In my Property Seminar, we have been considering property entitlements in various frameworks. Part one of the Seminar we considered the way we think property entitlements are formed — looking at Constitutional traditions of entitlements, natural philosophy, and utopian narratives, amongst other sources. Part two of the seminar considered entitlements that sound (or smell) a lot like property, but which we are reluctant to call property — the aroma of property as I called it. Yesterday, we started Part three which I have titled “The way we talk about Property.” The first selection of our three week discussion will be Willard Hurst’s classic Law and the Conditions of Freedom in the Nineteenth Century United States.
As you know, Hurst begins his discussion with the Pikes Creek Settlers:
One day, in February of 1836, in the scarce born village of Pike Creek on the southeastern Wisconsin shore of Lake Michigan, Jason Lathrop – Baptist Minister, school teacher, boarding house proprietor, and civic leader — set up on a stump a rude press of his own construction and with ink, which he had made himself printed a handbill setting for the record of the organization meeting of “The Pike River Claimant’s 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 squatters; 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 the 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 speculator’s abuse. These were formidable legal obstacles.
Hurst goes on to describe how the settlers’ set up “governments” in the form of claims associations, with elected officials to resolve conflicts amongst themselves, since the United States government did not recognize their presence in the space. From the Pike’s Creek association, Hurst draws several conclusions about the tenor and direction of policy and the role of law thereunder. Hurst’s narrative suggests that the squatter was not necessarily an outlaw, but rather an additional force that helped shape the movement of law through its path in the nineteenth century. In this period, Mark Twain wrote his first published short story, The Dandy Frightening the Squatter. To be sure this is not a major story, but, as we know, focus only upon the major stories and characters often cause us to miss much. Here is the story:
About thirteen years ago, when the now flourishing young city of Hannibal, on the Mississippi River, was but a “wood-yard,” surrounded by a few huts, belonging to some hardy “squatters,” and such a thing as a steamboat was considered quite a sight, the following incident occurred:
A tall, brawny woodsman stood leaning against a tree which stood upon the bank of the river, gazing at some approaching object, which our readers would easily have discovered to be a steamboat.
About half an hour elapsed, and the boat was moored, and the hands busily engaged in taking on wood.
Now among the many passengers on this boat, both male and female, was a spruce young dandy, with a killing moustache, &c., who seemed bent on making an impression upon the hearts of the young ladies on board, and to do this, he thought he must perform some heroic deed. Observing our squatter friend, he imagined this to be a fine opportunity to bring himself into notice; so, stepping into the cabin, he said:
“Ladies, if you wish to enjoy a good laugh, step out on the guards. I intend to frighten that gentleman into fits who stands on the bank.”
The ladies complied with the request, and our dandy drew from his bosom a formidable looking bowie-knife, and thrust it into his belt; then, taking a large horse-pistol in each hand, he seemed satisfied that all was right. Thus equipped, he strode on shore, with an air which seemed to say “The hopes of a nation depend on me.” Marching up to the woodsman, he exclaimed:
“Found you at last, have I? You are the very man I’ve been looking for these three weeks! Say your prayers!” he continued, presenting his pistols, “you’ll make a capital barn door, and I shall drill the key- hole myself!”
The squatter calmly surveyed him a moment, and then, drawing back a step, he planted his huge fist directly between the eyes of his astonished antagonist, who, in a moment, was floundering in the turbid waters of the Mississippi.
Every passenger on the boat had by this time collected on the guards, and the shout that now went up from the crowd speedily restored the crest-fallen hero to his senses, and, as he was sneaking off towards the boat, was thus accosted by his conqueror:
“I say, yeou, next time yeou come around drillin’ key-holes, don’t forget yer old acquaintances!”
The ladies unanimously voted the knife and pistols to the victor.
What do we make of Twain’s story, one which has been suggested is steeped in factual occurrence. First, notice the two juxtapositions of the characters. The Dandy we might say represents ordered society. Twain gives us some hints of his disposition, stating he strode towards the squatter with “an air that seemed to say the hopes of a nation depend on me.” He is equipped with the tools that enable order. Yet, the Dandy engages in an act specifically designed to create disorder — he engages in a violent act. The squatter, on the other hand, seems rather complacent, even passive at first, when confronted by the Dandy. But, when faced with the option of fleeing or asserting his right to stand his ground, he asserts it meeting violence with violence.
Second, the words used by the Dandy demonstrate his belief in his power and authority — even when used for personal gain. Moreover, the words of the Dandy are subject to nonsensical illusion — when ever has a barn door required a key hole? The squatter’s only words, on the other hand are used to remind the Dandy not to tread on areas without his friends. Perhaps this line is used to intimate the government’s relationship with squatters.
Finally, there is a narrative of progress versus non-progress. The Dandy, as a city slicker as one commentator has referred to him, against the squatter, or a hick bumpkin. The bumpkin winning at the city slicker’s own game suggests the continued importance in the emerging republic of honesty and justice prevailing.
Its an interesting story and the context helps build the library of materials we think about in the formation of legal systems.Image curtesy of UNC Library American South Digitalization Project, Twain’s life on the Mississippi.