Opinion of the court. The act of Congress on this subject, to which all the subsequent acts refer, and which prescribes the terms, and the manner of securing title in such cases, is the act of September 4th, 1841.* That was an act full of generosity, for it gave the proceeds of the sales of all the public lands to the States. The tenth section of the act provides that any person of the class therein described who shall make a settlement upon public lands, of a defined character, and who shall inhabit and improve the same, and who shall erect a dwelling thereon, shall be authorized to enter with the register of the proper land office, by legal subdivisions, one quarter-section of said land, to include the residence of the claimant, upon paying the minimum price of such land. Section eleven provides that conflicting claims for pre-emption shall be settled by the register and receiver; section twelve, that prior to such entry proof of the settlement and improvement required shall be made to the satisfaction of the register and receiver; and section thirteen requires an oath to be made by the claimant before entry; section fifteen requires a person settling on land with a view to pre-emption, to file within a limited time, a statement of this intention and a description of the land. When all these prerequisites are complied with, and the claimant has paid the price of the land, he is entitled to a certificate of entry from the register and receiver; and after a reasonable time, to enable the land officer to ascertain if there are superior claims, and if in other respects the claimant has made out his case, he is entitled to receive a patent, which for the first time invests him with the legal title to the land. The construction of this act, and others passed since in pari materiâ, in regard to the nature of the rights conferred on occupants of the public lands, has, of course, received the consideration of that department of the government to which the administration of these land laws has been confided. The construction of that department and of the Attorneys-General to whom the Secretaries of the Interior have * 5 Stat. at Large, 453. Opinion of the court. applied for advice, cannot be better expressed than in the language of some of those opinions. Attorney-General Cushing, in an opinion given in 1856,* says: "Persons who go upon the public land with a view to cultivate now, and to purchase hereafter, possess no rights against the United States, except such as the acts of Congress confer; and these acts do not confer on the pre-emptor, in posse, any right or claim to be treated as the present proprietor of the land, in relation to the government.” In the matter of the Hot Springs tract of Arkansas, Attorney-General Bates says: "A mere entry upon land, with continued occupancy and improvement thereof, gives no vested interest in it. It may, however, give, under our National land system, a privilege of pre-emption. But this is only a privilege conferred on the settler to purchase land in preference to others. . . . His settlement protects him from intrusion or purchase by others, but confers no right against the government." In the matter of this same Soscol Ranch,‡ Attorney-General Speed asserts the same principle. He says: "It is not to be doubted that settlement on the public lands of the United States, no matter how long continued, confers no right against the government. . . . The land continues subject to the absolute disposing power of Congress, until the settler has made the required proof of settlement and improvement, and has paid the requisite purchase-money." These opinions, written for the guidance of the Land Department, have been received and acquiesced in by the Secretaries of the Interior, and have come to be the recognized rule of action in that department. This construction of the law has also been asserted by the courts of last resort in Missouri, Mississippi, Illinois, and California; States in which the population is largely interested in the liberal operation of the pre-emption laws.§ * 8 Opinions of the Attorneys-General, 72. † 10 Id. 57. ‡ 11 Id. 462. Bower v. Higbee, 9 Missouri, 261; Phelps v. Kellogg, 15 Illinois, 135; Grand Gulf v. Bryan, 8 Smedes & Marshall, 268; People v. Shearer, 30 California, 650; and Hutton v. Frisbie, in the Supreme Court of California, July Term, 1869. Opinion of the court. We are satisfied that this is a sound construction of the pre-emption laws on the question now under consideration. A series of cases decided in this court, in which the equitable rights of persons claiming under those laws have been protected by the court against the legal title acquired by other parties, through the disregard of their rights by the officers of the Land Department, is supposed to assert principles inconsistent with the construction just stated. We cannot here examine these cases in detail, but we may state that in nearly all of them it will be found that the party whose equitable title was thus protected had, by the action of the officers of the Land Department, and the payment and acceptance of the price, acquired a vested right, which these officers afterwards disregarded, in violation of law. And if in any of these cases the party, asserting successfully his equitable interest, had not acquired a vested right in the just sense of that term, the cases are still widely different from the one under consideration. In all those cases the successful party had established his legal right of preference of purchase over the other, under the law as it stood when the land officers decided the case. And it was the action of those officers, and their disregard of the law in refusing to the party the benefit of this preference in purchase, which this court corrected, by compelling the conveyance of the legal title acquired by this violation of law. But in the case before us, and in those to which the opinions of the AttorneysGeneral refer, it was Congress, the law-making power, which intervened, and, by a new law, withdrew the land from the operation of the pre-emption laws, while the right of preference in purchase remained unexercised, and amounted to no more than this preference. The courts may very properly correct the injustice done by the land officers, in refusing to accord rights, however inchoate, which are protected by laws still in existence; while they can only consider vested rights, when those rights are sought to be enforced in opposition to the repeal or modification of the laws on which they were founded. The argument is urged with much zeal that because com Syllabus. plainant did all that was in the power of any one to do towards perfecting his claim, he should not be held responsible for what could not be done. To this we reply, as we did in the case of Rector v. Ashly,* that the rights of a claimant are to be measured by the acts of Congress, and not by what he may or may not be able to do, and if a sound construction of these acts shows that he had acquired no vested interest in the laud, then, as his rights are created by the statutes, they must be governed by their provisions, whether they be hard or lenient. That was a case also in which it became important to ascertain when a right to public land became vested, and though it arose under statutes somewhat different from the general preemption law, the principles asserted there, and in the previous cases of Bagnell v. Broderick,† and Barry v. Gamble,‡ strongly support our conclusion in the present case. DECREE REVERSED, and the case remanded, with instructions to DISMISS THE BILL. HICKMAN V. JONES ET AL. 1. A prosecution in a so-called “court of the Confederate States of America," for treason, in aiding the troops of the United States in the prosecution of a miltary expedition against the said Confederate States, is a nullity, and the fact that the tribunal had clothed itself in the garb of the law gives no protection to persons who, assuming to be its officers, were the instruments by which it acted. 2. Where there is evidence before the jury—whether it be weak or strongwhich does so much as tend to prove the issue on the part of either side, it is error if the court wrest it from the exercise of their judgment. It should be submitted to them under instructions from the court. 3. The fact that a man was himself a traitor against the United States, does not necessarily prevent his recovering damages against other traitors, for having maliciously arrested and imprisoned him before a so-called court of the Confederate States, for being a traitor to these; the alleged treason having consisted in his giving aid to the troops of the United States while engaged in suppressing the rebellion. * 6 Wallace, 142. † 13 Peters, 436. 3 Howard, 82. Statement of the case in the opinion. ERROR to the District Court for the Northern District of Alabama, in which court Hickman, the plaintiff in error, sued Jones, Moore, Regan, Coltart, Clay, and others, defendants in error, for maliciously causing him to be arrested, inprisoned, and prosecuted for a criminal offence, without probable cause. Mr. R. Johnson, for the plaintiff in error; Messrs. Walker and Gordon, contra. Mr. Justice SWAYNE, stated the case, and delivered the opinion of the court. The facts disclosed in the record, so far as it is necessary to state them, are as follows: During the late civil war the rebel government established a court known as the "District Court of the Confederate States of America for the Northern District of Alabama." In that court the plaintiff in error was indicted for treason against the Confederate States. The indictment alleged that troops of the United States were in the Northern District of Alabama engaged in a hostile enterprise against the Confederate States, and that Hickman "did traitorously then and there assemble and continue with the said troops of the said United States in the prosecution of their said expedition against the Confederate States; and then and there, with force and arms and with the traitorous intention of cooperating with the said troops of the United States in effecting the object of the said hostile expedition, did array and dispose himself with them in a hostile and warlike manner against the said Confederate States; and then and there, with force and arms, in pursuance of such his traitorous intentions, he, the said James Hickman, with the said persons, so as aforesaid assembled, armed, and arrayed in manner aforesaid, wickedly and traitorously did levy war against the said Confederate States." Upon this indictment a warrant was issued for the arrest of Hickman. He was arrested and imprisoned accordingly. He applied to the defendant, Jones, who assumed to act as judge of the court, to be allowed to |
