or, to show the same principle in another point of view, it may be asked whether the penalties of the embargo laws attach before notice of their passage at the naval offices in the respective districts?

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 con

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struction 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.""

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

a Bac. Abr. tit. Statute, (H.) 378.

the former than the latter; and, repeating what has been before mentioned, an attempt to suppress the settlement of new lands would be as sensibly felt by the community at large, as an attempt to suppress trade and commerce: at the same time, both require to be regulated by law. Now, suppose some newly acquired territory were to be brought within the operation of the revenue laws, and, for this purpose, it should be found expedient to annex it to a part of a former district, making a new district, and that preparatory measures were necessary before the new district could be organized, and that acts should be passed with analogous provisions to those found in the laws in question; would they be construed to suspend the collection of duties in, and the right to import into, the old district?

We have before mentioned, that the case of Wilson v. Mason," 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; that 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 1 Cranch, 95."

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rights, from being misled and injured; that the entry was, in fact, the very remedy the law had provided against a previously existing evil. Now, in the present case, supposing suspension of sales at Marietta some how entered into the general provisions of the law an entry at Marietta would be an "entire equivalent" to an entry at Zanesville; for it is clear, that before sales could begin at Zanesville, notice must be given what tracts had been sold at Marietta. This too, would have been a general notice; general, at any rate, to the extent of the object; not an individual notice merely, which the Court would not, in the case of Wilson v. Mason, suffer to take place of the general rule.

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?

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