a formidable body of jurisprudence, requiring years of careful study, and giving scope for a separate branch of the legal profession.

In the early legislation of Congress it was proposed, in the first place, to appropriate a liberal portion of the public lands as bounties to the officers and soldiers of the revolutionary war, attesting the nation's gratitude for their inestimable services. The residue was to be sold for cash, or upon limited credit. The minimum price fixed by the ordinance of the Continental Congress, passed in 1785, was $1 per acre. By statute of the fourth Congress under the Constitution, this minimum was raised to $2 per acre, which by act of April 24, 1820, was reduced to the present minimum of $1 25 per acre.

By act of March 3, 1807, it was made unlawful for any person to take possession of, make settlement upon, or survey any portion of the public lands, until duly authorized by law, offenders being subjected to forcible ejection and loss of all their improvements. Settlers upon public lands prior to passage of the act were, however, permitted, on application made prior to the 1st January, 1808, to remain as tenants at will upon tracts not exceeding three hundred and twenty acres, on such terms and conditions as should prevent waste or damage to the land and secure its peaceable surrender at the demand of the government, or to any pur chaser under the law; all such applicants being required to sign a declaration repudiating all claim to the occupancy of the premises, except the indulgence of the government. Inasmuch as such tenants at will might become purchasers when the lands were offered for sale, this privilege may be regarded as the germ of the pre-emption privilege subsequently granted.

This policy of ejection of trespassers was found to be impracticable. The great western movement of our people had already commenced, and the facilities for evading the execution of the law presented resistless temptations to unlawful settlement. The number of trespassers soon became formidable, requiring a powerful and expensive effort for their ejection. Instead of rigorously enforcing the restrictions of the act of 1807, Congress avoided the difficulty. By acts of May 29, 1830, January 23, 1832, July 14, 1832, June 19, 1834, July 2, 1836, June 22, 1838, and June 1, 1840, provision was made for healing an immense number of breaches of the law by granting pre-emption to settlers regardless of restrictions. The necessities which called forth these retrospective statutes became so numerous and pressing as to raise the question of the soundness of the restrictive policy.

By act of September 4, 1841, this policy was finally repudiated, and settlement prior to purchase was no longer, per se, a trespass. By this noble statute, and the subsequent act of March 3, 1843, pre-emption was engrafted upon the public-land system as a permanent feature, yet restricted to surveyed lands. By act of March 3, 1853, this privilege was extended in California to unsurveyed lands. By act of July 17, 1854, the same extension was made in Oregon and Washington; by act of July 22, 1854, in Kansas and Nebraska; and by the statute of August 4, 1854, to Minnesota. The act of June 2, 1862, has been authoritatively construed as extending pre-emption to unsurveyed lands in the public domain.

To carry out the liberal aims of the legislature, the executive has availed itself of its legal discretion in withholding from public sale all surveyed lands for a time sufficient to give the actual settlers the choice of the best localities, thus saving them from the monopoly of speculation. The consideration upon which this inestimable privilege is granted is a bona fide settlement upon and occupation of the tract by

such substantial improvement and cultivation as clearly indicate an intention of making it a permanent home. Such settlement of a tract not exceeding one hundred and sixty acres, constituting a legal notice to all concerned, is the basis of an inceptive right which, under the protection of the law, and by fulfilling its requirements, a properly qualified pre-emptor may prosecute to a perfect title.

The results of this beneficent policy are seen in numerous States and Territories occupied by multitudes of small tract owners where otherwise might now be found great land proprietors. To the energetic and industrious man, without means, it has opened avenues unnumbered to independence and wealth. It has developed as the ruling class of the population a self-reliant yeomanry, the true popular element of a dem ocratic republic. It has broadened the base of our political system by diffusing the proprietary interest in the soil; enlarging the number who have permanent stake in the preservation of our institutions. For certain classes of settlers it has advantage even over the homestead provisions, as shown in the fact that a large number of homestead claimants have availed themselves of the privilege allowed by law of commuting their claims into pre-emptions.

Some modification in the practical working of the system is required in order to enable it to meet changed circumstances. Expensive litigation might be avoided by settling more definitely some of its principles and requirements. The permission of pre-emption settlements on unsurveyed lands has occasionally developed conflicts arising from two or more settlers being found after survey upon the same quarter section, or even upon less legal subdivisions. It is suggested that the statute be modified to meet such cases by admitting joint entries, covering the dwellings and valuable improvements of both parties.

It is desired in this connection to invite attention to the recommendation of the last annual report, to fix the limit of time within which pre-emptors on unoffered lands shall make proof and payment, also to prescribe regulations as to appeals, and to require the consummation of a claim, either pre-emption or homestead, pursuant to the provisions of the statutes under which it had its inception. Attention is called to a discrepancy in the requirements of the statutes of May 30, 1862, and June 21, 1862, upon pre-emptors settling on unsurveyed lands. By the former (sec. 7) it is required that all applicants under the pre-emption laws shall file their declaratory statements within three months from the date of the receipt at the district land office of the approved plat of survey, whereas the latter statute allows six months after the receipt of plats of survey within which such declaratory statements may be filed. It is recommended that this matter be no longer left to doubtful construction, but that it be authoritatively settled by statute.

Homesteads.-The disposal of our public lands has been accelerated by the inauguration of the homestead policy. By act of May 20, 1862, a person entitled to pre-emption may settle upon a tract not otherwise appropriated, and not exceeding one hundred and sixty acres of minimum or eighty acres of double minimum, and by continued occupying and cultivation for five years, may perfect his title by making proper proof of having complied with the conditions prescribed in the law, and by paying a small amount of fees to defray the expense of local administration. By act of June 21, 1866, the public lands in Alabama, Mississippi, Louisiana, Arkansas, and Florida are subject to disposal only under the provisions of the homestead law.

During the fiscal year ending June 30, 1869, rapid progress was made in the disposal of the public domain under the homestead provisions. Its

privileges have been eagerly accepted by all classes of settlers, both native and foreign born. The proofs of settlement and cultivation now being submitted by claimants who have resided the requisite term of five years on their respective tracts, as well as by those who propose to prove up at an earlier period under the eighth section of the homestead law, indicate the accession of a thrifty and energetic class of settlers, giving promise of an enterprising and intelligent population.

Since last report 2,737,365.05 acres have been disposed of under the homestead statutes, being an increase of 408,442.80 acres over the aggregate reported last year. Of this quantity 622,507.42 acres are within the States of Alabama, Mississippi, Louisiana, Arkansas, and Florida, leaving 2,114,857.63 acres as entered within the other public land States and Territories. This area, more than one-tenth of the State of Ohio, is included in 22,811 farms, of which 5,187 are within the southern States above mentioned. The number of claims upon which final proof was offered during the fiscal year just closed is 4,026. The total fees and commissions received amount to $315,419 49, while the total expenses of the General Land Office and of seventy-three district land offices did not exceed $453,816 43. Thus the fees received from homestead settlements alone pay nearly three-fourths of the expenses of the publicland system, not including cost of surveys. The machinery of the homestead system has become so nearly complete that few questions have arisen since last report involving construction of the statutes; two important rulings, however, have been rendered, which will be of public interest.

In final proof cases, where settlers cannot show continuous residence of five years, all other points being satisfactorily established, the proof will be accepted as sufficient under the eighth section of the homestead law, and the party will be permitted to make payment for the land in accordance with the provisions of the statute.

Inquiry has been made whether a homestead settler may not make final affidavit and proof before some officer authorized to administer oaths, and transmit the same to the district officers with the final fee payment, where good reasons can be given for this departure from the regular course. To this it has been replied, that the statute expressly requires that the homestead party shall make affidavit at the district land office, and that this department has no authority to relax the rule; the testimony of the claimant's witnesses, however, may be taken by deposition before any duly authorized officer and presented at the district land office; if satisfactory, it will be accepted. It is estimated that the total number of acres disposed of during the year for actual settlement is not less than 3,037,365 acres, included in about 25,311 farms. If to the above we add the number of farms purchased at private entry for cash, or located with military land warrants or agricultural college scrip, and also the tracts sold by railway companies from their landed endowments, we have very little difficulty in arriving at the conclusion that by the direct or indirect operations of our public-land system during the past year, no less than 60,000 small farms have been added to the agricultural freeholds of the United States. This is about double the total number of land-owners in England, as returned by the British census of 1861. But the principle of pre-emption, in a modified form, has been applied to town sites. The law gives great facilities for building towns and cities on the public domain, which have been extensively used in the different States and Territories. If, then, we group together the agricultural and urban settlements on the public domain, and the increase of freeholds in the southern States, growing out of the

subdivision of estates consequent upon the revolution of the system of labor, we figure up an addition to the landed proprietors of the nation during the last fiscal year of 80,000. Considering the enormous increase of settlements on the public lands during the present decade, it is but fair to estimate the present number of agricultural freeholds at about double the number returned in the last census reports, or four millions. If to these we add the urban proprietors, we have almost five and a half millions, or about one in every eight of the population. History may be challenged for a parallel to these facts. Never had a free people so completely in their own hands the elements of their political and social destiny. Upon this great mass of small proprietary interests we may rest our hope of escaping those giant evils of centralization of property and social influence by which even the massive civilization of the great empire of antiquity was undermined and rendered unable to withstand the deluge of northern barbarism. In order to preserve our free institutions we must watch with jealous vigilance and promptly counteract any tendency to centralization.

PRE-EMPTION AND HOMESTEAD RULINGS.

In the administration of the settlement statutes, cases have arisen of the following character:

A party who had made an entry under the homestead law commuted his title under the eighth section of the homestead act of May 20, 1862. Upon the same day that he perfected his homestead title he filed a declaratory statement for other tracts as a pre-emption. It was held, that to initiate a pre-emption claim, actual personal settlement must be made on the tracts claimed prior to the filing of a declaratory statement, and consequently that the homestead settler could not have made a legal pre-emption settlement on any public land prior to his consummation of his homestead.

The tenth section, act of September 4, 1841, granting the right of preemption, provides that "no person who shall quit or abandon his residence on his own land to reside on the public land in the same State or Territory shall acquire any right of pre-emption under this act." In view of this inhibition, and the fact that no settlement preceded the filing of the pre-emption declaration, such declaration is held to be invalid, and that the party connected with the proceedings acquired no pre-emption right under such circumstances.

In another case, a settler entered certain tracts as a homestead, and within a year and a half filed his pre-emption declaration for other tracts, not having either abandoned or consummated his homestead. In this case, it was ruled that claims could not be initiated and carried forward by the same parties, pari passu, under the pre-emption and homestead statutes, for the reason that continuous personal residence on the tracts claimed, from the inception to the consummation of the claim, was an essential condition under each of said statutes, and that as the homestead party could not have an actual personal residence on two different tracts at the same time, the pre-emption filing made after the initiation of his homestead was unlawful.

Where lands have once been offered at public sale, and are afterward withdrawn from market for railroad purposes, pre-emption settlements made thereon in good faith, prior to date of withdrawal, are subject to consummation within the period fixed by law for proving up and entering offered lands, to wit: in twelve months from the date of settlement at the ordinary minimum of $1 25 per acre.

Where offered lands are embraced in a declaratory statement and the filing is formally abandoned or forfeited for want of compliance with the legal requirements, the tracts embraced in such statement are subject to private entry without being again advertised and re-offered. Where lands of this class are embraced in homestead or other entries, subsequently canceled, they are not subject to ordinary private entry until properly restored by advertisement and re-offering.

It is ruled that the register and receiver have no authority to allow homesteads on tracts covered by pre-emption filings, upon ex parte affidavit that there are no pre-emption improvements thereon.

In the case of filings on offered lands, where proof and payment are not made within the twelve months allowed by law, the filings are forfeited and the tracts are subject to homestead.

In other cases, where allegations are made of non-compliance with the requirements of the statutes by parties claiming under pre-emption, the register and receiver, on application for cancellation, require such alle gations to be made under oath; and if satisfactory cause is shown, the land officers are required to appoint a day of hearing, giving the parties in interest at least thirty days' notice; and thereafter they are required to make a report for final decision of the department.

It has been represented by the district officers that there are many cases where single men have taken land under the pre-emption and homestead statutes, who go on their claims and plow a few acres, or have such work done, build a shanty, and live there a few days or weeks, and then, after absence of four or five months, return for a short period, taking care not to be absent for the full period of six months. And further, that cases have occurred where pre-emptors work at a trade, or practice a profession some miles from their claims, hire persons to make improvements for them, and occasionally go to the premises, the claimants making slight improvements at or prior to the time of filing their declaratory statements.

The object of the pre-emption and homestead statutes is to secure the development of the public lands by actual and permanent settlement thereon, and cultivation, as a means of increasing the national wealth and resources. Our general practice requires claimants under these statutes to show actual and continuous personal residence upon the land from the inception of claim to its consummation, with such extent of improvements and of actual cultivation as will clearly identify the claimant with the premises as a permanent and bona fide settler. Further, that no entries should be permitted under the pre-emption stat utes unless the fact is shown that at least six months of actual and continuous residence is made by the pre-emptor prior to date of entry, except in cases where the extent of cultivation and value of improvements clearly identify the claimant as a permanent settler. The same rule is applicable, in cases of commutations of homestead, under the homestead act of May 20, 1862.

It has been enjoined upon the registers and receivers, in all cases of the character referred to, where absence is shown, or where they have grounds for belief that the claimant is not a bona fide settler, to require satisfactory testimony by two witnesses in each case, before they are authorized to permit an entry.

Where the testimony is not satisfactory to the district land officers and the claimant insists upon the right of pre-emption entry without further proof, the register and receiver are required to render their decision and notify the party thereof, in order that an appeal may be submitted to the department for final decision.