uses of land. This study challenges that assumption. Fence laws required owners of land to fence or suffer livestock to trespass onto the fields. Every colony adopted some form of fence law and forced landowners to fence in order to acquire dominion over the land. In the Southern colonies and states these fence laws developed into a full-scale open range property regime. The southern plain folk developed a culture based on extensive use of this legally protected range. Under this set of laws, anyone could use unfenced lands for hunting, gathering or livestock grazing. Some even timbered and cultivated unclaimed lands.;This study chronicles the rise and fall of the open-range property regime in the South. Starting from the colonial laws protecting free-ranging livestock, the open range emerged as the dominant property law concept of the antebellum years. In these years, planters and railroads had no success in wresting control over their unfenced land from the plain folk. Attacks on the range, both by landowners claiming their common law rights to control land usage and by railroads claiming the mantle of progress, merely served to strengthen Southern court's and legislature's commitment to the open range.;After war and reconstruction, however, the emerging New South elite of planters, merchants and industrialists began an aggressive attack on the open range. With the ebbing of plain folk political power, especially after disfranchisement, the prerogatives of the range were gradually taken from them. The vigor of the open range system and the tenacity with which the southern plain folk fought to keep it, require us to re-evaluate our presumptions about nineteenth century law and society, particularly claims about upperclass dominance of the law. |
PDF Full Text Request