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Opinion regarding Pre-emption of Public Land, 6 March 18561
“Can there be any valid pre-emption on sections of land, alternate to the Sections granted to the Illinois Central Railroad?”2
My opinion is asked on the above question–3
“An Act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights” Approved Sep. [September] 4. 1841, contains the first permanent, or prospective pre-emption law–
5. S^U^.S. Stat. [Statutes] at Large 453.
Sections ten, eleven, twelve, thirteen, fourteen, and fifteen, of this act, relate exclusively to pre-emptions– In Section ten it is provided that “no sections of land reserved to the United States alternate to other sections granted to any of the States for the construction of any canal, railroad, or other public improvement, shall be liable ^to entry^ under and by virtue of the provisions of this act.”4
This act continues to be our general pre-emption law, up to the present time– and, although some supplementary provisions had afterwards been enacted, the above provision, in section ten, remained untouched up to Sep. 20. 1850, when the Central Railroad grant was made–
The latter act, preserved existing pre-emptions, on the even Sections, granted generally, for the Road; but made no mention of pre-emptions, as to the odd sections reserved to the United States–
9 Stat. at Large 466.5
August 2. 1852 “An Act to protect actual Settlers upon the Land on the Line of the Central Railroad and Branches, by granting Pre-emption Rights thereto.” ^was passed–^ By this act, pre-emptions were given on these re-
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served Sections, to such persons as were settlers on them, on Sep. 20. 1850, in such way as to be entitled to the benefit of the act of Sep. 4. 1841,
10. Stat. at Large– 27.6
This, it is perceived, limits the right to those who had made actual settlements upon the lands, on the 20th of Sep. 1850— the date of the Central Railroad grant.
March 3. 1853 “An Act to extend Pre-emption Rights to certain lands therein mentioned” was enacted–
By this act the general pre-emption laws are extended to these reserved Sections, with a proviso “That no person shall be entitled to the benefit of this act who has not settled and improved, or shall not settle and improve such lands prior to the final allotment of the alternate sections, to such Railroads by the General Land Office”
10 Stat. at Large– 244–7
I have examined all the subsequent acts of Congress up to the close of the Session, on March 3. 1855; and I do not discover that the above quoted proviso has even been disturbed– ^“An Act for the Relief of Settlers on Lands reserved for Railroad purposes” Approved, March 27. 1854— does not affect the the act last aforesaid. 10 Stat. at Large 269–^8
The final allotment of the alternate sections to the Illinois Central Railroad Company, by the General Land-Office, was made on the 13th day of March 1852–9
It is my opinion that persons who settled on those reserved sections prior to the date of said “final allotment” might have a valid pre-emption^s^; and that those who settled thereon after the date of said allotment, can not–
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As to the mode of redress, in cases of pre-emptions having been improperly allowed by the Register and Receiver, it is more difficult to answer, owing to that matter depending upon the regulations, or special action, of the Departments, and not upon express statutory provisions–
I understand that if a pre-emption be illegally allowed by the Register and Receiver, or, even legally allowed, but upon false or fraudulent proof, and forwarded to the General Land Office; the party interested to contest the pre-emption, may address a letter, or petion petition, to the Commissioner of the General Land-Office, describing the land, stating the facts, and pointing out wherein the illegality or fraud consists, and asking for a re-hearing; and that, thereupon, the Commissioner will direct the Register and Receiver to give a re-hearing, upon notice to both pre-emptor, and contestant–
I, therefore, would advise that wherever, on these reserved sections, a settlement and improvement have been made before the “allotment” of the General Land Office, towit before, March 13. 1852— and ^a claim is now set up^ the claim should be contested, on the ground that it the right has been lost, by not being followed up with claim, proof, and payment, in due time– See Section 15 of the Act of Sep. 4, 1841–
In cases where settlements were made after the allotment, contest them on the ground that there never was a right–
The contest to be made in the mode above pointed out– The letter, or petition, to the Commissioner, should, in this class of cases, contain a reference to the ^aforesaid,^ Acts of Sep. 4– 1841– Sep.
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20. 1850– August 2. 1852– March 3. 1853 & March 27. 1854— and particularly to that of March 3. 1853– Also, if it be intended to assail the proof which the pre-emptor has made, as being false or fraudulent; it would be better to verify the Petition by affidavit–
A. LincolnMarch 6. 1856
1Abraham Lincoln wrote and signed this document.
2Pre-emption refers to “the right of a settler of a tract of public land to purchase it before other applicants.” The sections of land in question were those public lands retained by the United States when granting land to the state of Illinois to facilitate the construction of the Illinois Central Railroad. The September 20, 1850, act of the U.S. Congress which made the grant gave Illinois “every alternate section of land designated by even numbers, for six sections in width on each side” of the railroad and its branches, while the alternate odd numbered sections remained public land.
“Pre-emption,” Reference, Glossary, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, 2d edition (Springfield: Illinois Historic Preservation Agency, 2009), http://www.lawpracticeofabrahamlincoln.org/Reference.aspx?ref=Reference%20html%20files/Glossary.html; “An Act Granting the Right of Way, and Making a Grant of Land to the States of Illinois, Mississippi, and Alabama, in Aid of the Construction of a Railroad from Chicago to Mobile,” 20 September 1850, Statutes at Large of the United States 9 (1862):466-67.
3It is unknown who requested Lincoln’s opinion on this question, which became the issue in the case of Walker and Smith v. Hedrick in the Illinois Supreme Court the following year. No evidence has been found that Lincoln was directly involved in that case, although the opinion given by Justice Walter B. Scates in Walker and Smith v. Hedrick agreed with Lincoln’s opinion here. On November 29, 1855 James C. Walker purchased a tract of land in McLean County, Illinois that was in one of the alternate sections reserved to the United States in the grant to Illinois for the Illinois Central Railroad. Walker then conveyed a portion of the land to John R. Smith in February 1856. Jacob Hedrick, however, claimed to have settled the land in question on November 1, 1855, and obtained a certificate of purchase as a pre-emptor on November 27, 1856. Walker and Smith filed a bill against Hedrick in McLean County Circuit Court in March 1857, and after the case was dismissed by that court, they appealed to the Illinois Supreme Court in April. In both Lincoln’s and Scates’ reading of the statutes, pre-emption could only be claimed on the alternate sections of land retained by the United States if the land in question was settled by the pre-emptor prior to the final allotment of alternate sections to a railroad by the General Land Office. As the final allotment of land to the Illinois Central Railroad was made in 1852, Scates found that Hedrick could not claim pre-emption on land he had settled in 1855 and found in favor Walker and Smith, overturning the McLean County Circuit Court’s dismissal of the case.
Lincoln provided legal opinion, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=141537.
4See the act of September 4, 1841, with quote adapted by Lincoln from section ten.
“An Act to Appropriate the Proceeds of the Sales of the Public Lands, and to Grant Pre-emption Rights,” 4 September 1841, Statutes at Large of the United States 5 (1856):453-58.
5See the act of September 20, 1850, with section two discussing the preservation of existing pre-emptions on the alternate even numbered sections granted to the state of Illinois.
“An Act granting the Right of Way, and making a Grant of Land to the States of Illinois, Mississippi, and Alabama, in Aid of the Construction of a Railroad from Chicago to Mobile,” 20 September 1850, Statutes at Large of the United States 9 (1862):466-67.
6See the act of August 2, 1852, which made provisions for those who were settlers or occupants of the alternate sections of land reserved by the United States when granting land for the Illinois Central Railroad in the act of September 20, 1850, described above, to purchase the land in question provided that they occupied the land on the date that the act was passed.
“An Act to Protect Actual Settlers Upon the Land on the Line of the Central Railroad and Branches, by Granting Preëmption Rights Thereto,” 2 August 1852, Statutes at Large of the United States 10 (1855):27-28.
7See the act of March 3, 1853, which extended the right of pre-emption to the alternate reserved sections of public lands along any railroad, provided that settlement was made prior to the date of the final allotment of sections by the General Land Office.
“An Act to Extend Preëmption Rights to Certain Lands Therein Mentioned,” 3 March 1853, Statutes at Large of the United States 10 (1855):244.
8The March 27, 1854, act cited by Lincoln states that “every settler on public lands which have been or may be withdrawn from market in consequence of proposed railroads, and who had settled thereon prior to such withdrawal, shall be entitled to preëmption at the ordinary minimum to the lands settled on and cultivated by them.”
“An Act for the Relief of Settlers on Lands Reserved for Railroad Purposes,” 27 March 1854, Statutes at Large of the United States 10 (1855):269.
9In his opinion in Walker and Smith v. Hedrick, Justice Scates stated that the date of the final allotment by the General Land Office to the Illinois Central Railroad was June 4, 1852.
Opinion, Document ID: 132916, Lincoln provided legal opinion, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=141537.

Copy of Autograph Document Signed, 4 page(s), Abraham Lincoln Association Files, Lincoln Collection, Abraham Lincoln Presidential Library and Museum (Springfield, IL).