The Homestead Act of 1862

Over the years, there were many changes to the Homestead Act.   The following summary applies only to the original act.

ELIGIBILITY:   To be eligible, a person had to be 21 years of age, or the head of a family, or have met certain military requirements.   He or she also had to be a U.S. citizen or have filed a declaration of intention to become one.   And the final requirement was that he or she must not have borne arms against the U.S. or given aid and comfort to its enemies (a significant restriction at the time of enactment with the Civil War well underway).

RIGHTS GRANTED:  The act permitted an eligible person to enter (move onto) unappropriated public land upon which the applicant already had preemption rights, or which was subject to preemption rights, after filing an application with the register of the Land Office, along with an affidavit and a $10 fee.   The affidavit attested to the above requirements, plus the requirement that the land was being entered for the exclusive use of the applicant and for settlement and cultivation.

AMOUNT OF LAND:   The maximum quantity of land which could be entered was one quarter Section (160 acres) of land if it was the type having a minimum price of $1.25/acre or less (almost always the case in West Florida), or 80 acres of land if it was the type having a minimum price of $2.50/acre.   The entire quantity of land had to be in one body and not spread around.   For those who already owned land which they resided on, they could homestead land contiguous to their land, so long as the total of their previously owned land and the contiguous land being homesteaded did not exceed 160 acres.

5 YEAR REQUIREMENT:   A patent certificate could be obtained by the homesteader after continuously residing on and cultivating the land for 5 years.   To obtain the patent, the homesteader had to file another affidavit attesting to the original requirements, plus having met the 5 year requirement and a statement that no part of the land had been sold, given away or otherwise alienated.   Affidavits from two witnesses to the above effect were also required.   And, of course, an additional fee was required.  If the homesteader was not a U.S. citizen at the time of his original application, he must have become one before being issued a Homestead Patent.   The patent certificate must have been applied for within 2 years of completing the 5 year residency and cultivation requirement.

HOMESTEAD COULD NOT BE SOLD OR SUBJECT TO DEBTS:   During the period from initial entry and application until final issuance of the patent, no part of the homesteaded land could be sold or taken for debts of the homesteader.   Even after the issuance of the patent, the homesteaded land could not be taken for debts which were contracted before the issuance of the patent.   (This was probably intended to prevent sales of the land hidden behind sham loans.)

SHORTCUTTING THE PROCESS:   At any time during the 5 year settlement and cultivation period the Homesteader could short-cut the process by paying the minimum price established for the land.

RIGHTS OF HEIRS:  The Act provided extensive protection for heirs in the event the homesteader died before completing the process.

The entire text of the original act is reprinted below.

Text of Original Homestead Act

Chapter LXXV. - An Act to secure Homesteads to actual Settlers on the Public Domain.

      Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person who is the head of a family, or who has arrived at the age of twenty-one years, and is a citizen of the United States, or who shall have filed his declaration of intention to become such, as required by the naturalization laws of the United States, and who has never borne arms against the United States Government or given aid and comfort to its enemies, shall, from and after the first January, eighteen hundred and sixty-three, be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which said person may have filed a preemption claim, or which may, at the time the application is made, be subject to preemption at one dollar and twenty-five cents, or less, per acre; or eighty acres or less of such unappropriated lands, at two dollars and fifty cents per acre, to be located in a body, in conformity to the legal subdivisions of the public lands, and after the same shall have been surveyed:   Provided, That any person owning and residing on land may, under the provisions of this act, enter other land lying contiguous to his or her said land, which shall not, with the land so already owned and occupied, exceed in the aggregate one hundred and sixty acres.

      Sec. 2.   And be it further enacted, That the person applying for the benefit of this act shall, upon application to the register of the land office in which he or she is about to make such entry, make affidavit before the said register or receiver that he or she is the head of a family, or is twenty-one years or more of age, or shall have performed service in the army or navy of the United States, and that he has never borne arms against the Government of the United States or given aid and comfort to its enemies, and that such application is made for his or her exclusive use and benefit, and that said entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use of benefit of any other person or persons whomsoever; and upon filing the said affidavit with the register or receiver, and on payment of ten dollars, he or she shall thereupon be permitted to enter the quantity of land specified:   Provided, however, That no certificate shall be given or patent issued therefor until the expiration of five years from the date of such entry; and if, at the expiration of such time, or at any time within two years thereafter, the person making such entry; or, if he be dead, his widow; or in case of her death, his heirs or devisee; or in case of a widow making such entry, her heirs or devisee, in case of her death; shall prove by two credible witnesses that he, she, or they have resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit aforesaid, and shall make affidavit that no part of said land has been alienated, and that he has borne true allegiance to the Government of the United States; then, in such case, he, she, or they, if at that time a citizen of the United States, shall be entitled to a patent, as in other cases provided for by law:   And provided, further, That in case of the death of both father and mother, leaving an infant child, or children, under twenty-one years of age, the right and fee shall enure to the benefit of said infant child or children; and the executor, administrator, or guardian may, at any time within two years after the death of the surviving parent, and in accordance with the laws of the State in which such children for the time being have their domicil, sell said land for the benefit of said infants, but for no other purpose; and the purchaser shall acquire the absolute title by the purchase, and be entitled to a patent from the United States, on payment of the office fees and sum of money herein specified.

     Sec. 3.   And be it further enacted, That the register of the land office shall note all such applications on the tract books and plats of his office, and keep a register of all such entries, and make return thereof to the General Land Office, together with the proof upon which they have been founded.

      Sec. 4.   And be it further enacted, That no lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor.

      Sec. 5.   And be if further enacted, That if, at any time after the filing of the affidavit, as required in the second section of this act, and before the expiration of the five years aforesaid, it shall be proven after due notice to the settler, to the satisfaction of the register of the land office, that the person having filed such affidavit shall have actually changed his or her residence, or abandoned the said land for more than six months at any time, then and in that event the land so entered shall revert to the government.

      Sec. 6.   And be it further enacted, That no individual shall be permitted to acquire title to more than one quarter section under the provisions of this act; and that the Commissioner of the General Land Office is hereby required to prepare and issue such rules and regulations, consistent with this act, as shall be necessary and proper to carry its provisions into effect; and that the registers and receivers of the several land offices shall be entitled to receive the same compensation for any lands entered under the provisions of this act that they are now entitled to receive when the same quantity of land is entered with money, one half to be paid by the person making the application at the time of so doing, and the other half on the issue of the certificate by the person to whom it may be issued; but this shall not be construed to enlarge the maximum of compensation now prescribed by law for any register or receiver:   Provided, That nothing contained in this act shall be so construed as to impair or interfere in any manner whatever with existing preemption rights;   And provided, further, That all persons who may have filed their application for a preemption right prior to the passage of this act, shall be entitled to all privileges of this act:   Provided, further, That no person who has served, or may hereafter serve, for a period of not less than fourteen days in the army or navy of the United States, either regular or volunteers under the laws thereof, during the existence of an actual war, domestic or foreign, shall be deprived of the benefits of this act on account of not having attained the age of twenty-one years.

      Sec. 7.   And be it further enacted, That the fifth section of the act entitled "An act in addition to an act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes," approved the third of March, in the year eighteen hundred and fifty-seven, shall extend to all oaths, affirmations, and affidavits, required or authorized by this act.

      Sec. 8.   And be it further enacted, That nothing in this act shall be so construed as to prevent any person who has availed him or herself of the benefits of the first section of this act, from paying the minimum price, or the price to which the same may have graduated, for the quantity of land so entered at any time before the expiration of the five years, and obtaining a patent therefor from the government, as in other cases provided by law, on making proof of settlement and cultivation as provided by existing laws granting preemption rights.
APPROVED, May 20, 1862.