A Study Of Land Legislation In Early American West: From The Perspective Of Legal History,1785-1841

Since the mid-nineteenth century,the study of early American legal history had always been deeply influenced by the myths of “liberal constitutionalism” and “weak state”,which resulted from the theory of “stateless society” that was put forward by many famous European social theorists.Most of the American scholars believed that legislative regulations of early America existed at the lowest level,which made no substantive progress to social development.As a nation composed by autonomous groups and marketing organizations,the early history of America had just been simplified as a history of liberty aimed to pursuit individual rights without interference of laws.From the 1980 s,the scholars of American Political Development(APD)tried to "bring the state back in",which made the study of federal regulation in the center in American academics.However,though the American Political Development School successfully challenged the outdated narrative,they were still confined in the theoretical paradigm rooted in European traditions.More importantly,most of them neglected the significance of western territories in the development of America legal history.As the most vital means of production in agricultural society,the public lands become the hottest topic in western legislation and practice.The Northwest Ordinance established a "republican tutelage" regime in early American west,which gave the federal government absolute authority on western legislation.The Land Ordinance of 1785 laid the legislative foundation for the management of the western lands,carrying out principles of “block sale”,“competitive auction”,“measuring before selling” and “no preemption”,which put the pioneers in a very disadvantageous position.With the development of the western politics,the land legislation experienced a tremendously democratic change in early America history.From the Land Ordinance of 1785 to the Land Ordinance of 1832,from the act prohibiting unauthorized settlement of 1807 to the Preemption Act of 1841 and Graduation Act of 1854,the democratization of land legislation had significant influence on early American legal history.The perspectives of both the national law and custom law are indispensable to examine the reason why the reform happened.On one hand,the viewpoints of the leading politicians and parties directly determined the context of all the land legislations.On the other hand,the pioneers founded their voluntary associations under the banner of custom law and natural law,which promoted the democratic reform of land legislation immensely.From the perspective of national law,there are two distinct viewpoints on the public land legislations,political-building in America west and state-building,which is also named "Hamilton-Jefferson pendulum" in the early days of America.In the views of the Federalists Party,the western land legislation should be subordinated to the country's fiscal policy and capital accumulation in the east.Therefore,the eastern land companies should be the purchasers under the public land laws.Whereas in the views of the Democratic-Republican Party,the public lands should be allocated to the poor pioneers,which is propitious to build an Agricultural Republic.Both views on public land reflect two different views on American state-building.In the early days,due to the harsh fiscal situation,along with the grim security situation,the viewpoints of land finance become the gilding theory of public land law.With the political development of the western territories and the decline of the land finance theory,the theory of free land has gradually taken the dominant position,which leads to the democratic change in public land law.The history of public land law reveals the dilemma of the myth of the weak American state.However,the single political view still can not explain the whole history of western land laws.Besides the political power from top to bottom,the voluntary associations also have important influence on the development of public land laws.Anyone who knows the history of American west can be aware of the importance of the claim associations in early American west,which are the true designers of western land property systems.Thanks to the natural rights in the colonial period and the custom law of squatters,many pioneers believed that they held the property right of their plot of land.Therefore,they establish the claim associations beyond the formal legal system,which dominate the true land order in American west.Also,they still fight for the democratic reform of the land ordinances along with the effort of the school of free land in federal government.As the core issues of western American legislation in mid-19 th century,the history of public land law provides us a new perspective to understand the American legal history.Neither the state-perspective nor the society-perspective is authentic.Neither the federal government in east nor the claim associations in west have the dominant power over the land management.The relationship between the federal government and claim associations is more complex and multivariate than we thought before.In the beginning,the land ordinance stood in sharp opposition to the land claim clubs.Due to the tension between the natural rights of public land and the formal legal system,the informal land property system becomes the dominant power.Meanwhile,they also struggle to push forward the democratic reform of public land law.On the other hand,the informal property system can not be sustainable.They still need to transform themselves to the legal system.In all,only by combining the national law and custom law perspectives can we fully understand the development of land ordinances in early American west.