dissenting:
With due deference to the opinion pronounced in this case, I feel constrained to differ with the majority of the Court as to its conclusions of law, and also as to what constitutes the subject matter and consideration of the agreement, upon which the suit was instituted. It would appear by the evidence in the cause, that on the thirtieth day of May, 1842, Baker executed to Taylor, in substance, the following instrument:
Know all men, that I, John Baker, for and in consideration of the sum of three hundred dollars, to me in hand paid by C. Taylor, have remised, released, and quit claimed, and by these presents do remise, release, and quit claim to said Taylor, his heirs, &c., all that certain lot or parcel of land, to me due by the United States’ Government, under an act giving and granting to actual settlers within the country claimed and possessed by the Indians, a bounty of one hundred and sixty acres of land, which said bounty of one hundred and sixty acres of land, for the consideration .above mentioned, and'by these presents *256I relinquish and convey to the said C. Taylor, with all my right, title and interest, claim and demand unto or in anywise appertaining, together with all and singular the hereditaments and appurtenances thereunto belonging, and the remainder and remainders, reversion, and reversions, rights, profits and issues thereof. It is further understood, that I, the said John Baker shall serve out the time required, of settlers by law, which entitles them to either donation or pre-emption as the case may be. To have and to hold the aforesaid bargained premises to him the said C. Taylor, &c.
(Signed,) JOHN BAKER.
“ It is further understood, and by these presents agreed, that I, John Baker shall and will work for the said C. Taylor, for the term of one year, and the said Taylor is to pay me three hundred dollars for his year’s services and his share of .the land aforesaid, which sum is considered as full payment for the whole.”
Simultaneously with this instrument, the following agreement was entered into by Taylor:
“I promise to pay to John Baker, on or before the first day of January, 1843, the sum of three hundred dollars, provided he complies with an agreement made with me for his portion of land which he is to receive from Government as an actual settler, as also for his year’s services. May 30, 1842. “ C. TAYLOR.”
The first of these instruments is inartificially drawn, and somewhat vague in its terms; and where this is the case, it is always difficult to arrive at the true meaning of parties. In construing agreements, for the purpose of ascertaining their intention, we may look at concomitant matters and circumstances, if, by a view of the instrument, they may seem to have had a relation to, or connexion with the subject matter of the contract. Upon an inspection of the paper alluded to, I incline to the opinion, that it was an agreement for land that Baker might have become entitled to, under what is ordinarily termed the armed occupation bill; and I have come to this conclusion, not only owing to the intention fairly to be inferred, as I think, from the face of the instrument, but also that, at the time this agreement was entered into, the bill referred to was before Congress. Its passage was the subject of notoriety and discussion, a theme of general concern to the people of the (then) Territory, and one of peculiar interest to *257those who wished to avail themselves of the provisions of the bill, whenever it should become a law. I think, therefore, that this anticipated law was in contemplation of the parties to this instrument, as it does not seem to have direct reference to the pre-emption law. I think the phraseology of the instrument sustains me in the view I have taken, and that it was not a right of pre-emption that Baker intended selling tó Taylor. The words of the agreement are, “ all that certain lot or parcel of land, to me due by the United States Government, vnder an act giving and granting to actual settlers within the country claimed and possessed by the Indians.” Now, there was no such act in existence at the time of the contract; and, in the preemption law, it appears that settlements are to be made on those public lands to which.the'Indian title had been, at the time of such settlement, extinguished. It is true, the words of the agreement would seem to apply to an existing act, and Baker speaks of the land due him by the Government, under an act giving and granting to actual settlers, &c.; but, at the same time, he uses the words “do remise, release and quit claim,” and yet he clearly had no pre-emption or other right at'the time, but he conveys only that which he shall af-terwards acquire. I consider that all these words, though in presentí, are, as to their effect, prospective, and apply as strongly to the anticipated act of Congress, as to the terms of the contract.
Besides, Baker agrees “ to serve out the time required of settlers by-hw, which entitles him to either donation or pre-emption, as the case may be.” No time is required by the pre-emption law to enable settlers to make their entries, and I think that the words “ .donation or pre-emption, as the case may be,” convey the idea that there was something contingent or alternative, that there was an uncertainty as to the form or manner in which the bounty of the Government was to be bestowed. If the language of the agreement was intended to apply to the pre-emption act, would it not have been explicit and definite, and alluded to it in clear and precise terms ? The passages I have particularly adverted to, in conjunction with the whole tenor of the transaction^ impress me with the conviction, that the contract was made with a view to the passage of the armed occupation bill.
The views I have thus expressed, I confess I have taken with some difiidence, owing to the difficulty I have before alluded to, in ascer*258taining the true and real intentions of parties, where the instrument is vague and uncertain in its terms, and I feel this diffidence increased when my opinions are not in. unison with those of my brethren on the Bench. ,
If I am correct in the view I have taken of the subject, the contract between Baker and Taylor, even if legal at the time, became illegal by virtue of the “ act to provide for the armed occupation and settlement of the unsettled part of the peninsula of East Florida,” for by the fourth section of that act, it is declared, “ That all sales, gifts, devises, agreements, &c. to sell transfers or liens, whatsoever, pri. vate or judicial, of the lands or any portion thereof acquired by this act, made at any time before patents shall have issued for the same, shall be utterly void and without effect, to every intent and purpose, whether in law or equity.” Even if the contract had not been illegal at the time, as I have before remarked, and became so after-wards by act of law, still it cannot be enforced. 10 East. 530. 3 M. and S. 267.
If, on the other hand, I am wrong in the view I have taken of the contract, and it does relate to the pre-emption law, still, I think, the action should not have been sustained, if being void for want of a good and legal consideration. A portion of it being founded on an illegal consideration, and the contract being an entirety, the whole of it becomes illegal.
There was clearly not the least shadow of title to the land conveyed, or agreed to be conveyed to Taylor, and the bare and naked improvements made by Baker, were all which were pretended to be conveyed. There are authorities which certainly go the length to say, that the sale of improvements on public lands, is a good consideration for a promise; but I agree with the opposite decisions, thinking they are founded on the true notions of law and public policy.
In Merrill vs. Le Grand, 1 Howard Mis. R. 150, it was decided, that a promissory note given in consideration of the purchase of an improvement upon vacant government land, is for an illegal consideration, and cannot be recovered.
Persons settled upon the lands of the United States, without a right of pre-emption, are made trespassers, and an agreement to transfer their possession would be an agreement for the continuance of a trespass, and would be illegal and void.
*259So in Carr vs. Allison, 5 Blackford, 63, a bond was given in 1833, in payment of a certain sum, in consideration of an improvement previously made on United States’ land, and of the obligee’s promise not to enter the land on which the improvement was made. The preemption law of the United States, in force in February, 1833, did not authorize the transfer of a pre-emption right before a patent had issued for the land. It was held, that the improvement was not a valid consideration for the bond, and that the promise not to enter the land was void as against public policy. See also, 4 Yerger, 1, 3.
These sales, or transfers, are clearly against the policy of the statute, which seems to have had for its object the protection of bona fide settlers from the grasp or imposition of capitalists or speculators.— Among the requisites as prescribed by the pre-emption law of 1841, is that the party,«before claiming the benefit of the áct-by entering the land, shall swear that he has not entered upon and improved the land to sell the same on speculation, hut in good faith to appropriate it to his own exclusive use or benefit. Any attempt to contravene the policy of a public statute, should not meet with the aid of law to give it success, or enforce a contract which may be the result of such intended contravention;' The statute of 1841, declares, “that all assignments and transfers of the right hereby secured,” (that is,, after the' requisites of law have been complied with) prior to the issuing of the patent, shall be null and void.” If these transfers, even after the right is secured, are void, I should suppose also, that transfers and assignments without the right secured, would be equally so. All these pre-emption rights are mere bounties to settlers, to encourage the settlement of the public domain. They would seem to be privileges confined to the person, and incapable of assignment, so as to form a legal consideration for their sale or transfer.
The various States may certainly legislate as to the remediies in their own tribunals, and regulate the disposal of the property'of their own citizens; but Congress, by the Constitution, has the sole power of disposal of the public lands, and of making all needful rules and regulations thereto. See 13 Pet. U. S. R. 498.
I cannot perceive, therefore, how a State enactment can regulate the sale of portions of the public domain, or legislate in regard to rights growing out of it. And, in point of morals, I can see no differ*260ence whether the Government, or an individual, is owner of the land upon which improvements are made, and attempted to be sold.
I deem it my duty, upon this occasion, further to remark, that I cannot assent to the proposition so broadly laid down, that “ the Court would lose its appropriate office of an appellate tribunal by deciding, originally, questions never raised in the Court below, and which, if presented, would perhaps have been correctly decided there.” The case is before us upon the errors apparent upon the record; but I do not propose to discuss this question in reference to its bearing upon the case at bar, but to manifest my dissent to it as a general proposition, which, as it is laid down, may reach all future cases, and preclude this Court from looking into any error not presented in the Court below, although that error might shew that the cause of action had entirely failed. Such an error, if presented in the Court below, if is to be presumed would have been corrected there; but ifj because in the hurry of a trial at nisi prius, it has escaped the attention of both the Counsel and the Court, are we precluded from deciding it here 1 In the case of Powell vs. Waters, 8 Cowen, 701, Spencer, Senator, said, that, “ If the foundation of the action had manifestly failed, we cannot, without shocking all common sense of justice, allow a recovery to stand.” And it is worthy of our serious consideration, how far we can constitutionally disregard a manifest and palpable error on face of the record which is presented to us, whether that defect has been pointed out in the Court below, or insisted upon in this Court, or not. As was remarked by the Judge, who gave the opinion of the Court, in 14 John. R. 501 — 517: “ The object of Counsel is to aid the Court in its investigations, and it would be strange if the Court were bound to shut their eyes upon every point not suggested by them — it would make the rights of parties depend more upon the vigilance and ability of Counsel, than on the law of the land.” Judges must decide according to the law; and if it is not presented to them by Counsel, or their attention is not called to the true points of a case, still, if they themselves discover those points, or ascertain the law, they are bound by their obligations to pronounce it. In the case of Baird & Co. vs. Mattox, 1 Call, 257, the Court said: “ If the defendant is sued as heir, or devisee, and pleads that he has no assets by descent, on which plaintiff takes issue, and verdict be found for the defendant, a repleader will be awarded (by the Appellate Court, *261though not prayed in the Court below,) because the issue has only tried the right as to descent, and not as to the demise”; and, in Speaks vs. Shepherd, 6 Harr, and John. 84 — 86—87, it was held, that upon a writ of error, the Court are not only authorized, but bound to examine the whole record, and if there be error, it is their duty to reverse the judgment below, although the Court were right in the opin. ion they gave on the particular point upon which their opinion is prayed, and 7 Bacon Abr. 448, is cited to sustain this position.
There can be no doubt (said Mr. Justice Woodbury, in delivering the opinion of the Court in the case of Garland vs. Davis, 4 Howard S. C. R. 143,) that exceptions to the opinions given by Courts below, must be all taken at the time the opinions are pronounced. But it is equally clear, that when the whole record is before the Court above, any exception appearing upon it can be taken by Counsel, which could have been taken in the Court below, and the case of Roach vs. Hulings, 16 Peters, 319, is cited, which sustains the first proposition.
So, it is the duty of the Court to give judgment on the whole record, and not merely on the points started by Counsel. Slacum vs. Pomeroy, 6 Cranch, 221. 16 Peters, 319, Garland vs. Davis, 4 Howard S. C. R. 143. In the case of the United States vs. Burn-ham, 1 Mason C. C. Reports, 62, the Court alone took notice of the defect, which was the sole ground of its opinion; and Judge Story, who pronounced the opinion of the Court, said, “ The Court must pronounce upon the whole record”: and in the case of Patterson vs. The United States, 2 Wheat. 221, Justice Washington says: “ The Court considers it unnecessary to decide the questions argued at the bar,-as the verdict is so defective, that no judgment can be rendered upon it,” and upon that account the proceedings below were reversed. Harrison et al vs. Nixon, 9 Peters, 483 — 535, is also in point, and see Stephens on this doctrine.
in the case of Slacum vs. Pomeroy, 6 Cranch, 222, before cited, Chief Justice Marshall said : “It is not too late to allege as error in this Court, a fault in the declaration, which ought to have prevented the rendition of the judgment in the Court below.”'
I have thought proper to be thus prolix, lest I might, by my silence on the subject now, be precluded in a future case from noticing a vital error in the record, merely because it was not presented in the Court below, and which, from the views I entertain of my constitutional duty, I should not feel at liberty to disregard.