The Kansas herald of freedom., 1855-02-10
eepefaI 1ateiAaeaee.
Latter from Governor Reeder.
SHAWNEE sMIssfos. Jan. .S22 1856

Yours of the 18th Is received, making
some inquiries as 70 the subjeet-matter
of my letter to j. S. Emery. Esq, under
date of the 28th Dec. That letter was
written with little care, in great haste, and
was only intended to state conclusions
without the process of deducing them !;
and as it has excited more interest and
attention than at all anticipated, l gladly
avail myself of the opportunity to state
with more precision and fullness the
opinions contained in it, and at the same
time to give the reasons on which those
opinions are based; and in so doing /
shall necessarily answer your inquiries.
Without discussing the law of pre-
empsion generally, shall eonfine myself
to the question of pre-emption on unsar-
eeyed lands in this Territory, and shall be
as brief as the subject will admit The
act of Sept. 4;h. l84l, supersedins the
previous legislation on the subject, and
the act of July 22, 1854, are the only
acts of Congress necessary to an UNDER
standing of the point involved. The
former provided that citizens of the Uui-
ted SAFES, or declarants, being either
heads of families, widows, or single men
over twenty-one years of age, who shall
make settlement in person on public
lands which have been surveyed, and to
which the Indian title has been extin-
guished, and shall erect dwelling house
and inhabit and improve the land, shall
have right of pre-emption, DC With
the disabilities arising from previous pre-
emption, De. We have nothing to do in
this discussion. 1t also requires that
within thirty days after settlement he
shall file with the register his description
and claim, and within twelve months
shall make certain affidaYits and enter
and pay for the land, and provides that
when two or more persons shall settle on
the same quarter section, the first settler
shall have the whole. a
The act of July 22, 1854, provides that
all the lands to which the Indian title is
OF shall be extinguished in the Territories
of Kansas and Nebraska, shall be subject
to the operation of the act of 1871.
This language alone, without anything
more, extends the -emption system to
our unsurreycd lands for the following
reasons None of our lands at the date
OF this act were surveyed. One of the
cardinal rules of law for the construction
of statutes is, that they shall not be so
construed as to make them nugatory or
unmeaning; and when any proposed con-
struction brings us to such a conclusion,
it is an infallible test by which we may
know that the construction is erroneous
for We are not to charge upon Legisla-
ture the folly of passing laws which have
no purpose or meaning. Now if the act
of 1854 is only to apply to the surpeyed
lands of our Territory, it is of no more
effect than blank paper; for the act of
l84l being generally applicable to all the
public lands wheresoever situate, did
not need the act of 1854 to extend it to
this Territory, and we should thus charge
upon Congress that they gravely and
solemnly enacted statute which had not
particle Of effect, and which only left
the law as it had been before.
Again the act of 1841 required that
the land which may be pre-empted shall
have two properties, to wit: That the
Indian title shall be extinguished, and
that it shall be surveyed. The act of
1854 provides that all the land to which
the Indian title is extinguished, shall be
subject, DC, but is silent as to the sur
vey. Here we are met by another rule
of construction conveyed in the well
known law maxim, :" U1,ius erpressio al
terius est erclusio." The mention of but
one is an exclusion of the other. We
are driven then to read this act as ap-
plicable to all the lands to which the In
dian title has been extinguished, whether
surveyed or unsurveyed. This will sat-
isfy every rule of construction, and arrive
at the obvious meaning and purpose Of
the law.
But to preclude all doubt, the act has
this proyiso, that where unsuryeyed
lands are claimed by pre-emption, notice
of the specific tract claimed shall be filed
within three months after survey made
in the field" Thus clearly recognizing
the construction have contended for,
legalizing settlement before survey, and
requiring the fling of a claim and de-
Iscription after survey. Here, then, we
have one point established-that a man
may commence his pre-emption on un-
surveyed lands.
Let US follow up the argument. Pre-
emption may be correctly defined to be,
the right of purchasing before others
Under the law applicable to this Terri
tory it is a right not resulting from g
single act of the government or the set
tier, but gra lually maturing through sue
ceSsiye steps or Stages to wit: persona
misunderstanding dwelling house
inhabiting the land-official survey
filing claim and description-making and
filing the necessary affidavits-entry III
the eregister's offiee-payment of the pur-
chase money, which, under the act o.
1854, must be before the first day of sale,
and granting the patent. Some of these
are to be done by the settler, and Others
by the government. The government
has eoYenanted and agreed, through the
solemn medium of an act of Congress,
that they will perform their portion o.
them if the settler will perform his /; and
if the latter does SO perform the acts pre-
seribed by the law to him, the officers o.
the government had no choice but te
complete the title to him. No man car
step in between the pre-emptor and hi;
final right to a patent.
i His right before the granting of the
patent is what is called an inchoate title
Ia term familiar to every lawyer. 1t i.
a title commenced but not completed, and
may be assimilated to the case of a pur
chaser who has taken possession under
articles of agreement, has paid part 0
| his purchase money, and is waiting fol
the day to pay the balance and take hi.
deed. The patent, though conclusiy,
Ievidence of the consummaton of title, i
not the only medium by which the set
tiers rights accrue The entry and tn,
patent would both be Illegal if made IL
| IL r IL r