ing 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 cancelled, 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 allegations 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 home. stead 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 practise 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 state

ments.

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 i 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 statutes unless the fact is shown that at least six months of actual and continuous residence is made by the preemptor 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.

Cases have arisen where settlers have found it necessary, temporarily, to leave their tracts in view of Indian incursions. In such cases the department will treat the temporary absence as caused by duress, and as of no prejudice to the settler where all other requirements of the statute have been complied with, and where the parties return to their claims as early as may be consistent with personal safety to themselves and their families.

II. CALIFORNIA PRE-EMPTION LAND CLAIMS.

No. 261 B.

Settlement on the public lands confers no right as against the Government. Congress had power to dispose of lands claimed by settlers upon the Soscol Ranch, in California, under the pre-emption laws, at any time before proof and payment by claimants.

OPINION OF THE ATTORNEY-GENERAL IN THE CASE OF THE SOSCOL

RANCHO.

ATTORNEY-GENERAL'S OFFICE,

To Hon. James Harlan, Secretary of the Interior :—

May 26, 1866.

Sir-According to the view I take of the case of the "Soscol Rancho," stated in your letter of the 21st inst., it is entirely unimportant to determine at what time that tract became open to settlement under the general pre-emption laws, since, in my opinion, Congress had full power to dispose of the lands claimed by settlers under the pre-emption laws at any time before the proof and payment required by those laws were made. The purpose and effect of the act of March 3, 1863, were to remove from entry at the land office, by persons claiming to be settlers under the pre-emption laws, all the land within the limits of the "Soscol

California Lands and Land Claims.

Congress had power to dispose of lands claimed by settlers upon the Soscol Ranch, in California, under the pre-emption laws, at any time before the proof and payment required by those laws were made.-(Opinions of Attorney-General, vol. ii. p. 490.)

Settlement on the public lands of the United States confers of itself no right against the Government. It gives the settler, under the pre-emption laws, a right to enter the lands occupied and improved, when they are open to sale and he has complied with the laws in respect to proof of settlement and payment of the prescribed consideration.-Ibid.

Congress had power, as against persons who, before the passage of the act of March 3, 1863, had settled upon the lands in that ranch, but who had not perfected their right of entry, to confer upon claimants, under the Vallejo title, an absolute title to all the land purchased from Vallejo or his heirs.—Ibid.

It was the intention of Congress to enable any bona fide purchaser from Vallejo, whether resident or not of California, who settled either by himself or tenant part of the tract claimed by him, to acquire title thereto from the United States.—Ibid.

When the boundaries designated in a decree of the District Court, confirming a

Rancho," in California, until the expiration of twelve months after the return of the public surveys authorized by the statute to be extended over the tract of country embraced by that rancho. During that period each purchaser from Vallejo, or his assigns, was authorized to enter according to the lines of the public survey, at a dollar and a quarter per acre, so much of the land purchased from Vallejo, or those claiming under him, as he had reduced into possession at the date of the adjudication of the Supreme Court, which determined the invalidity of Vallejo's title. It was not until the expiration of the time limited for the establishment of the claims of the purchasers from Vallejo that any part of the land in "Soscol Rancho" was liable, after the passage of the act of 1863, to be dealt with as other public land, and then only such lands as remained unclaimed by purchasers from Vallejo or his assigns, or were embraced by claims of those purchasers which had been rejected by the Register and Receiver, were thrown open to entry under the general pre-emption laws. In this view of the purpose and effect of the statute of 1863, I have no difficulty in saying, in reply to your second inquiry, that a party who, prior to the passage of the act of March 3, 1863, commenced or continued a settlement in person upon a parcel of land within the "Soscol Rancho," and so complied with the terms and conditions of the preemption laws as to be entitled by virtue thereof, on making the proof and payment thereby required, to enter such parcel and obtain a patent therefor, is precluded from making such entry and obtaining such patent if the parcel claimed forms a part of a tract of land which at the time of the adjudication referred to had been reduced to possession by a bona fide purchaser from Vallejo or his assigns, who, within the period and in the mode prescribed by the statute of 1863, made claim to such tract, accompanied by the required proof showing his bona fide purchase, settlement, and reduction into possession of such tract.

It is not to be doubted that settlement on public lands of the United States, no matter how long continued, confers no right against the Government. It only gives the settler under the pre-emption laws a right to enter the land occupied and improved when it is open to sale, and when he has complied with the conditions as to proof of settlement and improvement and payment of the consideration prescribed by the statutes. It is compliance with those conditions that alone vests an interest in the land.

Mexican grant in California, embrace a greater tract than the quantity confirmed, the grantees have the right to select the location of this quantity in one body and in a compact form. - (United States v. Pacheco, 2 Wallace, p. 587.)

A confirmation of a Mexican land title in a proceeding conducted in the name of the original grantee is binding upon the United States and upon all the assignees of the original grantee.—(United States v. Covilland et al., 1 Black. p. 339.)

When a survey is executed conformably to the decree of confirmation, the alienees of the original grantee may intervene to protect their own rights.—Ibid.

When the survey is completed and a patent issued to the original grantee, his assignees can assert their rights against him in the ordinary courts of the country.Ibid.

But the extraordinary tribunals, proceeding under the act of 1851, cannot order a second patent to issue for a part of the land previously confirmed to the original grantee.-Ibid.

A claim under a Mexican grant cannot be confirmed without record evidence.(United States v. Knight's Administrator, 1 Black. p. 227; United States v. Neeleigh, 1 Black. 298.)

The land continues subject to the absolute disposing power of Congress until the settler has made the required proofs of settlement and improvement, and has paid the requisite purchase money. Before those steps are taken for the designation and assertion of his claim, Congress may at any time intervene, and either exempt the land from entry, location, or appropriation, or dispose of it by grant to other parties. Before proof and payment are made, the only right which the settler has is an inchoate right of entry. When proof and payment are duly made, his right of entry becomes choate, and he acquires (perhaps even before entry) a vested interest in the land. The question may be a delicate one, whether Congress can impair a vested right of entry; but there is no doubt that before the settler has taken the steps necessary to convert the privilege of pre-emption into a vested right of entry, by establishing the fact of his settlement and paying the purchase money in the manner prescribed by law, Congress has absolute power to place the land beyond the operation of the statutes under which the settlement was made.

Pending the adjudication of the claim presented by Vallejo to the Board. of Land Commissioners under the act of 1851, the lands embraced by his claim were not liable to be dealt with as public lands of the United States. The statute of 1851 declares, that "all lands (in California) the claims to which have been finally rejected by the commissioners * * or which shall be finally decided to be invalid by the District or Supreme Court✶✶✶ shall be deemed, held, and considered as a part of the public domain of the United States." When, therefore, the Supreme Court reversed the decree of the District Court affirming the validity of Vallejo's claim to the "Soscol Rancho," the lands embraced thereby became public lands, and liable to be appropriated by Congress, under its general constitutional power over the subject.

It is not necessary to determine whether, immediately on the decision of the Supreme Court, or at any time after, the lands in question, by operation of any statutes, became subject to pre-emption; whether, in other words, there was any law under which persons not claiming under grants from Vallejo or his assigns could have acquired by settlement proof thereof, and payment of purchase money, a right to enter the lands at the land office, if such right had not been defeated by the statute of 1863.

I assume that the lands embraced by the Vallejo claim fell, upon the adjudication of the Supreme Court, under the operation of the general pre-emption laws, as other public lands, or were subject to the operation of special laws of that denomination, applicable to public lands in California. But under those laws settlers could acquire, as I have already stated, no interest, which it was not competent for Congress to direct, until they had taken all the steps necessary to perfect their right to make entries of the lands settled and improved.

They were required not only to file declaratory statements within a time limited after the receipt at the district land office of the plats of the township embracing such settlements, but they were required also to establish their claims in the manner prescribed by law, and to pay the nominated consideration for the lands; and it was not until those proceedings at the land office had all been completed and consummated that any vested right or interest could be acquired which it was incompetent for Congress to disturb or affect by its legislation.

Now, I understand from your statement of the facts of the case under consideration, that although there may have been persons claiming adversely to the Vallejo grantees, who had perfected a right by continued settlement to make proof and payment as required by law, and who would

have been entitled to enter the lands at the land office, and to obtain patents if such proof and payment had been actually made, yet that, at the date of the statute of 1863, such persons had not complied with those conditions, on which their right to make entry depended, and was alone capable of being perfected.

On the passage of the act of 1863, the right of such persons to make proof and payment, and of necessity therefor to make entries of the lands claimed by them, was placed in abeyance, and, by the operation of that statute, remained in abeyance until it was ascertained in the manner designated by the act, that the lands claimed had not been, at the date or the adjudication of the Supreme Court, reduced into possession by a bona fide purchase from Vallejo or his assigns, either through the neglect of any such purchaser to present his claim to the Register and Receiver, within the time limited by the statute, or through the failure of any such purchaser to establish his title to the tract comprehending the lands claimed under pre-emption laws.

Congress by the act of 1863 made new and different disposition of the property. It was passed in recognition of the high equities of the purchasers from Vallejo, whose claim was rejected on technical grounds by the supreme appellate tribunal, and was intended to afford such relief as not only a beneficent but a just government was bound to extend to persons in their situation.

It declared, without qualification, that every purchaser from Vallejo or his assigns might buy at the minimum price as much of the land as he had reduced into possession under his deed of conveyance when the adjudication occurred, and it gave him twelve months after the return of the survey within which to prove his title under Vallejo, and the extent to which the land claimed was at that date in his possession. If within the time limited for these proceedings any such purchaser duly established his title under Vallejo, he was entitled to enter, and obtain a patent for all the land which he proved had been reduced into his possession at the date of the decree of the Supreme Court, although a part of such tract was claimed by settlers who may have acquired, before the passage of the statute of 1863, a right to enter the land they claimed, on making the proof and payment required by the pre-emption laws.

It would seem to be unnecessary, in view of the foregoing considerations, that I should make extended answer to the second question stated in your letter.

I have already said that a settler under the pre-emption laws, acquires and can acquire no vested interest in the land he occupies by virtue simply of settlement; and that no vested interest is obtained until the settler has taken all the legal steps necessary to perfect an entry in the land office. Before such steps are taken, he has nothing but a contingent, personal privilege to become, without competition, the first purchaser of the property which he may never exercise, or which he may waive or abandon. During the interval between the institution of the settlement, and the establishment of the claim by proof, and payment of the consideration nominated in the law, Congress has power to dispose of the land at its pleasure. It may recall the privilege previously conferred, or invest any one else with the same privilege, or it may make an absolute grant of the land to other parties, with, or without consideration. There is no constitutional objection to the exercise by Congress of any power over the land after settlement made, but before right of entry has been perfected, that it was competent to exercise before the land was thrown open to pre-emption.