Page:Federal Reporter, 1st Series, Volume 8.djvu/906

 892 FEDERAL REPORTER. �a new land district, or attach the lands thrown open to settlement to Bome district already establisbed. It has not done so in this case, showing again how one of the parties to this treaty, which is a con- tract between the United States and the Seminoles, has construed it. �A treaty, like a statute or cOntract, miist he construed to give it effect, if possible, and courts always adhere to this rule. In eonstruing this treaty we have a right to take into consideration the situation of the parties to it at the time it was made, the property which is the subject-mat- ter of the treaty, and the intention and purposes of the parties in making the treaty. To get at this intention we have a right to con- sider the construction the parties to the treaty, and who were to be affected by it, have given it, and what has been their action under it. The action of the United States, which I have cited, is suflScient to show its construction of the treaty. It is a matter of public notori- ety that the other party to the treaty has agreed with the United States in its construction. Then we have both parties to itagreeiiig upon the same construction. That is the construction to be taken as the true one, unless the parties to it were mutually led into this con- struction by fraud or mistake. In a caae where the mutual construc- tion was in the face of the language used, and the rights of third persons had intervened, the language would be taken as governing. But in this case the right of the third person is only inohoate at best, and it cornes through and under one of the contracting parties, the United States, is not yet a vested right, and is claimed with the full knowledge of the party claiming the right of the condition of this land when he set up his right. Therefore, there is no hardship on him. �It muet be remembered that the United States is the custodian of all the lands in the United States, ;whether reserved or unreserved, and it is its power and province to say, by either law, treaty, or exec- utive order of the president, when these lands are open to settlement by the citizen. Has it said that these lands in controversy, by the third article of the Seminole treaty, are so open to settlement ? The reservation of lands for any specifie purpose by the government, if expressed in the most acourate, concise, and precise form of words, is but an expression of a desire of the government to use them for that purpose. It does not part with its title by reserving them, but sim- ply gives notice to all the world that it desires them for a certain pur- pose ; therefore, the same precision and accuracy is not required as in case of a conveyance. Does not the government express its desire by the language of this treaty ? The language is : "In coraplianee with a desire of the United States to locale other Indians and freedmen ��� �