Matthews v. Zane/Opinion of the Court

One feature in the reason of the general rule is, that it would be practically impossible to fix on any time for laws to take effect so as that each person affected by them, or liable to be affected, could, with certainty, have notice; had such notice been practicable, doubtless the rule would have been different; and where this part of the reason ceases, according to a maxim of law and reason, so much of the rule ceases also. Now, when a law, under the supposed form of that of March 3d, 180, should be promulgated at a land office, every person who could in any way be affected by it, would have actual notice; the applicant would know that he could not purchase, and he could not complain of injury. Lord Kaimes' reasoningk goes to show, that where the claims of equity can be brought under a general rule, 'a Court of

There is a case in Dallasm precisely in point, to support the restriction we contend for on the abstract taking effect of statutes, when the nature of the case affords reason for such restriction. The laws of the Colonial Legislature of Pennsylvania were in force until revoked by the King and Council, and the question was, whether a revocation took effect at its date in London, or when notified in Philadelphia; and it was held by the Court, not until notified to the Governor and Council in Philadelphia.

The decision and opinion of this Court in the case of Arnold v. The United States,n will not, it is

The constitution of the United States has not, in express words, prohibited Congress from passing laws impairing the obligation of contracts; but the prohibition is so strongly implied, and such laws, as well as ex post facto laws, are so contrary to justice, that it is presumed an act to that effect would be declared void: such a law, for instance, as should go to resell any tract of land which had been legally sold. That the entry of a tract of public lands forms a perfect contract will not be denied; neither, that under the supposed form of the act of March 3, 1803, an entry at Marietta, before it was possible that notice could reach there, would come fully withing the spirit and meaning of an equitable contract. Now, the established course in the administration of justice, protects equitable contracts equally with those which are strictly legal. The operation of a criminal or penal law, under the construction contended for on the other side, would render it, in its practical effects, as perfectly ex post facto, as one made to take effect before its passage; and by parity of reasoning, that construction virtually implies a breach of contract, and so is contrary to the constitution of the United States, as well as contrary to reason and justice. The pardoning power of the executive in a criminal case, might afford a remedy for the injustice which would follow; but in a civil one, the only remedy must be found in the reasonable and equitable construction of the judiciary, 'who have authority over all laws, and more especially over statutes, to mould them according to reason and convenience to the best and truest uses.'o

But it may be said that the general promulgation of all laws, in this country, is sufficient notice; and that from the passage of the act of March 3d, until the plaintiff's entry, or even application in February, there was ample room for notice. It is true, that in this country all laws have a general promulgation; but it is equally true, that many laws are, notwithstanding, strictly local: such is the act in question, and considering the established usage, and the reason for that usage, the Register of the Marietta District cannot be supposed to be bound to have acquired a knowledge of the act in the general way.

A striking analogy exists between the land laws and those for the collection of duties on importations. The two leading points in the public policy are the same in both, that is, national strength and prosperity, and revenue; and however deeply laid in the nature of political society the right to carry on trade and commerce may be, we have, it is conceived, sufficiently shown that the right to settle and improve new land enters as deeply into the nature of political society in this country; and has, too, all the force of prescription of which the right is susceptible. The government, acting for the people, have no more claim to the price of the public lands, than to a part of the price of merchandize imported, and therefore have no more exclusive and arbitrary control over

We have before mentioned, that the case of Wilson v. Mason,p was cited at the first trial in the Supreme Court of Ohio, to show that notice of an illegal act was void; a position which, we also mentioned, was not disputed: but that case, and the opinion of the Court in it suggests some considerations for direct and hypothetical illustration, which we beg leave to introduce. In the opinion it is said, 'But if this opinion should be too strict, if an act entirely equivalent to an entry could be received as a substitute for one, a survey does not appear to be such an act,' &c.-and then the opinion goes on to show the reason why; hat is, that the entry is the necessary notice of the appropriation of any part of the waste lands, and the only way to prevent others, with equal

A case may readily be supposed, under the land laws of the United States, offering arguments and objections parallel to those in the case of Wilson v. Mason. Suppose A. purchases in one district land lying in another; discovering his mistake, and that B. is about to enter the same land in its proper district, he gives notice of his previous entry: here A. might say, that as between him and the public, a purchase in one district was the same as in another, and that B. had notice. In such case a court would doubtless say, that to permit entries in one district, of land lying in another, would create confusion; that a person with equal rights would never know when he made a safe entry, and that a particular exception, notwithstanding personal notice, was inadmissible; but, as just shown, the objection would not lie in the present case; so that whatever the 'if,' in the opinion of the Court amounts to, may fairly be placed to our side of the question.

But the point we propose to illustrate principally, by the case of Wilson v. Mason, is the right to purchase, by considering that case hypothetically. The right of every individual holding a warrant to appropriate to himself waste lands, was not more substantially, or forcibly given, by the laws of Virginia, than the right to purchase any vacant tract of the United States land is given, by the act of May 10, 1800. It is true, that in Virginia, money was advanced on obtaining the warrant, but no priority of claim grew out of the prior date of the warrant, except, in the instance of an accidental competition; and having money to pay, and applying to enter, puts the applicant under the laws of the United States on as good ground in law and equity as he stood on who came forward to enter under the laws of Virginia. Besides, by a provision in the act of May 10th, before noticed, money may be paid to the Treasurer of the United States: this corroborates and strengthens our reasons for this equality of right. The right to appropriate extended also over the whole of the waste lands in the state, though the act of appropriation must be performed in some one county. Now, let it be supposed that the question had been between Wilson and Mason, whether Mason's right to enter, in such county as he thought proper, was to be suspended for fifteen months, in consequence of similar legislative provisions to those found in the acts of March 3, 1803, and March 26, 1804, and with constructions and doings of the proper executive officers, parallel to those in the present case; can it for a moment be imagined, that the better right would have been decreed to Wilson?The phraseology of the laws for the collection of duties on imports is, that the bays, ports, harbours, &c. within certain limits, shall be districts, with some appropriate denomination; and when any now district is made, that from and after a certain day the harbors, &c. within certain limits, shall be a district by the name of the district of_____. Here the language precludes all sophistry in relation to the time when the new district is to go into operation; and its effect on the old district; but suppose the language was-there shall be a district to be called the district of A. and from and after a certain day the duties shall, &c. be paid at B. This, one very principle of sound construction, would amount to precisely the same thing; and certainly the words, shall be a district, would not, under this supposition, be construed to stop the power of collection in the old district, until the time they were to be collected in the new one at B.; yet, according to their reasoning, this would take place, for if the verbal repugnance only is to be considered, as before observed, it matters not when the practical repugnance commences.

Mr. Hammond, for the respondents. The first point made for the respondents, is, that this Court has no jurisdiction.

The alleged contract and fraud of Zane constitute the sole ground for the interference of a Court of Equity. They are the gist of the plaintiff's case, and in respect to these, this Court has no supervising control over the State Court. Whether the contract alleged was one, the obligation of which a Court of Chancery should recognize; whether it created a trust in Zane, which a Court of Equity would compel him to execute; whether the fraud was such, that a Court of Equity would relieve against it; and whether making general propositions of compromise, and delaying more than ten years before a tender of money was made, and a performance specifically required was such diligence, on the part of the plaintiff, as to entitle him to the aid of a Court of Equity, are all questions over which the State Court has complete control. In a Court of Equity the right of the plaintiff to the relief sought depends upon the decision of the questions here enumerated, and not upon the correct construction of the acts of Congress.

Let it be conceded, that the plaintiff's construction of the acts of Congress is correct, and the consequence is, that at the time of the sale at Zanesville, he held a legal right, imperfect to be sure, but purely legal in its character. The allegations in the bill show that the plaintiff lost this right by the misconception, or misconduct of the Secretary of the Treasury, and the officers of the land office at Marietta, and not in consequence of the alleged agreement with Zane. If the plaintiff had a right, and that right had been duly regarded by the public officers, neither the alleged contract with Zane, nor Zane's subsequent purchase could have impaired it. Upon what principle, then, does he come in equity to set up that right against Zane and M'Intire? Is it under colour of an agreement with Zane to impeach the conduct of the Secretary or Register, and Receiver? Can it be said that a decision against the relief sought, in such a case, is a decision against a right or title claimed under an act of Congress? Is it not a more rational inference that the decision was against the party upon the ground that the contract did not entitle him; or upon the ground that he could not have relief in equity? or that if entitled to redress, it must be against the officer for damages, upon the principle suggested by this Court?q

Suppose that this Court, upon an examination of the case, shall adopt the plaintiff's construction of the different acts of Congress, does it follow that they must, or can reverse this decree? Can they do it, without examining the obligation and extent of the alleged agreement with Zane? Can they do it whithout inquiring into the subsequent conduct of Matthews, and determining how far the whole case entitles the party to the aid of a Court of Equity? It seems to us that they cannot. And we insist that in this Court these inquiries cannot be made: the 25th section of the judiciary act expressly forbids it.

Again; upon the construction of the acts of Congress insisted on by the plaintiff, the certificate of purchase granted to him by the Register of the land office at Marietta, on the 16th of May, 1804, vested in him a legal right to the possession of the lands in dispute. Such certificates have always been received in Ohio as evidence of title in ejectment.-The bill shows no reason why this legal remedy was not pursued. If the party by his own laches

But last of all, the case made in the bill shows, that this is the same case, and between the same parties, decided by this Court, in 1809.r That was an ejectment; the facts were agreed; the point submitted for decision was, the true construction of the acts of Congress referred to, and the decision was against the plaintiff's purchase. If the true construction of the acts of Congress constitutes the essential point to be decided in this bill, then it must be considered as a Bill in Chancery brought in the State Courts, to review the decision of this Court in ejectment. Can it be maintained that to dismiss such a bill is to decide against a right or title set up under an act of Congress? We conceive that upon an examination of this record, it will be found immaterial whether the acts of Congress separately, or the alleged agreement and conduct of Zane separately, or whether these conjointly, combined with the other circumstances of the case, constitute its material points; the general dismissal of the bill makes no case upon which the jurisdiction of this Court can be made to operate.

The merits are supposed to involve the just construction

The act of May, 1800, which originated and settled the present plan of selling the public lands, directed that lands, within certain specific boundaries, should be sold at land offices established at certain places. The uniform understanding and construction of this law has been, that the power to sell at each of the Land Offices was confined to the lands directed by law to be sold there. The officers at Chillicothe could not sell lands below the Little Miami, nor lands in the seven ranges. They had no power to effect such sale, and no right could be acquired by a purchase so made.

A new, and fifth land office was established at Zanesville, by the 6th section of the act of March, 1803; and it was directed that the lands within the 11th range, and east of it within the military tract, and all the lands north of the Ohio Company's purchase, west of the seven first ranges and east of the district of Chillicothe, should be sold at Zanesville. The act containing this provision consists of eight sections. The first three are intended finally to make provision for settling claims for military bounties.-The fourth authorizes warrants to be issued to General La Fayette. The fifth provides for surveying the unappropriated lands within the military tract, and directs that so much of these lands as lie west of the 11th range shall be made part of the district of Chillicothe, and shall be sold there, 'under the same regulations that other lands are within the said district.' The sixth section creates the new district ar Zanesville, including a large body of lands within the military tract, and a large body, also, of the lands before that time directed to be sold at Marietta.-The seventh section gives longer time to the purchasers of lands within J. C. Symmes' purchase to complete their payments: and the eighth section relates to warrants, and platts and certificates of survey, within the Virginia military tract. This act was approved the 3d of March, 1803. No time is fixed for it to take effect; and hence a question is mooted, as to the time when the sixth section commenced its effective operation, so as to put an end to the power of making sales, at Marietta, of the lands formerly within the Marietta District, but directed by the 6th section to be sold at Zanesville.

It is not pretended but that the act in question, for all its general objects, took effect from its passage. There is nothing in its terms to except the 6th section from the general operation. The other seven sections speak from their passage, from the general taking effect of the act. The 6th section says the lands 'shall be offered for sale at Zanesville.' When? From this time; for no other time is designated. And it is a settled maxim, that where no time is appointed, by the act itself, for it to take effect, its operation commences from its passage. We have nothing to do with cases that may be supposed, of acts committed or rights commenced before the passage of a law that affects them was, or could be known. All such cases stand upon their own circumstances, and are exceptions to the general rule. The 6th section directs that the lands shall be sold at Zanesville, and as no time is appointed for commencing the sales there, the act, in the natural import of its terms, according to settled rules of construction, must be understood to direct the sales to commence immediately, and by necessary consequence, annuls the power to sell the same lands at Marietta, that existed before the act was passed, from the same period of time. Such being the plain import of the words used, when interpreted by a standard maxim of interpretation, those who undertake to render the 6th section inoperative for an indefinite time, by connecting it with the preceding laws, and with other circumstances, take upon themselves the burthen of proof, and are bound to make out their case. It is not maintained by any one, that lands within the Zanesville District could be sold at Marietta, after the taking effect of a legal provision, directing them to be sold at Zanesville. The true point in dispute then, is this: When did this 6th section take effect?

The proposition of the plaintiff, if I have been able to comprehend it, seems to be something like this: The 6th section of the act of March 3d, 1803, ought not to be construed as containing any determinate, positive operative provision; but should be regarded as merely provisional, or inchoative, dependent upon some future act of legislation to give it force and effect. To sustain this position, various arguments are urged, all of which appear to be predicated upon three principles:

First. A construction which would withdraw any part of the public lands from market is against the public policy.

Second. It is against the right of every individual to purchase.

Third. It is inconsistent with the practical construction given by the Secretary of the Treasury.

If the truth of every one of these dogmas were admitted, it would seem a sufficient reply, that the positive provisions of positive law never can be made to yield to any such considerations. When determining upon the construction to be given to an ambiguous provision, they ought to have their influence. But they cannot be legitimately used, first to render a plain provision ambiguous, and then to determine its meaning.

The sixth section, as I have already insisted, stands clear of any ambiguity, and to decide that it takes effect from its passage, does not necessarily determine that its operation must be to withdraw any part of the public lands from market.

So far from being merely inchoative, the sixth section was capable of being carried into immediate practical effect, according to its terms. The officers might have been immediately appointed and furnished with platts and surveys of the unsold lands within the lands taken from the Marietta District; sales might have commenced immediately, and so soon as the military lands were surveyed, they, too, might have been brought into market. Certainly it cannot be contended, but that the lands within the military tract, attached to the Chillicothe District, by the fifth section, might have been brought into market as soon as surveyed, without any additional legislative provision. The plaintiff is, therefore, totally mistaken, as to the legitimate consequence of giving to the 6th section an immediate operative effect. Such construction tends to bring the public lands into market, not to shut them out. That the officers were not, in fact, appointed, and that the sales did not commence, are matters that have no bearing upon the argument. The true meaning of a statute must be determined by an examination of its provisions; not by the conduct of those appointed to carry it into execution. This view of the subject is also a satisfactory answer to the allegation respecting the rights of individuals to purchase. If that right exists, in the extent contended for, it could not be impaired by giving the 6th section immediate effect. So far as it was affected, it was by circumstances of a character very different from giving to the law a correct construction.

But the principles assumed, both with respect to the public policy, and the individual right to purchase, are not admitted to be correct. Of the public policy the legislature are exclusively the judges, and the individual right to purchase is also, before its actual application to any particular tract, entirely subject to legislative regulation. Now, I can well conceive, that it might be deemed good policy to withdraw, for a time, a portion of the public lands from the market. And if the legislature should do so, it is conceived that their act would be, at once, decisive of the public policy of the measure, and, so far, must absolutely control the individual right to purchase. If, then, the just construction of the 6th section should have the effect alleged, of withdrawing from the market a portion of the public lands, that circumstance would furnish no ground whatever upon which a court of justice should, or could, properly interpolate a fanciful construction of their own. They could not rightfully assume a course of policy different from that prescribed in the law, and make their own imaginations a standard of construction.

In fact, it was a part of the public policy, until long after 1803, to withhold a portion of the public lands from market. The three sections in each Township reserved for future disposition, was kept back by this policy, and sold at a much higher price in consequence of it, when actually offered for sale. Can it be pretended, that any citizen had a right to purchase these reserves, until their sale was authorized by law, and the terms of the purchase defined? We are required to examine whether the Zanesville District is erected, established, or settled by that section. We maintain that the Zanesville District was fully and completely established by the 6th section. If it was not, it is not yet established. It is recognized as an existing district by subsequent acts: but is, in no other way, authorized or established. It could not be essential to the existence of the district, that a time for commencing sales should be fixed, or that the Register and Receiver should be appointed. Indeed, until the district was established, no such appointment could be made. The perplexity in which the plaintiff involves his own propositions: at one time considering the section as designating the limits of a new district; at another, regarding it as only providing that a new district should be erected, at some time indefinitely future; and again declaring it inchoate and inoperative; telling us, in one breath, that some subsequent legislative provision is required, fixing the time when it should be established, and in the next, fixing that time upon a speculation of his own, without any such legislative act, is, of itself, very strong evidence that he is in error. The terms of the statute are simple and unambiguous. All this glossing is not required to find out their obvious import. It is not an effort to elucidate, but to establish an hypothesis.

For the defendants, it is contended, that from the passage of the act of March 3d, 1803, the Zanesville District was established, and the power to sell at Marietta determined. We have shown that this construction involves none of the inconveniences suggested by the plaintiff; but that if they actually existed, it resulted not from the provisions of the law; but from other causes. Our interpretation is founded upon a plain, palpable, and consistent doctrine, in every respect definite and certain. Its only possible evil, a suspension, for a short period, of the sales of a small portion of the public land. The construction insisted upon by the complainant is destitute of all certainty, and calculated to involve the whole subject in perplexity and doubt. There is a district, the lands within which must be sold at Zanesville. Was it established by the 6th section of the act of 3d March, 1803? No, says the opposite argument, that section only defined the limits to enable the Surveyor General to prepare the platts and surveys. No, says the opposite argument again, that act was only inchoative and inoperative, it provided that the Zanesville District should be erected at some time indefinitely future. Was it established by the act of the 26th of March, 1804, appointing the time of the commencement of the public sales? No, again, says the opposite argument, that act 'in relation to the present question, only fixes the future time when it shall be established.' Was it established by the appointment of the officers? No, says the complainant, the new district was not established and settled by appointing the officers. And this negative involves the very singular circumstance, that officers should be appointed for a district not established and settled. By the strict terms of the law, the complainant insists that the Zanesville District was not erected, legally established, and settled until the 19th of May, the Saturday before the sales commenced on the Monday, 21st, following. But by a reasonable construction, he concedes that the Zanesville District might be considered as established and settled after the 12th of May. At what time after, and before the 19th, he has not informed us, and, no doubt, for this very good reason, that after he made his entry, on the 12th of May, he had no interest in the question. We have the voluminous bill and the elaborate argument of the complainant before us, do they show how the Zanesville District was established, and when it was established? There are, undoubtedly, a multiplicity of allegations, to show that it was not established until after the 12th of May, but all the rest is left in obscurity. We have not been able to perceive one single sound reason for considering the 12th of May an era of any importance, except that it was the day upon which the plaintiff made his entry. Ought a court of justice thus to depart from the direct and plain import of unequivocal terms.

Another point laboured in the bill, and strongly urged in argument, is, that the whole conduct of the Secretary of the Treasury, as superintendant of the sales of public lands, was in accordance with the hypothesis maintained by the complainant. The act in question, March 3d, 1803, was never specially promulgated at the Marietta offices. No instructions with respect to it were ever sent to the officers; and sales made at Marietta within the tract directed to be sold at Zanesville, after the passage of the act were confirmed by the Secretary.

One general observation must be made with respect to all these allegations. The Secretary was the agent of the law, and was subject to its provisions, which he could neither restrain nor extend.-If he fell into error, that error can avail nothing in a court of justice, bound to declare their own interpretation, not to adopt that of others.

We think we have shown that the three principal propositions upon which the plaintiff rests his construction of the act of 3d Mrch, 1803, are equally unfounded in fact, and untenable in aroument; our interpretation of that act is not shaken by them; and it is moreover sustained by the unequivocal decision of the Court, in this very case.s

It is alleged, that the act of the 3d of March, 1803, is a mere affirmative act, in no respect repugnant to the act of May, 1800, until, by an actual commencement of sales at Zanesville, it shall be rendered practically repugnant. Very little examination will show that this is the old question, in a new dress. The power to sell at Marietta was created by the act of May, 1800, and depended upon that act for its existence. The act of March 3d, 1803, creates a power to sell the same lands at Zanesville. These two powers are inconsistent with, and repugnant to, each other. Both cannot subsist at the same time. In deciding the question of repugnancy, we are not to inquire only, whether the two powers can be concurrently executed; it is indispensable to determine whether they can exist together. Now, the power to sell at Zanesville, given by the act of March, 1803, is a complete, not an inchoative power. Although no time is fixed at which that power shall be executed, yet the power itself is created, and if it exist, then it is repugnant to the previous power, given to sell at Marietta, and repeals that power. It is impossible that the Court cannot at once perceive the distinction between creating the power to sell, and providing for the immediate execution of that power. It is because the complainant has not regarded the distinctive character of these two circumstances, that he has involved his argument in so much perplexity. And here, if it were essential to the argument, it might be shown, that should it be conceded that Congress did not intend to suspend the saks, and that such is the effect of our construction, yet it results from the force of the terms used, contrary to the intention. They created a complete and perfect power to sell at Zanesville, and omitted to provide, that the legal effect of that power should be suspended, until measures were arranged for its immediate execution. So that the question still recurs, when was the power to sell at Zanesville, under the act of March, 1803, actually created? If, as we contend, that power existed the moment the act took effect, it was from that moment repugnant to the power of making sales of the same lands at Marietta. The two acts are, in no single view, affirmative of each other on this point, although they both relate to the sales of public lands. The legal power to sell at Zanesville must have existed, separately and substantively, before any measure could be taken to carry that power into effect. This consideration alone exposes the fallacy of connecting the power to sell, the appointment of the officers, and the commencement of the sales, as all essential to the erection of the district.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

This suit was brought in the State Court of Ohio for the purpose of obtaining a conveyance of a tract of land to which the complainant supposed himself to have the equitable title, founded on an entry prior to that on which a grant had been issued to the defendants. The State Court decreed that the bill should be dismissed, and that decree is now before this Court, on the allegation that the Court of the State has misconstrued an act of Congress.

The plaintiff has stated several equitable circumstances in aid of the title given by his entry; but unless his entry be in itself valid, there can have been no misconstruction of an act of Congress in dismissing the bill, and this Court cannot take into consideration any distinct equity arising out of the contracts and transactions of the parties, and creating a new and independent title.

The validity of the plaintiff's entry depends on the land laws of the United States.

In May, 1800, Congress passed an act dividing an extensive territory northwest of the river Ohio, into four districts; and establishing a land office in each, for the sale of the public lands within that district. This act prescribes the time, place, and manner, in which the lands of each district shall be offered at public sale; and directs, also, the manner and terms in which those not sold at public sale may be disposed of at private sale. The lands of the district comprehending the tract in controversy were to be offered for public sale at Marietta, on the last Monday of May, 1801.

On the 3d of March, 1803, Congress passed an act, the 6th section of which creates a fifth district, and enacts that the lands contained within it 'shall be offered for sale at Zanesville under the direction of a Register of the land office and Receiver of public moneys, to be appointed for that purpose, who shall reside at that place.'

This district includes the land in controversy.

On the 26th of March, 1804, Congress passed an act entitled, 'an act making provision for the disposal of the public lands in the Indiana territory, and for other purposes.'

This act comprehends the lands directed to be sold under the act of 1800, and 1803, as well as the lands in Indiana.

The 5th section enacts, that 'all the lands aforesaid,' (except certain enumerated tracts, of which the land in controversy forms no part,) 'be offered for sale to the highest bidder, under the direction of the Surveyor General, or Governor of the Indiana Territory, of the Register of the land office, and of the Receiver of public moneys at the places respectively where the land offices are kept, and on such day or days as shall, by a public proclamation of the President of the United States, be designated for that purpose.'

On the 7th of February, 1804, Matthews applied to the Register of the Marietta District, and communicated to him his desire to purchase the land in controversy. The office of Receiver being then vacant, no money was paid, and no entry was made; but the Register took a note or memorandum of the application.

The counsel for the plaintiff insists, that the title of his client commences with this application.

The law authorizes the respective Registers to sell at private sale all the lands which may remain unsold at the public sales, and says the sales 'shall be made in the following manner, and under the following conditions, to wit: 1. 'At the time of purchase, every purchaser shall, exclusively of the fees hereafter mentioned, pay six dollars for every section, and three dollars for every half section he may have purchased, for surveying expenses; and deposit one-twentieth part of the amount of purchase money, to be forfeited if within forty days one fourth part of the purchase money, including the said twentieth part, is not paid.'

The payment of the money required by the act is obviously indispensable to the purchase. Without such payment, the sale prescribed by law could not be made; and certainly no sale, had the Register attempted to make one, could be valid if made in opposition to the law. But the Register has not attempted to sell, nor could Mr. Matthews have so understood the transaction. He took a note of the land the plaintiff intended to purchase; and, had the receipt of the Receiver been produced, might, perhaps, have made the entry. In so doing he would have acted in the double character of Register, and agent of the purchaser.

That there was no Receiver was undoubtedly not the fault of Mr. Matthews; but this circumstance as completely suspended the power of selling land in the Marietta District as if there had been neither Register nor Receiver; as if there had been no land office.

The transactions then between Mr. Matthews and the Register on the 9th of February, 1804, may be put entirely out of the case.

On the 12th day of May, 1804, soon after the Receiver had entered on the duties of his office, Matthews paid the sum of money required by law, and made an entry for the land in controversy with the Register of the Marietta District. The 12th section of the act of the 26th of March, 1804, directed that 'the lands in the District of Zanesville should be offered for public sale on the third Monday of May.' In pursuance of this act, and of instructions from the Secretary of the Treasury, the sale of the lands in the District did commence on that day; and, on the 26th day of that month, the defendants became the purchasers of the land in controversy.

There are many charges of fraud in the bill, and a contract between the parties is alleged. But this Court cannot look into those circumstances, unless they had induced the Court of Ohio to determine against the person having the title under the laws of the United States. As this case stands, the opinion of the State Court on the fraud and the contract, is conclusive; and the only question to be discussed here is, the title of the plaintiff under the acts of Congress.t This depends entirely on the validity of his entry made on the 12th of May, 1804.

This question has already been decided in this Court.