Opinion of the Court. lands are opened for settlement by proclamation of the President, no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands or acquire any right thereto." And the proclamation of the President of March 23, 1889, contained this warning: "Warning is hereby again expressly given, that no person entering upon and occupying said lands before said hour of twelve o'clock, noon, of the twenty-second day of April, A. D. eighteen hundred and eighty-nine, hereinbefore fixed, will ever be permitted to enter any of said lands or acquire any rights thereto; and that the officers of the United States will be required to strictly enforce the provision of the act of Congress to the above effect." 26 Stat. 1546. It is well settled that where the language of a statute is in any manner ambiguous, or the meaning doubtful, resort may be had to the surrounding circumstances, the history of the times, and the defect or mischief which the statute was intended to remedy. Thus, in Heydon's Case, 3 Rep. 7 b, it is stated that it was resolved by the Barons of the Exchequer as follows: "For the sure and true interpretation of all statutes in general, be they penal or beneficial, restrictive or enlarging of the common law, four things are to be discerned and considered: "First. What was the common law before the making of the act. "Second. What was the mischief and defect for which the common law did not provide. "Third. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. "Fourth. The true reason of the remedy." And by this court, in United States v. Union Pacific Railroad, 91 U. S. 72, 79, it was said that "courts, in construing a statute, may with propriety recur to the history of the times when it was passed; and this is frequently necessary, in order to ascertain the reason as well as the meaning of particular provisions in it. Aldridge v. Williams, 3 How. 24; Preston Opinion of the Court. v. Browder, 1 Wheat. 120." And in Platt v. Union Pacific Railroad, 99 U. S. 48, 64, that "in endeavoring to ascertain what the Congress of 1862 intended, we must, as far as possible, place ourselves in the light that Congress enjoyed, look at things as they appeared to it, and discover its purpose from the language used in connection with the attending circumstances." Pursuing an inquiry along this line, it will be seen that the Indian Territory lies between the State of Texas on the south and the State of Kansas on the north, and it is a matter of public history, of which we may take judicial notice, that as these two States began to be filled up with settlers, longing eyes were turned by many upon this body of land lying between them, occupied only by Indians, and though the Territory was reserved by statute for the occupation of the Indians, there was great difficulty in restraining settlers from entering and occupying it. Repeated proclamations were issued by successive Presidents, warning against such entry and occupation. Thus, on April 26, 1879, President Hayes issued a proclamation containing this warning: "Now, therefore, for the purpose of properly protecting the interests of the Indian nations and tribes, as well as of the United States in said Indian Territory, and of duly enforcing the laws governing the same, I, Rutherford B. Hayes, President of the United States, do admonish and warn all such persons so intending or preparing to remove upon said lands or into said Territory, without permission of the proper agent of the Indian Department, against any attempt to so remove or settle upon any of the lands of said Territory; and I do further warn and notify any and all such persons who may so offend, that they will be speedily and immediately removed therefrom by the agent according to the laws made and provided; and if necessary, the aid and assistance of the military forces of the United States will be invoked to carry into proper execution the laws of the United States herein referred to." 21 Stat. 797. A similar proclamation was issued on February 12, 1880, (21 Stat. 798,) another by President Arthur, on July 1, 1884, (23 Stat. 835,) and a fourth by President Cleveland, on March Opinion of the Court. 13, 1885 (23 Stat. 843). This latter proclamation recited a fact, which is also a matter of public history, as follows: "And, whereas, it is further alleged that certain other persons or associations within the territory and jurisdiction of the United States have begun and set on foot preparations for an organized and forcible entry and settlement upon the aforesaid lands, and are now threatening such entry and occupation." And the urgency of the situation is disclosed by these closing words of the proclamation: "And if this admonition and warning be not sufficient to effect the purposes and intentions of the government as herein declared, the military power of the United States will be invoked to abate all such unauthorized possession, to prevent such threatened entry and occupation, and to remove all such intruders from the said Indian lands." In addition to the fact disclosed by these proclamations, of the long-continued and persistent efforts to force an entry into this territory, it is well known that as the time drew near to the opening of it for occupation under and by virtue of the treaties with the Indian tribes, and in accordance with the laws of Congress, there was a large gathering of persons along the borders of this territory waiting the coming of the exact moment at which it would be lawful for them to move into it and establish homestead and other settlements. Under such circumstances as these, this legislation was passed, and what, in view thereof was the intent of Congress? As disclosed on the face of this legislation, evidently its purpose was to secure equality between all who desired to establish settlements in that territory. The language is general and comprehensive : "Any person who may enter upon any part of said lands prior to the time that the same are opened to settleshall not be permitted to occupy or to make entry of such lands or lay any claim thereto." "Until said lands are opened for settlement by proclamation of the President, no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands, or acquire any right thereto." No exception is made from the general language ment Opinion of the Court. of these provisions; and it was evidently the expectation of Congress that they would be enforced in the spirit of equality suggested by the generality of the language. It is urged that there is a penal element in each of these sections, and that, therefore, the statute must be strictly construed. This penal element is found in those clauses which debar one violating the provisions of the sections from ever entering any of the lands, or acquiring any rights therein. But whatever of a penal element may be found in these parts of the sections, does not extend to those which are simply declaratory of the conditions upon which entry and occupation may be made. Provisions of like character are frequently found in statutes and constitutions. The general homestead law gives a right of homestead to persons possessing certain qualifications, but it is in no sense, therefore, a penal statute as to those not possessing such qualifications. The Constitution of the United States restricts the presidency to naturalborn citizens, and such as are thirty-five years of age, and have been residents of the country for fourteen years, but there is nothing in this of a penal nature as against those not possessed of these qualifications. If Congress sees fit to impose a penalty on any individual who attempts to enter a homestead without possessing the statutory qualifications, the clause imposing the penalty may require a strict construction in a proceeding against the alleged wrongdoer, but that does not give to the residue of the statute, prescribing the qualifications, a penal character. That portion which describes the qualifications for entry is to be liberally construed, in order that no one be permitted to avail himself of the bounty of Congress, unless evidently of the classes Congress intended should enjoy that bounty. This idea is expressed in 1 Bl. Com. 88, in these words: "Statutes against frauds are to be liberally and beneficially' expounded. This may seem a contradiction to the last rule, most statutes against frauds being in their consequences penal. But this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly; but when the statute acts VOL. CXLVIII-32 Opinion of the Court. upon the offence, by setting aside the fraudulent transaction, here it is to be construed liberally." Construing the statute in the light of these observations, it will be noticed, first, that the provisions apply to the land collectively. The prohibition is against entering upon "any part of said lands," meaning thereby the whole body of lands, and in this body was included the right of way of the railroad company. The company had simply an easement, not a fee in the land. Its rights sprang from the act of Congress of July 4, 1884, 23 Stat. 73, c. 179, granting the right of way to the Southern Kansas Railway Company, whose successor in interest was the Atchison, Topeka and Santa Fé Railroad Company. This act, by section 2, granted a right of way, and also provided that the land taken therefor should be used only for the construction and operation of railroad, telegraph and telephone lines; and that whenever any portion thereof ceased to be so used, it should revert to the nation or tribe of Indians from which it was taken. The act further provided, section 7, that the officers and employés might reside on the right of way, but subject to the provisions of the Indian intercourse laws, and such rules and regulations as might be established by the Secretary of the Interior in accordance therewith. And, by section 10, the grant was made conditioned that neither the company, nor its successors or assigns, should aid, advise or assist in any effort looking towards the change of the present tenure of the Indians in their lands, or attempt to secure from the Indian nations any further grant of lands or its occupancy. In other words, the entire body of lands still remained Indian lands-the fee continued in the Indians, and all that the company received was a mere right of way. So, when the treaty of cession was made between the Creek Nation of Indians and the government, it was a cession of all lands lying west of a certain line, with no exceptions, and it was this body of lands which was declared by the act of March 1, 1889, to be a part of the public domain, and thereafter subject to homestead entries; and the proclamation of the Presid nt, naming the exact hour at which the lands should |