The following is taken from the proceedings in the United States Senate, the soldiers' homestead act of 1872 being under consideration, and is found in bound volume No. 174, of the Congressional Globe, 42d Congress, 2d Session, part 3, pages 1885 and 1886:

Mr. MORTON. The main feature of the bill is to allow the soldier to count as a part of his occupation the time he served in the army. I think that is right, and nobody can object to it. At the same time I think it is important to preserve the feature of actual settlement to guard against speculations. Therefore it is that I ask the Senator from Illinois to state what construction he would give to the third section, which provides that where the soldier is dead the Secretary of the Interior may appoint a guardian

Mr. POMEROY. No; not appoint.

Mr. MORTON. That "a guardian duly appointed, and officially accredited at the Department of the Interior, shall be entitled to all the benefits enumerated in this act." The question I desire to ask is, whether this guardian thus appointed is required by the law, or expected, himself, to make the actual settlement, to serve out the time that is required beyond that which was served in the army by the person on whose behalf the settlement was made? If the soldier who died, and whose heirs are entitled to the benefit of this settlement, served three years in the army, then there are two years yet to be provided for by actual occupation of the land if he were living. Now, if he is dead, what is the guardian required to do in regard to those two years?

Mr. LOGAN. There is nothing in the section that positively requires that he shall settle on it. The section provides that "a guardian duly appointed, and officially accredited at the Department of the Interior, shall be entitled to all the benefits enumerated in this act." He is entitled to all the benefits that are given to others, and nothing more. Therefore, I should say, the distinction here is, the soldier being dead, he cannot occupy and improve the land; but the guardian would be required to have it occupied and improved. That would be my construction of it.

Mr. MORRILL, of Maine. The Senator will perceive that as it now stands it would seem to be implied, as suggested by the Senator from Indiana, that it would then go without any actual settlement at all, that the guardian would succeed to the title to that land, and would be entitled to all the benefits of the act without any actual settlement. Of course, that is not intended by the committee; but it is apparent that the section is susceptible of that construction.

While I am up I will ask the Senator what he understands to be the effect of section five:

"That any soldier, sailor, marine, officer, or other person coming within the provisions of this act may as well by an agent as in person, enter upon said homestead.” The same question might arise there. Is that to be an actual occupation, or, as suggested by the Senator from Indiana, is the actual occupation in that case remitted, and are the parties to succeed to the title to have the same benefits that the soldier would have had without the occupation; in other words, does it dispense with any actual settlement?

Mr. LOGAN. No sir. If the Senator will allow me, I will state to him how I understand it at least. Six months is allowed for the entry; that is, to go and enter the land at the land office, or for whatever arrangement is necessary prior to the settlement. This may be done by an agent. If the Senator will examine this fifth section he will find that it reads:

"That any soldier, sailor, marine, officer, or other person coming within the provisions of this act may, as well by an agent as in person, enter upon said homestead.” "Enter upon;" that is, the entry that takes place under the six months first mentioned.

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'Provided, That said claimant in person shall within the time prescribed commence settlement and improvements on the same, and thereafter fulfill all the requirements of this act."

That fifth section means that he may employ an agent to make the entry under the first six months' time that is given for the entry to be made; but after that entry is made, within the twelve months, the occupation and improvement of the land must be by the person himself, and not by the agent. That is the meaning of the section, and in fact it is the language of the section.

Mr. MORTON. One word further. According to the provisions of this bill, if a soldier died in the army during the period of his enlistment, or at any time subsequent, five years ago, his heirs through their guardian are entitled to the benefit of this law. This would create a very large number of heirs entitled to the benefit of this law, approaching pretty nearly to the number of the living. But now, under the terms of this bill, would not the guardian, having made the locationMr. POMEROY. The guardian cannot make any location.

Mr. MORTON. Would not the guardian be entitled to have the patent issued, so that so far a all heirs are concerned, the title would issue without any actual occupation beyond the mere location by the guardian? The guardian would have to locate but does not the bill practically dispense with any actual occupation beyond that of mere selection upon the part of the heirs? That is the point of difficulty I see.

Mr. POMEROY. If the Senator will allow me, I am glad he has called attention to the third section of the bill. I think I can explain it. This subject has been before the committee for a long time, and there is not a line in the bill that we have not studied. If the Senator will put his eye on the third section, it reads thus: "That in case of the death of any person who would be entitled to a homestead under the provisions of the first section of this act "

Who are they? We will go back and see who they are.

Mr. MORRILL, of Maine. Soldiers.

Mr. POMEROY. Yes, but not the guardians of minors. We will see who they are. The first section reads:

'That every private soldier and officer who has served in the army of the United States during the recent rebellion for ninety days or more, and who was honorably discharged, and has remained loyal to the Government, including the troops mustered into the service of the United States by virtue of the third section of an act entitled 'An act making appropriations for completing the defenses of Washington, and for other purposes,' approved February 13, 1862, and every seaman, marine, and officer who has served in the navy of the United States or in the marine corps, during the rebellion, for ninety days, and who was honorably discharged, and has remained loyal to the Government, shall, on compliance with the provisions of an act entitled 'An act to secure homesteads to actual settlers on the public domain,' and the acts amendatory thereof as hereinafter modified, be entitled to enter," &c.

Those are the people who can secure a homestead on the public domain under this bill-no guardian, no agent; and every one must apply in person for it. Now, in that view, take up the third section of the bill, which reads—

"That in the case of the death of any person who would be entitled to a homestead under the provisions of the first section of this act”

That is, any soldier who has located in person and died after his location. Then the guardian of his children or his widow may take up and complete the settlement. That is the meaning of that.

Mr. WINDOM. In order to remove all doubt on that subject I will submit an amendment to that third section.

Mr. POMEROY. We do not want any.

Mr. WINDOM. Why not?

Mr. LOGAN. It is perfectly clear now. It applies to the first section, and the first section requires settlement.

Mr. CONKLING. Let us hear the amendment.

Mr. WINDOM. I was going to suggest this amendment: to insert after the word "act," in the seventh line, the words "subject to all the provisions as to settlement and improvements therein contained?"

Mr. MORTON and others. That obviates the difficulty.

Mr. LOGAN. There is no objection to that. That is the way is it, anyhow.

The VICE PRESIDENT. If there be no objection this amendment will be regarded as agreed to. The Chair will also suggest that a comma be inserted after the word "appointed," in the fifth line, so as to remove all doubt on that subject.

Mr. MORRILL, of Maine. Let the section be read as it now stands.

The Chief Clerk read as follows:

"SEC. 3. That in case of the death of any person who would be entitled to a homestead un'er the provisions of the first section of this act, his widow, if unmarried, or in case of her death or marriage, then his minor orphan children, by a guardian duly appointed and officially accredited by the Department of the Interior, shall be entitled to all the benefits enumerated in this act, subject to all the provisions as to settlement, and improvement therein contained: Provided, That if such person died during his term of enlistment, the whole term of his enlistment shall be deducted from the time heretofore required to perfect his title."

Mr. POMEROY. What the committee have tried to avoid is the assignment of rights or land warrants. There has been a great contest in this country whether soldiers should have something they could assign or sell in the market. The committee decided that that was not expedient, but that every one should be required to locate on the land.

Mr. MORTON. The explanation of the Senator from Kansas, I think, is not satisfactory. He makes this section to apply to any person who, after having made his location, should then die, but that is utterly inconsistent with the proviso in the same section, "provided, that if such person died during the term of enlistment," showing that it applied to those who even died during the war and before the passage of this bill. Therefore it does not refer to those who may make location after the passage of this bill or at any time subsequent to the war, and shows that it refers to soldiers without reference to the time when they died. The amendment offered by the Senator from Minnesota may meet the case, but I am not sure that it does. It says "subject to all the provisions and conditions of this act," but will that make it necessary for the guardian of a child to go and make actual occupation? If so, it will never be complied with.

Mr. FRELINGHUYSEN. I call the attention of the Senator from Indiana to the first section of the bill, which says in terms that no patent shall issue, to any homestead settler who has not resided upon the land one year. Then the third section provides for the case of the death of any person who shall be entitled to a homestead under the provisions of the first section, referring to this very provision.

Mr. MORTON. That would cut it off entirely. The question is, whether in case of a man who died during the war and the guardian of his children now comes in and makes the location, but under the conditions provided in the previous act, it does not mean that that guardian shall go and actually occupy the land? If so, it would be inoperative, and yet that would be the effect of it.

Mr. FRELINGHUYSEN. The act is explicit that no patent shall issue unless they do occupy the land.

Mr. MORTON. That would defeat the bill.

Mr. WINDOM. My understanding of that section is, that the minor children or the orphan children may by their guardian have the benefit of it; that is, settlement must be made by the widow or children, and the guardian is appointed simply as

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the instrument through which the act is to be carried out. The settlement is to be made by the widow or children of the soldier who is entitled, but the guardian is simply appointed in order to carry out the act.

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These proceedings disclose: First, that the words "settlement” and "occupation" are throughout the entire proceedings used as synonymous with residence;" and, second, that the insertion of the clause in section 3 of the act of 1872, "subject to all the provisions as to settlement and improvements therein contained," was intended to make it clear that the same conditions required of the soldier or sailor were to be exacted of his widow or minor orphan children, with the exception of the special provision for the deduction, where the soldier or sailor died during his term of enlistment, of the entire term of said enlistment.

This seems to effectually dispose of the second of the reasons before recited, taken from former departmental decisions relieving the widow and minor orphan children of a deceased soldier or sailor from residence when making entry under section 2307, Revised Statutes, viz., that by section 2305 of the Revised Statutes, the soldier or sailor making entry under section 2304, Revised Statutes, was required to reside upon, improve and cultivate the land for the period of at least one year, but that section 2307, Revised Statutes, in extending the rights to the minor orphan children merely required a compliance with the general provisions of the homestead laws as to settlement and improvement, omitting any requirement as to residence.

In this connection it may be added that where the law has required proof of settlement" this term has been uniformly construed by the land department as the equivalent of residence. Buchanan. Minton (2 L. D., 186); Samuel M. Frank (2 L. D., 628); U. S. v. Atterbery et al. (8 L. D., 173); Hessong v. Burgan (9 L. D., 353); Ex parte Jones (10 L. D., 23); Ex parte Sweeney (11 L. D., 216); Wills v. Bachman (11 L. D., 256); Deemer v. Tilton (11 L. D., 302); James C. Daly (17 L. D., 498); Shafer v. Butler (19 L. D., 486); Delorme v. Cordeau (29 L. D., 277).

The first of the reasons assigned is, that it would be unreasonable to require of the guardian of the minor orphan children of the soldier or sailor, that he take up a residence upon the land, and that if the children were compelled to make actual residence on the land the object of the statute would be defeated in all cases where they are too young to care for themselves.

In so far as the guardian of the minor orphan children is concerned, it is clear that he was merely permitted as the accredited representative of the minor children to make the entry, and was not required to reside or settle upon or occupy the land entered. It is true that under the construction requiring residence by the minor orphan children the act would not be immediately available to such of the minor orphachildren of a deceased soldier or sailor as are too young to care for

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themselves, but it is equally true that it would become available to them at a later period, and that but for this act the homestead laws would not be available to them until they arrived at the age of twentyWith regard to the widow, she, like many a deserving soldier or sailor, might not be able to avail herself of the privileges of the act because unable to comply with its conditions, but the act, while open to all included within the classes defined, can not be warped to fit the peculiar circumstances of each individual. Poverty, weakness, inexperience, fear, or other incumbrances of a woman, while considerations that appeal to sympathy, are not sufficient reasons for excusing compliance with law.

With regard to the third and last reason assigned in the former decisions, viz., that an application of the decision made in Dorame v. Tower (2 C. L. O., 131), wherein it was held that the heir or devisee of a deceased homesteader was not required to reside upon the land but merely to continue the cultivation thereof for the remainder of the period of residence required of the homesteader, if living, relieved the minor orphan children, when making entry under section 2307, Revised Statutes, from any requirement of residence, it is sufficient to say that the conditions are widely different where, by the death of the homesteader, the care of the claim is immediately cast upon the widow or children, and where such widow or children seek in their own right to initiate a homestead claim, and that the considerations assigned in support of the first are not sufficient to relieve the latter from compliance with the plain provisions of law known to the claimant when initiating claim.

The requirement in the Dickey case that the widow do some act to connect herself with the land entered, is fruitless unless such act is with the honest intent of remaining or making the place a home, and results in little less than a scrip right or privilege.

After a most careful consideration of the entire matter this Department refuses to be guided by the decisions relieving the widow or minor orphan children of a deceased soldier or sailor from residence when making homestead entry under section 2307 of the Revised Statutes.

Even should the Department follow the previous decisions relieving those making entry under section 2307 of the Revised Statutes from any requirement of residence, it does not follow, and it is not true, as contended, that a person qualified to make an entry under section 2307 may sell that right or enter into a contract, either before or after entry, which contemplates a sale thereof. Section 2290 of the Revised Statutes, as amended by the act of March 3, 1891 (26 Stat., 1095), provides:

That any person applying to enter land under the preceding section shall first make and subscribe before the proper officer and file in the proper land office an affidavit