Homestead Act (1862)

Legislative History and Text

Embodying the Jeffersonian ideal of a nation of small landholders, homesteading had a wide constituency in the northern United States in the decades before the Civil War. Land reformers viewed farm ownership as a way to save the economic and political independence of urban workers and to stop southern planters from extending slavery into western territory.

The secession of the Confederate states opened the political window for the passage of the Homestead Act in 1862. The politics of slavery and nativism had blocked earlier homestead bills. Southern leaders predicted that free land would disrupt the sectional balance between free and slave-owning states by stimulating western migration by northern farmers and European immigrants. Following secession, the Republican-led Congress passed the Homestead Act over minimal Democratic and border-state dissent.

Issues of race, alienage, and ethnicity were embedded in the 1862 act. Drafters designed a low hurdle for foreign-born land applicants, who simply had to declare their intention to become citizens to register a claim. More remarkably, in a nation that sharply limited the opportunities for women and racial minorities to hold property, the act did not expressly discriminate on the basis of those identities.

Unlike antebellum “preemption” laws, the Homestead Act did not require settlers to purchase public land, although it did offer a “commutation” provision allowing purchase after a short residency period. For those who sought a patent of free land, the act required the settler to register his or her claim with a local land office, live on the land for five years, make improvements, and prove compliance with these requirements at the end of that term.

Jeffersonian Dreams and Reality

About 20 percent of the approximately 1.442 billion acres of the public domain of the lower 48 states, or over 270 million acres, were privatized by claimants under the residency and commutation provisions of the Homestead Act, producing perhaps 400,000 owner-occupied farms. Most homesteaders settled in the Great Plains, including large swaths of public land in Nebraska, the Dakotas, Montana, Oklahoma, and Colorado. By 1900, homesteading moved farther west, as amended homestead acts, which permitted larger land holdings, made settlement in arid parts of Oregon, Washington, eastern California, and Arizona viable for ranching.

Historians continue to debate the effectiveness of the Homestead Act as a system of equitable land distribution. Most scholars, following the Depression-era research of historian Paul Wallace Gates, focus on the misuse of the law and its failure to preserve the public domain for actual settlers. In practice, many homesteaders had to purchase their land from private sellers after finding that speculative land purchasers, mining and timber interests, and railroads had already claimed the best public land. And those settlers who staked a [Page 1109]claim to a free homestead often lacked the capital and labor to develop their land.

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