consent of the House to introduce a bill, of which he had given previous notice, for the purpose of referring it to the proper committee.

The title of the bill was read, as follows:

"A bill to encourage agriculture, and for other purposes." "No objection being made, the bill was received, twice, read, and referred to the Committee on Agriculture."

In the report of the proceedings of the House, on the 25th of July, 1850, is the following:

"HOMESTEADS.

"Mr. YOUNG, from the Committee on Agriculture, to which the bill of the House to encourage agriculture, and for other purposes, was referred, reported the same back, with sundry amendments.

"Mr. JOHNSON, of Tennessee, then addressed the House at length, in explanation of the objects contemplated by this bill. He looked upon it as a measure of great importance. Five years ago, he had introduced a similar proposition, to give to every citizen, the head of a family, a portion of the public lands, for the purpose of settlement, and on which he might establish for himself a home. There were many gentlemen who, at that time, regarded the plan as impracticable, and as unlikely to lead to any useful results; but since that time, the public mind had taken up the subject. It had been widely discussed out of doors, and Congress had, at various periods, made liberal donations of the public domain in aid of public institutions, and in recompense for public services. He now came forward and asked for a participation of this bounty, in the name of the common man, who, by his toil and sweat, had quietly and effectually contributed to the support of the Government. For that class of our citizens he desired to ask that they also may come in for a share of these public lands," &c.

At the conclusion of his speech, of which the above is the first paragraph only, as reported in the Globe, the gentleman from Tennessee gave notice that he would, at the proper time, move to amend the title of the bill by adding thereto the following:

"And to provide a homestead of one hundred and sixty acres of the public domain for every man who is the head of a family, and a citizen of the United States, or any widow who is the mother of a child or children who may, become permanent occupants and cultivators of the same."

to "

Thus, the honorable gentleman from Tennessee, by giving his bill the "soft insinuations" of a bill encourage agriculture," &c., had succeeded in having it referred to the Committee on Agriculture, and when it comes back to the House from that committee, he takes the first opportnnity to give notice that he intended to restore the original title which the bill had when the House refused to refer it to the Committee on Agriculture, and did refer it to the Committee on Public Lands; and which amendment having been made subsequently as an addition, and not as a substitute for the title which the bill had when it was referred to and came from the Committee on Agriculture, has produced that strange inconsistency between the title and the provisions of the act which I have before pointed out, in stating my objections to the title of this bill.

I shall conclude this reference to the proceedings of the last Congress in relation to this measure or

culture, increasing commerce, and widening the market for the agricultural products of the country; but he did not intend to enlarge upon this branch of the subject in this connection, but he intended to march directly up to the consideration of the general principles of the bill.

"He then sent to the Clerk's table, and had read the following authorities: Leviticus, chapter 25, verse 23 The land shall not be sold forever-for the land is mine-for ye are strangers and sojourners with me.""

Mr. J. then had read extracts from Vattel's Law of Nations and from President Jackson's Annual Message to Congress in 1832, which I will not read, but which will be found in the report of his speech in the Appendix to the Globe:

"Mr. J. continued, by saying that he thought Moses, Vattel, and Andrew Jackson, made a sure foundation, on which he was willing to stand, without regard to any other authority. He had introduced these great names for the purpose of satisfying that portion of society who were skeptical in a great reform proposition like this, and who would not take the time and trouble to investigate and think upon the principle involved. Mr. J. contended that the Government had no authority, neither under the Constitution, nor in compliance with the four great elementary principles indispensable to the existence of man, to withhold the use of its soil from its citizens. Man cannot live without the use of the soil; and Government cannot, in compliance with first principles, withhold the essentials of life from the people. The Government, whose legislation is directed against these first principles, is making war upon the great scheme of Deity himself, and reduces its operaations to practical infidelity. If legislation was made to take this direction, we might hail it as the beginning of the millennium morn, when we should have peace on earth, and good will among men.'”

6

The gentleman from Tennessee then proceeds in his speech to point out certain advantages which he thought would follow from the measure, both to the Government and to the settler; but I think no other inference can be drawn from the whole speech than that he had brought forward and adtion," to provide a homestead for those having none, Vocated the measure as a "great reform proposibut who had a right to one, "in compliance with four great elementary principles," and on certain principles of natural right and justice, which, I confess, I do not fully understand.

What have been the most conservative arguments here this session, in favor of this " great reform proposition," other than to show that the public welfare would be promoted, by giving and providing at the public expense, out of the public domain, a homestead and a home for those having none, and had not the means to buy one?

Upon what ground have others put the duty of the Government to grant, and the right of those having no land to ask, this homestead? I will let the gentleman from Ohio [Mr. CABLE] speak for himself. In the speech made by him on this bill on the 11th of March last, he says:

"My friend from Tennessee, on a former occasion, quoted, as authority on this point, from Moses, Vattel, and Jackson-all good authority, authority not to be questioned in this enlightened day; but he might have gone further-gone with the venerable John Q. Adams, while discussing our

of the gentleman from Tennessee, before referred to, as I find it in the Appendix of the Globe.

After sending it to the Clerk's table the amendment to the title of the bill to be read

"Mr. J. continued, by saying that this amendment made the title of the bill complete; that this was the original christening of the proposition now under consideration, and had been merely changed by himself to a bill to encourage agriculture, and for other purposes.' He said he had made this explanation for the purpose of letting the House and the country know that this was nothing more nor less than the naked, clean proposition to provide every man, who is the head of a family, with a homestead of one hundred and sixty acres of land, thereby encouraging agri

still further, and proven the original title IN MAN from his creation, bestowed by God himself upon the whole human family-not the few! Then first of all to the Bible-that book of books-which declares that, In the beginning God created the heavens and the earth; and there was not a Iman to till the earth.' * * * Again, He formed man out of the dust of the earth; and breathed into his face the breath of life, and man became a living soul.' After his creation, as male and female,' man was directed to 'fill the earth and subdue it. And the Lord Gud sent him (man) out of the Paradise of pleasure-the Garden of Eden-to till the earth from which he (man) was taken." Again: In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it thou wast taken: for dust thou art and unto dust shalt thou return."

rule, ought to have some weight on this question of the power of the Government, thus to tie up the citizens of the States. The power or right to annex these conditions does not seem at all to fol

and with them the "fine for alienation." Hence in New York, and in most of the other States, probably, a statute "abolishing entails."

In speaking of certain restraints of this right of free alienation and use of property, Lord Coke held them to be "absurd and repugnant to reason and to the freedom and liberty of freemen," and cites this maxim, 66 Iniquum est, ingenuis homin

There are nearly fourteen hundred millions of acres of the public domain-a vast territory, sufficient to make many more States. This bill is now popular; it is brought forward as a popular measure. Let this bill pass, and by it, and by other similar measures, most of this immense domain will pass from the control of the United States, except so far as the Government shall attempt to control it and its tenants, by these or similar conditions. In my judgment, the power thus to control the land and its occupants, would be dangerous to State rights, and might lead to interminable difficulties between the General Government and the States.

III. But admit that Congress has the right and power to grant the land on these conditions; is it politic for Congress to do so? I hold that it is not. I hold the conditions upon which the one hundred and sixty acres are granted to the settler by this bill, to be both impolitic and inconsistent; impolitic, looking at the grant of the land to the settler as a measure of public policy; and inconsistent with the object of the grant, looking at it as a measure of public charity, or of political benevolence. I hold these conditions and restrictions to be as unwise as they are unjust; an unnecessary infraction of the liberty of the citizen, not only uncalled for by, but positively injurious to the public interest, as proved by the experience of ages. Land best answers its purpose, when it is freely alienable-when it is freely a thing of commerce. The common law-the maxims and rules of which must be supposed to have originated from public convenience or public policy, as proved from experience-made certain conditions in a conveyance in fee void, which interfered to a certain extent with this policy of free alienation. Hence in a conveyance in fee, by which the grantor parted with all his estate and interest, a condition that the grantee should not alien to any was void. (Co. Litt., 223a.) Hence the rule in the famous case of Shelley, (1 Co. R. 9.;) which was, "that ⚫ when the ancestor, by any gift or conveyance, 'takes an estate of freehold, and in the same gift or conveyance an estate is limited mediately, or immediately, to his heirs, or the heirs of his body, 'that the words 'heirs, '&c., are words of limitation ' of the estate, and not words of purchase;" for if the heir had taken as purchaser, the fee would have been in abeyance during the life estate, and the alienation of the fee suspended until the termination of the life estate. (See 3 Rev. Stats. of New York, 568 to 579, reviser's notes.) Hence the contest between the common law judges in Lord Coke's day, and the statute " De Donis" of 13 Edward I.; which statute was passed to enable the great lords and landholders to keep their lands perpetually inalienable in their families. Hence the statute of 12 Charles II., abolishing the burdens of the military tenures of the feudal system,

No doubt, at common law. in leases for life or years, where the lessor retained a reversion in the lands granted; and even in leases in perpetuity or fee, where the lessor retained, by way of rent, an estate or interest in the land equivalent to a⚫ reversion; such conditions were permitted, and held to be legal; but this was upon the ground that the lessor did not part with all his estate, and interest in the demised premises. (See Sir Anthony Mildemaye's case, 6 Co. 41; Co. Litt. 223a.; 4 Kent's Com. 131.) And now in New York, and probably in all the States, any condition in restraint of alienation in such leases, would be held valid, which did not so far restrain the alienation as to create a perpetuity as defined and forbidden by the laws of the State in which the demised premises were. Yet, the "abhorrence of a perpetuity," and of these restraints upon the free use of property which the common law had, as shown by its rules and maxims, a few only of which I have before referred to, and the laws of the States abolishing entails, and preventing the alienation of the fee from being restrained beyond the term of one or more lives, or a certain term of years, plainly show, that it has hitherto been thought, that these restrictions upon the free use and sale of land were impolitic, and that land best answered its purpose, when it was freely a subject of traffic, and its owners and holders could occupy and cultivate it, or part with it freely, when and as they chose.

At common law, when an individual, by grant or devise, parted with all his estate and interest in the land, he might, for the benefit of himself, or of his heirs, or of a third party, where there was a grant or devise over, annex any reasonable condition to his grant or devise; but I question whether a case can be found in the books, where in such grant or devise of all the estate and interest of the grantor or devisor, and where there was no grant or devise over, on failure of performance; any condition restraining or controlling the grantee or devisee, as to his or her occupation, cultivation, or alienation of the land, has been held valid, upon the ground that such condition or conditions were annexed for the benefit of the grantee or devisee, and the performance of it, enforced for his benefit. law would pronounce such restraint absurd, and, in the language of Lord Coke, as "repugnant to reason and to the freedom and liberty of freemen."

The

Now, I have shown that by this bill the United

States parts with all its estate and interest in the land as landholder; on certain conditions it is true. But I have shown that these conditions are intended for the benefit of the settler; and whether intended for the benefit of the settler, the State, or the United States, upon what principle are they imposed by this Government on the settler? If the policy and principles of the common law opposed such restrictions, even in a private grant or devise, as a useless infringement of the "liberty of freemen," how impolitic, how inconsistent, not only with the declared object of this bill, the benefit of the settler, but with the declared object of this Government, "to secure the blessings of liberty," for it to introduce these and similar conditions into its grants of the public domain. The common law and statutes of the States forbid that the alienation of one farm shall be restrained beyond the term of one or more lives, or a term of years; this bill restrains voluntary alienation by the settler for five years only, but it restrains millions of settlers and millions of acres for five years, and it restrains any involuntary alienation by judgment and sale under an execution, or by mortgage, forever. This new policy of the Government is introduced for the pretended benefit of the settler, of the State, or of the Government, one or allas such I have been looking at it. But if the real object of inserting these conditions is, Mr. Chairman, to quiet the constitutional scruples which some might have to disposing of the public lands as a gift, as a gratuity, for the benefit of a certain class of citizens, or of certain States only, by hampering the gift and its receiver, and thus rendering the gift the less valuable; if these conditions and restraints are inserted in the bill merely for the purpose of argument, to give the measure the color of an act of public policy, and thus procure its passage; if they are never to be enforced, or the settler and the land are hereafter to be released from them by legislation; why then, those who have brought forward or advocated this measure with this intention, must choose between the impolicy and inconsistency of these conditions, and the hypocrisy of thus procuring the passage of the bill under false pretenses. But I make no charge against any one of having any such improper or concealed motives, either in bringing forward, or in advocating the "homestead bill." I believe the author of it honest, but mistaken in his views of the policy of the whole measure, and especially as to the policy of these restraints and conditions. It is possible he or the Committee on Agriculture may have been misled by the authority of great names; for the resolution submitted by Mr. Webster, in the Senate of the United States, on the 22d of January, 1850, in relation to the public lands, to which I have before referred, contained a condition that the settler and his heirs or devisees should never alien the land except by devise. The resolution was as follows:

"Resolved, That provision ought to be made by law that every male citizen of the United States, and every male person who has declared his intention of becoming a citizen, according to the provisions of law, of twenty-one years of age or upwards, shall be entitled to enter upon and take any one quarter section of the public lands which may be open to entry at private sale for the purposes of residence and cultivation; and that when such citizen shall have re

sided on the same land for three years, and cultivated the

same, or, if dying in the mean time, the residence and cultivation shall be held and carried on by his widow, or his heirs, or devisees, for the space of full three years from

and after making entry of such land, such residence and cultivation for the said three years to be completed within four years from the time of such entry; then a patent to issue for the same to the person making entry, if living, or otherwise, to his heirs, or devisees, as the case may require: Provided, nevertheless, That such person so enter

ing and taking the quarter section, as aforesaid, shall not have, nor shall his devisees or heirs have, any power to alienate such land, nor create any title thereto in law or equity, by deed, transfers, lease, or any other conveyance, except by devise, by will."

Now, Mr. Chairman, this resolution was submitted not by way of inquiry, not as a question of policy to be investigated, but by it Mr. Webster expressed his deliberate opinion that the hundreds of millions of acres of the public domain ought to be given to actual settlers on condition of occupation and cultivation for three years, and on condition that the land so given away should never be alienated except by devise-a policy which, if adopted and carried into a law, would in time take out of commerce, of sale and purchase, and render perpetually and wholly inalienable, except by devise, half of the territory of some of the States lately admitted into the Union; and the greater part, perhaps the whole, of the territory of States hereafter to be formed and admitted into the Union-a policy utterly at war with the whole spirit and policy of the common law, as perfected and settled by the experience of ages, and with the policy of State legislation, in every State in the Union-a policy similar to that which induced the great lords and landholders of England, in the reign of Edward I., to procure the passage of the statute "De Donis," to enable them to perpetuate and render inalienable in their families their lands, but which statute was met by the sturdy resistance of the English common-law judges in favor of English freedom; and after a contest carried on between the statute and the judges, during the reigns of Edward IV., Henry VII., Henry VIII., and into the reign of Elizabeth, was finally, by what Chancellor Kent calls (4 Kent, Com. 13) "a bold and unexampled sketch of the power of judicial legislation," effectually defeated by the judges.

I object, Mr. Chairman, to all attempts by legis-, lation to control the citizen in the management or disposition of his property, or in the management or regulation of his moral conduct, unless called for by the most imperious considerations of public policy, whether they come in the form of the conditions of this "homestead bill" or of the "Maine liquor law," or of any other modern, popular, legislative, moral reform measure. Strange it is that those who are eternally talking about the intelligence of the people, should thus openly repudiate that intelligence, and proclaim to the whole world that a free American citizen is not to be trusted with his own affairs; that a man worth less than five hundred dollars, or having no land, does not know enough to take care of one hundred and sixty acres of land; does not know when it is best for him to sell; or whether it is best for him to borrow money or not; or when, and what, and how much it is best for him to drink;-that the same man who is trusted with a vote which may rule the destinies of twenty-five millions of people, is not to be trusted with one hundred and sixty acres of unimproved land, or a bottle of wine. Strange that extreme Democracy has a tendency thus to run into extreme tyranny; that this Government, by inserting conditions and restrictions in its grants of land, should substan

tially claim the ancient prerogatives of the King of England as the great lord or proprietor under the feudal system of all the lands in the kingdom; for does not the Government, by these conditions and restrictions, say to the settler, you shall not sell, you shall not leave your farm for more than six months at any one time, you shall not mortgage it, you shall not incur a debt without our permission; and what is this but a republican imitation of the "fine for alienation," abolished by the statute of 12 Chas. II., and of others of the worst features of the feudal system? I believe the people know best how to manage their own affairs. If I gave them the land, I would give it to them out and out, "in the simplest and most unembarrassed form," as Mr. Webster would have done in 1837, as appears from a speech of his made in the Senate of the United States on the 11th of February, 1837, on Mr. Calhoun's bill to cede the public lands to the States in which they lie, which will be found in the fourth volume of Congressional Globe and Appendix, page 157 of Appendix.

OBJECTIONS TO THE "HOMESTEAD BILL" NOT AP

PEARING ON ITS FACE.

Having stated, Mr. Chairman, the most prominent objections to the “homestead bill" appearing on its face, I now proceed to state, as briefly as possible, certain other objections to the bill, considering it as a question of public policy, and not as a question of constitutional right or power; which objections arise and derive their force from the past policy and legislation of the Government, in relation to the public lands; from other land measures now pending before Congress; and from other facts and considerations which do not appear on the face of the bill.

Before proceeding to state these objections, however, one word with regard to public policy. What is public policy-is it not the general welfare? To ascertain what this public policy, this general welfare is, must you not look at the East as well as at the West; at manufactures as well as at agriculture; at all the great interests of the Union? Is not public policy the greatest good to the greatest number? Is not every constitutional act of Congress, even an act for the payment of a private claim, necessarily to be taken as an act of public policy; for is it not for the public welfare; is it not public policy for the Government to be just?

Looking, then, at this "homestead bill” as a question of public policy, to be settled by considerations not appearing from the bill itself, I say that I object to the bill:

I. Because the land measures of this session of Congress, especially the "homestead bill," will be injurious even to the land States, by vastly increasing the evil already felt and complained of by those States; that is, of large tracts of land in those States being held, unimproved, by speculators and large capitalists;-or the land States, to get rid of the evil, will by taxation force those lands from the speculators and capitalists to themselves, and thus through these land measures and the unlimited power of State taxation, indirectly and without compensation, unjustly acquire from private citizens the lands which those citizens have been induced by the past policy of the Government to purchase, and which the Constitution

had not authorized the Government to grant directly to these States as a gratuity. In other words, these land measures will enable the land States to take, and they will take, without compensation, but under the form of State law from the citizen, the grantee of the Government, the land which they could not constitutionally get as a gift from the Government; or they will aggravate the very disease for which they are now asked as a remedy, not only by adding to the immense number of acres of unimproved land in those States heretofore disposed of by the Government, and now owned and held by private persons, corporations, &c.; but by compelling the smaller and less independent proprietors of such land to escape State taxation, to sell out at depreciated prices to large capitalists and millionaires, who may be able to pay the taxes and hold on to the land; and who may be induced at nominal prices to purchase large tracts of this unimproved land over which the General Government has lost its control, either from the abundance and cheapness of money, or from the ambition or vanity of becoming large landholders or landlords.

One or the other of these results, or both, partially, in my judgment, Mr. Chairman, will inevitably take place from this most extraordinary policy of throwing the public lands into the market, by millions of acres at a time, vastly in advance of the demand for actual settlement and cultivation.

If these land measures have any legitimate and defensible object, as measures of public policy, that object is the settlement and cultivation of the unim proved land in the land States and Territories; to hasten their settlement and cultivation. It is evident that it is wholly immaterial to the question of public policy or public welfare, which lands are first settled and cultivated-the lands heretofore disposed of by the Government, or the lands to be disposed of by the land bills brought forward and to be brought forward at this session of Congress. The country is to be enriched, the public welfare to be promoted, if at all, by the additional number of acres of land to be cultivated and improved. It can make no possible difference when the land was disposed of by the Government, or whether it belongs to the State, a railroad company, or an individual.

It appears to me that this whole question of policy and of anticipated benefits, even to the land States, from the "homestead bill," railroad bills, and other schemes for getting rid of the public lands, now before Congress, depend, in a great measure, upon two things, which have been wholly overlooked in this discussion of the land question. One is, the quantity of unimproved land in the land States, now in the market, not belonging to the United States, but which has been heretofore disposed of by the Government. The other is, the probable demand for land in the land States for actual settlement and cultivation, for some years to come, say fifteen or twenty years. It is evident that you cannot settle and cultivate the land without settlers. Where are they to come from, and how many will you have annually to settle the lands?

Make your calculations; say you have a certain number-the persons, "the heads of families," whom this "homestead bill," this bonus of the Government, induces to settle on the lands disposed of by that bill-you will not have to settle