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Show 394 HISTORY OF PUBLIC LAND LAW DEVELOPMENT was still opposition from border state Democrats and conservative easterners like Justin Smith Morrill and Roscoe Conklin. Passed by a vote of 105-18 in the House, and 33-7 in the Senate, the measure became law on May 20, 1862, and went into operation on January 1, 1863. The Homestead Act breathed the spirit of the West, with its optimism, its courage, its generosity and its willingness to do hard work, in contrast to the vetoed measure of 1860 with its niggardliness, its distrust of foreigners, its failure to apply to others than heads of families. The Act of 1862 entitled any persons who were heads of families or 21 years of age, and who were citizens or who had filed a declaration to become a citizen to enter 160 acres of land held at $1.25 an acre or 80 acres held at $2.50 an acre "which may, at the time the application is made, be subject to preemption. . . ."19 Since Congress had extended the privilege of preemption to unsurveyed lands in California, Oregon, Washington, Kansas, Nebraska, and Minnesota, it might be expected that all unsurveyed lands in these states not otherwise reserved would be subject to the Homestead Act. On June 2, 1862, Congress authorized preemption on all unsurveyed lands to which the Indian title had been extinguished, but since this measure was adopted a few days after the homestead law was enacted and the latter law applied only to lands subject to preemption at the time of its adoption, home-steading was not to be permitted on unsurveyed lands.20 19 12 Stat. 392. J0 12 Stat. 413. Like most land legislation of the 19th century the Homestead Act was anything but a carefully drafted measure. It declared eligible persons "were entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which said person may have filed a pre-emption claim, or which may, at the time the application is made, be subject to pre-emption ... to be located in a body, in conformity to the legal subdivisions of the public lands, As events turned out, homesteading was not conceived of as authorized on any unsurveyed lands, hence the Act of 1862 was more conservative in its operation than the preemption laws of 1853 to 1862. Not until 1880 was homesteading on unsurveyed lands made legal, though it must be added that it did occur since there was no positive prohibition against it.21 Although homestead land was free to those who conformed to the residence and improvement requirements of the law, there were fees to be paid, as in most transactions at the public land offices. The original filing fee on 160 acres was $10, a commission of $4 was due when the application was made, and with final proof a further commission of $4 was required. This practice was in line with most services provided by national, state, and local governments. Settlers were allowed 6 months after filing their original application before they were required to reside on the land, during which time they might be working for others or returning East to bring back their families. If residence was not established in that time there was danger that someone else might move on the land and file a contest for the tract. Since droughts, grasshopper plagues, and other catastro-phies might intervene between the original filing and the final entry, a full 7 years of occupancy was allowed before there was any danger of cancellation of the entry, unless and after the same shall have been surveyed. . . ." It was held that "after the same shall have been surveyed" was the controlling clause in the section and therefore unsurveyed land "subject to pre-emption" was not open to homestead. There was nothing in the statute, however, that would prevent a person who had settled upon unsurveyed public land with the intention of preempting it to file a homestead application on it when it was surveyed. Henry N. Copp, Public Land Laws . . . With the Important Decisions of the Secretary of the Interior, and Commissioner of the General Land Office, the Opinions of the Assistant Attorney General, and the Instructions issued from the General Land Office .... (Washington, 1875), pp. 182, 277. 21 Act of May 17, 1880, 21 Stat. 141. |