Homestead Act

Explanation and Analysis of the Document

Section 1

In the first section, the act's basic premises are laid out: who is eligible, when the act takes effect, what is being offered, and where a homestead claim may be made. In establishing who is eligible, Grow includes a number of important references. The act stipulates that “any person,” a head of a family or one who is twenty-one years or older, is entitled to enter a claim to one quarter section (160 acres) or less. The gender-neutral description of “any person” is highly significant for the 1860s and is underscored in Section 2 with several references to “he or she.” This wording notably opens the way for women who meet either criterion to enter a claim on their own. In addition, the potential homesteader must be a citizen of the United States or have filed a declaration of his or her intention to become naturalized, a point included in anticipation of the great interest on the part of foreign immigrants. The final eligibility requirement reveals the sociopolitical context of the Civil War as a backdrop to the act: Only those who have “never borne arms against the United States Government or given aid and comfort to its enemies” may take up a homestead.

Although the Homestead Act was signed in May 1862, it states that it will not take effect until January 1863. At that time, a homesteader can make a claim on surveyed, “unappropriated public lands.” The act allows that the person may have already filed for preemption on the homestead claim. However, the homesteader is restricted from acquiring more than 160 acres of contiguous land. With this limit, Congress sought to prevent land speculators and monopolists from amassing large land holdings while stopping actual potential settlers from homesteading.

Section 2

Section 2 contains the provisions for formalizing the homestead claim into a legal title or patent, known as “proving up.” Central to this process is an affidavit, with two credible witnesses, made before the land register or receiver. The affidavit attests to three points: (1) that the applicant (“he or she”) is the head of a family, is at least twenty-one years old, or has served in the U.S. military; (2) that he has never taken up arms against the U.S. government or assisted its enemies; and (3) that the homestead application is for the sole use, benefit, and purpose of “actual settlement and cultivation” and not in any way for the benefit of anyone else. The third point is intended to thwart not only land monopolists but also the proliferation of dummy entries to achieve this same end.

Along with the affidavit, a homesteader must submit payment of a $10 filing fee, after which he or she will be permitted to officially “enter” the quantity of land making up the claim into record. The final patent will not be issued until five years from the original filing. In other words, filers are expected to commit to no less than five years of homesteading (residing or cultivating) their claim. In the case where the filer has died in the interim, the surviving spouse or heirs are entitled to the claim, after proving their five-year residence on the land and their citizenship. At no time can homesteaders “alienate” part of their claim.

Sections 3 to 5

Sections 3 to 5 are brief, further refinements of the previous sections. The land register is directed to record all entries and forward all paperwork to the General Land Office. There is also the reminder that no homestead lands can be used to satisfy debts that were contracted before being given a patent. Finally, the claim can be lost or denied. If, before the five-year period expires, it can be shown that the filer either relocated to another residence or abandoned the claim for more than six months at any time, the prospective homestead will revert back to the government.

Sections 6 to 8

The provisions detailed in Sections 6 to 8 are primarily concerned with clarifying what the act does not imply or allow. Section 6 states that no one is permitted to acquire title to more than one quarter section (160 acres), nor should the act's wording be construed as to interfere with existing preemption rights, including those deriving from a preemption filing made prior to the Homestead Act's passage. It also authorizes the commissioner of the General Land Office to prepare such rules as will be necessary to carry out all of these provisions. Moreover, land registers and receivers are entitled to the same compensation they had been receiving when the equivalent amount of land had been entered and paid with money. But that was all. A final provision is aimed at soldiers: No person who has served or may yet serve in the U.S. military for at least fourteen days as a regular or volunteer during a period of war, domestic or foreign, shall be denied the benefits of this act.

Section 7 is an affirmation of the authority to require that all requested oaths, affirmations, and affidavits be provided in accordance with the act's provisions. Section 8, the final section, is known as the commutation clause. Namely, nothing in the act shall be interpreted as preventing the homesteader from being able to pay the minimum price for the land entered before the end of the five-year requirement has passed, thus commuting his or her time remaining into a cash payment in order to get title to the land.