Opinion of the Court. the surveys have progressed or may hereafter be completed and returned. "Very respectfully, etc., etc., "A. H. H. STUART, Secretary. "The Commissioner of the General Land Office.” In obedience to these instructions, lists were made out as the surveys progressed, and submitted to the secretary for his approval. His last approval, before the passage of the railroad grant of 1856, was on the 17th of December, 1853. The lands now in controversy were not surveyed at that time, and were not included in this or any of the lists previously made. It is undoubtedly true, as was said in Leavenworth, &c., Railroad v. The United States, 92 U. S. 733, 743, that, "in the absence of words of unmistakable import," it will not be presumed that Congress has made a grant of lands to which the Indian title has not been extinguished; but there are, nevertheless, instances, as in the case of the Pacific railroads, where this has been done. Confessedly, however, in this case the congressional grant of 1846 did not include the lands now in controversy. Whatever reservation there was to interfere with the railroad grant of 1856, grew out of what was done by the executive officers of the government after the act of 1846 was passed, and while its effect was in doubt. That the State claimed all the alternate sections within five miles of the river on each side, and as far north as the State line, is not denied. That the intention of the president and his cabinet was to make the reservation as broad as the claim is to our minds perfectly apparent from the language of the instructions of the secretary of the interior to the commissioner of the general land office in his communication of the 29th of October, 1851. His words are: "I am willing to recognize the claim of the State and approve the selections without prejudice to the rights, if any there be, of others, thus leaving the question as to the proper construction of the statute entirely open to the action of the judiciary." He then directed lists of selections to be prepared and sub Opinion of the Court. mitted for his approval as the surveys were co apleted and returned. At this time all the Indian title that could, by any possibility, interfere with the grant as claimed by the State was in the process of extinguishment. Treaties which were to have that effect had already been negotiated with the Indians, and were waiting ratification by the United States. There could hardly have been a doubt in the minds of any of the parties that long before any judicial determination of the matters in dispute every vestige of Indian title would be gone. Hence, to leave "the question of the construction of the statute," that is to say, the effect of the grant, " entirely open," all the lands within the limit, surveyed or unsurveyed, and, as we think, encumbered by an Indian title, or unencumbered, were reserved from sale until the "action of the judiciary." This reservation was in force when the act of 1856 was passed, and it is the reservation which this court has held prevented the grant under that act from attaching to the lands within the limits of the river grant, as claimed by the State. The act of 1862 afterwards, in express terms, granted to the State, for the use of its grantees, "the alternate sections designated by odd numbers lying within five miles of said river, between the Raccoon Fork and the northern boundary of the State." At this time there was no Indian title in the way of the grant, and if the reservation was good as against the railroad companies in 1856, the title of the Des Moines Valley company, the grantee of the State, was perfected. 2. As to the east branch. Much of what has been said about the Indian title applies to this objection. The State claimed the lines along the river, and the reservation as promulgated was of what was claimed. No one now supposes the east branch was in fact the Des Moines River. It is undoubtedly true that at some time some officers of the government, as well as some officers of the State, supposed the branch was the main river, and acted accordingly; but that does not change the geographical fact that what was taken for the river was only a branch. The lists of selections along the branch, and their approval by the secretary, were mistakes, which the record shows were corrected in the final Syllabus. settlements between the State and the United States by allowances in account. The same may be said of the marks on the plats sent out from the general land office to the local land officers. They were clerical mistakes, growing out of an imperfect knowledge of the geography of the country. They did not change the reservation, but only gave wrong information as to what it was. There is no question of estoppel as a consequence of the mistake involved. The railroad grant of 1856 was subject to the reservation for the river grant. There is no pretence of fraud anywhere, and the record does not show that the conduct of the appellants or their grantors has been in any way influenced by the plats or the unauthorized selections and certificates. They knew, or ought to have known, that the reservation was confined to the river lands, and that the branch was not the river. Hence the reservation is to have effect according to its terms, and not according to any mistaken interpretation which may at some time have been given to it. We find no error in the record, and the Judgment is affirmed. KEYES v. THE UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. Submitted November 13th, 1883.-Decided November 26th, 1883. Constitutional Law-Courts-Martial-Executive. The president has the power to supersede or remove an officer of the army by appointing another in his place, by and with the advice and consent of the Senate. Such power was not withdrawn by the provision in § 5 of the act of July 13th, 1866, c. 176 (14 Stat. 92), now embodied in § 1229 of the Revised Statutes, that "no officer in the military or naval service shall, in time of peace, be dismissed from service, except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof." Where a court-martial has cognizance of the charges made, and has jurisdiction of the person of the accused, its sentence is valid, when questioned collaterally, although irregularities or errors are alleged to have occurred in its proceedings, in that the prosecutor was a member of the court and a witness on the trial. No opinion is expressed as to the propriety of such proceedings. Statement of Facts. The appellant brought a suit against the United States, in the court of claims, on the 2d of February, 1880, claiming to recover the sum of $4,236.36, for his pay as a second lieutenant in the 5th regiment of cavalry, in the army of the United States, from the 28th of April, 1877. That court dismissed his petition, on the following facts found by it: In February, 1877, the appellant was tried on four charges and specifications, before a general court-martial composed of ten officers. One of them, Colonel Merritt, was the colonel of the 5th cavalry. They were all present. The appellant being before the court, and the order appointing it being read, he was asked if he had any objection to any member of the court present, named in the order, to which he replied in the negative. The oaths were then administered to the members of the court in the presence of the appellant. The first three of the charges and specifications were preferred by the lieutenant-colonel of the 5th cavalry, and the fourth by Colonel Merritt. The appellant was represented by counsel of his own selection. He pleaded not guilty. Colonel Merritt was sworn as a witness on the part of the government, and gave testimony in support of the charge and specifications preferred by him, but gave no testimony in regard to the other charges and specifications. The day after the appellant pleaded not guilty, he withdrew, by leave of the court, his plea of not guilty to the second charge and its specifications, and entered a plea of guilty thereto. Colonel Merritt continued to sit as a member of the court throughout the trial, and participated in rendering the final judgment. At the close of the evidence, the appellant submitted, in writing, a statement of his defence, which was read to the court. It contained no objection or reference to the participation of Colonel Merritt in the trial, as a member of the court, or to his having been so sworn and examined as a witness on behalf of the government. The court found the appellant guilty of all the charges and specifications, and sentenced him to be dismissed from the service. The proceedings, findings, and sentence of the court were approved by the President of the United States, who ordered that the sentence should take effect on the 28th of April, 1877. On the 27th of June, 1877, the te not being in es VOL. CIX-22 Argument for the Appellant. sion, the president appointed Henry J. Goldman to be a second lieutenant in the 5th regiment of cavalry, and, on the 15th of October, 1877, he nominated Goldman to the senate for appointment as second lieutenant in said regiment in place of the appellant, dismissed, to date from June 15th, 1877. The senate advised and consented to the appointment of Goldman, and he was accordingly commissioned and still holds the office of such second lieutenant. Mr. James Coleman for the appellant.-I. Courts-martial are courts of limited and special jurisdiction, and it is essential to their validity that it should be affirmatively shown that they acted upon a case clearly within their jurisdiction. and that their proceedings were strictly regular. No presumption can be indulged in favor of the validity of the judgment of such a court, and its judgment is everywhere treated as a nullity, unless the record affirmatively shows both jurisdiction and regularity of proceeding. 3 Greenl. Ev., sec. 470; Duffield v. Smith and others, 3 Serg. & Rawle, 589; Brooks v. Adams, 11 Pick. 440; Mills v. Martin, 19 Johns. 7; Jones v. Craw ford, 1 Johns. Case, p. 20, and cases cited; Opinion of Attor ney-General Rush, Opins. vol. 1, p. 177; Sheldon v. Sill, 8 How. 441; State v. Gachenheimer, 30 Ind. 63; Ohio, &c., R. R. Co. v. Shultz, 31 Ind. 150; State v. Ely, 43 Ala. 568. Courtsmartial, and every other statutory court, or courts of limited and special jurisdiction, must observe all the principles of the common law, except in so far as special statutes have imposed a different rule for such courts. 3 Greenleaf on Evidence, 469; Adye on Courts-martial, 45; Benet on Courts-martial, 244; De Hart's Military Law, 322; Mustratt's Case, 2 Mac Arthur, 158; Simmons on Courts-martial, 485; Harwood on Naval Courts-martial, 21. Interested parties cannot join in deciding suits. The Queen v. Justice of Hertfordshire, 6 A. & E. 753 ; Broom's Legal Maxims, 119; Stockwell v. Township of White Lake, 22 Mich. 341; Sigourney v. Sibley, 21 Pick. 101; Cottle App't, 5 Pick. 483; Coffin v. Cottle, 9 Pick. 287; Hickman on Naval Courts-martial, 246-248. II. Consent will not confer jurisdiction. Mordecai v. Lindsay, 19 How. 199; Montgomery |