
    THE HOT SPRING-S CASES.
    (10 Court of Claims R., 289, 433; 92 U. S. R., 698.)
    John C. Hale, appellant, v. The United States, appellees. Henry M. Rector, appellant, v. The United States, appellees. William H. Gaines et al., appellants, v. The United States, appellees. John H. Russell, appellant, v. The United States, appellees.
    
      On the claimants’ Appeals.
    
    Percifull inhabits and cultivates at the Hot Springs while the lands there are not yet surveyed nor offered for sale, nor the Indian title extinguished. As soon as the la/nds are surveyed he attempts to enter a quarter-section under the Pre-emption. Act April 12, 1814. Rector files a New Madrid certificate for 200 arpents of land, and procures a survey (returned to the surveyor-general’s office) locating the 200 arpents at the Hot Sprimgs. The Indian title is then extinct, but the lands have not been su/rveyed. Belding occupies al the Sqmngs as tenant of Percifull. His heirs seek to enter and perfect title under the Act May 29, 1830, but not till after the Act April 20, 1832, which reserves the Springs for the future disposal of Congress, and forbids an entry at the Land-Office. In 1870, {the three adverse parties having afoot-hold or occupancy at the Springs,) Congress pass the Hot Springs Act, empowering the court below to sit as a court of equity and adjudicate the titles. The several suits are consolidated and tried together. The court below decides that none of the parties has an equitable title ; that the Hot Springs Act does not confer a right, but only a remedy, and does not substitute the court in the stead of the officers of the Land-Office to perform duties which they have left undone; that the Reservation Act 1832 is not affected by a subsequent statute allowing entries to be made under the Act 29th May, 1830 ; and that a location under the New Madrid Act is not complete until the surveyor-general files a plat and notice with the recorder of land-titles. Judgment for the defendants. The claimants appeal.
    
    I. It lia3 been the declared policy of the Government from an early day to prohibit any settlement of lands belonging to the Indians.
    II. The Act 1st March, 1843, (5 Stat. L., p. 603,) to perfect titles to lands south of the Arkansas, leaves unshaken the Hot Springs Reservation Act, 1832, (4 Stat. L., 505,) which in absolute terms declares that the springs shall be reserved for the future disposal of the United States, and forbids an entry or location on them. Nor does it effect a repeal by implication.
    
      III. That a public statute, general in terms, was intended by Congress to validate a single pre-emption claim, (the only one pending in the Land-Office affecting the tract named in the statute,) is a fact which cannot he known to the court. Such an intent, it must he inferred, would not have been left in sneh obscurity.
    IV. To acquire a pre-emption right under the Act lWi April, 1814, (3 Stat. L., p. 121,) which says “actually inhabited and cultivated a tract of land,” it must be made clear that the settler intended to make the place his home. To erect a cabin and cultivate a garden for temporary accommodation, while his actual residence was elsewhere, will not bring him within the statute.
    V.A statutory reservation of certain public lands “for the future disposal of the United States ” is a reservation to the United States.
    VI.Where one statute reserves a specific tract “for the future disposal of the United States,” forbidding at the same time all entries thereon, and a subsequent statute allows, in general terms, settlers to enter lands occupied hut not surveyed, when an anterior pre-emption act expired, the general phraseology of the latest statute willnot be deemed a “ disposal” of the reserved tract within the meaning of the other. (Acts 20th April, 1832 andl4i7t July, 1832, 4 Stat. L., pp. 505, 603.)
    VII.The exchange of lands contemplated by the Neio Madrid Act, 1815, (3 Stat. L., p. 211,) did not take place until the applicant had effected a “ location,” and the location was not complete until the surveyor-general had returned to the recorder of land-titles, the “plat ” and “ notice in writing ” prescribed by the statute. Then, and not till then, was the applicant entitled to a patent. Hence a party acquired no vested right in the property, though he procured a survey to be made and returned in the surveyor-general’s office, if the surveyor-general neglected or refused to return the “plat ’’-and “ notice in writing ” to the recorder. And until this plat and notice were thus returned, the land was not severed from the public domain, and might he permanently reserved from entry and sale by Congress.
    
      The Reporters’ statement of the case :
    The court below did not find the facts in this case according to its ordinary practice, inasmuch as the' statute conferring jurisdiction provided that suits brought under it should “ he conducted” “ according to the rules and principles of equity practice and jurisdiction in the other courts of the United States.” Nevertheless the facts deduced by both courts from the voluminous evidence in the case are apparently the same, and the only questions of law passed upon by the two courts are substantially identical. For a more specific statement of the facts on which the parties respectively relied, than appears in the opinion of the court, the reader is referred to the arguments, in which they are carefully collated.
    
      
      Mr. Freñ. P. Stanton for the appellant John 0. Hale :
    This appeal from the Court of Claims is consolidated with that of Henry M. Eector and that of the heirs of Belding. These cases have been adjudicated by the court below, and are brought into this court on appeal by virtue of the act May 31, 1870, entitled “An act in relation to the Hot Springs reservation in Arkansas.”
    Of the three titles or claims, that of Hale is the oldest, being founded on a right of pre-emption, claimed by one John Perci-full under the act of April 12,1814.
    The Eector title is founded on a New Madrid location, claimed to have been made in the year 1820.
    The Belding title claimed by Gaines and others is founded on the pre-emption Act May 29, 1830, (4 .Stat. L., p. 420,) and upon an entry of the land made December 19, 1851, by virtue of an equivocal order of the Secretary of the Interior, but since vacated and annulled by the same authority.
    The Act April 20,1832, (4 Stat. L., p. 505,) reserves from sale the Hot Springs tract, including the land in dispute. It is insisted that the Act March 1, 1843, (5 Stat. L., p. 603,) entitled “An act to perfect the titles to land south of the Arkansas Eiver, held under New Madrid locations and pre-emption rights under the act of 1814,” repeals the reservation act of 1832. The Court of Claims denied this construction ; and this is claimed to be erroneous.
    The Hale title, which now vests in the widow and heirs of John C. Hale, deceased, was acquired by conveyance from Sarah Percifull, the widow, and David Percifull, the sole heir of John Percifull, the original settler. Pre-emption rights were assignable under the early laws. Assignments of these rights were first prohibited, I believe, by the third section of the act of May 29,1830, and the prohibition extended only to pre-emp-tions under that act. The sale of a pre-emption right is recognized as valid in Thredgül v. Pintará, (12 How., 24.)
    John Percifull settled on the land in controversy as early as 1808 or 1809, and continued to hold and occupy it by himself and his tenants until his death, in 1836. His widow and son continued the occupation after his death until they assigned to Hale; and the possession has been held by Hale and his heirs to the present time.
    
      At the time of the enactment of the pre-emption law of April 12,1814, the land in question embracing the Hot Springs was in the Territory of Missouri. (See the acts of March 26, 1804, 2 Stat. L., p. 237, and of June 4,1812, id., p. 743.) The county of Arkansas, in the Missouri Territory, was organized on the 31st December, 1813. (Geyer’s Digest, p. 133.) Arkansas Territory was established by the act of March 2,1819.
    Although in 1814 the land in dispute was comprised within one of the organized counties of the Territory of Missouri, and although numerous white settlers had occupied the lands, yet this part of the Territory was not surveyed and subdivided until the year 1838. Prior to this survey the settler could not make proof of his right of pre-emption, nor apply to enter the land he claimed. But the want of surveys was no obstacle to settlements and pre-emptions, for the Aot February 6, 1813, (2 Stat. L., p. 797,) which is made part of the pre-emption act of .1814, especially refers to the ‘‘sectional and divisional lines run or to be run,” and evidently contemplated settlements on unsurveyed as well as surveyed lands.
    In 1838, after the land had been surveyed and before it had been offered for sale, the widow and heir of Percifull made application to pre-empt and enter the land at the land-office in Washington, Ark. The register and receiver rejected the claim on the ground that part of the land had “been located by New Madrid certificate No. 467, in the name of Francis Langlois.”
    In 1843 the application was renewed, and again rejected for the reasons given by the register and receiver in their decision of November 10,1843.
    Finally, on the 23d October, 1850, on the application of all the claimants, the register and receiver were instructed by the Commissioner of the General Land-Office to examine and adjudicate the rights of the several parties, and to return the testimony to the General Land-Office. But it seems that the register and receiver did not allow to Hale the reasonable and necessary time to procure the testimony of some of his material witnesses, and even refused to hear them when produced. The result of this investigation was a disagreement on the part of the register and receiver, the latter deciding in favor of Hale’s claim and the former against it.
    From the time of these proceedings in 1851 the several claimants have been struggling to assert their respective rights in the General Land-Office and in the courts. Hale has taken the precaution to perpetuate the testimony of some of his witnesses by appropriate legal proceedings in the courts of Arkansas, and some depositions have been regularly taken in this cause under the authority of the Court of Claims. Thus all the testimony which could be procured after so great a lapse of time is now presented to the court; and it is believed to be amply sufficient to establish the fact that John Percifull “inhabited and cultivated ” the tract of land in controversy, so as to entitle him to a right of pre-emption under the act of April 12,1814.
    This fact, however, is denied by the opposing claimants; and it seems not to be admitted by the learned judge who delivered the opinion of the Court of Claims. It becomes necessary, therefore, to refer briefly to the testimony on this point.
    All these witnesses, and others, prove that Percifull was universally considered the proprietor of the place. They not only testify to the facts within their personal knowledge, but they give the statements of other persons, made at the time, on the spot, ante litem motam, and amounting to such reputation of Percifull’s right as would be admissible in evidence under the circumstances of this case. (1 Greenleafs Ev., §§ 129, 130, 131.)
    It cannot be denied that there is a contradiction in the testimony on one side and the other, although the preponderance is greatly in favor of the Percifull claim. But there is also a very obvious way of reconciling the conflicting statements, and making them entirely consistent with each other and with the right of pre-emption claimed in this case.
    There is no doubt that Percifull cultivated a little farm on the Ouachita, where he made bread for himself and for the supply of his visitors at the springs. He probably spent a good portion of his time at the farm, especially as there was very little cultivable land near the springs. But there is not a syllable of proof that he claimed a pre-emption at the farm. He did claim his pre-emption at the springs; of this there is abundant proof. His cultivation at the farm was subsidiary to his actual residence and claim at the other more important place. His hunting, also, to supply game and meat to visitors at the springs, in connection with his making bread on the Ouachita, was the most effectual mode of maintaining and holding his claim to the land at the springs. Indeed, it was impossible for him to hold it in any other way. He complied with the law by culti-rating a small garden on the land in question, while he adopted still more efficient means, and in fact the only efficient means, of establishing his proprietorship on a solid and substantial basis.
    Now the explanation is simply this : most of the witnesses saw him at the springs, knew that he had a house and lived there, and cultivated a garden, as there was very little land fit for cultivation in that immediate vicinity; while others who lived remote from the springs and visited them only occasionally, at intervals of a year or more, saw him only at the farm on the Ouachita, where he was at work solely for the support of his establishment at the springs. The seemingly conflicting.statements of the witnesses are thus completely reconciled.
    Not only did the Government, in 1843 and 1855, through the Commissioner of the General Land-Office, acknowledge the sufficiency of Percifull’s settlement at the Hot Springs to entitle him to a pre-emption, if there had been no other obstacle in the way, but I think I may justly claim that both Belding and Rector, through whom the contesting rights asserted here have been derived, have gone even further in the recognition of the Perci-full title.
    Belding was unquestionably the tenant of Percifull in 1829, as is fully proved by his written acknowledgment. At the investigation of 1851 this was satisfactorily established, and was the ground on which the receiver rejected his claim to a pre-emption under the act of 1830. The register thought the fact of his holding as the tenant of another was no obstacle to his claiming a pre-emption by virtue of his possession and cultivation in 1829. The Secretary of the Interior even allowed an entry of the land by the heirs of Belding, although Belding himself, in his life-time, never asserted such a right, nor set up any claim against the title of his landlord. Notwithstanding this action of the Interior Department, (which, however, was afterward annulled,) I think I am justified in maintaining that Belding, by leasing the land from Percifull and disclaiming any other right than that of a tenant, did effectually recognize the claim of Percifull to the land in dispute.
    So, also, the agreement between Hale and Rector, made on the 11th May, 1843, would seem to be an acknowledgment to some extent of the right of pre-emption claimed by Hale as derived from the widow and heir of John Percifull, and founded on the old man’s inhabitancy and cultivation under the act of 1814. At any rate, these several agreements prove the continued possession of Percifull and those claiming under him, and go far to sustain the universal understanding that Percifull was the proprietor of the springs, and that his inhabitancy in 1814 was not mythical, but actual.
    The Indian title, supposed to have been vested in the insignificant tribe of Quapaws prior to the treaty of 1818, has always been put forward as the great obstacle in the way of Percifull’s pre-emption claim to the land in question. In the case of Thred-gill v. Pintará, above quoted, this court seems to have taken it for granted that the Indians had a possessory right to the lands south of the Arkansas Biver, merely because they assumed to make the cession of a boundless territory by the second article of that treaty.
    The treaty made with France April 30’, 1803, (8 Stat. L., p. 200,) conveyed the Louisiana territory to the United States ; and the only provision in that treaty bearing on this subject is that which requires our Government to respect all treaties which Spain had made with the Indians. But Spain had made no treaties with the Indians, and certainly none with the Quapaws. This court so intimates in Marsh v. Broolcs, (14 How., 522.) It is well known that Spain authorized settlements in Louisiana territory, and made grants of land there without the least regard to the existence of any Indian title. The Spanish regulations on this subject are found in Geyer’s Digest of the laws of Missouri. By numerous laws, which it is unnecessary to quote, our own Government has confirmed titles acquired under these regulations, and has granted lands to*settlers who had simply occupied the lands in pursuance of the Spanish laws.
    Yery soon after the treaty with France, our Government passed laws for the organization of the territories thus acquired. On the 31st of October, 1803, the President was authorized to take possession of the territory. (2 Stat. L., p. 272.) The laws of the United States had been extended over it. (2 Stat. L., p. 251.) By the above-mentioned act of March 26,1804, the whole purchase was organized into two Territories. One, comprising the limits of the present State of Louisiana, was called the Territory of Orleans, afterward changed to Louisiana; the other, which included the land in controversy, was called the District of Louisiana. The name was afterward changed to Louisiana Territory. (2 Stat. L., p. 331.) By the Act June 4, 1812, (2 Stat. L., p. 743,) the name of the Territory was again changed, and it was now organized with a territorial government, called Missouri. It was under this organization that the county of Arkansas was established in 1813, as above stated.
    By these various acts the settlement of that country was encouraged, for the organized governments were intended for the whites and not for the Indians. And then came the Act April 12, 1814, (3 Stat. L., p. 122,) which in its fifth section gave to “every person, and the legal representatives of every person, toho has actually inhabited and cultivated a tract of land lying in that part of the State of Louisiana which composes the late Territory of Orleans or the Territory of Missouri,” the right to pre-empt the same to the extent of 160 acres. There was in the law no exception in favor of the Indian title any more than there was in the Spanish laws for the settlement of the Territory. And it is notorious that this pre-emption law was for a long time so understood and so construed by the authorities of our Government. A great number of tracts of land south of the Arkansas, within the limits claimed to have been ceded by the treaty of 1818, have been pre-empted by virtue of the act of 1814, and patents have been issued to the occupants under that act, or to their legal representatives. In fact, this Perci-full pre-emption, under which the heirs of Hale now claim, is the only one of a great number south of the Arkansas Hi ver which has been finally rejected, as the records of the Land-Office will abundantly show. The objection was never raised until it was suggested in the opinion of Attorney-General Wirt, May 3,1836.
    In view of the general policy of the laws quoted and of the practice under those laws, by which numerous pre-emptions under the act of 1814 have been perfected by patents, I venture to ask this court to reconsider the question involved, if perchance any case heretofore decided may be considered as conflicting with the views now presented.
    But whatever may be the conclusion of the court as to the Indian title to the lands south of the Arkansas River prior to the treaty of 1818, there can be no doubt, I think, that the obstacle was intended to be wholly removed by the third section of the Act March 1, 1843, (5 Stat. L., p. 603.) The language of that section is: “That every settler on the public lands south of the Arkansas River shall be entitled to the same benefits accruing under the provisions of the pre-emption act of one thousand eight hundred and fourteen as though they had resided north of said river.”
    It has been universally admitted that this act was intended to remove, and did actually remove, the difficulty arising out of the assumed possessory right of the Quapaw Indians. And the principle is distinctly asserted by this court in the case of Thredgill v. Pintará, (12 Howard, 37, 38.)
    As to the reservation act 1832, the third section is to this effect:
    “ That the Hot Springs in said Territory, together with four sections of land, including said springs, as near the center thereof as may be, shall be reserved for future disposal of the United States, and shall not be entered, located, or appropriated for any other purpose whatever.”
    It must be admitted that after the passage of this law, until the same was repealed or modified, no officer of the United States had authority to permit the land to be entered; and the decision of Prisbie v. Whitney (9 Wall., 187) would seem to establish the principle that any inchoate right which Perci-full may have possessed under the act of 1814 was taken away or suspended by this reservation.
    But it is submitted that the act of March 1, 1843, above quoted, operates a repeal of the reservation act of 1832. It was passed for the express purpose of enabling th'e several claimants of the land at the Hot Springs to assert their rights according to their respective validity and precedence. Its very title implies so much — “An act to perfect the titles south of the Arkansas River, held under New Madrid locations and pre emption rights under the act of one thousand eight hundred and fourteen.” Although Cherokee pre-emptions are not mentioned in the title, yet they are provided for in the fourth section of the act; and the record in this case shows that one of Hale’s grounds of claim was by virtue of a Cherokee pre-emption. In fact, the act of 1843 was intended especially for this Hot Springs case, and this is well known to all the parties to this controversy, and to their counsel, or at least to such of them as have long been engaged in the litigation.
    It is a significant and most convincing fact that this preemption claim of John Percifull was the only claim under the act of 1814 existing south of the Arkansas at the time of the passage of the act of 1S43. It was so stated by Hon. Thomas A. Hendricks, Commissioner of the General Land-Office, in an official letter dated January 26,1859, and printed in 22 Howard’s Reports, p. 151. If there was no other case of a pre-emption claim under the act of 1814, in the territory south of the Arkansas, at the time when the act of 1843 was passed, then the argument is irresistible that the law was intended for that case, and must be applied to it in spite of the reservation of 1832. No other case has been presented at the Land-Office; none other has been known or heard of,
    The plain and palpable intention of the third section of the act of 1843 was to “perfect the title,” or to confirm the pre-emption rights south of the Arkansas River, ab initio ; that is to say, it intended to place the settler in the position he would have occupied if the Indian title had been previously extinguished. That Indian title was the only obstacle at the time of settlement, and the professed object of the law of 1843 was to give full force and effect to the law of 1814, south of the Arkansas as well as north of it. This could not be done without a repeal of the reservation of 1832.
    The enactment of 1843 is that u every settler south of the Arkansas shall be entitled.” John Percifull is one of these settlers, and he is included in the very words of the law, as much so as if the settlers had been enumerated and called by name. The Hot Springs were reserved in 1832, but John Percifull was settled there in 1814. The repugnance of the two laws is in “ the very matterthey cannot stand together. Against this construction have been quoted Wilcox v. Jackson, (13 Pet., 513;) Gear v. The ■ United States, (3 How., 120.) Of these, the latter alone deserves consideration, having an apparent application to the case in hand.
    In this case a lead-mine was claimed by pre-emption, upon the ground that all the lands in a certain district wrere directed to be sold by a law passed in 1834, which law made some special exceptions, but did not except lead-mines. The court held that the general law of 1807, which reserved all lead-mines and salt-springs from sale, was operative in the district mentioned, notwithstanding the broad terms of the law of 1834. The facts of this case are almost the reverse of those in the case now before this court. The act of 1807 was a general law reserving all salt-springs and lead-mines, and the policy of that law had been uniformly and consistently maintained in the disposition of all the public lands. On the other hand, the act of 1832 was a special reservation of an isolated, exceptional tract of land, which at the time was already occupied by a settler. The act of 1834, in Gear’s case, was an act of ordinary legislation, establishing a new district for the sale of lands, apparently not contemplating a departure from the policy prevailing in all other land-districts, and only indirectly and inferentially affecting rights of pre-emption which were not the primary object of the law. On the contrary, again, the act of 1843 was a special act, designed to act retrospectively upon a specified class of settlers, and to confirm a certain number of pre-emptions from their inception in 1814. In the Gear case, the law might very reasonably be construed to mean “all the lands in this district shall be sold, so far as the general policy of the law allows such sales, and no further.” In the present case, it would be necessary to insert in the law words of exception, thus: “ Every settler on the public lands south of the Arkansas River,” except the old pioneer, John Percifull, shall be entitled, &c.; the remedial policy of curing the defects of title under the act of 1814 shall not have its full effect; it shall cure everybody’s title except John Percifull’s. Finally, in the one case the general reservation was made long before the party had performed any act out of which1 his claim arose. In the other case the act of settlement was performed long before the reservation, and the remedial law comes afterward to recognize the meritorious character of the original act, and to remove an obstacle which prevented its operation at the time. The act of 1843 goes a quarter of a century behind the act of 1832, and legislates with reference to the .state of facts known to have existed at that early day.
    There is one general expression in the Gear decision which is thought to cover this case, being a statement of the abstract rule or principle of construction applicable to the facts. It is as follows: “The rule is that a perpetual statute, (which all statutes are unless limited to a particular time,) uDtil repealed by an act professing to repeal it, or by a clause or section of another act directly bearing in terms on the particular matter of the first act, notwithstanding an implication to the contrary may be raised by a general law which embraces the subject-matter, is considered still to be the law in force as to the particulars of the matter legislated upon.”
    It has already been shown that in this case there is “ a section of another act directly bearing in terms on the particular matter of the first act,” inasmuch as the words “ every settler” necessarily comprehend John Percifull, and refer to his settlement on the Hot Springs land. There is not a mere “ implication ” raised by the act of 1843 against the reservation of 1832. It is a special and direct contradiction or repugnancy “ in the very matter,” for the reason already stated, viz: that the preemption on the Hot Springs tract is as certainly included in the very words, and in the necessary intendment of the law, as if it had been the only settlement south of the Arkansas Eiver in the year 1814.
    This reasoning and these citations were made on the supposition that the law of 1843 was a “general law,” applying to many cases of pre-emptions under the act of 1814. But it appears that there was actually none other but the one now in question. This fact renders the foregoing argument only the more urgent and unanswerable, or rather, I should be inclined to say, renders it supererogatory and wholly unnecessary. The act of 1843 was intended to “ perfect the title ” to this particular pre-emption claim, the only one to which it was applicable, and this could not be done without repealing the act of 1832.
    As to the Belding pre-emption claim of Gaines and others.
    This claim has its origin in the act of 1830, but was lost by the limitation of that act, and was not revived until after the reservation act of 1832. It was not revived by the remedial act of 1843, which did not provide for pre-emptions claimed under the act of 1830. But I leave the argument on these questions to those who are interested to defeat the claim of Belding’s heirs.
    If, however, this claim should be allowed, I insist that it shall be for the benefit of Hale’s heirs, as prayed in the amendments to the original petition. Belding’s possession in 1829, by virtue of which his heirs have been permitted to make their anomalous entry, was as the tenant of Percifull.
    The Secretary of the Interior, considering that both the register and receiver agreed on the fact of possession in 1829, and holding the tenancy of Belding not to be material, authorized the entry by his heirs. But a succeeding Secretary ordered this entry to be annulled. The parties interested tried to arrest the cancellation of their entry by an injunction, but this court, in Gaines v. Thompson, (7 Wallace, 347,) sustained the act of the Secretary as legal and proper.
    It would, indeed, be an extraordinary result if, in this case, Percifull’s tenant should be allowed to supersede his landlord, and pre-empt the land under the act of 1830. Attorney-General Berrien, in 1830, was of opinion that “the right of preemption belongs to the landlord. That a lessee cannot dispute the title of his lessor, and that the possession of the former is to be considered the possession of the latter, are settled principles of law, founded in justice and policy.” A different view was subsequently taken in the Attorney-General’s Office and the Interior Department, but, it is believed, in opposition to all the authorities on that subject. (Taylor on Landlord and Tenant, § 629; Williams v. Watlcins, 3 Bet., 43; Lytle v. Ar-Icansas, 22 How., 206.)
    In the last-mentioned case this court said: “Neither could Cloyes be heard to disavow his landlord’s title. He held possession for Ashley, and was subject to be turned out on a month’s notice.” The same principle is involved in Thredgill v. Pintará, which decided that an assignee could not enter the land in his own right, so as to defeat the claim of the assignor for the purchase-money. And, in addition to this, the second section of the Act June 1,1840, (5 Stats., p. 382,) provides that the landlord, and not the tenant, shall be entitled to the pre-emption. It is true that this enactment had reference to the pre-emption law of 1838, but it is based on the well-settled principles sustained by the authorities quoted, and may well be considered as a legislative construction of those principles as applicable to all cases of pre-emption claims. It was about this time that the contrary principle was asserted in the General Land-Office, and the enactment was probably intended to correct an error so serious and unjust.
    As to the New Madrid location.
    In 1820, when Henry M. Rector made his attempt to locate the Langlois certificate on the land in dispute, Percifull was in possession under his pre-emption claim, and he and his wife were keeping a boarding-house at the springs. ' This possession by a hona-fide settler, under the act of 1814, was a legal obstacle to the location, which probably prevented its completion by the return of the plat and the certificate of the survey to the recorder’s office, as required by law.
    But the counsel for Hale’s heirs does not feel it incumbent on him to enter into the argument on the validity of Rector’s attempted location. That gentleman and his learned counsel will have sufficient difficulty to make good his case against the Government without opposition from the other claimants.
    
      Mr. Matthew H. Carpenter for the appellant Henry M. Rector :
    Henry M. Rector, the appellant, commenced suit in the Court of Claims against the Hnited States, claiming two hundred arpents, or one hundred and seventy and fifteen-hundredths acres, in square form, with the principal hot spring as near as might be in the center. ■
    This claim is founded upon a location of certificate No. 467, issued under the New Madrid relief act, passed February 17, 1815, (3 Stats., 211,) which location was made by survey No. 2903, executed by a deputy surveyor, under the direction of the surveyor for the Territories of Illinois and Missouri, on the application of Samuel Hammond and Elias Rector, father of the said Henry M. Rector, in 1820.
    The New Madrid act provided as follows:
    “ Sec. 1. That any person or persons owning lands in the county of New Madrid, in the Missouri Territory, with the extent the said county had on the tenth day of November, one thousand eight hundred and twelve, and whose lands have been materially injured by earthquakes, shall be, and they are hereby, anthorized to locate the like quantity of land on any of the public lands of the said Territory, the sale of which is authorized by law: Provided, That no person shall be permitted to locate a greater quantity of land under this act than the quantity confirmed to him, except the owners of lots of ground or tracts of land of less quantity than one hundred and sixty acres, nor shall any person be entitled to locate more than six hundred and forty acres, nor shall any such location include any lead mine or salt-spring: And provided also, That in every case where such location shall be made according to the provisions of this act, the title of the person or persons to the land injured as aforesaid shall revert to and become absolutely vested in the Hnited States.
    
      “ Sec. 2. That whenever it shall appear to the recorder of land-titles for the Territory of Missouri, by the oath or affirmation of a competent witness or witnesses, that any person or persons are entitled to a tract or tracts of land under the pro-visionsof this act, itshall be the duty of the said recorder to issue a certificate thereof to the claimant or claimants-; and upon such certificate being issued, and the location made on the application of the claimants, by the principal deputy surveyor for said Territory, or under his direction, whose duty it shall be, to cause a survey thereof to be made, and to return a plat of each location made "to the said recorder, together with a notice, in writing, designating the tract or tracts thus located, and the name of the claimant on whose behalf the same shall be made; which notice and plat the said recorder shall cause to be recorded in his office, and shall receive from the claimant for his services on each claim the sum of two dollars for receiving the proof, issuing the certificate, and recording the plat and notice as aforeasaid; and the surveyor shall be entitled to the same compensation for his services from the party applying, as is allowed for surveying the public lands of the United States.
    “Sec. 3. That it shall be the duty of the recorder of land-titles to transmit a report of the claims allowed and locations made under this act, to the Commissioner of the General Land-Office, and shall deliver to the party a certificate stating the circumstances of the case, and that he is entitled to a patent for the tract therein designated, which certificate shall be filed with the said recorder within twelve months after date, and the recorder shall thereupon issue a certificate in favor of the party, which certificate being transmitted to the Commissioner of the General Land-Office shall entitle the party to a patent, to be issued in like manner as is provided by law for other public lands of the United States.”
    The said certificate No. 467 was issued, under the provisions of the act, to Francis Langlois, on the 29th day of November, 1818, who, on the same day, by one Joseph Story, his attorney in fact and assignee, released to the United States two hundred arpents of land in th6 county of New Madrid. The right of Langlois to this certificate, by mesne conveyances, came to Elias Rector and one Samuel Hammond, who, on the 27th of January, 1819, applied, under the act, to have the same located as aforesaid. Thereupon a survey was ordered by the surveyor, and made by a deputy surveyor, James E. Conway, and reported to the surveyor’s office in Saint Louis on or about the 16th day of July, 1820, and registered in the said office as survey No. 2903.
    The act made it the duty of the surveyor to return a plat of each location made under it to the recorder of land-titles at Saint Louis, together with a notice in writing, designating the tract or tracts thus located, and the name of the. claimant on whose behalf made, which notice and plat the recorder was required to have recorded in his office. This duty in regard to this location the surveyor omitted to perform, in obedience to instructions from the General Land-Office, based upon opinions of Attoruey-General Wirt, holding as follows: 1. That New Madrid locations must conform with the general plan of surveying the public lands; 2. That locations made in a square, previous to the sectional lines being run, were wholly inadmissible, sale being unauthorized until after the running of the sectional lines; and that, therefore, such locations being without authority and void, could not be patented; and 3. That the contemporaneous survey of such locations with the general survey, and permitting them to produce the effect of causing fractions in the general survey, was unauthorized by law.
    The right of the claimant Eector depends upon the validity or invalidity of the said survey No. 2903, as a location of the said certificate under the act. ,
    The Court of Claims, deciding against the claim of Eector with evident reluctauce, but iu deference to language used by this court, in several cases differing from this, say:
    “ It has been argued, with unusual learning aud power, that the location was complete when the survey was made, returned, approved, and filed in the office where it was permanently to remain, and that thereby the title to the land injured by the earthquake reverted to and vested absolutely in the United States. We are not unmindful of any part of this cogent argument. We perceive that everything had been done by the parties which the law required them to do, and that everything which remained to be done was made a statutory duty on the part of the officers of the Government. We also perceive that, by the surrender of the first certificate, a party might suffer irreparable loss, and that he was without legal means to compel the surveyor-general to act by transmitting the plat and notice to the recorder. We are also aware that the Supreme Court has an-nunciated the principle that things which the public officers ought to have done should be regarded as having been done.” (Lytle v. Arkansas, 9 How. R., 314.)
    It is well settled that where a party has done everything within his power to establish a right, such right shall not be prejudiced by the non-performance of the duty of any public officer. (United States v. Reading, 18 How., 1.)
    But the Government seeks to avoid the effect of this principle by saying that this is not a case of the non-performance of duty by its officers; that this New Madrid certificate could not be lawfully located upon lands not covered by the public-land surveys; and therefore the surveyor, in not making return to the recorder, under this act, was acting in the line of his duty. And this is the real and fundamental question upon which depends the validity or invalidity of the survey as a location of this certificate.
    If this certificate could not.be located upon lands not covered by the public-land surveys, then, of course, the application and actual survey based thereon were of no effect; and the surveyor, with or without the instructions of his superior, was justified in treating them as nullities, and in refusing to make return to the recorder. On the contrary, if this certificate could be located upon lands not covered by the public-land surveys, then the application to the surveyor, and the survey made in accordance therewith, were all that was required of the applicants to perfect their right; and the neglect or refusal of the surveyor to make return to the recorder was the neglect or omission of a mere ministerial duty on the part of the surveyor, which cannot prejudice Rector’s rights. So that the whole case, as respects Rector, is reduced to the single question, Could this certificate be .lawfully located upon lands not included in the general land surveys'?
    The stress of the argument on the part of the Government is laid upon an assumed intention on the part of Congress to adhere in all cases to the system of rectangular surveys. It cannot be pretended that such intention, in regard to the relief of the New Madrid sufferers, is evidenced by the language of the act itself. But it is claimed that this general purpose of Congress, evidenced by other acts, must control the effect of this; and that construction must engraft upon it provisions not found therein. It is said that the reference in the act to the quantities of land, 160 acres in one case and 640 in another, shows that Congress had in mind the public-land surveys, and that the reservation in the act of lead-mines and salt-springs is a further argument in favor of the construction, and that however particular a statute may be, yet if it relates to the public lands, it must be construed with reference to the great leading purpose of Congress to have all the public lands sold under the rectangular system of surveys. It therefore becomes necessary to examine the several acts of Congress in relation to the disposition of the public lands, to see whether Congress has adhered so inflexibly to this system as to force it, by construction, upon a particular statute which is silent in regard to it. [The learned counsel then examined the statutes at great length, and continued.]
    Several things, important to be considered here, are suggested by a perusal of these acts.
    1. Every disposition of the public lands by sale under Government surveys has been effected through the instrumentality of registers and receivers. These offices were created when the first land-office was established in the Northwestern Territory ; and not a land-office has been established for the sale of lands under Government surveys from that time to this, that has not been under the management of a register and receiver. Indeed, these offices are as much a part of the Government system as the rectangular survey itself.
    The Territory of Louisiana contained so many of these claims for land irregular in form that Congress created in that Territory the office of “ recorder of land-titles,” whose duties and jurisdiction related only to those irregular tracts; and when the general plan for the disposal of the public lands under Government surveys was extended over this Territory by the act of February 15,1811, a land-office was created, to be administered by a register and receiver, who had the same j urisdiction as like officers in other Territories; that is, they were to sell all the lands to be sold under the Government surveys. The office of recorder of land-titles was not abolished, but the lands subjected to his jurisdiction — that is, the lands claimed uuder these grants irregular in form — were excepted out of the lands to be surveyed and sold by the register and receiver under the regular land-system. And unto this day both systems continue. The recorder of land-titles has his jurisdiction as to the lands claimed under these grants; and the register and receiver have their jurisdiction in regard'to the lands sold, and. to be sold, under and according to the Government survey.
    2. It seems to be a settled principle with Congress that no one man should ever have more than one mile square of land. Consequently it has over and over again been declared that, no matter what might be his title or the extent of his claim, the claimant should receive no more than one mile square. General La Fayette alone, I think, was excepted from this otherwise uniform rule.
    3. Another thing will be especially noticed by any one who reads these acts. Everywhere, in season and out of season, where it was profitable and where it was idle, sensibly and nonsensically, with reservation piled upon reservation, Congress has declared the exclusive right of the Government to all “lead-mines” and “salt-springs.” Two ideas seem to have been always in mind, that our liberties could only be defended with lead, and our free institutions preserved with salt.
    • In the light of these previous statutes we come to consider the New Madrid act, before quoted in extenso.
    
    Now the question is whether this act, read in connection with the prior legislation in regard to the public lands, authorized a location of the certificate to be issued under this act upon lands not covered by the public surveys; and that it did, the following considerations are submitted as conclusive:
    1. The act authorized a location of this certificate “ on any of the public lands of said Territory the sale of which is authorized by law.” I have shown that the law authorized and directed the sale of all the public lands to which the Indian title had been extinguished in this Territory. It would seem that after Congress had passed a law not only authorizing but commanding the sale of lands, there could be no question that such lands were authorized by law to be sold. That is, Congress, which possesses the power of disposition of all the public lands of the Government, has done everything needful when it has provided that the lands shall be sold in the way and manner prescribed by the act. In other words, that department of the Government which possesses the discretion to determine what lands shall and what shall not be sold, has exercised that discretion and subjected the lands to sale when it declares that the lands shall be sold in a prescribed manner.
    The surreys, advertisement, proclamation of the President, &c., are but the mode and manner of conducting the sale, and cannot take place until the sale of the lands has been first authorized by law.
    Again, when Congress authorizes the sale of lands, it prescribes a survey, then a public sale, then sales by private entry. Now, if such lands are not authorized by law to be sold when the act directing their sale becomes a law, at what point in the proceedings do such lands come within this phrase? Suppose the surveys to be made, and the land advertised by the President’s proclamation for public sale on a certain future day. Could this certificate be located upon them before the day fixed for such sale ? Certainly not, if the argument opposed to us be sound. But the lands may all be sold at the public sale, and then the certificate could never be located.
    But conceding, for the purpose of the argument, that this phrase is ambiguous in this particular, and certainly this is all that can reasonably be contended for on the other side, then the entire act, from its title to its conclusion, the object of the act, the circumstances of the case intended to be provided for, and the situation of those intended to be relieved, all must be taken into consideration to ascertain the intention of Congress, and the act must be so construed as to give full effect to that intention. When the law-making department enters upon the path of benevolence and charity, it is the duty of the courts so to construe its acts as to secure the end in view.
    Now, what was the case with which Congress by this act was dealing? There had been no public surveys in the Territory of Missouri, then including the now States of Missouri and Arkansas. The settlers of New Madrid County resided upon tracts of irregular shape, which they held under French and Spanish grants. They knew nothing of rectangular surveys; they had never paid court to registers nor tribute to receivers. They were frontier settlers, pioneers of civilization in the wilderness, striving to win a scanty living. In this situation their farms were destroyed by the earthquakes. Congress came to their relief, and proposed to take back their devastated lands and give them new homes “on any of the public lands of said Territory tbe sale of which is authorized by law.” They had been cultivating the soil in total disregard of rectangular lines ; and probably their respective tracts were not made more regular in form by the operation of the earthquakes. Therefore, nothing was lost in the interest of rectangularisin by permitting them to surrender their lands to the Government, to be regularly surveyed and sold, and taking in exchange an equal quantity of public lands elsewhere, in such form as they might elect.
    2. Again, Congress was volunteering aid and relief to sufferers from the convulsions' of nature, because their lands were no longer fit for cultivation and their homes were destroyed. We who have grown to manhood in new States, and witnessed the trials and privations of pioneer settlement, the hand-to-hand struggle for daily subsistence, the necessity of an autumn crop to carry a family through the long and dreary winter, how closely consumption follows production ; and considering, too, the general embarrassment and poverty of our people at that period, shown by the repeated acts of Congress extending the credits given to purchasers of the public lands, we never can be made to believe that Congress intended to heap insult upon calamity, by saying to these sufferers, “If you will surrender your now worthless lands, and wait five, ten, or fifteen years, as the case may be, until the rectangular system of surveys can be perfected, we will give you homes on other lands.”
    3. The office of recorder of land-titles was, as before shown, established with special reference to these private surveys in irregular form, and the registers and receivers had jurisdiction of all lands to be sold under Government surveys. If it had been the intention of Congress that the New Madrid sufferers should locate their certificates only upon regularly surveyed lands, why was it not provided that they should apply to the register for location ? Upon the theory of the opposite argument, no location could be made until after the Government surveys had been made and returned to the register. Upon this theory, surely, the act would have required the claimant to apply to the register for his location, and would have provided that, in case the amount to be located exceeded any legal subdivision of lands, a survey of such excess should be made. But, instead of this, the act provides that the certificate shall be issued by the recorder of land-titles, not the register, and that it shall be located in all cases “ on the application of the claimant, by the principal deputy surveyor, or under his direction, whose duty it shall be to cause a survey tobe made,” &c.
    Again, the act gives a right in preesenti to the New Madrid sufferers. The day after the act was approved, the settler was entitled to make proof to the recorder, obtain his certificate, apply for its location, have it surveyed, and obtain a certificate calling for a patent. Yet, at the date of the act, none of the public lands in the Territory had been surveyed, and, with the construction claimed by the Government, it was a dead letter, wholly inoperative for want of a subject-matter to which it could apply.
    And this brings us back to the principle declared in Lytle v. Arkansas, (9 How., 314,) that, after the claimant had made proof, obtained his certificate, applied for its location, and the location had in fact been made by a survey executed in the field and returned to the office of the surveyor, and there approved and registered, the claimant, having performed everything required of him, became the equitable owner of the property, and his rights could not be impaired by the omission or neglect of any duty to be performed by the officers of the Government. Therefore, even conceding, for the argument, that the location was not complete for all purposes until the surveyor returned the plat and description to the recorder of land-titles, yet the claimant, having done all that was required of him, is entitled in equity to the lands located as against the United States, the legal title still remaining in the Government.
    The act under which this suit was commenced directs that the court shall determine the ease “ according to the rules and principles of equity practice and jurisprudence in the other courts of the United States.” Story (1 Equity Jurisprudence, § 64, g) says : “Another, and the last, maxim which it seems necessary to notice is that equity looks upon that as done. The true meaning of this maxim is that equity will treat the subject-matter, as to collateral consequences and incidents, in the same manner as if the final acts contemplated by the parties had been executed, exactly as they ought to have been; not as the parties might have executed them. All agreements are considered as performed, which are made for a valuable consideration, in favor of persons entitled to insist upon their performance. They are to be considered as done at the time when, according to the tenor thereof, they ought to have been performed. They are, also, deemed to have the same consequences attached to them; so that one party or his privies shall not derive benefit by his laches or neglect, and the other party, for whose profit the contract was designed, or his privies, shall not suffer thereby.”
    Suppose an agreement between A and B for an exchange of lands, A to convey his land to B, and to pay an agent of B for surveying an equal amount of B’s land, the survey to be reported to another agent of B, or to B himself; and thereupon B to convey the second tract to A. And suppose A to have performed his part of the contract fully, but that B’s agent neglected to report the survey to B, and for that reason B refused to execute a deed, would a court of equity hesitate a moment in such case to decree a conveyance? And that is precisely this case. The Government has waived its sovereignty, and submitted this claim to the determination of the courts, and directed their decision to be made “according to the rules and principles of equity practice and jurisprudence in the other courts of the United Statesthat is, this case is to be determined as this court would determine such a case between individuals.
    The objection to Hector’s right most relied on is that this tract of land was surveyed independently of the Government surveys, and that its lines did not conform to the Government lines. I have tried to show that this objection never had any existence under the New Madrid act, because such location was authorized by the act. But if I am in error on that point, still the objection is removed by the Act 2&th April, 1822:
    “Sec. 1. That the locations heretofore made of warrants issued under the act of the seventeenth of February, one thousand eight hundred and fifteen, eutitled ‘An act for the relief of the inhabitants of the late county of New Madrid, in the Missouri Territory, who suffered by earthquakes,’ if made in pursuance of the provisions of that act in other respects, shall be perfected into grants in like manner as if they had conformed to the sectional or quarter-sectional lines of the public surveys; and the sales of fractions of the public lands heretofore created by such locations shall be as valid and binding on the United States as if such fractions had been made by rivers or other natural obstructions.
    
      “Sec. 2. That hereafter the holders and locators of such warrants shall be bound, in locating them, to conform to the sectional or quarter-sectional lines of the public surveys as early as the respective quantities of the warrants will admit; and all such warrants shall be located within one year after the passage of this act, in default whereof the same shall be null and void.” (3 Stats., 668.)
    It is manifest that Congress intended by this act to remove, in regard to all locations made under the New Madrid act, all objections thereto, for want of conformity to the public surveys.
    But it is said the act only applies to those locations which had been made “ in pursuance of the provisions of that act (the New Madrid act) in other respects ;” that the location in this case had not been so made, because the surveyor did not return a plat and written description of the location to the recorder; and it is claimed that this court has so decided in several cases; referring to Bagnall v. Broderick, (13 Pet., 465;) Barry v. Gamble, (3 How., 32;) Lesieur v. Brice, (12 How., 57;) Rale v. Gaines, (22 How., 144;) and Rector v. Ashley, (6 Wall., 143.)
    This objection to this curative act is disposed of by the decision of this court in Maclcay v. Boston, (19 Wall., 619,) which was a case where the survey had been made upon unsurveyed lands, as it was said, in 1818, aud no plat or written description had been sent by the surveyor to the recorder. The objection was made in that case, as it is here, and all the former decisions of this court from Bagnall v. Broderick to Rector v. Ashley were cited as sustaining the objection. But this court, after reviewing the former decisions, and stating the distinction between the location by the surveyor, in the field, and the subsequent proceedings founded upon the location which would effect a “completed appropriation” of the land, said:
    “It often happened that the locations made at the request of claimants by deputy surveyors were upon lands which had not been surveyed by the Government, or, if surveyed, the locations did not conform to the sectional and quarter-sectional lines of the surveys. To remedy defects of this character Congress passed the act of April 26, 1822. That act refers in its first section to the actual locations made by the deputy survey- or at the request of the claimant,'and not to the completed appropriation of the land by the return of the plat of the survey to the recorder of land-titles.”
    
      The .second section of the act of 1822 does not bar Hector’s right, because the location, which it is provided by that section shall be made within one year after the passage of the act, had already been made by the deputy surveyor upon and according to the application of the claimants.
    
      Mr. Albert Pike (with whom was Messrs. B. W. Johnson, J. B. Sanborn, and Charles King) for the appellant. Henry M. Eector:
    As to the practice in regard to the New Madrid locations :
    After the act of 1816 weut into operation, the surveyor-general’s office had all the field-notes and plats of all claims, no matter in what office or where they had formerly been. The recorder’s office is still in existence in Saint Louis, and there is not now, and has not been, in that office, since the act of 1816 went into complete operation, a single survey, or a paper purporting to be a survey, returned by the principal deputy surveyor, (whom the surveyor-general succeeded in 1816,) or by the surveyor-general, of any New Madrid claim, Spanish grant, or other private land-claim. All such original papers are in the surveyor-general’s office. And the notices and plats sent by the surveyor-general to the recorder are not on file in the recorder’s office, but were sent to the General Land-Office, and are on file there.
    ■Where a party desired to locate a New Madrid claim upon unsurveyed lands, he filed in the office of the surveyor-general a written application, describing as well as he could by natural objects the land that he wished to locate, with a request for a survey to be made accordingly; and at the same time deposited with the surveyor-general his certificate from the recorder of his right to locate. This application was filed in the office of the surveyor-general, who thereupon ordered a deputy surveyor to make the survey asked for; which being made, was returned to his office.
    The court, or rather Mr. Justice Catron, in Bagnall v. Brod-erick, (13 Peters, p. 436,) was either misinformed when he sought for information at the General Land-Office in regard to the location of New Madrid claims, on which to decide the case, or else he misunderstood the information received.
    The notice in writing which the New Madrid act required to be sent, with a plat of the locatiou made, by the principal deputy surveyor to the recorder, was a notice prepared by the principal deputy surveyor, and not all the descriptive notes of survey made out by the deputy surveyor, and which the plat filed with the principal deputy surveyor accompanied. No original return of a survey was ever sent to the recorder under the New Madrid act.
    The practice, as proven, was as follows: The claimant filed his application with the surveyor-general, depositing there his certificate. A deputy surveyor was then ordered to make the survey and return it to the office. Afterward, and as soon as the adjacent public lands were surveyed, the surveyor-general made out a connected plat, showing the private claim and the public surveys, with a copy of the field-notes of the private claim, and sent them to the recorder of land-titles. He sent only a copy of the original plat to the recorder. We shall show the court that in this the practice was in strict conformity to the law. Mr. Justice Catron gravely erred in a matter of fact, (and this error has been followed ever since,) when he said, in Lessieur v. Price, (12 How., 741,) ‘‘The warrant or location-certificate issued from the recorder’s office, and there it was returnable. There the plat and certificate were returned and recorded for the certificate was not returnable there, and never was returned there, and the plats and field-notes were never returned there, and • were never recorded there. When any record was made it was of a copy furnished by the surveyor-general, and the law did not even require a. copy of the field notes or description to be sent there, but only a copy of the plat, and a brief notice from the principal deputy surveyor. If a copy of the descriptive notes was sent, this was, probably, because it was the most convenient mode of designating the land. And the practice of sending a connected plat was not exacted by the law. The intention of the law was to have just such a plat sent as was made out for a claimant.under the French or Spanish government, of his concession and no more, made out for him and paid for by him. The law meant that each New Madrid claimant might locate and have surveyed his land selected under the New Madrid act in the same way, with just such a plat, and get his patent on that plat. Moreover, the deputy surveyors rarely made out the plats in the field. These were made out in the surveyor-general’s office, after the survey, from the field-notes, from which anybody could make them. The court will find a patent upon just such a plat and survey to Langdeau, in Langdeau v. Hanes, decided at the last term.
    From the year 1818 to the year 183S the offices of the surveyor-general of Missouri and the recorder of land-titles were both kept in Saint Louis, and but a short distance apart. Frederick Bates and Theodore Hunt, predecessors of Conway iu the office of recorder, did not record the plats of surveys of New Madrid locations sent them by the surveyor-general; nor did Conway during the early portion of his term. Afterward he did. Neither was the time noted in the recorder’s office when New Madrid papers were received by the recorder from the surveyor-general ; nor did the recorder note the date of recording the surveys in his office, nor the date of delivery of the patent-certificate of the claimant.
    Of the whole number of 516 New Madrid locations, only 114 are recorded in the office of the recorder of land-titles. These were all recorded by Conway and Benard, two of nine who have held the office. Conway became recorder in 1830. His predecessors recorded none.
    When the surveyor-general transmitted a plat of a survey to the recorder showing the location of a New Madrid warrant, that survey was not questioned or inquired into by the recorder as to its correctness; but the recorder issued the patent-certificate in accordance with it, unless there was some discrepancy between the survey and the registry of certificates of new locations (rights to locate) issued by the recorder under the act of 1815. If he found that the name of the claimant, the number of the warrant, and the quantity of land corresponded with the registry in his office, he issued the patent-certificate.
    By the practice of the offices of surveyor-general of Missouri and recorder of land-titles, a location was valid and perfect when a survey had been made and was approved by the surveyor-general. No action upon it to make it complete, or for any other purpose, was had or taken, or could be had or taken by the recorder. And no length of delay on the part of the surveyor-general, in furnishing copy of the plat to the recorder, affected or could affect the location or its finality.
    There were no plats of public surveys in the recorder’s office, nor any connected plats of private claims showing the connection with the public surveys. Therefore it was not possible for the recorder to locate a New Madrid claim in his office.
    
      It was the invariable custom in the surveyor-general’s office, where a private survey was to be made, to give the deputy surveyor written instructions. If a copy of the application was made out by the surveyor-general and delivered to the deputy surveyor, that of itself was sufficient authority to govern him in making the survey. In twenty-two New Madrid cases that were on file at Little Eock, orders of survey were found in only two. And at Saint Louis, orders of survey were not found among the papers on file in the cases.
    After the act of 1816 went into operation, which was before a single New Madrid location had been surveyed, the recorder of land-titles had no means in his office of ascertaining whether a New Madrid location reported to him covered a lead-mine or salt-spring, or interfered with other claims or incipient titles; nor whether the notice of entry was in a form inconsistent with the laws of the United States; and this court was mistaken in point of fact in Bagnell v. Broderick, in supposing that he had the power and means to do it. It is singular that the attention of the court has never been called either to the earlier laws, which explain the incoherency of the New Madrid act, and show the force and meaning of the provisions chiefly misunderstood, nor to the act of L816, creating the office of surveyor-general.
    There are 516 New Madrid locations now on file in the late office of surveyor-general of Missouri; 495 located in Missouri, 21 in Arkansas. In 77 of these cases the surveys were made after April, 1833, several in 1855, ’56, ’57, ’58, and ’59, and many after 1840. One hundred and forty-two of these surveys were reported by the surveyor-general to the recorder of land-titles subsequent to April, 1823. Nothing in the office of the recorder of land-titles distinguishes these cases from those where the surveys were made prior to April, 1823; and they have always been considered and treated as equally valid — as valid and binding locations — in that office and that of the surveyor-general ; and the recorder always has issued patent-certificates on New Madrid locations the surveys whereof were made subsequent to 1823. Of the 516 locations, patents have issued on 501; and patents have issued in cases where no surveys were reported to the recorder, the accompanying surveys being obtained from the surveyor-general’s office.
    In all cases where the surveys are dated subsequent to April 26,1823, the locations were made prior to that date, by application for a survey. In all such cases the survey related to the date of the application, and no patent was ever refused on the ground that the survey was made after the time within which locations could be made had expired. The recorder of land-titles took the relinquishment of the New Madrid claimant upon granting him his certificate of right to locate, and not on granting him his patent-certificate. And all the land in New Madrid County, to which there was. any individual right, was held in 1815 by virtue of Spanish and French claims, and none of it patented. Langlois’s was a grant, confirmed in 1805.
    Of the true reading of the New Madrid act.
    The first and cardinal rule of interpretation of the act of 1815, if there be ambiguity or confusion in it, is that it is to be liberally construed, to make effectual the beneficent intentions of Congress. Favores ampliandi, odiosa restringenda. Bene-ficium Imperatoris, quod á divina scilicet ejus indulgentia pro-ficisitur, quám plenissimb interpretari debemus. (Javolenus, L. 3 ff. de Constitutionibus Principum. Dig., 1, 4, 3.) Quaeli-bet concessio fortissimé contra donatorem interpretanda est,' {Shepherd: Touchstone, I, 87.) Benignb faciend® sunt interpre-tationes, ut res magis valeat quám pereat. In ambiguá voce legis, ea potius accipienda est siguifieatio, quae vitio caret: praesertim cum etiam voluntas legis ex hoc colligi possit. (Cel-sus, L. 19 ff. de Legibus. Dig., 1, 3,19.) Scire leges non hoc est, verba earum tañere, sed vim et potestatem. (Oelsus, L. 17 ff. de Legibus.) Quae salubriter pro utilitate hominum in-troducuntur, ea non duriore interpretatione contra ipsorum commodum producenda.sunt ad severitatem. (Modestinus, L. 25 ff. de Legibus.) Bapienda occasio est, quae praebet benignius responsum. (Paul, L. 168, princip. ff. de div. reg. jur., Dig., 50, 17.) Qui ambigue loquitur, id loquitur quod ex his quae signiii-cantur, seusit. (Proculus, L. 125 ff. de Yerb. Signif., Dig., 50, 16.)
    These maxims, and many others which it would be but pedantry to quote, are not of any one age or code. They are axioms as infallible here to-day as they were at Borne, because they are rules that flow from the immutable principles of truth,' right, justice, and reason. We propose to accept them as guides in the inquiry into the meaning and intention of the New Madrid act. They have not been heeded by the officers of the Government.
    
      Two other significant maxims of the Eoman law are these: Caluinniandi faculdatem ex principali inajestate capi non opor-tet: The faculty of resorting to perversions of law is not to be obtained by virtue of the imperial prerogative; whieh is a sentence of Paul. (Lib. V, Tit. II, § 4.) Non tám spectandum est, (Proculus said, in regard to governors of provinces,) quid Bom® factum, quám quid fieri debet: It is not so much to be considered what is done at Borne as what ought to be done. (Dig. I, 18, 12.) And one more, particularly applicable in matters as to which secretaries and heads of bureaus, attorneys-general, and solicitors make much law, is: Subtilitatis legum judex curans gerat, nihil his qu® contra leges dieta fuerint á principe attendens: Let the judge take upon himself the care of the fine distinctions of the law, paying no attention to what has been said by the emperors contrary to the laws. (L. 11, Code, VII, 45.) The United States must not resort to any ground of defense against any of these claimants that hath not in it the highest equity. It must not convert what was at first but an error of its officers into a fraud ab initio, by insisting upon retaining the benefit or advantage gained by it. Nor is it permissible to the Government to resort to the apices juris to defeat claimants. Summajus simma injuria is more often true than is supposed; and however it may be here, the Government is often more disgraced by the objections and cavilings of officers, legal and clerical, of the departments, than by mere fact of delaying and denying justice, which the objections aggravate.
    Two facts must have a material influence in this inquiry, and be kept steadily in view. They furnish the key to the intention of the legislature. 1st. At the date of the passage of the New Madrid act, not a foot of land had been surveyed, under the general system of surveys, in what was then the Missouri Territory. 2d. The lands of settlers injured by earthquake were held by virtue of French and Spanish grants, each surveyed by itself, and of various sizes and shapes; and unless the lands which they were authorized to select in lieu thereof were to be selected and surveyed in like manner, the time when a sufferer could secure other land was entirely uncertain, and the law a mere delusion.
    The' filing by the claimant of a notice in writing and plat, required by the Act March 2,1805, § 4, was not a step in the process of location of a French or Spanish incomplete grant. It had nothing to do with location, for that was already complete. Equally, the notice and plat were to be filed by the principal deputy surveyor when the location of a New Madrid claim was complete and the party entitled to a patent. The French and Spanish incomplete grants were surveyed at the expense of the owners, and held and considered as private surveys only. So claims under British grants were surveyed at the expense of the owners. Consequently, the party was entitled to copies of plats and notes of survey. It was intended that locations under the New Madrid law should be made by like survey, but this to be directed by the principal deputy surveyor. The new location in lieu of an injured tract could be made in any shape the party pleased. The law gave no directions as to that. When by the survey the location had been made, the party was to have a certificate that he was entitled to a patent, and the surveyor-general was to send to the recorder a copy of the plat and a notice in writing, (as the party was required to do in case of a French and Spanish grant, where the plat was in his own possession,) not to complete the location, but to enable the party to have the benefit of the location made, and the patent to which he was entitled.
    What was to be a “ location made” the law itself distinctly defines. If its language were ambiguous, it would, if possible, be so construed as not to conflict with the general law, that when a location is necessary it is made by a survey, returned to the office, where it is to be accepted as conforming to law and instructions, and to be retained as a survey duly made. There is really no ambiguity. The location was to be made by the principal deputy surveyor, or under his direction, whose duty it was made to cause a survey, and that this survey was the location is clear from the further provision that he should return a plat of the location made to the recorder, with a notice in writing designating the tract thus located. The party was to be entitled to his patent upon the original certificate being issued and the location made; and surely the location had been made when the surveyor-general sent to the recorder a plat of the location made, and a notice designating the tract thus located. This portion of the statute is too plain and clear to permit construction.
    The meaning and intention of the New Madrid act was that the first certificate that the party was entitled to a patent should be given by the principal deputy surveyor; and this appears from the act of March 3, 1807, § 6, which, with slight adaptations, the redaeteur of the law evidently meant to copy, and did use its precise language. Misplacement of paragraphs, or the omission of words by clerical misprision, have made sections 2 and 3 incoherent; but the intention is plain enough.
    It follows that as the certificate to be given by the survey- or-general was to be evidence for the party that he was entitled to a patent, the location was complete before it was given, and nothing more remained to be done to entitle the party to the patent. To send to the recorder a notice of the location made, designating the tract located, and a plat of the location, was no part of the process of location, but subsequent to it, and official information of it; and the neglect to perform this official duty would not prejudice the party, who had done all that he could do in the premises.
    In the language of the Court of Claims, “Everything had been done by the parties which the law required them to do, and everything which remained to be done was made a statutory duty on the part of the officers of the G-overnmeut. The parties were without legal means to compel the surveyor-general to act by transmitting the plat and notice to the recorder; and things which the public officers ought to have done are to be regarded as having been done.”
    The “ notice in writing ” required to be sent by the principal deputy surveyor to the recorder of land-titles was merely information that such a party had located his claim by survey, on such a tract, as shown by the plat; and it was no more part of the process of location than was the filing by claimants under British, French, and Spanish grants of notice of their claim, and a plat.
    The “surveys” of New Madrid claims were the descriptive notes and plats of the deputy surveyor who ran and marked the lines on the ground. These were never intended to be, and never were, nor ever could be, lawfully returned to the recorder of land-titles. They were to be returned to the office of the principal deputy surveyor, by whom they were deemed in law to have been made, and by whom they were approved, accepted, and recorded. He alone could certify copies of them. By the Act February 28, 1806, (2 Stats., 352,) no other plats were to be filed with, the recorder than those of lands surveyed prior to December 20,1803, and under the Aet April 29,1816, providing for the appointment of a surveyor of the public lands in the Territories of Illinois and Missouri, all plats of survey, wherever they were, were to be delivered to such surveyor, who was to transmit to the registers general and particular plats of all lands surveyed, and copies of the same to the Commissioner of the General Laud-Office; to record all surveys executed by his deputies, and certify plats of survey to be admitted as evidence in the courts.
    The recorder had nothing to do with making the location. He passed on the question of the party’s right to select and have other lands, and gave the official evidence of the right to locate. Then he had nothing more to do with the matter until the evidence came to him, by the copy of the plat and the notice of the principal deputy surveyor or surveyor-general, that the location had been made. Then he had simply to perform the ministerial duty of issuing the patent-certificate. After the act of 1816, it was useless for him to record plats, copies of which he could not certify; and sending the notice and plat to him by the surveyor-general was no more necessary to complete the right to a patent, than sending a certificate of purchase by a register to the General Land-Office is in the case of a purchaser, to complete his right. Bach is but the measure of routine by which an officer is to enable a party to have final and plenary evidence of a right and- title, completely perfect, and vested without it.
    There is nothing in the world in these New Madrid claims, in the act of 1815, or in anything, anywhere, connected with 'them,that made inapplicable to their surveyand location the settled rules of law, universally agreed to, in regard to the selection and location of lands under warrants or other evidences of right to select and have lands out of the common mass. The law is not ambiguous in regard to what is to constitute a location. If it were, and there could be a doubt whether, not only the survey and its return to and acceptance by the surveyor-general, but also the return by him, at his leisure, of a notice and copy of the plat to the recorder of land-titles was part and parcel of the making of the location, although the plat was to be “ a plat of the location made,” and the notice to designate “the tract thus located ” — if, we say, there were ambiguity, this court would never accept a construction that would make a party liable to lose a right by the neglect or fault of an officer over which he could have no control; that would be directly contrary to the general law in regard to locations by survey, as uniformly expounded by itself and every other respectable American court since the settlement of the continent; that would directly tend to defeat and render nugatory the beneficent intentions of the Government, and that would be contrary to the great axioms of construction. The words, “location made by the surveyor, who shall cause a survey to be made, and return a plat of the location, and a notice designating the tract thus located,” are too plain for' anybody to mistake their meaning, if he does not look over them at something that the imagination sees far beyond, and so fail to catch their sense and meaning.
    Now, that old, well-settled, and reasonable law, as defined by this court long ago, is that the validity of a survey does not depend on its being recorded; that a grant for so much land “is located by a survey made by a proper officer;” that the title to specific laud under such a grant rests upon a designation of it, accompanied by a survey or description made by the survey- or-general ; and that, in the cases of Spanish grants, where, on certificate and plat being filed with the register or recorder, patent-certificate was to be issued by him, the survey completed the right to a patent. (Stringer v. Young’s Lessee, 3 Peters, 320; Smith v. The United States, 10 Peters, 333; West v. Cochran, 17 How., 413; Kessel v. Saint Louis Pul). Schools, 18 How., 25.)
    Where there was a confirmation by commissioners of a Spanish grant to so much land, the location and title were complete when the land was surveyed, and the survey approved at the surveyor-general’s office as a’ proper one. (Cotisin v. Blanc’s JSxecutors, 18 How., 210; Bryan v. Forsyth, 19 How., 334-; Lessee of Lewis v. Meredith, 3 Wash. C. C., 84.)
    Everywhere and always it was held that where a warrant gave a right to a certain quantity of land, to be fixed and located at a future day by a survey, there was a location when the survey was made and returned. [Lessee of Lewis v. Meredith, 3 Wash. 0.0., 84; Dubois v. Keioman, 4 Wash. C. C., 77; Holtz-apple v. Phillibaum, 4 Id., 358; Gardner v. Sharp, 4 Id., 609; Penn v. Ingham, 3 Id., 90; Brown v. Arbunhle, 1 Id., 484.)
    And the marks made on the ground, the actual running and marking, make the survey. (Conn v. Penn, 1 Peters C. C., 496.)
    
      When a survey was made, no matter at what length of time after filing the application designating the lands and asking a survey, the survey related to the date of the application, when this would not prejudice any dona fide title or right in another that had intervened. As against the United States, the survey of one of the claims, made in 1859, related to the date of the application, filed prior to 1823, as if it had been made on the day when that was filed. All the several parts and ceremonies necessary to complete a conveyance are taken together as one act, and operate from the substantial part by relation. (Jackson v. MacMichael, 3 Oowen, 75; Caroley v. Wallace, 12 Missouri, 145; Lands v. Brent, 10 How., 373.)
    This doctrine has its simplest possible application in cases of lands claimed by warrant and survey. The survey gives effect to the selection. It is the realization of it, and but for the just effect of relation fraud would thrive, and a junior selection, with a survey sooner made, would take the land from the older applicant because the surveyor chose to delay his survey.
    This court has not intended, it cannot have intended, to depart from these principles. It could not destroy them if it had. Undoubtedly, this mere application to locate, or for a survey, in these New Madrid cases, where survey was necessary to establish the bounds and limits of the land, was not, if no more followed, a location. It was so called, and in a certain sense it was so, because the survey, simply obeying it, only ascertained the limits and fixed the locality of the land to which the application gave the party a right. But if it remained unexecuted by a survey, it was merely idle, and ineffectual for any purpose. If a decree for the land, described as in the application, were given, its location and limits to be settled by a survey, it would be the decree, when the survey had been made, that would give the title; though without the survey the land would never be severed from the general mass.
    Where a survey was necessary it was to be applied for and paid for by the party. It was a private survey; the plat and field-notes were his; the United States permitted its officer to make the survey for him. If, therefore, he did not follow up his application by procuring the survey to be made and returned, he did not sever any particular body of land, by fixed, defined, and specific limits, from the public domain. But he had done so when he had had the survey properly made, in accordance with his application, and when it had been decided to have been so made, by the officer to whom that power was given by law, and that officer had accepted it, and placed it where the law required it to remain.
    In the very nature of things this made the location complete. It could not continue incomplete until some public officer performed some ministerial duty, imposed on him by law, and the doing whereof in no degree depended on the party. Of course, the law, being in that omnipotent, could enact that the location should not be deemed complete until that duty had been done, but this would be so contrary to what the wisdom of ages has settled as the law, that it could only be made law by the most express words; and if any room were left for doubt, it would not be deemed to have been the intention of the legislator. No such law will ever be established by the ingenuities or pedantries of construction; nor, where there is ambiguity in favor of the Government, to enable it to defeat its grants, when it was in its power, if it would change the law and set reason at naught, to speak plainly.
    There is nothing in the New Madrid act to indicate that any other than the three ordinary steps were requisite to perfect a right to patent under it. First. The application to locate and for a survey. Second. The actual survey. Third. The return to the office, where such surveys are kept and belong, of the plats and field-notes, which are the evidence of the location; and the approval and filing of the survey there.
    • This court has never said that anything more was necessary to perfect a location. It has only been misinformed as to the place and office to which the “surveys” were returnable, where they were to be filed and recorded and remain, and whence copies were to be procured. Even in the case last decided it is plain that the court supposed that the surveys were to be returned to the office of the recorder of land-titles. (Maclcay v. Uaston, 19 Wall., 619.)
    If the survey had been lost or destroyed on its way to the place of return, the location would none the less have been made. It would be the common case of the loss of evidence, which could be supplied.
    By the very words of the law, the principal deputy surveyor made the location. By his mandatary, the deputy in the field, he located the claim by making the survey. If his approval of it was necessary, it is presumed, by Ms having received and numbered it, and permitted it to be filed and registered; as also this proves that he directed it; or, being a ratification, mandato wquiparatur, and moreover, that approval, like any other ratification of the act of an agent, retroacted, and made the location complete from the date of actual survey. And when the survey had been returned to him, to his office, and approved, his subsequent neglect to furnish any other officer the evidence of it could not unmake the location.
    And upon a universal principle of law the survey related to the date of the application, and became one thing with it.
    Under this act a location was effected precisely as it was under former laws, by the survey returned to the principal deputy surveyor or surveyor-general. Where the law said, patents shall issue on presenting such surveys to the Secretary of the Treasury, together with a certificate of the register that the land is not rightfully claimed by any other person, or the surveyor-general shall transmit plats to the register or recorder and to the Secretary of the Treasury, and the register or recorder shall issue a certificate which shall entitle the party to a patent, it was not supposed that the location was not made and completed by the survey.
    We do not think that this court has ever intended to hold that the return of the survey to the office where it is to belong, to be received, filed, recorded, approved, made a finality, is not a completion of the location. That it is, although plat and notice are to be sent to the register or to the recorder of land-titles, is proven by the fact that at the same time a copy was to be sent to the Secretary of the Treasury or General Land-Office. Mr. Justice Catron, to obtain the material for judicial decision in Bagnell v. Broderick, sought information at the General-Land Office as to the practice in Hew Madrid cases, which was matter of fact. That this was of doubtful propriety is evident from the fact that no opportunity was allowed the party to whose injury the information was used to show that the practice had been otherwise; and from the fact, which is proven in this case, that the information given was erroneous, and the practice not as it was stated to be.
    • All the cases in this court that are relied upon against us have proceeded upon this original error. It is fortunate that an erroneous judgment always has in its bosom the seeds of evil consequences, which at length become not only apparent, but intolerable, and then it becomes possible to explode the original error. The cases to which we refer are Bagnell v. Broderieh, (13 Peters, 436;) Stoddard v. Chambers, (2 How., 284;) Barry v. Gamble, (3 How., 32;) Lessieur v. Price, (12 How., 60 ;) Sale v. Gaines, (22 How., 144;) Beetorv. Ashley, (6 Wall., 142;) and these have been succeeded by Machay v. Bastón, (19 Wall., 619,) in which the court, disquieted by consequences that offended the reason, and conscious that there was some radical error in the former decisions, and yet not discovering it, has in its perplexity laid down distinctions in regard to locations that are in substance sound, and which sustain our title to the Hot Springs.
    We might, with entire confidence, rely upon the proposition that no case has hitherto been before this court in which the party could not procure the transmission by the surveyor-general to the recorder of land-titles of the plat and notice required by the Hew Madrid act to be returned to him, and in which the surveyor-general refused to do so, or was forbidden to do so by his superiors. The former decisions may all stand, and yet this new fact, presenting a different case, wholly avoids these decisions, by means of the settled doctrine of the court that no man can suffer by such wrongful refusal or prohibition, and that what the officers of the Government should have done and did not do should be considered as done. We do rely upon that. It is conclusive. But we prefer not to rest our case upon it alone, though learned counsel admonish us of our presumption in endeavoring to demonstrate that this court has heretofore, not by its own fault, fallen into error.
    This court has expressed the opinion heretofore that the New Madrid act contemplated an exchange of lands. In a legal sense this is hardly correct. The act of 1815 provided that, upon the location of other lands, the injured land should revert to and vest in the United States. This could be effected without conveyance, because all such lands were held by French and Spanish grants, and the United States had made no title. No relinquishment was necessary. .The law required none. But officials are generally inclined to consider that they can mend the law’s defects, and the recorder of land-titles, thinking that Congress had by oversight omitted to require relinquishments, invested himself with the powers of Congress, and legislated to remedy this oversight.
    
      An exchange of lands is of the nature of a contract of sale. Each party is both buyer and seller, and each warrants against eviction and incumbrances. Permutatio vicina est emptioni. (Paul, citing Aristo, L. 2, ff. derer. permut., Dig., 19, 4, 2.) In permutatione discerni non potest, uter emptor, uter venditor sit. (Paul, L. 1, § 1, ff. de contrah. empt., Dig., 18, 1, 1, 1. Pothier, Traité du Contrat de Vente, Nos. 618, 620, 621, 623.) Permutatio ex re traditá Mtium obligationi praebet. Ideoquo Pedius ait, alienam rem dantem, nullam contrahere permutation em. Igitur ex altera parte traditione facta, si alter rem nolit tradere, non in hoc agemus ut interest nostra illam rem accepisse de qua convenit: sed ut res contrá nobis reddatur, conditioni locus est, quasi re non secuta. (Dig., 19, 4; L. 1, §§ 2, 3, 4.) Permutationem vicem emptionis obtinere non est juris incogniti. (Code, 4, 64, 2.)
    The court held, in Lessieur v. Price, that there must be a concurrent vestiture of title, and that the injured land must have vested in the United States at the time that title was taken by the new location ; and it has held a location invalid where there was no relinquishment. The provision of the New Madrid act that, upon a location made in lieu of the injured land that should revert to and become absolutely vested in the United States, would seem to exclude the necessity of relinquishment by conveyance, by the very force of the language used. But the land of Langlois was relinquished to the United States by formal conveyance more than half a century ago. In every exchange there must be mutuality, and, whether the law contemplated a technical exchange or not, it may well be argued, upon what the court has said, that, é converso, the title to the land applied for and surveyed must have vested in Hammond and Bector at the time when the United States took title to the injured land by the relinquishment.
    We lay no undue stress upon this notion of an exchange, and upon the fact that the United States have had for fifty years, upon that theory, the consideration which was given for the land located by Hammond and Bector. We admit that the United States agreed only to give us such land in exchange for the injured land as we should select and locate according to law, making our location perfect according to law, and that if we selected land not subject to location, or have failed to take the necessary legal steps to perfect our location, we have no right to demand of the United States that they shall give us title to this land, although they have ours.
    But, as Hammond and Bector paid $640 for the certificate granted to Langlois, and Bector $600 for the undivided half of it, which at compound interest for fifty-five years would be a large sum, the United States, having Langlois’s land, cannot be permitted to avail themselves of any inequitable grounds to defeat our title; and certainly cannot have any advantage of either the erroneous decisions of their high officials, if these prevented the perfection of our title by transmission of the plat and notice to the recorder, (if that was necessary to its perfection;) nor of the failure of their surveyor-general to transmit them, if it was his duty to do so. (Lytle v. The State of Arkansas, 9 How., 314; TUylor and Quarles v. Brown, 5 Cranch, 241; Commissioner General Land-Office, Instr. and Opin., 639; Craig v. Bradford, 3 Wheat., 494; Stringer v. Lessee of Young, 3 Peters, 338; Castellero’s Case, 2 Black, 97; Glasgow v. LLor-tiz, 1 Black, 601.)
    The United States cannot release them selves from any obligations that equity creates. They may avoid performance or compliance, but the obligations will nevertheless remain. Holding the injnred land, could they, by means of the reservation act of 1832, prevent Bector from perfecting his location by a new survey, if one had been necessary, any more than they can now rely on the failure of the surveyor-general to do what he was ordered by his superiors not to do ? These are defenses, and these are arguments, too, to which in such a case the Government cannot creditably resort.
    Esse enim hanc questionem de bono et aequo; in quo genere plerumque sub auctoritate juris scientiae perniciosé, inuit, erratur. Et sané probabilis hsec sentententia est, quam uidem et Julianus sequitur. Paul quoting Celsus, (Dig. 45,1, 91, § 3.)
    Six objections have at various times been setup against this location. There never has been a time when some one or more of them has not been standing in its way, preventing our obtaining a patent. So that there never has been a time since the decisions of Mr. Wirt reached Saint Louis, in 1820, when an effort to obtain a certificate entitling the claimant to a patent, or to have the plat and notice, under the survey of 1820, forwarded to the recorder of land-titles, could have succeeded.
    First objection. That locations of New Madrid claims could be made only upon lands that had been directed to be surveyed, for the purpose of being offered for sale at Saint Louis; the a.ct of 1811 directing that the lands so surveyed should be offered for sale. Second. That lands which the President had not directed to be prepared for sale were not lands the sale of which was authorized by law.
    The first of these was interposed in advance of the location, on the 10th of July, 1816, by instructions from the Commissioner of the General Land-Office to the surveyor-general at Saint Louis. And the second on the 15th of April, 1817, by letter from the same to the same. These were one and the same objection; the attempt to limit the location of New Madrid claims to the lauds that were to be sold at Saint Louis resting on the fact that these were the only lands that had been directed by the President to be surveyed. The one question, therefore, was whether 'the sale of lands was “ authorized by law ” as soon as a law was enacted providing for their survey and sale at such future times as the President should be pleased to designate, or whether it was not so until he had actually directed the survey. The New Madrid act gave the right of location in very general terms “on any of the public,lands of the said Territory, the sale of which is authorized by law;” lead-mines and salt-springs being excepted.
    It is the law by which lands are authorized to be sold thereafter, at the direction of the President as to time, by which their “ sale is authorized by law.”
    The acts of February 15, 1811, and March 3, 1811, authorized the sale of all the lands in the whole Territory of Missouri, without further legislation, and from the date of the former act, the sale of all lands in the Territory was “authorized by law,” with such exceptions as the laws expressly made.
    If the sale of lauds was not “authorized by law” when a law authorized their future survey and sale, and spoke of them as lands “the sale of which is hereby authorized,” this is because their sale is not authorized by law, when it is authorized, and when the law declares in express words that it is authorized. And if it is not then authorized, to fix on any other time prior to the very moment when men can pay the price and buy and have certificate of purchase, as the time when sale is authorized by law, is simply arbitrary. The phrase must either mean that the particular land may by law be sold now, or that by law it may be sold at the proper time, when the necessary preparation shall have been made, it not being reserved from sale or declared not to be the subject of sale. Lands covered by incomplete French or Spanish grants, or to which the Indian title had not been extinguished, were lands the sale of which was not authorized by law until the grants were rejected or the Indian title extinguished. It was not permissible to give such a construction to the phrase “the sale of which is authorized by law ” as would make the law ineffectual. This would be to stultify Congress. Construction must always be such, ut res magis valeat quam pereat. To hold that it meant that lands owned by the United States, and the sale of which was not forbidden, if not yet surveyed or directed to be surveyed, were not lands the sale of which was authorized by law, was to hold that when the New Madrid act passed there was no land in Missouri the sale of which was • authorized by law, and therefore none on which a settler whose land was injured could make a location.
    Third objection. That the Territory of Missouri, within the meaning of the pre-emption act of 1814, was the territory as organized into counties; and that when the New Madrid act passed, no part of that territory south of the river Arkansas had been organized into counties. This notion was absurd, and if there had been anything in it the Hot Springs were, in 1820, in the organized county of Clark.
    Fourth objection. That the location was invalid because made in a square, and before any public survey of the neighboring lands; the law of 1815 requiring all locations to conform to the lines of the public surveys. This objection was removed by the Act 26th April, 1822, entitled “An act to perfect certain locations and sales of the public lands in Missouri,” (3 Stat. L., 668,) which provides that the locations theretofore made of warrants issued under the act of 1815, if made in pursuance of that act in other respects, should be perfected into grants in like manner as if they had conformed to the sectional or quarter-sectional lines of the public surveys. That objection, therefore, disappeared as to all such locations. But what that act did was not to cure and validate locations made without authority of law, but to obviate and overrule a baseless and frivolous objection. There was not a single syllable in the New Madrid act that indicated an intention to require locations to be made in conformity to the lines of the public surveys. There' were no such' lines of tbe public surveys in 1815, for no such surveys were even begun. The law,' by its broad and general-language, and by its specific directions as to surveys at the cost of the party, permitted and evidently intended that the French and Spanish concessionaries and settlers, whose irregular tracts of all shapes and sizes had been injured by earthquake, should go where they liked between the boundaries of the territory, into the wilderness, if they pleased, select lands to suit their fancy where they pleased, and have the quantity to which they were entitled surveyed in any shape they pleased, precisely as they had had surveyed under the old réqime their lands near the Mississippi, each having his own plat, with no reference to any public surveys. No officer had any right to impose restrictions not imposed by the law itself; and the law imposed none if the sale of the lands selected was not forbidden by law. Thus the first opinion of Mr. Wirt, that locations of New Madrid claims must conform with the general plan of surveying the public laud, was unwarranted by anything in the law of 1815, was utterly inconsistent with its purpose, intention, spirit, and letter, and was simply an annihilation of legislation. It was not true in law, as he stated in June, 1820, that locations made in a square, before the sectional lines were run, were inadmissible. It was not true in point of law that the sale of lands was not authorized by law until the sectional lines were run, and that consequently all locations made previously to that were unauthorized. The act of 1815 meant and said that they might be made without reference to the public surveys; and under it the claims could be located in any shape that would give the quantity, and anywhere. And there was no warrant in law for holding, as the Attorney-General did, that permitting locations to be so surveyed as to make fractions was unauthorized by law, and the sale of the fractions so caused was illegal and void; for the location of many New Madrid claims, e. g., this for 170 acres and a fraction, could not possibly be located in any way without causing fractions.
    5th objection. That the location of a New Madrid claim could only be made on lands the sale of which was authorized by law on the 17th day of February, 1815, when the New Madrid act was passed, and that the sale of the lands south of the river Arkansas was not authorized by law while the Quapaw title remained unextinguished, as it did until August 24,1818.
    
      This conceit of Mr. Wirt had no foundation, in law or in the rules of syntax. That a man truly great and learned should ever have propounded it is matter of amazement. If he had reflected but a moment he would have remembered phrases used by himself, as they are used by every one, in perfect accordance with the rules of grammar, in which the present tense of verbs has a future signification. So absurd a notion could never receive judicial sanction, and this court has not permitted it to prevail. (Stoddard v. Chambers, 2 How., 318; Easton v. Salisbury, 3 How., 431; Bissell v. Penrose, 8 How., 317; Watts v. Stoddard, 8 How., 345.) And the court has also holden that locations of New Madrid claims could be made before the lands were offered for sale, and even before they had been surveyed. It has broadly held that a New Madrid location was rendered valid by the act of 1822, although the section-lines had not been run when the location was made. (Barry v. Gamble, 3 How., 32.)
    The laws in force in 1820 empowered the President to cause to be surveyed and sold any lands, the Indian titles whereto might, at any time after, be extinguished. The Quapaw title was extinguished in 1818, and from that moment the sale of the lands which they had claimed was “authorized by law.”
    6th objection. That the reservation by the act of 1832 barred Hector’s claim, and was not removed by the act of March 1, 1843, because the latter was general and the former special; and because the latter cured but the single defect of the non-extinguishment of the Quapaw title on the 17th of February, 1815.
    That objection had no [validity against the New Madrid location, which was made after the Indian title was extinguished, and when sale of the land was authorized by law. The reservation act had no effect upon his claim. It forbade future entry or location, had no retroactive effect, and could not annul the location of 1820, nor divest any rights acquired byit. The act of 1843 only removed, as to his claim, an illegal objection that would not die after its brains were out. It must be clear that the declaration in the act of 1832, being simjfly that the United States would not sell until they should see fit to sell the land, could not stand in the way of the removal of an obstacle, unjustly interposed, to prevent or delay the obtaining a patent upon a good and valid location made long before. Whether the act of 1843 was general or special, it unquestionably removed that obstacle as to all cases. None are excepted. - The effect of the removal in a given case is another question.
    We are not interested to inquire whether, as to the various claims to the Hot Springs, the act of 1843 repealed the reservation in the act of 1832, because the reservation did not affect Hector’s claim, and the act of 1843 removed no valid objection to it. And if the objection of the existence of the Indian title in 1815 had been a valid one, still it does not seem to us that the question would have been whether the act of 1843 repealed the reservation, but whether, when the act of 1843 removed that objection, and declared that the locations south of the Arkansas should be perfected into grants, precisely as if that title had not then existed, this did not reach back and confirm the location ab initio. If it did, then it was made to have been a good title by valid location, before the reservation, and that reservation did not apply to it any more than it would have done if the objection of Indian title had never been made or had never even existed. Certainly it cannot be argued that the act of 1843 did not remove the objection of Indian title as to the claims to the Hot Springs, because the effect of such removal would be the repeal of the reservation. No more can be contended than that, by the removal of that objection, such repeal was not effected. The act makes no exception. It removes that specific objection as to all pre-emption and New Madrid locations south of the Arkansas River. Whether, in providing that “the locations heretofore made” should be perfected into grants, the law added the tacit limitation, “in case the lands located have not been reserved from entry or location,” or, “except the location upon the Hot Springs,” we are not concerned to inquire, since the case of Maclcay v. Easton ; for we had, at least, such a location in 1820, and so far complete as to give a right that could not be cut off by the reservation.
    
      Mr. E. W. Munford for the Belding heirs, appellants:
    When the act of 29th May, 1830, granting pre-emption rights, was passed, Ludovicus Belding was in possession of the southwest quarter of section 33, township 2 south, range 19 west, in the then Territory of Arkansas, having removed to it in the month of February, 1S28, from the State of Ohio, settled upon it and cultivated in 1829. The land was unreserved, unappropriated, and unsurveyed, nor was the latter effected till in .May, 1838. In the month of March, 1839, proof.of Belding’s claim to pre-empt the quarter-section was made and the purchase-money tendered by his family, he being then dead. , The Percifull claim under the act of 1814, and the Langlois claim under the Hew Madrid act of 1815, having been already presented to the district officers, and being older in date, action on that of Belding was suspended. Nor had definite action been taken on any of the claims when, in May, 1850, the Commissioner called the attention of the Secretary of the Interior to them, and he, on the 12th of October following, ordered them all re-referred to the district officers for full investigation and report of the facts, reserving for the Department the decision of all questions of law. On the 23d, that reference was made by the Commissioner, with full instructions, and the different parties entered upon proofs, in taking which, cross-examinations were had by the opposing claimants. The investigation consumed many months, was conducted before the register and receiver, and hotly contested. They reported, as to the Percifull claim, the register adversely, because of a failure of proof as to inhabitancy and cultivation required by the act of 1814. The receiver reported favorably, saying the inhabitancy and cultivation were proven, and Percifull’s heirs were thereby entitled under the act of 1814. They concurred in reporting in the Belding case that the facts of possession on the 29dh of May, 1830, and of cultivation in 1820 by Belding were full proven, but the receiver (in the face of the instructions) raised a question of law, holding that Belding’s tenancy and culture should enure to the benefit of Percifull, not Belding. The Commissioner rejected the Percifull claim, held that the register’s decision was the correct one, and in favor of Belding’s heirs. On the 21st of November, 1851, the application of Belding’s heirs for permission to enter having been refused by the Commissioner and taken to the Secretary of the Interior by appeal, that officer, “ after consultation with the Attorney-General, and full consideration,” decided in favor of their claim, and ordered the Commissioner to instruct the district officers to permit them to enter. This was done, the purchase-money duly paid, and the receipt and certificate, No. 6545, duly delivered to them. The appellants brought suit against the United States in the Court of Claims, under the Act May, 1870; that court decided adversely, and they bring the cause here by appeal.
    We assign the following as error:
    1. The Court of Claims erred in hearing testimony from the opposing claimants in reference to the facts on which the Beld-ing entry was founded. This matter was heard before the land-officers on a regular trial by proofs between the different claimants. The adjudication of the facts by the land-officers is conclusive.
    2. No one was impleaded with appellants but the United States; their answer does not raise such issue of fact. The testimony was dehors the issue before the court, and should not have been noticed. Instead of that, the court went into an original examination as though Belding’s heirs were for the first time applying to that court for permission to make the entry allowed them by the proper officers, a quarter of a century ago, and not impeached by the Government. This was gross error.
    3. That court also erred in construing the Acts May 29, 1830, April 20 and July 14,1832, as applicable to this cause, and under them declaring the entry of appellants to be void.
    4. The court erred in holding and decreeing the appellants are without equity against the United States, and in dismissing their petition. The decree should have held the sale binding, and the United States trustee of the legal title to the land in controversy for appellants.
    Before entering upon the discussion of the main questions arising, it is requisite to notice certain objections urged against the entry in this cause, lest they prejudice the rights of appellants.
    1. The annotations made by the district officers of certain matters which the Commissioner wished thus preserved are supposed in some mysterious way, not very intelligible, to modify and take this out of the category of “ordinary entries.” Such annotations are by no means uncommon, but in .no instance where they have been made has this court on that account hesitated to receive the certificate as conclusive that a certain portion of public land mentioned in it had been bought and paid for. An instance of the kind came before the court in Lytle v. The State, (9 How.,) and doubtless others will readily occur. Courts very properly treat these as mere memoranda, not as conditions of the contract affecting the rights of purchasers or the obligations of the Government.
    2. That Belding went on the land under a lease iron Percifúll. The evidence of this is what purports to be an admission of the fact in writing, dated 2d April, 1831, with no attesting witness — sworn to in ojien court in January, 1842. This is not a paper to be registered, and this copy of a copy is not competent evidence. At most it is simply an admission, not a contract ; but if the alleged lease was made, the absence of the original paper should be accounted for before secondary evidence can be heard; if by parol for a term of years, it is void under the statute of frauds.
    3. That Belding was one of a set of villagers. This is purely fanciful. If others lived on the quarter-section, as they have preferred no pre-emption claim it is to be presumed Belding alone had cultivated and was the only one entitled under the act. The land-officers were fully satisfied on this point.
    4. That Belding abandoned the possession, and therefore lost his right. The decisions made in Pennsylvania on this subject are peculiar to that State, and have never been followed by the Federal courts. The Act May 29, 1830, is very explicit as to the beneficiaries intended; no condition is annexed except occupancy and prior cultivation, and the period of the occupancy is defined as being that of the date of the act. The law having made no exception, the court can make none. (Warfield v. Fox, 53 Penn., 382 ; Fucicing v. Simmons, 28 Wis., 272; Lyman v. WalTcer, 35 Cal., 634; Harrington v. Smith, 28 Wis., 43.)
    5. That fraud was practiced by securing the entry on a promise not to ask for a patent. This is founded on the note written to the Commissioner by Mr. Lawrence on the 14th of October, 1851, applying for permission to make the entry, and at most seems but a superfluous expression of purpose to the effect that, with the then opinion of the Secretary in reference to the effect of the reservation act, any application of the kind would be nugatory, and of course would not be pressed. But if intended as a fraud it was a most signal failure, for on the very next day the Commissioner decided against the application. “ If fraud was practiced, the courts of chancery are open to seek a rescission.” (United States v. Fitzgerald, 13 Peters.)
    6. That this entry has been annulled by the suggestion of Hon. Jacob Thompson to the Commissioner, that “ the entry of Belcling’s heirs should now be canceled.” This was on the 1th of June, 1860. It certainly would be a wonderful state of the law if the entries and patents issued by the Government, and rights acquired under them, could be long afterward annulled by the ipse dixit of new Secretaries. But this suggestion of the Hon. Secretary was never acted upon by the Commissioner, the “ entry of Belding’s heirs ” was nob“ canceled,” and it is before the court wholly unaffected by the brutum f ulmén. In Bank of Metropolis v. United States, (16 Pet., 400,) this court has said the acts of a predecessor cannot be set aside by an incoming Secretary merely because he differs in opinion.
    
      1. That Belding never set up claim to any pre-emption. He never could set up such a claim, for the simple reason that he died in 1833, and never in his life-time could prove his right to any quarter section, the surveys not having been made. The settled construction of the act by the Department and this court is that the right was to a quarter section, and those occupants on fractional quarters of less than 160 acres have been always restricted to the surveyed lines. If the law gave him this right and he was ignorant of it, that was a misfortune, nob a crime.
    8. That Belding claimed pre-emption on the Golfa. This is not true. He never set up such a claim. There is not a scintilla of such proof. Mrs. Belding after his death did in her own right make such a claim under the act of 1841. The simple truth is the facts have been, in every conceivable way which ingenuity could suggest, attempted to be warped and twisted so as to defeat this claim. But the land-officers have uniformly decided that Belding was in possession and did cultivate, and that concludes the inquiry.
    These objections, all of them, are idle triflings with the court. ■ First. Neither Hale nor Rector is impleaded with the Beldings, and there is no issue to be tried with them. Second. If such pleadings were here, the Government, by proper proceedings and averments — -not one having no prior equity — can take advantage of such irregularities. “Roofnagle v. Anderson, 7 Wheat., 211; Rector v. Ashley, 6 Wall., 144.) If these parties or either of them have established prior equities against the Government, that settles all questions. Till that is done, they can raise no objections to this entry. Third. The Government makes no such issue; it files no cross-bill; it charges no “ fraud, unfairness, or mistake of facts. ” Yet the adverse claimants have been permitted by the Court of Claims to encumber the record with a vast mass of testimony in no way relevant to the issue made by the answer of the United States, the only defendant in this cause. The opinion of the Court of Claims shows clearly enough how materially this irrelevant matter contributed to prejudice the mind of that court in deciding the cause, although their attention was called to the following happy summary of legal principles: “It is hardly necessary to repeat the axioms in the equity law of procedure that the allegations and proofs must agree, that the court can consider only what is put in issue by the pleadings, that averments without proofs and proofs without averments are alike unavailing, and that the decree must conform to the scope and object of the prayer, and cannot go beyond them. Certainly, without a cross-bill the court could not decree against complainant the opposite of the relief asked for in the bill.” (Washington B. B. Go. v. Bradley, 10 Wall., 303.)
    Unquestionably the certificate in proof is possessed of every requisite of form and substance to render it on its face valid. It was issued by the proper officer; identifies the land and the purchasers; shows the sale and payment of the purchase-money; its fairness is' in no way brought in question, and before the court can disregard its obligatory force, it must be demonstrated conclusively to have beeu issued by officers who had no legal right to hear and decide the questions arising upon the claim; in other words, mere usurpers of authority not belonging to them. With their errors of judgment in matters legitimately belonging to the discharge of their official duties the courts have no concern. The long list of cases, from Marbury v. Madison down, in which this court has steadily maintained the sacredness of this principle, need not be cited. It is the settled doctrine of the court. Speaking of this very entry, this court said : “ The action of the officers of the Land Department with which we are asked to interfere in this case is clearly not of this character, (ministerial.) The validity of plaintiff’s entry, which is involved in their decision, is a question which requires the careful consideration and construction of more than one act of Congress. It is far from being a ministerial act under any definition given by this court.” (Gaines v. Thompson, 7 Wall., 353.) Congress appointed by the act of May 29, 1830, a tribunal with full power to hear aud determine all applications for pre-emption to lands embraced by that act, and by the supplemental act of July 14,1832, expressly continued their functions in reference to such lands embraced in the former act as were unsurveyed. “ The careful consideration and construction” of whatever acts of Congress affecting the subject-matter with which they had to deal was no less a power exercised and a duty imposed upon them than is the decision of questions of law by any judicial functionary whatever. Such a decision, unim-peached for fraud or unfairness, and unappealed from, must, upon principle, be conclusive in the particular case. It may be voidable, but it is not void.
    It will doubtless be objected that in the present case the reservation act took this quarter section out of the category of lands “offered for sale by the act of 1830,” and that, in dealing with it, the land-officers transcended the boundaries of their jurisdiction; therefore their whole action is a nullity. It is admitted frankly that, ordinarily, all inferior tribunals must act within prescribed limits, and, unlike courts of general jurisdiction, have no power to decide upon the limits of their own jurisdiction. This is true, however, only when that jurisdiction is so defined by the legislature that the tribunal is left without any call for the exercise of judgment in fixing its limits. A critical examination of the authorities will show that in all cases where the legislation is of such character as to impose the adjudication of this as well as other questions, the decision upon this point is no less conclusive than upon any other arising in the cause; like the decision of any other court, it may be reversible, but it is not void. The principle upon which this rests is that, in deciding such question, the judicial function is lawfully called into action. ’ (Greenwalt v. Burrill, 1 Lord Kay., 454; Vale v. Owen, 19 Barb., 22; Agnel v. Bobbins, 4 K. I., 493; Evansville B. B. Oo. v. Evansville, 15 Ind., 395; People v. Collins, 19 Wend., 56.)
    Indeed the principle here contended for is within the case of Johnson v. Towsley, (10 Wall.) There the line of demarkation is fixed correctly, that the decision fairly made and upon facts within the limits of jurisdiction is valid, and that only after the title has passed from the Government will equity, without questioning the validity of the judgment, apply to the relation of the parties the established doctrine of implied trusts. Warren v. Van Brunt (19 Wall.) re-affirms the doctrine.
    The question then is, did Congress, by the peculiar legislation here, make it incumbent upon the tribunal to which they confided the duties of hearing and determining pre-emption claims to unsurveyed land embraced in the act of 1830, directly call into action the judicial function of that tribunal to decide whether or not a reservation subsequent to that act was intended to exclude a claim made under it ? They were told to decide all such claims upon the same conditions in every respect of that act, and this condition was not in existence when the act of 1830 passed. It really does not seem to be debatable whether or not this question was legitimately examined and decided; it lay right across their path of duty, placed there by Congress. Is its decision void 1 When under orders following it the money was paid in good faith, the certificate given, the transaction closed, and brought here by authority of Congress, and without its fairness questioned in the pleadings, is that whole matter a nullity; if so, what is the use of legally-constituted tribunals to hear, decide, and transact business % The power to hear and determine a cause is jurisdiction; it is coram judice whenever this power is called into action. (Grignon’s Lessee v. Astor, (2 How., 338;) 3 Pet., 305; 12 Pet., 718 and 623.)
    But there is another ground why, according to the requirement of Congress in the act, under which this suit is brought, to wit, that the cause shall be determined upon the principles of equity jurisprudence, this transaction cannot be treated as a nullity. If it be admitted that the Secretary, and Attorney-General Crittenden, by whose advice he acted, did not place upon the acts involved the correct construction, and that strictly the sale was originally not binding, (which are not admitted,) yet it by no means follows that this as a court of equity can hold appellants have no equity.
    Certainly, if this was a matter between individuals this court would not tolerate argument. Is the Government bound by what Congress does ? Like a corporation, it can act only through agents, yet it is capable of contracting and being contracted with — of buying, selling, and incurring obligations. Does it do these things under rules of law, acquiring its rights and incurring its obligations by virtue of law, or does it stand apart as a huge despotism ? Upon principle it seems to be plain that the ordinary rules of law control in business transactions of the Government like those of individuals or corporations. Nor are we without authority on the point. Sedge-wick, after remarking that the deference shown in England for the rights of the Grown, has never been a recognized principle of law in this country, says, “ Nor do I understand why the Government should be exempted from the operation of general laws.77 (Stats, and Const. Law, 107,2d ed.) Here, however, are decisions directly in point: State v. Jeff. Turnpike Co. et al., (3 Humph., 311;) State v. Hamilton, (11 Humph., 49;) Garner v. Jackson, (4 Pet., 87;) Oommonwealth v. André, (3 Pickering, 224;) Penrose v. Griffith, (4 Binn., 231;) Nisto v. Carpenter, (7 Oal., 527;) Mayer v. Hallet, (22 Ala., 697.)
    “The question is whether the State is bouud by its agents as a natural person acting through agents is bound ? The truth is, a government can act only through its agents, and all its officers, executive, legislative, judicial, and ministerial, are merely its agents. That it is not bound by the acts of its agents, is to deny its capacity to create an obligation. But this will be denied by no one.77
    “ We are aware of no principle upon which this case can be exempted from the general rule pervading every system of jurisprudence, that the act of the general agent, or one put in the place of another to transact all his business of a particular character, if within the general scope of his authority, will bind his principal. This rule, we think, in a case like the present, equally applicable to public agents or the various public functionaries which the Government may employ to transact its ordinary business and operations as to private agents employed by private individuals.77
    It is settled equity law that whenever and however property is sold, and the purchase-money is appropriated by the owner, he will not be listened to if he questions the validity of the trade. It is natural justice, no less than equity law, that he shall make restitution, or if he does not propose to do this, and rtsir a rescission, the trade shall bind him. (Story on Agency, § 250; Glynn v. Baker, 13 East., 510; Taylor v. Green, 8 S. C. and P., 316; Benedict v. Smith, 10 Page, 127; Farmers’ Loan Go. v. Walworth, 1 Com., N. T.; Whitwell v. Warner, 5 Wash., 450.)
    The true equity law is thus succinctly stated: “ It would be highly inequitable and unjust to permit a defendant to repudiate a contract the fruits of which he retains.” [Steam Navigation Company v. Wood, 17 Barb., 378; Chester Glass Company v. Dewey, 16 Mass., 91; Palmer v. Lawrence, 3 Sand., S. C., 162; McCutchin v. Steamboat Company, 13 Penn. R., 13; 6 Hill, 190; 11 Barb., 213.)
    Tbe settled doctrine of this court is that entries when made are to be sustained whenever this can be done by any reasonable construction. In Marshall v. Currin, Chief-Justice Marshall said: “ Courts are inclined to sustain entries, and will adopt all reasonable constructions to do so,” (4 Cranch, 172.) The same doctrine runs through Massie v. Watts, (6 Cranch, 148;) Matson v. Mord, (1 Wheat., 130,) and Shipp v. Miller, (2 Wheat., 316.) In the latter case, Judge Story, delivering the unanimous opinion of the court, says, “ The general leaning of courts has been to sustain entries when it could be done by any reasonable construction.”
    There never was an entry permitted after a more patient and critical examination of the facts upon which it was predicated than was this. Not only was it especially referred by the Department to the district officers, but the adverse claimants arrayed every possible feature of testimony in opposition to it. As the record shows, no effort was spared to defeat the claim; yet with the witnesses before them, so that they could better judge than can any court from merely reading the printed testimony, both the register and receiver agreed in finding the facts of possession on the 29th of May, 1830, and of cultivation by Belding the year previous, to have been proven. And this finding was approved by the Commissioner. How can the adverse parties or the Government be now heard to call these facts in question 9 On what principle did the Court of Claims, on the present issue, undertake to try over again the whole question of fact, as if Belding7s heirs had an original application before them praying to be permitted to enter the land 7 The Belding claim is founded upon the Acts 29th May, 1830, (4 Stats., 420,) and lith July, 1832, (ib., 603.) The question is one of statutory construction. The early legislation of Congress was exceedingly favorable to pre-emption claims, and the decisions of this court no less so; in consequence of which the idea became prevalent that an occupant living upon the public lands acquired under the pre-emption law, by the mere force of his inhabitancy and cultivation, a vested right of which he could not lawfully be deprived. Frisbee v. Whitney, the case of a person claiming a pre-emption by virtue of conduct the most violent, scandalous, and selfish, and who had never paid any money for the land, was well adapted to try the truth of this theory, which, on being critically considered, was overthrown. This decision has been followed by the Yosemite Talley Case, in which the court take pains to show the language used upon this subject, especially that of Lytle v. The State, had received a construction which was not intended. Taking these cases as the point of departure, it is frankly admitted that Congress has the power, if that body desires to do so, to destroy pre-emption rights at any time before the settler by proof and tender of the purchase - money has acquired a vested right in the land. The question, however, as to what Congress can do, and that as to what it has done, in a given case is essentially different, and to the latter inquiry, as applicable to the present cause, is this argument addressed.
    But our first inquiry is, what effect did the act of 1830 have upon the land embraced in its provisions ? In the Yosemite Valley Case this court said, “ In the case from Arkansas, the act of 1830 authorized the entry and sale of the land,” “ it opened the land for sale.” In an earlier case, the decision of which turned upon the construction of the act, the court construing it said, “ The act of the 29th of May, 1830, to grant pre emption rights to settlers on public lands, appropriated this quarter-section on which Etheridge was then settled to his claim under the act for one year, subject to be defeated by his failure to comply with its provisions. During that time this quarter-section was not liable to any other claim or to be sold to any other person, except at public sale under the proclamation of the President, and that Etheridge had a right to prevent by paying for the land as provided by the act.
    * In the case before the court all the land in the southwest quarter of the fractional section had been appropriated by law to satisfy Ftheridge’s claim.” (Brown’s Lessee v. Glemments, 3 How., 666.) An “appropriation” is defined to be “the setting apart the thing for some particular purpose.” (Wilcox v. Jackson, 13 Pet., 512.) This construction of the act is unquestionably sound in principle, in harmony with all the earlier decisions, and that of those to whom the execution of this law was confided. “Great regard ought, in constructing a statute, to be paid to the construction which the sages of the law who lived about the time or soon after its passage put upon it; because they were best able to judge of the intention of the makers. It is moreover a maxim that contemporánea expositio est fortissima in lege.” (2 Inst., 11,136,181.) “ The construction given to an act of the legislature soon after its passage, cannot be altered at a very distant day.” (Graham’s Appeal, 1 Dali., 136.) It is therefore assumed to be absolutely certain that with the facts found in his favor by the land department, as here, if the land had been surveyed in 1830, and Belding had been permitted to enter it, such en try would have been unquestionably valid. It is equally clear that the only difficulty was the want of the public surveys, a matter beyond the occupant’s power of control. Nor was the land surveyed by the Government till the act had expired. In this condition of things the reservation was made, and the question is, was the right of pre-emption destroyed ? If Congress so intended, of course this is decisive; if not, not. It resolves itself into a question of legislative intention, and this is to be ascertained by the application of the common-law rules for construing statutes. (Bice v. Railroad Go., 1 Black, 358.) That the terms of the reservation act are broad enough to destroy any pre-emption right in the four sections, is frankly admitted. That such must have been the legal effect of that act under the well-known rule of construction “that where the language used is in itself unambiguous there is no room for construction, and the legislature must be taken to mean just what they say,” had Congress not at a subsequent time passed another act involving this claim and the land, would be equally plain. We must therefore examine this latter legislation and see whether, under settled rules, it sheds any light upon the intention of Congress in passing the reservation act, and the sense in which they designed it to be understood in connection with the preemption policy of the act of 1830.
    This is a remedial act passed for the purpose of better securing the rights and policy of pre-emption in the act of 1830, itself a remedial statute. There is, therefore, a twofold reason for giving it a most liberal construction. That such acts are to be liberally construed, has been laid down in the strongest terms. “In case of a remedial statute, everything is to be done in advancement of the remedy that can be given, by any construetion that can be placed upon it.” (D warris, 654; ¡Stevenson v. Everett, Gowp., 391; Sedg., 360, referring to Johnes v. Jolmes; 3 Dow.,’15.) But this rule aside, tbe language of the act is so plain, simple, and direct, that if its literal terms are not disregarded, no difficulty will be found in sustaining this entry. They are as follows : “That all the settlers and occupants upon the public lands of the United States, who are entitled to a pre-emption according to the provisions of the act of Congress approved tbe 29th of May, 1830, and who have not been, or may not be, enabled to make proof and enter the same within the time limited in said act, in consequence of the public surveys not having been made and returned, the said occupants shall be permitted to enter the said lands on the same conditions in every respect as are provided in said act, within one year after the surveys are made.” Now this law was made not to confer any new right of pre-emption, but to rescue the policy of the act of 1830 from the jeopardy in which previous legislation had left it, and maintain the rights and privileges thereof unbroken to all occupants interested. This is manifest from many particulars, such as the direct recognition it contains, that unsurveyed lands were intended to be included in that act; that all such claims were, in congressional esteem, valid, and might be perfected within the year after the lands were surveyed by virtue of that act; by its indorse.ment of the departmental construction previously placed upon it, that unsurveyed lands were included; by converting a temporary into a perpetual act having no definite time to run; by making the act of July a reviving or continuing act, calling back as to these lands and their occupants, with no exception, the full force of the expired act; by carefully inserting into the act of July retrospective terms, so that no entry or sale should be defeated because of the expiration; by directly referring to the particular class of lands, and fixing in explicit terms “the same conditions as are provided in the act of 1830, in every respect,” as the sole rule governing all claims based upon it where the land had not been surveyed “in the time limited.” It would be difficult to find an act which was better considered or more carefully prepared than this seems to have been to have secured the pre-emption privileges entire in the act of 1830. Congress must be taken to have meant just what they have plainly said, and to hav,e intended every legal effect directly following an enactment free from ambiguity. That such were the effects of tbe act of July upon that of May, 1830, is clear from the authorities: “ When a temporary statute is made perpetual, it is to be considered as perpetual from its enactment.” (Alcock and Napier, 375.) “If a statute espire, and is afterward revived in another statute, the law derives its force from the first.” {Shipman v. Senbest, 4 Term Ik, 109.) “When a statute revives another, it is revived in that precise form and with that effect it had the moment it expired.” {Cargo Brig Aurora v. United States, 7 Cranch, 382.) It may be remarked, that in reviving the expired act of 1830, the usual ■ effect of revivors, namely, to call the former into operation prospectively from its date, was expressly guarded against by Congress in making the act of July retrospective in terms. This court has, however, judicially settled its construction in harmony with its provisions in this respect. {Lytle v. The State, 9 How., 333; and Maries v. JDicleson, 20 How., 501.) It is, therefore,, insisted that on the 14th of July, 1832, the whole policy of the act of May 29,1830, in reference to pre-emption claims to unsurveyed lands under it, was recognized by Congress as then in force, and provision made by law for their entry and sale within a year after the surveys, on the same condition’s as are provided in that act, in every respect.” That is what the law says in clear language. Does it mean what it says? There are those who say not; because on the 20th of April preceding this law Congress had reserved four sections embracing this land from sale, entry, or appropriation for the future disposal of Congress. The argument is that therefore, in July following, Congress did not mean what they said. Was Congress in the last act legislating on a subject within its control? Are these acts repugnant in their provisions ? Does the act of April say the land shall not be entered and sold; if so, does not the act of July say this, as much as any other quarter section, shall be sold to the occupant? The act makes no exception whatever of occupant or land; on the other hand, it says all of them: “the said occupants shall be permitted to enter said lands.” In the act itself, no sort of distinction is made between the quarter-sections or the conditions of sale.
    Extreme cases test principles. Suppose when the act of July 14 was passed there had lived on each quarter of the four sections reserved an occupant, entitled to pre-emption under the act of 1830, and no other occupant of unsurveyed land anywhere else who was entitled. Would the act of July be a dead letter? By what rule? Was not the effect of the reservation, taking it in its harshest sense, merely to leave the land as it found it, public land belonging to the United States? The legal status was that of absolute subjection to the will of Congress after that reservation as before it. Was there any legal barrier in the way of Congress to prevent the repeal or the modification or the explanation of the reservation by a subsequent law? Could they not recognize rights previously conferred and direct their enforcement? When the idea of a reservation getsintosome minds it seems to carry with it a conviction that there is but one way possible for Congress to deal with it for any legal purpose whatever. Such views of course lead to unsound conclusions. Courts know that if two acts are in direct and irreconcilable conflict, the last is the law. Now these acts of 20 April and 14 July, as far as pre-emption rights under the acts of 1830 in these four sections are concerned, are in apparent conflict. A simple inspection of their terms will show this. If in the opinion of the court one or the other must give way in the strict sense of repeals, is it needful to quote authorities to show that the last is the repealing act ?
    
      Mr. Attorney-General Pierrepont for the United States, appel-lees :
    Unless this court shall overrule itself in six carefully-considered cases, the Rector claim must fail. Those decisions relate to the same New Madrid act of 1815, and we make the following analysis:
    1. Bagnell v. Brodericlc, (13 Pet., 436.) Catron, J.:
    Ejectment for a section of laud. Broderick, plaintiff, claimed title under a patent issued for the land under a New Madrid certificate to Robertson. The defendant set up an equitable title, as follows: Robertson conveyed to him the injured lands, so that when the certificate was granted he was the legal representative for the claim, and executed the relinquishment of the injured lands; but Robertson* was claimant of record, and the certificate was issued, as usual, in his name. Defendant made a written statement of entry of the land in dispute with the survey or-gen eral in his own name, but apparently took no further step under the law. Robertson somehow procured the patent, the copy of the plat and certificate of survey having been filed in the recorder’s office as required by the law.
    Defendant contended that showing the above facts established an equitable title that could be sustained against the legal title by patent in plaintiff. The court decided otherwise, apparently on the ground that defendant had not, by simple notice of entry to the surveyor-general, shown enough under the act to establish such an appropriation as would give him standing in court as claimant of an equitable title under this act. The court say: “ Our opinion is, first, that the location referred to in the act is the plat and certificate of survey returned to the recorder of land-titles, because by the laws of the United States this is deemed the first appropriation of the lands,” (p. 450.) Elsewhere the court state the requirements of the act, and announce the same conclusion as to the proceedings requisite to establish an appropriation, (pp. 447,448.) The court go on to fortify their conclusion from the terms of the statute itself, by statiug that the practice of the Land-Office corroborated that view. This statement the claimant in this case vehemently contends to have been erroneous, and seeks to combat with evidence representing the conclusion of the court to rest only on their information as to the practice of the office, which, it is apparent, is but an incidental statement, whether correct or not.
    2. Barry v. Gamble, (3 How., 32.) Catron, J.
    The same doctrine as to the time when lands become appropriated to the claimant under the New Madrid act is affirmed, but it does not appear that the controversy turned on that point, but on whether a valid location could be made on lands which had not been offered for sale, and that was decided in the affirmative.
    3. Bessieur et al. v. Brice, (12 How., 59.) Catron, J.
    This suit came up from the Missouri court, which gave judgment for Price on two grounds, one of them being that his title, by patent from the United States, was older than that of Les-sieur from the same source. Lessieur’s title was based on a New Madrid location, and it was claimed on his behalf that though his patent was of a later date than the other, yet as the notice of location on the New Madrid certificate was filed with the surveyor-general, and the tract therein specified surveyed by the surveyor before the patent issued to the other side, that was a transfer to the New Madrid proprietor of title to the tract under the New Madrid act, good as against the United States and their patentee. It seems the j udgment below was by a divided court, and it was questioned there whether the decision of the Supreme Court in the two cases last cited, on the subject of the requisites of an appropriation under the New Madrid act, was necessary to arrive at the decision then made. The Supreme Court notice this in their opinion in this case, hence the weight of this authority as a forcible re-affirmance of the doctrine of these cases as authoritative. The court go over the whole ground, and put their decision squarely on the plain meaning of the law, without regard to practice of any office, saying explicitly that the import of the law was not to bé changed by the practice pursued in the surveyor’s office. It is not worth while to quote from the opinion, as all of it on this point should be examined. See pages 73, 74, 75.
    4. Sale v. Gaines et al., (22 How., III.) Catron, J.
    This suit involved the matter of the present controversy. Caines, claiming under the Belding pre-emption title, brought ejectment in the Arkansas court against Hale, who rested on the New Madrid certificate of Langlois, Hammond, and Rector’s application for location in 1819, and on the resurvey of 1838. He offered in evidence the Conway certificate of 1820, but the court rejected it. The Supreme Court, reviewing the facts, say as to the original application: “In 1818 the spring was in the Indian country, to which, of course, no public surveys extended; and as the act of 1815, providing for the New Madrid sufferers, only allowed them to enter their warrants on lands ‘ the sale of which was authorized by law,’ the unsurveyed lands could not be legally appropriated, and of necessity the surveyor-general disregarded the application to have a survey made for Lang-lois, and thus the claim stood from 1818 to 1838.” Again the court re-assert the doctrine of the cases before cited: “Until the survey on Langlois’s claim was presented to the recorder of land-titles at Saint’Louis, and recognized by him as proper and valid, it could have no force, as this was the only mode of location contemplated by the act of 1815. So it has been uniformly held. (Bagnell v. Broderick, 13 Pet., 436; Lessieur v. Price, 12 How., 59.)” The court also refer to the acts of 1822 and 1843, and show that neither could benefit the New Madrid title in this case, the former barring the subsequent attempt to locate, and the latter not affecting the reservation act of April 20, 1832. Hence they decide that the Hew Madrid survey of 1838 of the Hot Springs was altogether invalid, and properly rejected by the State courts.
    5. Bector v. Ashley, (6 Wall., 342.) Miller, J.
    Cross-suits to quiet title of lands near Little Bock, Ark. The legal title was in Ashley, unless it had been previously appropriated by proceedings under the New Madrid act, through which Bector set up a prior equitable ownership of the same land. Bector showed a New Madrid certificate issued to Henry Cockerham, an application dated October 30, 1820, to the surveyor-general for location by O’Hara, as the legal representative of Cockerham, describing the land, but no evidence was given that it was ever filed in the surveyor’s office, nor any to show from whence it was produced, though the Supreme Court, for the purpose of the opinion, considered it might be conceded that it was regularly filed, and that O’Hara had authority. .A survey purporting to be under Oockerham’s certificate, dated May 39, 1838, with a certificate of filing, then of June 16,1838, by the recorder of land-titles, appeared as a transcript from the records of the General Land-Office. The Arkansas court gave judgment for Ashley on the ground that the land had not been appropriated under the New Madrid act until after Ashley’s title was fixed. The Supreme Court, after stating the facts, says: “ The questions tobe considered on these facts are, did these proceedings establish, a right, in the parties who represent Cocker-ham, to the land covered by the survey, which would withdraw it from the category of unappropriated lands on which the Arkansas grant could be located ? And if they did, at what point in the proceeding did this right become fixed ! It seems to us that this court has already settled these questions in a manner which leaves nothing more to be said, unless we overrule its decisions.” The court then quotes at length from Bagnell v. Brod-erick, Barry v. Gamble, and Lessieur v. Price, and proceeds to dispose of the main reliance of the claimant in this case, as follows: “But we are much pressed in the present case with the argument that the title here spoken of by the court is the legal and not the equitable title; and that inasmuch as the applicant has done all that he can do to make good his claim to the land, when he has deposited with the surveyor his certificate of loss, with a description of the land desired in exchange, he has thus acquired an equitable interest in the land so described, which the United States cannot divest by giving it to another.”
    But the rights of the'claimant are to be measured by the act of Congress, and not exclusively by what he may Dr may not be able to do; and if a sound construction of that act shows that he acquired no vested interest in the land until the officers of the Government have surveyed the land, and until that survey is filed in the office of the recorder, and approved by him, then, as claimant’s rights are created by that statute, they must be governed by its provisions, whether they be hard or lenient. It seems to us clear, from the foregoing cases, that the court intended to decide that, until this was done, the' claimant acquired no vested right to the land; no title, legal or equitable. The court held, therefore, that the legal title of Ashley vesting on June 8,1838, and the certificate of the recorder of land-titles of the return of the Oockerham survey being dated June 10, 1838, the lands were not appropriated under the New Madrid act so as to affect Ashley’s title.
    G. Maclcay v. JSaston, (19 Wall., 619,) Field, J.,
    Affirms the foregoing line of decisions, and adds: “It (the act) contemplated that there should be a concurrent investiture of title; that the title of the owners of the land injured in New Madrid County should pass to the United States, and that at the same time the title to the land located in lieu thereof should pass to the claimant, or rather the right to the title, for the strict legal title did not pass until the patent issued; and that this exchange of titles should take place when the claimant obtained his patent-certificate, or the right to such certificate, and that he could not acquire until the plat of the survey was returned to the recorder of land-titles. Until the plat was placed in the public depository of the Territory of evidences of title issuing from the United States, there was no official recognition of the proceedings taken by the claimant which bound the Government.”
    Clear as it seems to us that the Rector claim has no foundation in equity or law, the importance of this case leads us to a more extended review of the facts presented by the record.
    First. What seems to be the extent of the allegeable injury? Rector says that unjustly the defendants withhold from him a patent for 170-¡Yo acres of land, including the Hot Springs, to which he is equitably entitled under the New Madrid act, (3 Stat., 211.) That statute donates no laud. It only authorizes exchanges. Eector has not shown that the defendants have taken his lands and now withhold the equivalent. (The instrument appearing at p. 308 of the record is not authenticated or proven so as to be admissible in evidence.) He shows no exercise by the defendants of any acts of ownership or of any description on or about his New Madrid lands from which it might be inferred that they have in fact taken title thereto. The statute, it is true, does not prescribe any form of passing the private title to the public, but it explicitly declares at what point in the proceedings the transfer of the title in point of law is concluded. The Supreme Court have also settled that question under the act, and it is no longer open to controversy. That point was confessedly never reached in the proceedings taken to perfect the claimant’s acquisition of public land in exchange for his own. For aught that appears, the legal title of Langlois’s New Madrid lands is in Eector still, if it ever was.
    Second. What is the wrongful action of defendants complained of, and by what authorized representative of theirs was it done?
    Eector charges that his father’s brother, William Eector, who was at the time in question surveyor-general for the Territory of Missouri, was the unwilling instrument of the Secretary of the Treasury and the Commissioner of the Land-Office in debarring Elias M. Eector, the legal representative of the Langlois claim, of his right, and that his course in the premises was in consequence of certain instructions issued by said superior officers.
    The original wrongful action charged is that a certain alleged legal and valid survey, which had been made under the direction of said William Eector for the purpose of locating the Langlois claim under the New Madrid act, on the Hot Springs, and returned by the deputy surveyor to said Eector, was not, in consequence of said instructions, received by him as a legal and valid survey for the said purpose, and was not filed and recorded as such by him in his office.
    So far as regards the surveyor-general’s action, the averment of the claimant may be admitted (for the sake of the argument) that the said officer would not admit the survey of record in his office, and there is still no legitimate proof of the reason why he would not admit it. It might have been because the survey was formally defective or imperfectly executed, in bis opinion, or because the legal compensation therefor was not paid, or for any other reason disconnected with instructions from his superiors. The actual location of the tract is confided by the statute to him, and that carries with it a certain right of exercising his discretion therein, which the law, in the absence of evidence to the contrary, will presume was duly exercised; and hence, if it appears simply that the surveyor-general declined to admit the survey, it will be presumed that he had good reasons of his own for his action. The burden is on the claimant to show that it was otherwise.
    After the transaction of July, 1820, there is no pretense that any movement was made on the part of those interested in this claim until about 1838. Complaint is freely made of the acts and decisions of the departmental authorities from that time forward, but it does not appear how the cause of action, as based on the survey of 1820, could be affected by any proceedings at that time.
    Third. Is the alleged official action in the premises revisable here1?
    The petition concedes that the surveyor was bound to accept and carry out the instructions of his lawful superiors, so that the real issue is, has the Court of Claims or this court authority in this case to revise the action of the authority which in and before 1820 had the right of decision and instruction in questions pertaining to the alienation of the public lands'? On this point the court below said: “The alienation of the public lands has always been exclusively confided to the officials of the Land-Office. Upon well-understood principles, a power confided to a special tribunal can neither be reviewed, nor enforced, nor reversed by courts of law or equity as between the Government and those seeking to become purchasers or grantees. The final action of the Land-Office has always been regarded as final by the judiciary. Its decisions, whether rightful or wrongful, have never been reviewed, either to enforce sale by mandamus or prevent it by injunction.” (10 O. OI. R., 362.) In Maguire v. Tyler et al., (1 Black, 195,) the Supreme court said: “That the General Land-Office has, from its first establishment in 1812, exercised control over surveys generally, is not open to discussion at this day.”
    The Court of Claims say, further, that the courts will collaterally examine tbe action of the Land-Office in two cases, neither of which would appear to include the circumstances of this case. It will have to be claimed and proved, therefore, in order to maintain this action, that the act giving these courts jurisdiction to hear and determine these cases in the form and under the rules pertaining to suits in equity gave them more extended authority to revise the j udgments of the authorities of the Land-Office in the premises than courts of equity would otherwise have.
    Fourth. Assuming, however, the amplest power of revision, the question then is, was the official action lawful ?
    That action, so far as regards the proceedings prior to the alleged return of the survey 2903, was, in substance, the decision and enforcement thereof in all cases under the New Madrid act that New Madrid locations could not lawfully be made on public land in the Territory before the same had been surveyed in the manner prescribed by law, because it was held, under the general course of legislation respecting the alienation of public lands, that a sale thereof was not authorized by law prior to such survey. This decision rested, of course, on a construction of the provision in the New Madrid act restricting the location to public land in the Territory, 1 ‘ the sale of which is authorized by law,” and that construction was based on the doctrine that the New Madrid act belonged to the general system of land legislation of the country, and that its provisions were, therefore, to be interpreted as in accordance with the established rules and policy of that system. This would seem too plain for argument; but the claimant makes a labored effort to maintain, on the contrary, that, subject only to exceptions specially made by statute, such as salt-springs and private claims, the entire body of public land in the Territory was open to location] without regard to its condition as surveyed or otherwise. His main argument, indeed, is that at the date of the passage of this act no lands had been surveyed according to the rectangular system, nor had any order for such public survey then been issued. The objection is merely specious. The act itself contains the most conclusive evidence ou the subject in its direct reference to the precise quantities of ICO acres and 640 acres, the well-known sectional divisions of the public system of survey. The order for survey of a sufficient amount of public land to meet the requirements of this act speedily followed its passage, and it does not appear that claimants experienced any difficulty from the want of surveyed lands for location. Congress in 1822, April 26, (3 Stat. L., 688,) recognized the propriety of this construction by substantial affirmation of it for the future, while relieving past locations, irregular in that respect, from the condition of illegality which called for this confirmatory act. The courts have always maintained the same view, as may be seen by reference to Bagnell v. Brodericlc, Sale v. Gaines, and other cases elsewhere cited.
    The next charge of official misfeasance is that in October, 1851, the Secretary of the Interior decided adversely to an application fora patent made by the claimant in 1850, on the ground, among others, that under the New Madrid act a valid location could be made only on lands the sale of which was authorized by law at the date of passage of the act. It is needless to discuss the correctness of this alleged decision, since the claimant was not in a position to raise the issue, as will presently appear.
    Fifth. Neither Elias M. Rector, in his life-time, nor the claimant, as his successor in interest, can be regarded as entitled to the benefit of the equitable doctrine invoked.
    The claimant, in such case, must show not only that he did all which the law required of him, but also, by protest or other indicative action, that he did not acquiesce in or submit to the action for which he seeks to hold the defendants to account. There is no scintilla of evidence that Elias M. Rector ever protested or even complained of the action of his brother or of any other official concerning the rejection of Conway’s survey. He lived more than two years after July, 1820, and until after the passage of the act of 1822 to confirm a certain class of invalid New Madrid locations, yet there is no evidence that he made any effort to prosecute or perfect his claim. He seems to have accepted the decision as just, and let the matter rest there, awaiting, perhaps, the time when, by extension of the public survey over the region of his proposed location, the obstacle to a valid location would be removed. His inaction and that of his brother, the surveyor, who became his executor on his decease, in August, 1822, during the year limited by the act of April 26,1822, was fatal not only to the desired location, but to the claim, the act providing (§ 2) that “ all such warrants shall be located within one year after the passage of this act, in default whereof the same shall be null and void.” Nor was this the only bar, for in 1832 the springs and four sections about them were reserved from entry, so that when this claim, which had lain dormant from 1820 to 1838, was then revived by the claimant, he was met by these two insurmountable objections, which continue to resist his attempts to obtain that which was never his right.
    The title of Percifull and the title of Belden rest exclusively upon the pre-emption acts. They seem to have no real basis in law, and they present no grounds for equitable action by the court. The questions involved are so ably treated by the court below, and the points presented are so thoroughly examined, that I need only repeat what that court has said. (The Attorney-General then quoted in extenso so much of the opinion of the court below as related to these claims. See 10, O. Cls. B., pp. 3(54, 368.)
   Mr. Justice Bradley

delivered the opinion of the court:

The title to a well-known watering place in the State of Arkansas, called the Hot Springs, now located in Hot Springs County, has been contested by a number of claimants for nearly half a century. These springs are situated in a narrow valley or ravine between two rocky ridges in one of the lateral ranges of tlie Ozark Mountains, about sixty miles to the westward of Little Bock. Though not easily accessible, and in a district of country claimed by the Indians until after the treaty made with the Quapaws in 1818, they were considerably frequented by invalids and others as early as 1810 or 1812 ,• but no permanent settlement was made at the place until a number of years afterward. Temporary cabins were erected by visitors, and by those who resorted there to dispose of articles needed by visitors, but were only occupied during a portion of the year. The public surveys were not extended to that portion of the country until 1838.

In order to settle, if possible, the controversies which existed, and which seemed interminable, none of the parties having any regular Government title, and it being doubtful whether any of them were entitled thereto, Congress, on the 31st day of May, 1870, passed the following act:

“ AN ACT in relation to tlie Hot Springs reservation in Arkansas.
uBe it enacted by the Senate and Souse of Representatives of the United States of America in Congress assembled, That any person claiming title, either legal or equitable, to the whole or any part of the four sections of land constituting what is known as the Hot Springs reservation in Hot Springs County, in the State of Arkansas, may institute against the United States in the Court of Claims, and prosecute to final decision, any suit that may be necessary to settle the Same: Provided, That no such suits shall be brought at any time after the expiration of ninety days from the passage of this act, and all claims to any part of said reservation upon which suit shall not be brought under the provisions of this act within that time shall be forever barred.
“ Sec. 2. And be it further enacted, That all such suits shall be by petition in the nature of a bill in equity, and shall be conducted and determined in all respects, except as herein otherwise provided, according to the rules and principles of equity practice and jurisprudence in the other courts of the United States; and for the purposes of this act the Court of Claims is hereby invested with the jurisdiction and powers exercised by courts of equity so far as may be necessary to give full relief in any suit which may be instituted under the provisions of this act.
“Sec. 3. And be it further enacted, That notice of every suit authorized by this act shall be executed by the delivery of a true copy thereof, with a copy of the petition, to the Attorney-General, whose duty it shall be, for and in behalf of the United States, to demur to or answer the petition therein, within thirty days after the service of such process upon him, unless the court shall for good cause shown grant further time for filing the same.
“ Sec. 4. And be it further enacted, That if two or more parties claiming the same lands under different titles shall institute separate suits under the provisions of this act, such suits shall be consolidated and tried together, and the court shall determine the question of title and grant all proper relief as between the respective claimants as well as between each of them and the United States.
“ Sec. 5. And be it further enacted, That if, upon the final hearing of any cause provided for in this act, the court shall decide in favor of the United States, it shall order such lands into the possession of a receiver, to be appointed by the court, who shall take charge of and rent out the same for the United States until Congress shall by law direct how the same shall be disposed of, which said receiver shall execute a sufficient bond, to be approved by the court, conditioned for the faithful performance of his duties as such, render a strict account of the manner in which he shall have discharged said duties, and of all moneys received by him as a receiver as aforesaid, which shall be by said court approved or rejected accordingly as it may be found correct or not, and pay such moneys into the Treasury of the United States; and he shall receive such reasonable compensation for his services as said court may allow, and in case of a failure of said receiver to discharge any duty devolving upon him as such, the court shall have power to enforce the performance of the same by rule and attachment. But if the court shall decide in favor of any claimant, both as against the United States and other claimants, it shall so decree, and proceed by proper process to put such successful claimant in possession of such portion thereof as he may be thus found to be entitled to, and upon the filing of a certified copy of such decree with the Secretary of the Interior, he shall cause a patent to be issued to the party in whose favor such decree shall be rendered for the lands therein adjudged to him : Provided, That either party may within ninety days after the rendition of any final judgment or decree in any suit authorized by this act, carry such suit by appeal to the Supreme Court of the United States, which court is hereby vested with full jurisdiction to hear and determine the same on such appeal, in the same manner and with the same effect as in cases of appeal in equity causes from the circuit courts of the United States: And provided further, That in case the judgment or decree of the Court of Claims in any such suit shall be adverse to the United States, the Attorney-General shall prosecute such appeal within the time above prescribed; and the taking of an appeal from any such judgment or decree shall operate as a supersedeas thereof until the final hearing and judgment of the Supreme Court thereon.
“J. G. BLAINE,
“ Speaker of the House of Representatives.
“SCHUYLER COLFAX,
Vice-President of the United States and President of the Senate.
“Received by the President May 31, 1870.
“[Note ey the Department oe State. — The foregoing act having been presented to the President of the United States for his approval, and not having been returned by him to the House of Congress in which it originated within the time prescribed by the Constitution of the United States, has become a law without his approval.]”

The various parties setting up a claim to the property having, in pursuance of the act, filed their respective petitions in the Court of Claims; and the cases having been consolidated, the court, after a very full investigation, rendered a decree in favor of the United States, and adverse to all the claimants. That decree is brought here by appeal.

Three different titles are set up against the United States; two of them under claims of pre-emption, and one under a New Madrid location.

I. John 0. Hale claims the southwest quarter of section 33, township 2 south, range 19 west of the fifth principal meridian, in Hot Springs County, Arkansas, embracing the Hot Springs, which are the object of contention. He claims as representative of John Percifull by right of pre-emption under the fifth section of the act of Congress passed April 12, 1814, entitled uAn act for the final adjustment of land-titles in the State of Louisiana and Territory of Missouri.” By this section it was provided, among other things, that every person, and the legal representatives of every person, who had actually inhabited and cultivated a tract of land lying in the Territory of Missouri not rightfully claimed by any other person, and who should not have removed from the Territory, should be entitled to the right of pre-emption in the purchase thereof, under the same restrictions and regulations as directed in a similar act, passed February 5, 1813, in relation to Illinois. Those restrictions and regulations were that the price should be the same as that of other public lands in the Territory, that only one quarter-section should be thus sold to one individual, that it should be bounded by the sectional and divisional lines of the public survey, and that the sale should not embrace lands reserved from sale by former acts, or directed to be sold in town-lots, &c. It was further required by the act of 1813 that every person claiming under the act must make known his claim by delivering a notice in writing to the register of the land-office for the district in which the land should lie, designating his claim, and to be filed in the office. If it appeared to the satisfaction of the register and receiver that he was duly entitled, he was allowed to enter the land on payment of one-twentieth of the price; but the entry must be made at least two weeks before the time of the commencement of public sales in the district, or the right would be forfeited.

Hale sets forth in his petition that at the time when the said act was passed, namely, April 12,1814, John Percifull had actually inhabited and cultivated the tract of land embracing the Hot Springs, and forming a portion of the quarter-section cliamed by him; that he had settled upon tbe same as early as 1809, and had continued to reside thereon and cultivate the same up to the time of the passage of the act; but that he could not comply with the act as to making entry, &c., because the land was not publicly surveyed until the year 1838. That as soon as practicable after the survey was made, namely, on the 27th of September, 1838, Sarah and David Percifull, the widow and heir-at-law of John Percifull, (who was then deceased,) gave notice of the said claim, verified by affidavits, to the register of the proper land-office at Washington, Ark., and applied to the register and receiver to enter the same, but that their application was rejected. That this decision of the register and receiver was subsequently confirmed by the Commissioner of the General Land-Office, on the ground that the Hot Springs, and four sections of land around the same, had been reserved for the future disposal of the United States by an act of Congress passed April 20, 1832.

The act of 1832, referred to, was an act authorizing the governor of Arkansas Territory to lease the salt-springs therein. By the third section of the act it was enacted that the Hot Springs in said Territory, together with four sections of land including said springs, as near the center thereof as may be, shall be reserved for the future disposal of the United States, and shall not be entered, located, or appropriated for any other purpose whatever.

Besides this act, which the claimant had to contend with, the Indian title to that portion of the country was not extinguished until August 24, 1818, when it was ceded to the United States by the treaty made with the Quapaws. Attorney-General Butler, in 183(5, being applied to for his opinion on the subject, held that none of the lands ceded by that treaty were, or ever had been, subject to pre-emption claims under the act of 1814, because no settlement or cultivation of the lands prior to that act could have been made consistently with the rightful claims of others, namely, the Quapaw Indians. The land department always acted in conformity with this opinion. And it is difficult to see how a different result could have been reached. It was the declared policy of the Government at an early day to prohibit any settlement of lands belonging to the Indians. A proclamation to this effect was issued by the old Congress September 22, 1783. (Journals, vol. 4, p. 275; Land Laws, 1828, p. 388.) An enactment of the same purport was made by Congress in 1802 in the act to regulate trade and commerce with the Indians, section 5. (2 Stat. L., 141,142.) After the acquisition of Louisiana, it was repeated in reference to that Territory. (Act March 26, 1804, 2 Stat. L., 289.)

But it is contended that this difficulty has been obviated by the Act March 1,1843, (5 Stat. L., 603,) passed to perfect the titles of land south of the Arkansas River, held under New Madrid locations and pre-emption rights, especially in reference to the Indian title. By the third section of this act it was enacted that every settler on the public lands south of the Arkansas River should be entitled to the same benefits accruing under the act of 1814 as though they had resided north of said river. What does this mean ? We know the fact that the lands north of the Arkansas had been ceded to the United States by the Great and Little Osages by the treaty of 1808, and that the Indian title, therefore, was extinguished in 1814. Does the act mean that the settlers south of the river should have the same benefit as if the Indian title had been extinguished in and prior to 1814 ? If it meant this, why did it not say it1? But supposing that the act had this effect, so that the objection arising from the Indian title was removed, the act still left unshaken the reservation made by the act of 1832. This act is absolute in its terms. It contains no saving clause. It declares that the Hot Springs shall be reserved for the future disposal of the United States, and that they shall not be entered, located, or appropriated for any other purpose whatever. This positive prohibition would have prevented the representatives of Per-cifullfrom availing themselves of any benefit which the removal of the obstacle arising from the Indian title gave them. Entry and location were still necessary to give them title.

The counsel for Hale, however, strenuously contends that the act of 1843 was intended to validate the pre-emption claim of Pereifull to the property in question; and that it must be construed to effect a repeal of the act of 1832 by implication. In favor of this view he alleges as a fact that this was the only case to which the act could apply. We cannot know this. There is nothing on the face of the act to indicate it. If it was intended to repeal the act of 1832, and to confirm Percifull’s title, why was it not so expressed ? A plain word or two would have done it. If such had been the legislative intent, we cannot believe that this intent would have been left in such deep obscurity, and dependent on so many implications. The act of 1832 expressed very clearly the intent of Congress to reserve the Hot Springs from private appropriation. If the act of 1843 was intended to revoke this reservation, it ought to have been expressed with like clearness.

But besides these legal obstacles in the way of this claim, it is not clear, from the evidence, that Pereifull came within the description of the act of 1814. He resorted to the Hot Springs temporarily, during the visiting season, to deal in such articles as the persons who frequented-the place for their health needed. When they left he left. If he erected shanties or cabins, it was not for the purpose of permanent residence, but for temporary accommodation. His actual residence was several miles distant. There is no clear evidence of an intent on his part, at that time (1814) or previously, to make this retired spot in the Indian country his home.

We think this claim cannot be maintained either at law or in equity. Whatever hardship exists in the case must be submitted to the just consideration of the Government.

II. William H. Gaines and wife, and others, as heirs of one Ludovieus Belding, claim the same quarter-section as is claimed by Hale, by virtue of au alleged residence and settlement on the land in 1829 and 1830, under the Pre.-emption Act May 29, 1830. (4 Stat. L., p. 420.) This was a general act. and declared that every settler or occupant of the public lands prior to its passage, who was then in possession and cultivated any part thereof in the year 1829, might enter with the register of the land-office for the district in which such lauds should lie, by legal subdivisions, any number of acres not more than 160, or a quarter-section, to include his improvements, upon paying to the United States the minimum price; with a proviso that no entry or sale of any land should be made under the act which should have been reserved for the use of the United States, or either of the States. Other provisions of the act as well as that here recited demonstrate that it was only intended to apply to lands which had been publicly surveyed. By its very language it could apply to no other. It evidently did not apply to thelandsin question. They were notsurveyed until 1838. The act contained the further provision that it should remain in force for one year. It ceased to have effect, therefore, on the 29th of May, 1831. On the 20th of April, 1832, the act was passed reserving the Hot Springs. But the heirs of Belding rely on the Act July 14,1832, (4 Stat. L., p. 603,) by which it was declared that all occupants and settlers upon the public lands of the United States, who were entitled to a pre-emption according to the act of 1830, and had not been able to make proof and enter the same within the time limited therein, in consequence of the public surveys not having been made and returned, or where the land was not attached to any land-district, or where the same had been reserved from sale on account of a disputed boundary between any State and Territory, should be permitted to enter said lands on the same conditions, in every respect, as were prescribed in that act, within one year after the surveys were made, &c. It is difficult to see how this act can aid the claimants. The conditions of the act of 1830 are not only not waived, but they are expressly re-imposed. One of those conditions, as seen above, was that no entry or sale of any land should be made which should have been reserved for the use of the United States, or either of the States. This very thing had been done by the reservation of the Hot Springs by the act of 1832. No vested right had accrued to Belding before that reservation, for the pre-emption act of 1830 did not extend to the lands in question until the passage of the act of July, 1832, even if a vested right could be set up against the Government before entry and location. The counsel for the claimants, however, bases an ingenious argument upon’ that phrase in the act reserving the Hot Springs, by which they are reserved ufor the future disposal of the United StatesP He supposes that this differs from a reservation “ to the United StatesAnd as they are only reserved for future disposal, it may well be said that such disposal was made by the act of July 14, 1832, in subjecting them to the right of pre-emption given by the act of 1830. But this argument is too far-fetched and circuitous. In the first place, we think that a reservation for the future disposal of the United States was a reservation to the United States. And, in the next place, that Congress could hardly have entertained an intent to dispose of the Hot Springs reservation by any such general phraseology as that which was employed in the act of July 14, 1832. Certain reservations are expressly referred to in the act as no longer to be in the way of preemption ; and the express mention of these makes the omission of others more emphatic. The argument of the counsel would have the effect of defeating all governmental reservations made between April, 1830, and July, 1832 j for the United States had the power of disposing of all of them, whether expressly retained or not.

Without referring, therefore, to the character of Belding’s occupation, his want of title, either legal or equitable, is manifest upon the face of the statutes under which he claims, taken in connection with the act of April 20, 1832, reserving the property to the Government. If it were necessary to examine his mode of occupation it would be open to some very just criticism, for which it is sufficient to refer to the opinion of the court below. (10 O. Cls. R., 368.)

III. The remaining title is that claimed by Henry M. Rector, (and, under him, Russell,) under a New Madrid location, in right of Francis Langlois. The earthquake, or succession of earthquakes, which occurred along the Mississippi below the mouth of the Ohio in 1811 and 1812, was particularly disastrous to the county and village of New Madrid, in Missouri Territory, (then the district of Louisiana,) leaving a large portion of the land now known as the “ sunk country” under water. For the relief of the inhabitants, Congress, on the 17th of February, 1815, passed an act authorizing those whose lands had been materially injured by earthquakes to locate the like quantity of land on any of the public lands of the said Territory, the sale of which was authorized by law. It was provided, however, that no person should be permitted to locate a greater quantity than he had before, except where that was less than 160 acres, and in no case a greater quantity than 640 acres; and that, in every case where such location should be made according to the provisions of the act, the title of the person or persons to the land injured should revert to and become absolutely vested in the United States, By the second section of the act, proof of the applicant’s title to the lands injured was required to be made to the recorder of land-titles for the Territory of Missouri, who thereupon was to 'issue a certificate of the party’s right. A location being selected, and the certificate being presented to the principal deputy surveyor of the Territory, it became his duty to cause a survey thereof to be made, and to return a plat of the location made to the recorder, together with a notice in writing designating the tract thus located, and the name of the claimant on whose behalf it was made, which notice and plat the recorder was required to have recorded in his office. By the third section it was made the duty of the recorder to transmit a report of the claims allowed and locations made under the act to the Commissioner of the General Land-Office, and to deliver to the party a certificate stating the circumstances of the case, and that he was entitled to a patent for the tract designated. This certificate being presented to the land-office, a patent was issued for the land.

These are the substantial provisions of the act. As apparent on its face, it required the following steps to be taken :

1. Application to the recorder of land-titles, showing the party’s claim and praying a certificate of location.

2. Certificate of location issued by the recorder, showing the amount of land to which the applicant was entitled.

3. Application to the surveyor, presenting the certificate of location, and designating the lands which the party desired to appropriate.

4. Survey and plat made by the surveyor.

5. Beturn of the survey and plat to the recorder of land-titles, to be filed and recorded, with a notice designating the tract located and the name of the claimant.

6. Certificate of the recorder, stating the facts, and that the party was entitled to a patent.

7. Transmission of this certificate to the General Land-Office.

8. The patent.

In addition to these requisites, the land thus appropriated must be located on the public lands of the Territory the sale of which was authorized by law. It is sb own by the claimant that Francis Langlois was the owner of a tract of two hundred arpents of land (about one hundred and seventy acres) in the county of New Madrid, which was materially injured by the earthquakes. It is also satisfactorily shown that application was made on his behalf on the 26th of November, 1818, to the recorder of land-titles at Saint Louis, for a certificate of location of a like quantity of lands; and that the said recorder did, on that day, grant and issue to him a certificate accordingly, (being certificate No. 467,) stating that Langlois or his legal representatives were entitled to locate two hundred arpents of land on any of the public lands of the Territory of Missouri, the sale of which was authorized by law. It also seems that Langlois at the same time, by his attorney, executed a release to the United States of his said lands in New Madrid. As this, however, was not necessary, inasmuch as the New Madrid land would revert to the United States on the completion of the substituted title to other lands of like amount, under the act, it could have no effect on the validity of Lau-glois’s title to the lands which he sought in exchange therefor. The certificate of location thus procured from the recorder was subsequently assigned to other parties, and came to the hands of Samuel Hammond and Elias Eector, under whom the -present claimant deraigus title. In January, 1819, Hammond and Eector made formal application to the surveyor-general (the officer who succeeded the principal deputy surveyor) for the entry of two hundred arpents of land to satisfy certificate No. 467, to be surveyed in a square tract with line corresponding to the cardinal points of the compass, so as to include the said Hot Springs, as near the center of the square as circumstances would admit. This application was in writing and was filed in the office of the surveyor-general, who directed James S. Conway, a deputy surveyor, to make the survey. Thereupon Conway made the survey as requested, and on the 16th of July, 1S20, made out a plat and descriptive statement of the same, which he numbered “survey No. 2903, certificate 467.” This survey was deposited by the deputy in the office of the surveyor-general at Saint Louis; but it was not recognized or recorded by the surveyor-general, nor was it returned to the recorder of land-titles. Of course no patent was obtained upon it.

Subseqently, in 1838, when the public surveys were extended to that region, the then surveyor-general, in his instructions to the deputy surveyor who prosecuted the work, whether on Bee-tor’s application does not clearly apppear, directed him to survey for Francis Langlois or his legal representatives a tract of two hundred arpents, having the main spring in the center, according to the location of New Madrid certificate No. 467, which would be furnished to him. The survey was made and returned accordingly, and duly returned to the office of the recorder of land-titles, who issued a patent-certificate thereon. No patent, however, was ever issued on this location, as it was made subsequent to the act of April 20, 1832, reserving the Hot Springs and surrounding lands to the United States. This act clearly rendered void all subsequent appropriations of land unless it was repealed by the act of 1843, before referred to. The first section of that act declared that the locations of warrants issued under the act of February 17, 1815, (relating to sufferers at New Madrid,) on the south side of the Arkansas Biver, if madein pursuance of the provisions of that act in other respects, should be perfected into grants in like manner as if the Indian title to the lands on the south side of said river had been completely extinguished at the time of the passage of said act.

Attorney-General Cushing, in an opinion on this title, given in 1854, pertinently remarks- that the only obstacle removed from the New Madrid locations by this act was that of the existence of the Indian title at the time of the passage of the act of 1815. No such title existed when the survey was subsequently made; and if that were the only objection to the title in question, it would be entitled to recognition. But there stands the act of 1832, reserving the lands to the United States. Unless, therefore, the title of Sector, or those whose estate he represents, became fixed and vested, as against the Government, before the passage of that act, so as to make the act obnoxious to the objection of taking private property without just compensation, it cannot be maintained. Hence, it is all-important to ascertain the effect of the survey made for Hammond and Sector in 1820.

As before observed, that' survey was not recognized nor recorded in the surveyor-general’s office, nor returned to nor recorded in the office of the recorder of land-titles. It is proper to consider the reasons why this was not .done.

The difficulty was this: The act for the relief of the sufferers of New Madrid required that the lauds to be given to them in exchange for their injured lands should be located on public lands of the Territory “ the sale of which was authorized, by law.n Mr. Wirt, the then Attorney-General, gave it as his opinion that no lands were authorized by law to be sold which had not been publicly surveyed according to the general system of sections and townships j and as the region in which the Hot Springs were located was subject to the Indian title until 1818, and had never been publicly surveyed, no lands could be located there under a New Madrid claim in 1820, when the attempt was made by Hammond and Rector as above stated. This opinion of the Attorney-General was followed by the General Land-Office, and patents were refused for any lauds thus attempted to be located. Hence the surveyor-general did not recoguize the survey of Conway, and never returned it to the recorder. (Vide Wirt’s Opinions, 1 Opin., 361, 372.)

But on the 26th of April, 1822, Congress passed an act, entitled “An act to perfect certain locations and sales of public lands in Missouri,” by which it was enacted that the locations theretofore made of warrants issued under the act of February 15, 1815, (the act for the relief of the New Madrid sufferers,) if made in pursuance of the provisions of that act in other respects, should be perfected into grants in like manner as if they had conformed to the sectional or quarter sectional lines of the public surveys; and the sales .of fractions of the public lands theretofore created by such locations should be as valid and binding on the United States as if such fractions had been made by rivers or other natural obstructions; and the second section of the act declared that thereafter the holders and locators of such warrants should be bound, in locating them, to conform to the sectional and quarter sectional lines of the public surveys, and that all such warrants should be located within one year after the passage of the act.

In delivering the opinion of this court in Barry v. Gamble, (3 How., 52,) where the construction and effect of this act were brought under review, Mr. Justice Catron considered that the act only had reference to lands which had not been surveyed when the imperfect locations were made, and had been surveyed prior to the passage of the act; for in making provision for the fractions created by such irregular surveys, reference is only made to fractious “heretofore created.” If this view of the act is correct, it decides the case, for the public surveys were not extended to these lands until long after 1822, namely, 1838. As this was not the point involved in that case, however, it is proper to look further in reference to the effect of the Hammond and Eector survey of 1820.

The petitioner’s counsel insist that the act of 1822 removed the objection that the location did not conform to the public surveys, without reference to the time when those surveys were or might be made, whether before or after the date of the act.

Conceding, for the sake of the argument, that this may be the true construction of the act, what is it that the act saves ? It is “ locations.” “ The location heretofore made of warrants issued under the act, &c., if made in pursuance of the provisions of that act in other respects, shall be perfected into grants, ”&c. By the second section locations thereafter to be made were to conform to the sectional and quarte.r-sectional lines. It becomes important, therefore, to know what is meant by a -location in the act of 1815. It evidently meant a completed location. When the land became located the title of the applicant to his Hew Madrid lauds at once reverted to the Government. The words of the act are: uIn every case where such location shall he made according to the provisions of this act, the title of the person or persons to the land injured as aforesaid shall revert to and become absolutely vested in the United States.” Now, when did this take place? Certainly not on the mere application to the surveyor-general to survey the tract which the party desired to appropriate; nor when the surveyor had planted his last stake or heap of stones on the ground; nor when he had returned home with his notes in his pocket; nor when he had made out his survey and plat. This survey and plat did not belong, the instant they were finished, to the applicant; neither did the land until something more was done. What was that something more ? The act tells us that thesurveyor must return the survey and plat, and the notice as to the party for whom the survey was made, to the office of the recorder of land-titles, to be by him filed and recorded. Then, and not till then, the applicant was entitled to a patent. Then the land first became appropriated. It then first appeared on the records of the country as his. This point has been repeatedly adjudged by this court, and has become part of the established land-law of the country, and we should do a great wrong at this late day to shake it. (Bagnell v. Broderick, 13 Pet., 436; Stoddard v. Chambers, 2 How., 284; Barry v. Gamble, 3 How., 32; Lessieur v. Price, 12 How., 60; Hale v. Gaines, 22 How., 144; Rector v. Ashley, 6 Wall., 142; Mackay v. Easton, (19 Wall., 633.) th one of the latest cases on the subject, Maekay v. Easton, (19 Wall., 633,) the court, Mr. Justice Field delivering the opinion, says as follows:

“The act of Congress * * * declared that when a location was made under its provisions, the title of the person to the land injured should vest in the United States. It contemplated that there should be a concurrent investiture of title; that the title of the owners of the land injured in Hew Madrid Oqunty should pass to the United States, and that at the same time the title to the land located in lieu thereof should pass to the claimant, or rather the right of the title, for the strict legal title did not pass until the patent issued; and that this exchange of titles should take place when the claimant obtained his patent-certificate, or the right to such certificate, and that he could not acquire until the plat of the survey was returned to the recorder of land-titles. Until the plat was placed in the public depository in the Territory, of evidences of title issuing from the United States, there was no official recognition of the proceedings taken by the claimant which bound the Government.”

A brief reference to the history of land-titles in the Louisiana country will show the ground and reason for the importance attached to a return of the survey to the office of the recorder of land-titles. It is well known that the territory purchased of the French government in 1803 was in the following session of Congress divided into two Territories: one, called the Territory of Orleans, cothprising West Florida and the present State of Louisiana; and the other, called the District of Louisiana, and comprising the whole region west of the Mississippi and north of that State. (Act March 26, 1804, 2 Stat. L., 283.) The treaty by which this territory was acquired guaranteed on the part of the United States to the inhabitants the free enjoyment of their liberty, property, and religion. The land titles which had been perfected and located by surveys offered no difficulties; but there were many inchoate titles which had never been perfected, which by the laws of France and Spain the claimants had a right to perfect. In order that the Gov-eminent of the United States might know what claims it was bound, in good faith, to respect, measures were taken to have all outstanding claims brought in and recorded, and located by surveys where these should be necessary. By the Act March 2, 1805, (2 Stat. L., 324,) the -Territory of Orleans was divided into two land-districts, for each of which a register was appointed ; but for the District of Louisiana an officer was created, called the recorder of land-titles, who continued for many years to exercise important functions in regard to the public lands in the district, even after the appointment of a surveyor and of registers and receivers under the general land-laws. The act referred to required every person claiming lands, whether by complete or incomplete title, within a limited time to deliver to the registers of Orleans, or to .the recorder of land-titles of the District of Louisiana, a notice of bis claim, with a plat of the tract claimed, and also his grant, order of survey, or other written evidence of his claim; which documents the said registers and recorder respectively were to record in proper books. Claims not so presented and recorded within the proper time were to be barred as against grants from the United States. The act further provided for the appointment of two additional persons in each district to act with the register or recorder as a board of commissioners to examine and decide upon the claims which should be presented; whose duty it was, after deciding, to report their decisions to Congress, and to deposit the same with all the evidence and documents in the offices of the register and recorder respectively within whose district the lands lay. At a later period the additional commissioners were dispensed with, and the powers of the board were vested in the register and recorder respectively. The reports of these commissioners, and the acts of Congress confirmatory thereof, formed the basis of the titles derived from the French and Spanish authorities. And this constitution of the office and duty of the recorder of land-titles in the District of Louisiana led to the importance subsequently attached to the return and registration of other surveys in the same office. It was there that the officers of the Government looked, or were supposed to look, for all authentic claims to land in the district. No lands were supposed to be appropriated or segregated from the public domain unless recorded or registered there.

Now, tbe difficulty in this case is that the survey of 1820 was never returned to the recorder’s office, and, therefore, this land never became located, within the meaning of the act of 1815 or the act of 1822. It never became segregated from the public domain. It never became so appropriated to the claimants as to give them a vested right and prevent the operation of the act of April 20,1832, by which it was reserved to the United States.

But the claimant insists that this was not the fault of Hammond and Bector; that they did all they could do; and that the surveyor-general could not, by neglecting his duty, namely, that of recording the survey and returning it to the recorder of laud-titles, deprive them of their just rights. But, when the survey was made, the act of 1822 was not in existence; the laws then were, as the Attorney-General held them to be, that un-surveyed lands were not lands the sale of which were authorized by law; and as this doctrine was received and acted upon by the land department of the Government, we should not feel authorized at this late day to reverse it. And it is not shown that any further efforts were made to have the location perfected until after the passage of the act of 1832. If at any subsequent time it became the duty of the surveyor-general to return the survey to the recorder’s office, no application for that purpose seems to have been made. A clear duty on his part could have been enforced by mandamus had he refused to perform it. But it is unnecessary to speculate. Nothing further was done, and no vested right accrued under the claim.

In conclusion, we feel bound to decide that none of the claimants are entitled to the lands in question. . The claims advanced all depend on one or other of the titles which we have considered, and all are equally untenable. Whatever hardship, if any, may ensue from this declaration of the law of the case we have no doubt will be duly taken into consideration by the legislative department of the Government in dealing with the subject of the future disposition of those lands.

It is just to say that we have been much aided in the investigation of this case by the able arguments of the counsel on both sides, and by the elaborate opinion of the Court of Claims, which supersedes the necessity of our going more into detail in the discussion of the various questions involved.

The decree of the Court of Claims is affirmed.  