The weekly Butte record., 1867-06-15

had taken Al the steps necessary perfect their right
to make entries Of the lands settled and improved
Il have already s.id ,as settler under the preenlp-
ton laws acquires and acquire vested interests
in the land he occupies by vie simply Of settlement
and that vested interest is obtained until the settler
has czken all the legal steps TO perfect
try in the land once Before such steps taken he
has nothing ous eannngen, re.sonI s pssssse g o.
property. which he may never e1ercise or which he
may waive or abandon
Mr. Julien. The Attorney General states as law
I that preemptor under the laws of the United
States has right until he has completed his pur
chase and no interest which the United States can
net divest: vested right. Now. sir. have heard
/ il said there is nothing new nnder the sun. but
must question the truth of this after reading this
opinion. He makes no issue of fact To the char
acter of the preemptors as such He sdmits them
to be snch and SAYS the fact is not material, since
preemptors may be driven ont al any time before
the completion of their purchase. His opinion is
plea in confession and avoidance. and the sole dis
| pute Is narrowed down to one of law. Affirming
that tn preemptor has rights under the laws OF
Congress he rests the whole case of these Vallejo
claimants upon this position. If that be so il ap
plies to homestead claimants in like manner, and
every such claimant and preemptor in the United
States. by this ruling OF the Attorney General.
strangely acquesced in by the Interior Depart ment
is at the mercy OF the Government of the United
States. which may violate its plighted faith ST
pleasure. Why. sir the decisions uniform that
/ the settler under the preempton laws has a vested
: inchoate right which no power can take away so
so long be remains the land in the execu-
ton OF the acts which the law imposes upon him
the conditions OF title. While he performs his part
of the contract no power can disturb him. lou
cannot divest him of his right and if Congress
should attempt 10 do it it would be violation of the
/ Constitution of the United States as have already
shown. On this point cite the following anthori-
T ties, which would be very glad to have the At
torney General and Montgomery Blair examine at
tker leisure:
United States Fitzgerald Is Peters 40: Cunning
ham Ashley. IA Howard, 3l7 Bernards heirs
Ashley's heirs. Is Howard 4S Garland VS. Winn 70
s. Clements VS. Warner 81 Howard 591: Lindsey ct al.
Z vs. Hawes ct al. Black: McAfee Kim. and
Mssp Rep 7c0;-Finley Williams. Cranch. 1874
lsaacs VS. Steele, 2 Tcammon 81; Bsuner Manlove
! Scammon os9: Brown Griswold. II Illinois. 220
Polk's Lessees VS. Wendal Cranch, 81 Macarthur vs.
Crawder. Wheaton, AS.
Attorney General Mason. 18th April 1S46 expound
ing the right under the act of 4th September 1S4 pro
nounce an opinion which has since been followed
by the land department. and said:
The settler is entitled protection against the claims
or entries OF othess From the moment therefore, that
he enters in person land open to such claim.
ther with the intention of ayailng himself Of the pro-
visions of the act referred to- and does in
cntion of that intention he becomes settler. He
afterwards give his notice of intention nhabit improve
bnd MS house, and make his proof and payment with
in the time stipulated perec, his right But in every
stage he Is protected until he fails his part
/ ply with the conditions of the law
Where the contest was between preemptors and a
railroad company. claiming under the State of Iowa
Attorney General Gushing said. Opinions, volume S.
page 394) The preemptor acquires inchoa:e incp
ent title by entering the land and there performing
certain acts by means of which the land is appropria
ted to his individual and thus segregated, in fact,
from the public domain. If in addition to these
done the land. the preemptor afterwards performs
certain acts of notice and proof in the local land Office
then his previous equitable right is converted into
legal one
In the of Iytlc ct al VS. the State of Arkansas
( % How. 1881 the Supreme Court held follows:
The claim of preempton is that shadowy right
which by some is considered to be- Until sanctioned
by law it has existence substantive right; but
when covered by the law it become legal right subject
to be defeated only by failure to perform the condi
tons annexed to it. 1t is founded in enlightened
public policy rendered necessary by the enterprise of
citizens
I'm the case of the United State. Fitzgerald the
Supreme Court held that reservation appropria-
ton of tract of land can be made after citizen has
acquired a right to it under preelnption law
The Secretary of the Interior says. December 90
1851: Subsequent entries. however, which have been
made by preemption. in virtue of settlements made
prior to the grants will be valid because in those
the right of preemption attached from date of settle
men and became vested right. which be Invested
only by abandonment failure in the performance of
its condition Testers Land Laws page $50
"In Lytles declared that the occupant
wronfully deprived of his lawful right Of entry under
the preemption laws and the titles up under the
lection of the Governor of Arkansas decreed to
Cloyes. the claimant this holding his claim to the
land to have been legal right. by virtue of the
pancy and cultivation, subject to be defeated only by
failure to perform the conditions of making proper ten
der of the purchase money .'-Barnauds Heirs Ash
leys Heirs. ct ais.
Mr.. Speaker, these citations could be easily ex-
tended bnt deem it unnecessary The opinion
of the Attorney General is not law; ani in max
I ing this declaration throw down the glove to all
comers, from Montgomery Blair down or up, as
the case may be. through the entire list of pen
stoned employees in the work of overturning the
land policy Of the United States and defranding
preemptors of their rights. | am sorry the Attor-
ney General has permitted his name TO be signed
tn such document. add still more that that the
Secretary of the Interior far forgot the great in
terests at stake as to make it the guide of his De-
partment against what must have been his own
decided judgment. If carried out. no preemptor or
homestead claimant safe. 1t mocks Justice, sets
common sense at defiance, and insults judicial de-
cency: and the men who procured it in behalf of
spectators were engaged in a very unworthy and
unmanly service.
In Lytle ct al VS. the State of Arkansas, g How
ards Reports,) the court says, 1.-The adventurous
pioneer who is found in advance OF settlements,
encounters many hardships and not unfrequently
dangers from savage incursions. He is generally
poor, and it is fit that his enterprise should be
warded by the privilege of purchasing the fayorte
spot selected by him. not to exceed one hundred
and sixty acres. That this is the national policy
is shown by the course of legislation for many
years" 1t is in behalf of the great army OF men
Of this class. now lowering over the public do
main. and hereafter to find their homes upon it,
that speak; and the attempt to wrong them by a
pretended legal opinion, which is clearly against
law, and ndustriously used on this floor and in the
lobby to defeat just and necessary amendment to
the bill now pending is about as despicable an en-
terprise the public has been invited to consider
in our latter day legislative experience.
Mr.. McRuer obtained the floor.
The morning hour having expired the further
consideration of the bill postponed until the
next morning hour for general business.
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