PUBLIC LANDS. 169 



the lands are transferred to our government. Before their 

 transfer, thousands of years before, the principle of occu- 

 pancy as giving a title to such common unappropriated lands 

 has been established as a fundamental principle in the 

 original acquisition of property. These lands, therefore, are 

 a subject for the application of the principle ; and they be- 

 come the absolute property of the individual who occupies 

 and improves them. 



Rutherforth says that before this right of property by oc- 

 cupancy can attach, it is necessary the " thing seized upon 

 should he certain and determinate. '''' In the case of the pub- 

 lic lands, it is always understood to be a quarter section of 

 the public survey. This renders it determmate. But I 

 would add one other condition, and that is, that it is neces- 

 sary also for the occupant to pay to government the expenses 

 of the Indian treaty and the survey. These two conditions 

 complied with, and I believe it impossible to establish any 

 other principle known to the doctors upon natural or politic 

 law, whereby a title to these lands can be acquired, and 

 wholly impossible to show any fair and solid argument 

 against the equity and legality of the title by occupancy, — 

 or the propriety of its application to the lands in question. 



If Congress, unmindful of this law, and treating the pub- 

 lic lands as if government had the fee in them, shall continue 

 obstinately to persist in the illiberal policy which they have 

 maintained, and which is founded no less upon ignorance of 

 facts, than upon error in law, the time will come when the 

 settlers will disregard the lien of government, and take pos- 

 session of the lands without refunding the expenses of the 

 treaties and surveys. 



A permanent pre-emption law was passed in September, 

 1841, by which the occupants of the public lands are secured 

 in their possessions — and every person being the head of a 



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