Congress Passes Preemption Act of 1841

By winning passage of the federal Preemption Act, the West gained a sectional victory in the drive for free land that would culminate in the Homestead Act of 1862.

Summary of Event

Passage of the Land Law of 1820 did not terminate the debate over public-land policy in the United States. Indeed, the western portion of the United States became more insistent and demanding concerning the liberalization of land laws. With migration feeding the West with a never-ending stream of inhabitants and with numerous western territories ready for admission to the union as states, this section of the nation gained political power. As the West grew in influence, the Northeast and the Southeast vied with each other to gain the political support of the West. Preemption Act of 1841
Land policy, U.S.;Preemption Act of 1841
Congress, U.S.;Preemption Act of 1841
[kw]Congress Passes Preemption Act of 1841 (Sept. 4, 1841)
[kw]Passes Preemption Act of 1841, Congress (Sept. 4, 1841)
[kw]Preemption Act of 1841, Congress Passes (Sept. 4, 1841)
[kw]Act of 1841, Congress Passes Preemption (Sept. 4, 1841)
Preemption Act of 1841
Land policy, U.S.;Preemption Act of 1841
Congress, U.S.;Preemption Act of 1841
[g]United States;Sept. 4, 1841: Congress Passes Preemption Act of 1841[2210]
[c]Laws, acts, and legal history;Sept. 4, 1841: Congress Passes Preemption Act of 1841[2210]
[c]Expansion and land acquisition;Sept. 4, 1841: Congress Passes Preemption Act of 1841[2210]
Benton, Thomas Hart
Clay, Henry
[p]Clay, Henry;and land policy[Land policy]
Tyler, John
[p]Tyler, John;and land policy[Land policy]

Between 1815 and 1850, the political life of the nation became increasingly sectionalized. Each section had a position on the major issues of the day, which included land policy, tariffs, internal improvements, and fiscal policies. These issues assumed more importance as the national debt was paid off, freeing up resources for other purposes.

On most issues, the Northeast and the Southeast were on opposite sides. This allowed the West to embark on protracted negotiations designed to win support for liberalization of land policies in return for support on issues of major significance in the Northeast or Southeast. It was in this context that the West was able to push for its pet objectives, preemption and graduation. This pressure also led to the decision of Andrew Jackson’s presidential administration (1829-1837) to force the tribes of the Old Southwest—the Cherokees, Creeks, Chickasaws, Choctaws, and Seminoles—to move to new lands west of the Mississippi River. These lands—which later became part of the state of Oklahoma—were designated Indian Territory Indian Territory
Oklahoma;Indian Territory . The forced transfer of these, the Five Civilized Tribes, became the infamous Trail of Tears. Meanwhile, the West pressed for liberalization of the laws governing sale of the public lands.

Graduation was a device whereby the price of land would be reduced in proportion to the time that the land remained on the market unsold. At the end of a specified period of time, unsold land would be turned over to the state in which it was located. Senator Thomas Hart Benton Benton, Thomas Hart of Missouri introduced such legislation in 1824 and again in 1830, but it was not until 1854 that the Graduation Act Graduation Act of 1854 was passed; it contributed to the land boom of the mid-1850’s.

Preemption meant recognition of the legal right of squatters on the public domain to purchase the land they occupied when it was offered for sale. As early as 1807, with the Intrusion Act, effective preemption was provided retrospectively for squatters on public land; between 1799 and 1830, a number of preemption acts had been passed, but they were all retrospective, of limited duration, and restricted to specific localities. In 1830, Congress passed the first general preemption law, the Preemption Act of 1830 Preemption Act of 1830 , permitting squatters cultivating the land in 1829 to buy up to 160 acres at the minimum price. This type of legislation proved difficult to administer, however, and there were numerous instances of fraud. Nevertheless, several hundred thousand acres of land were sold to settlers under the terms of this law.

What the West wanted was permanent and prospective preemption. Henry Clay Clay, Henry
[p]Clay, Henry;and land policy[Land policy] and the Whigs Whig Party (American);and land policy[Land policy] preferred distribution, that is, turning over the receipts from sale of the public lands to the states to finance internal improvements. After extensive and complex political maneuvering, a Distribution-Preemption Act passed Congress on September 4, 1841, and was signed by President John Tyler Tyler, John
[p]Tyler, John;and land policy[Land policy] . The law had a proviso tacked on that if the tariff Tariffs;protective rose above 20 percent, distribution would be halted. This occurred in 1842, and distribution was halted, but preemption remained a permanent part of the public-land laws of the United States.


The Preemption Act of 1841 recognized that settlement prior to purchase did not constitute trespassing, and that the use of the land for settlement was more important than for raising revenue, although the latter goal had been the original objective of selling off the public lands. Under the law, any adult citizen (or an alien who had declared his intention to become a citizen) who had occupied, cultivated, and erected a dwelling on the public lands could purchase a tract of up to 160 acres at the minimum price. Theoretically, the provision still applied only to surveyed lands; however, squatting on unsurveyed lands increased, and the original settlers, if interested, were normally allowed to benefit from the Preemption Act once the lands were surveyed.

The Preemption Act of 1841 proved to be only one step in the process of moving the distribution of public lands to free lands. This principle was incorporated in the Homestead Act of 1862 Homestead Act of 1862;and Preemption Act of 1841[Preemption Act of 1841] , whose passage then became possible because the South had withdrawn from the union and the West had the power to achieve its ultimate end, free land for settlers.

Further Reading

  • Carstensen, Vernon, ed. The Public Lands: Studies in the History of the Public Domain. Madison: University of Wisconsin Press, 1968. Contains twenty-three excellent articles on the history of the public lands.
  • Feller, Daniel. The Public Lands in Jacksonian Politics. Madison: University of Wisconsin Press, 1984. A detailed and enlightening examination of the politics of legislating on the public lands.
  • Gates, Paul W. History of Public Land Law Development. Washington, D.C.: Zenger, 1968. Written for the Public Land Law Review Commission, this is the most exhaustive treatment of public land law available.
  • North, Douglas C., and Andrew B. Rutten. “The Northwest Ordinance in Historical Perspective.” In Essays on the Economy of the Old Northwest, edited by David C. Klingaman and Richard K. Vedder. Athens: Ohio University Press, 1987. Provides a quick summary of the legislative actions that make up the public land law of the United States.
  • Rohrbough, Malcolm J. The Land Office Business: The Settlement and Administration of American Public Lands, 1789-1837. New York: Oxford University Press, 1968. The inside story of what went on in the Land Offices in which the sales of the public lands were conducted.

Congress Passes Land Act of 1820

Trail of Tears

Webster and Hayne Debate Slavery and Westward Expansion

Congress Passes Indian Removal Act

Cherokee Cases

Lincoln Signs the Homestead Act

Lincoln Signs the Morrill Land Grant Act

General Allotment Act Erodes Indian Tribal Unity

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Thomas Hart Benton; Henry Clay; Andrew Jackson; John Tyler; Martin Van Buren. Preemption Act of 1841
Land policy, U.S.;Preemption Act of 1841
Congress, U.S.;Preemption Act of 1841