nolds, the tenant in possession. In that court | ly after Ludlow's line was run, the surveyors a verdict and judgment were rendered in favor of the plaintiff below. The plaintiff in error appealed to the Supreme Court of Ohio for that county. On the trial in the latter court (being by the laws of Ohio, a trial de novo), M'Arthur again obtained a verdict and judgment in his favor. M'Arthur claimed the land in controversy under a patent from the United States, bearing date October the 12th, 1812, founded on entry and survey made in the year 1810, on a warrant granted for services in the Virginia line on continental establishment during the war of the Revolution. Reynolds, the defendant below, claimed as the assignee of one Henry Van Meter, who in the year 1805 entered the land in controversy at the Cincinnati land-office. It reverted to the United States in the year 1813, for non-payment of the purchase money, and during the same year it was entered again by Van Meter, and the certificate of entry assigned by him to Reynolds. The deed of cession of the country northwest of the Ohio River from Virginia to the United States, dated in March, 1784, reserved the coun418*] try between the rivers Scioto and *Little Miami for the satisfaction of the military bounties Virginia had promised to her officers and soldiers on continental establishment. The sources of the two rivers are between fifty and sixty miles apart, and the country between them makes a part of the western boundary of the reservation. In 1802 Israel Ludlow was directed by the then SurveyorGeneral of the United States, to run the boundary line between these rivers, who in that year accordingly ran a direct line from the source of the Little Miami towards what he supposed to be the source of the Scioto; to which river he did not extend his line, in consequence of being arrested in his survey by the Indians at the Greenville treaty line, that line being then the Indian boundary. The line run by Ludlow is called Ludlow's line. In the year 1812, Congress passed an Act authorizing the appointment of three commissioners, who, in conjunction with commissioners to be appointed by Virginia, were directed to run the boundary line between the sources of these rivers, with authority to agree upon and establish the same. They proceeded to ascertain the sources of these rivers and employed a surveyor of the name of Roberts to run a direct line bet wen them. While he was running the line, a misunderstanding arose among the commissioners as to the principle on which the boundary should be settled. The Virginia commissioners contended for a line from the source of the Scioto to the mouth of the Little Miami as the boundary. The United States commissioners claimed the line then running between the sources of the two rivers as the boundary. in the employment of the United States proceeded to survey the country west of and bounding upon that line as far as the Indian bounadry, and the officers at the Cin- [*419 cinnati land-office sold the whole or part of the country lying between Ludlow's and Roberts's lines as the land of the United States; among which was the land in controversy. The Act of 1812 declared that Ludlow's line should be the boundary until otherwise established by the consent of Virginia and the United States. By another Act of Congress, passed in 1818, Ludlow's line to the Greenville treaty line was made the boundary until otherwise directed by law. And above the Greenville treaty line to the Scioto, Robert's line was made by that Act the boundary. The land in controversy was admitted by the parties to lie on Buck Creek, a water of the Great Miami River, adjoining Ludlow's line, and south of the Indian boundary line. The plaintiff below, M'Arthur, further agreed that if the land in controversy did not lie between the rivers Scioto and Little Miami, a verdict and judgment should be rendered against him. On the trial in the Supreme Court of Ohio the counsel for the plaintiff in error prayed the court to give the jury eight several instructions; all of which that court refused to give. To this refusal a bill of exception was tendered, upon which the writ of error is founded. The instructions prayed for by the counsel for the plaintiff in the court below were as follows: 1. That the lands west of Ludlow's line, east of Roberts's line, and south of the Indian boundary line, had been withdrawn from appropriation under and by virtue of said military land warrants prior to the year 1810; and that as the same had, pursuant to the Acts of Congress in such case made and provided, been directed to be surveyed and sold; and that as the same had accordingly been surveyed and sold to the defendant prior to the year 1810; consequently that the plaintiff's patent is void, and their verdict ought to be for the defendant. 2. That as the third section of the Act of Congress of the United States of the 11th April, 1818, declares, “that from the source of the Little Miami River to the Indian boundary line established by the treaty of Greenville in 1795, the line designated as the westerly boundary line of the Virginia tract, *by [*420 an Act of Congress passed on the 23d day of March, 1804, entitled 'An Act to ascertain the boundary of the lands reserved by the State of Virginia, northwest of the river Ohio, for the satisfaction of her officers and soldiers on continental establishment, and to limit the period for locating the said lands,' shall be considered and held as such until otherwise directed by The commissioners separated without agree-law;" and as said boundary line was run by ing upon a boundary. This line is called Roberts's line. It runs from nearly the same point on the Little Miami, at which Ludlow's line commences, to a point on the Scioto several miles west of the termination of Ludlow's line when extended to the latter river. The two lines include a triangular gore of country extending from one river to the other. Short Ludlow, under the directions of the SurveyorGeneral. pursuant to an Act of Congress, entitled, "An Act to extend and continue in force the provisions of an Act entitled 'an Act giving a right of pre-emption to certain persons who have contracted with John Cleves Symmes, or his associates, for lands lying between the Miami rivers in the territory northwest of the Ohio, and for other purposes,' approved May 1st, 1802, and offered for sale at public auction at the Cincinnati land-office pursuant to an Act entitled "An Act making provision for the disposal of public lands in the Indian territory, and for other purposes," approved March 26th, 1804, must be construed as having relation back to the time the above-recited Act, entitled "An Act to ascertain the boundary of the lands reserved by the State of Virginia, northwest of the river Ohio, for the satisfaction of the officers and soldiers on continental establishment, and to limit the period for locating said lands," approved 23d of March, 1804, was passed and took effect; and as the plaintiff's patent covers lands west of that line, and south of the Greenville treaty line, and is based on an entry made in 1810, on a Virginia continental land warrant, which land had been surveyed and sold to the defendant pursuant to the Acts of Congress prior to the year 1810, the plaintiff's patent is void, and their verdict ought to be for the defendant. the true intent and meaning of the said Act and deed of cession, be extended as stated in either of the instructions asked for above, then that the sources of the said two rivers must be at that point in their respective channels, at which, from the union of several rivulets, brooks or creeks, sufficient water flows at an ordinary stage, on which to navigate small vessels laden; and that the line connecting said rivers must be a direct line from said sources so ascertained as aforesaid; and if, from the evidence, the jury shall find that the lands covered by the plaintiff's patent [*422 are based on an entry covering lands without the limits of said Virginia military district so called, which had prior to the year 1810, pursuant to the Acts of Congress in such case made and provided, been surveyed and sold to the defendant, the plaintiff's patent is void, and their verdict ought to be for the defendant. 6. That if the line connecting the rivers Scioto and Little Miami, according to the true intent and meaning of the said Act and deed of cession, cannot be extended, as stated in either of the instructions asked for as above, then that the sources of the said two rivers must be considered as commencing at that point in their respective channels, from which the water flows at all seasons of the year; and that said rivers must be connected by a direct line, run from said sources; and if, from the evidence, the jury shall find that the plaintiff's patent is based on an entry, covering the lands without the limits of said Virginia military district, so called, which had prior to the year 1810, pursuant to the Acts of Congress in such case made and provided, been surveyed and sold to the defendant, the plaintiff's patent is void, and their verdict ought to be for the defendant. 3. That according to the true intent and meaning of the Act and deed of cession from Virginia to the United States, and the several Acts of Congress relative to the sale of the public lands to the United States, the lands lying between the rivers Scioto and Little Miami are bounded by a line extending from the source or point of land farthest removed from the mouths of these respective rivers from which the rain descending on the earth 421*]runs down into their respective *channels, along the top of the ridges dividing the waters of the Scioto from the waters of the Great Miami, which empty into the Ohio below the mouth of the Little Miami, as delineated on the diagram returned by the county surveyor for the defendant in this cause; and 7. That if the line connecting the rivers as the plaintiff's patent covers land west or Scioto and Little Miami, according to the true without the boundary of the district so bound-intent and meaning of the said Act and deed ed as aforesaid, and is based on an entry on of cession, cannot be extended, as stated in a Virginia continental land warrant, which entry was made in the year 1810, and which said entry and patent cover lands which had, pursuant to the Act of Congress, been surveyed and sold to the defendant prior to the date of the plaintiff's said entry, the plaintiff's patent is void, and their verdict ought to be for the defendant. 4. That if the line connecting the rivers Scioto and Little Miami cannot, according to the true intent and meaning of the said Act and deed of cession, and the several Acts of Congress for the sale of their public lands, be extended as stated in instructions last above asked, then that the line connecting the rivers Scioto and Little Miami, so as to include all the lands between the said two rivers must be extended from the sources of the Little Miami, parallel to the general course of the Ohio River until it intersect the river Scioto; and as the plaintiff's patent is based on a Virginia continental land warrant, which warrant had been located in 1810 on lands which had prior to the year 1810 been surveyed and sold to the defendant pursuant to the Act of Congress the patent of the plaintiff is void, and their verdict ought to be for the defendant. 5. That if the line connecting the rivers Scioto and Little Miami cannot, according to either of the instructions asked for above, then that the sources of the said two rivers must be fixed at that point in their respective channels, farthest removed from their respective mouths, at which water is found at all seasons of the year, and that a direct line, connecting said rivers, must be extended from said point; and if, from the evidence, the jury shall be of opinion that the plaintiff's patent covers land without said boundary, so fixed as aforesaid, and which is based on an entry covering said land, made in the year 1810, which had pursuant to the Acts of Congress of the United States been surveyed and sold to the defendant by the United States prior to the year 1810, the plaintiff's patent is void, and their verdict ought to be for the defendant. 8. That if the line connecting the said rivers Scioto and Little Miami, according to the true intent and meaning of the said Act [*423 and deed of cession, and the several Acts of Congress relative to the sale of the public lands of the United States, cannot be extended, as stated in either of the instruction asked for above, then that the sources of these streams are at that point, farthest removed from their respective mouths, from which the rain descending on the earth, runs down into their respective channels; and that the lands lying between these rivers are limited by a direct line run from those points; and if, from the evidence, the jury shall be of opinion that the plaintiff's patent covers land without the limits of said boundary, so stated as aforesaid, and which is based on an entry made in the year 1810, which had, pursuant to the Acts of Congress of the United States, prior to the said year 1810, been surveyed and sold to the defendant by the United States pursuant to the Acts of Congress, the plaintiff's patent is void, and their verdict ought to be for the defendant. But the court declined giving the instructions asked for, to which refusal of the court the defendant, by his counsel, excepted, and prays the court here to sign and seal this bill of exceptions, which is done accordingly, July 19th, 1827. This case was argued by Mr. Scott for the plaintiff in error, and by Mr. Mason and Mr. Vinton for the defendant. Mr. Wirt, AttorneyGeneral, appeared for the plaintiff by order of the government of the United States, but was prevented taking part in the argument by indisposition. pursuant to the Acts of Congress in such case made and provided, been directed to be surveyed and sold, and had accordingly been surveyed and sold to the defendant, prior to the year 1810, the plaintiff's patent is void, and their verdict ought to be for the defendant. This motion does not question the bounds of the lands reserved by Virginia for military bounties, but supposing the tract of country west of Ludlow's line, east of Roberts's line, and south of the Indian boundary line to be within that reserve, asks the court to say, that Congress had, prior to the year 1810, when M'Arthur's entry was made, withdrawn it from appropriation under and by virtue of military land warrants. *Before deciding on the propriety of [*425 refusing or granting this prayer, it will be necessary to review the legislation of Congress on this subject. The Act of the 9th of June, 1794 (2 United States Laws, 440), taken in connection with the reservation in favor of their officers and soldiers contained in the deed of cession made by Virginia, unquestionably subjected the whole of the military reserve to the satisfac Mr. Chief Justice Marshall delivered the tion of those warrants, for which the reserve opinion of the court: This is a writ of error to a judgment rendered by the Supreme Court of Ohio for the county of Champaign, in an ejectment in which the lessee of Duncan M'Arthur was plaintiff, and John Reynolds was defendant. The plaintiff claimed the land in controversy, under a patent issued on the 12th day of October, 1812, founded on an entry made in the year 1810, on a military land warrant granted by the State of Virginia for services during the war of the revolution in the Virginia line, on continental establishment. 424*] *The title of the defendant is thus stated: The land was sold by the United States at their land-office in Cincinnati, in the year 1805, to Henry Van Meter. It reverted to the United States in the year 1813 on account of the non-payment of the purchase money; and was again sold, during the same year, at the same office, to Henry Van Meter, to whom a certificate of sale was issued, which he afterwards transferred to the defendant, John Reynolds. The verdict and judgment were in favor of the plaintiff in the State Court. At the trial, the counsel for the defendant moved the court to instruct the jury on several points made in the cause, and excepted to the refusal of the court to give these instructions. The judgment of the State Court, having been against a title set up under several Acts of Congress, is brought before this court by writ of error, that the construction put on those Acts by that court may be re-examined. The inquiry will be, whether the court ought to have given any one of the instructions which were required. The several prayers for this purpose will be considered in the order in which they were made. 1. The first instruction asked is, that the lands west of Ludlow's line, east of Roberts's line, and south of the Indian boundary line, had been withdrawn from appropriation under and by virtue of military land warrants prior to the year 1810; and that as the same had, was made. Had Congress, previous to the year 1810, withdrawn that portion of this reserve which lies between the line run by Ludlow, and that run by Roberts, from its liability to be so appropriated? So early as the year 1785, Congress passed "an ordinance" (1 United States Laws, 563, 569) "for ascertaining the mode of disposing of lands in the western territory," in which, for the purpose of securing to the officers and soldiers of the Virginia line on continental establishment the bounties granted them by that State, it is ordained "that no part of the land between the rivers called Little Miami and Scioto, on the northwest side of the River Ohio, be sold or in any manner alienated, until there shall first have been laid off and appropriated for the said officers and soldiers and persons claiming under them, the lands they are entitled to, agreeably to the said deed of cession and Act of Congress accepting the same. The scrupulous regard which this clause in the ordinance of May, 1785, manifests to this condition made by Virginia in her deed of cession, is the more worthy of remark, because at that time no suspicion was entertained that the military warrants of Virginia would cover the whole territory; and it was even doubted, as the legislation of Congress shows, whether any part of that territory would be required for them. Even under these circumstances, Congress declared the determination not to sell or alienate any land between the Scioto and the Little Miami. In May, 1796, Congress passed "an Act providing for the sale of the lands of the United States in the territory northwest *of [*426 the river Ohio, and above the mouth of Kentucky River." 2 United States Laws, 533. The second section enacts that, "the part of the said land which has not been already conveyed," etc., "or which has not been heretofore, and during the present session of Congress may not be appropriated for satisfying military land bounties, and for other purposes, shall be divided," etc. This law, then, from which the whole power | Miami River, extending along such lines to the of the Surveyor-General is derived, excludes place of beginning, containing, as aforesaid, from his general authority all lands previously one million of acres. appropriated for military land bounties and for other purposes; and consequently excludes from it the lands between the Scioto and the Little Miami. In May, 1800 (3 United States Laws, 385), Congress passed an Act to amend the Acts of 1796, which enacts "that for the disposal of the lands of the United States directed to be sold by the original Act, there shall be four landoffices established in the said territory." The places at which these land-offices shall be fixed are designated in the Act, and the district of country attached to each is described. One of these is Cincinnati, the place at which the lands in controversy were sold, and the district attached to it is that below the Little Miami. It is perfectly clear from the language of this Act, that it extends to those lands only which were comprehended in the Act of May, 1796, and that no one of the districts established by it, comprehends the land in controversy. Any general phrases which may be found in the law must, according to every rule of construction, be limited in their application to those lands which the original Act authorized the Surveyor-General to lay off for the purpose of being sold. If he surveyed any lands to which that Act does not extend, he exceeded his authority, and the survey is not sanctioned by the law. If land thus surveyed by mistake has been sold, the sale was not authorized by the law under color of which it was made. The counsel for the plaintiff in error has pressed earnestly on the court the grants made 427*] to John Cleves Symmes, and *to the purchasers under him. We are not sure that the argument on this point has been clearly understood, and have therefore examined that transaction, in order to discover its influence, if it can have any, on the question now under consideration. The language of this contract does not indicate any intention on the part of Congress to encroach on the military reserve, which the ordinance of May, 1785, then in full force, had excepted from sale or alienation. In 1792 (2 United States Laws, 270) Congress, at the request of John C. Symmes, passed an Act to alter this contract in such manner that the land sold should extend from the mouth of the Great Miami to the mouth of the Little Miami, and be bounded by the river Ohio on the south, by the Great Miami [*428 on the west, by the Little Miami on the east, and by a parallel of latitude on the north, extending from the Great Miami to the Little Miami, so as to comprehend the proposed quantity of one million of acres." The lands, then, which might be granted to John C. Symmes, in pursuance of this Act of Congress, lay between the Great and Little Miami, and were to lie below the Little Miami. The Scioto is above that river; so that Congress could not have intended that this grant to Symmes should interfere with the military reserve. On the 26th of September, in the year 1794, a deed was executed in pursuance of the Act of 1792, conveying to John C. Symmes that tract of land beginning at the mouth of the Great Miami River, and extending from thence along the river Ohio to the mouth of the Little Miami River, bounded on the south by the river Ohio, on the west by the Great Miami, on the east by the Little Miami, and on the north by a parallel of latitude to be run from the Great Miami to the Little Miami, so as to comprehend the quantity of 311,682 acres of land. It is obvious that this patent does not interfere with the military reserve. But John C. Symmes had sold to several persons who purchased in the confidence that he would comIn 1787 John Cleves Symmes applied to Con-ply with his contract for one million of acres, gress for a grant to himself and his associates and be enabled to convey the lands sold to of the lands lying within the following limits, them. viz.: "Beginning at the mouth of the Great Miami River, thence running up the Ohio to the mouth of the Little Miami River; up the main stream of the Little Miami River to the place where a due west line, to be continued from the western termination of the northern boundary line of the grant to Messrs. Sargent, Cutler & Co. shall intersect the said Little Miami River; thence due west, continuing the said western line to the place where the said line shall intersect the main branch or stream of the Great Miami; thence down the Great Miami to the place of beginning." In consequence of this petition, a contract was entered into for the sale of one million of acres of land, to begin on the bank of the Ohio, twenty miles along its meanders above the mouth of the Great Miami; thence to the mouth of the Great Miami; thence up that river to a place whence a line drawn due east wili intersect a line drawn from the place of beginning, parallel with the general course of the Great Miami, so as to include one million of acres within these lines and the said rivers, and from that place upon the said Great In March, 1799, Congress passed an Act declaring that any person or persons, who, before the first day of April, in the year 1797, had made any contract in writing with John C. Symmes for the purchase of lands between the Great and Little Miami rivers, which are not comprehended in his patent dated the 30th of September, 1794, shall be entitled to a preference in purchasing of the United States all the lands so contracted for at the price of two dollars per acre. In March, 1801, Congress passed an Act extending this right of pre-emption to all persons who had, previous to the first day of January, 1800, made any contract in writing with the said John C. Symmes, or with any of his associates, for the purchase of lands between the Miami rivers within the *lim- [*429 its of a survey made by Israel Ludlow, in conformity to an Act of Congress of the 12th of April, 1792. The provisions of this Act are supposed to contemplate the survey and sale of the lands which had been sold to John C. Symmes between the Miami rivers; in like manner as had with Symmes for the sale of lands lying be- When Congress designed to act on this sub In executing the Act of May, 1800, the Surveyor General had caused a line to be run, from what he supposed to be the [*431 source of the Little Miami, towards what he supposed to be the source of the Scioto, which is the line denominated Ludlow's, and surveyed the lands west of that line in the manner prescribed by the Act of Congress. been prescribed for other lands lying above the mouth of Kentucky by the Acts of 1796 and 1800. The right of pre-emption was limited to lands within Israel Ludlow's survey; but that survey contained less than 600,000 acres, and the contract of Symmes was for one million of acres; Congress therefore resumed the consideration of this subject, and in May, 1802, extended this right of pre-emption to all those who had purchased from John C. Symmes lands lying between the Miami rivers, and without the limits of Ludlow's survey. It cannot be doubted that this right of pre-emp tion, allowed to the purchasers under John C. Symmes, was limited to lands lying between the Miami rivers, and lying within his contract.ject the purpose was expressed, and overtures Congress could never have intended that this were made to the other party to the compact contract should interfere with the military re- to obtain her co-operation. serve. That reserve was of lands lying above the Little Miami. The sale to Symmes was of lands lying below that river. It was made while an ordinance was in full force, declaring the resolution of Congress not to alienate any part of the reserve. Their contract was made in subordination to that ordinance, and cannot have intended to violate it. The terms of the contract do not purport to violate it. The land sold to Symmes, and the pre-emption rights allowed to the purchasers under him, are so described as to furnish no ground for the opinion that Congress could have suspected them to interfere with the military reserve. If the Scioto and the Great Miami, contrary to all probability, should take such a direction as to produce a possible interference between the lands sold to Symmes and the reserve which Congress had declared its resolution not to alienate, some difficulty might possibly arise in a case where one of the parties claimed under a military warrant, and the other under a pre-emption certificate. But that is not this case. The title of the plaintiff in error is under a purchase made at a sale of the lands of the United States at Cincinnati, by Henry Van 430*] Meter, who is not *stated to have held a pre-emption certificate, or to have been a purchaser under Symmes. The instruction which the court was asked to give is, that the land between the lines of Ludlow and Roberts had been withdrawn from appropriation, under and by virtue of military land warrants, previous to the year 1810. This withdrawal is not in express terms, but is supposed to be implied from a direction to survey the lands between the Great and Little Miami which had been exempted from the operation of the Acts of 1796 and 1800, under the idea that they were comprehended in the contract with Symmes. Congress could not suspect that the lands to be surveyed under this law could interfere with the lands lying between the Little Miami and the Scioto; and consequently cannot have intended by this Act to vary the boundary of the military reserve. It has been very truly observed, that all the laws on this subject should be taken together. The condition inserted in the deed of cession of Virginia, which reserves the land lying between the Little Miami and the Scioto for the purpose, of satisfying the warrants granted to the officers and soldiers of that State; the ordinance of May, 1785, declaring that no part of that reserve should be alienated; the contract In March, 1804 (3 United States Laws, 592), Congress passed an Act establishing that line as the western boundary of the reserve, provided the State of Virginia should, within two years after the passage of the Act, accede to it. Virginia did not accede to it. In 1812, 4 United States Laws, 455, Congress made another effort to establish this line. The President was authorized to appoint commissioners to meet others which should be appointed by Virginia, who were to agree on the western line of the military reserve, and cause the same to be surveyed and marked out. These commissioners met, and after ascertaining the sources of the two rivers, employed Mr. Charles Roberts to survey and mark a line from the source of the one to the source of the other. This line is called Robert's line. The Virginia commissioners, however, refused to accede to this line. This Act provided that, until an agreement should take place between the commissioners, the line designated in the Act of 1804, which is Ludlow's, should be considered and held as the proper boundary line. This enactement is provisional and prospective. In 1816, 6 United States Laws, 282, Congress passed an Act declaring that from the source of the Little Miami to the Indian boundary line established by the treaty of Greenville, Ludlow's line should be considered as the western boundary of the military reserve, until otherwise directed by law; and that from the said Indian boundary line to the source of the Scioto River, the line run by Charles Roberts shall be so considered. When we review the whole legislation of Congress on this subject, we think the conclusion inevitable, that in the Acts of 1801 and 1802, which have been cited, the Legislature did not consider itself as altering the bounds of the litary district, or as withdrawing before the year 1820 any part of the territory lying between the Little Miami and the Scioto *from being appropriated by the mili- [*432 tary land-warrants granted by the State of |