dissenting — The main, and perhaps only question involved in this case, is whether a pre-emption claim is an “ accotmt or claim, within the meaning of section 5421 of the Revised Statutes of the United States. If it is, the indictment is good, if not, the indictment is bad. It is claimed by the prosecution that “if an evil exists, and by a fail' interpretation, such evil is found to be within the spirit and intent of an act affording a remedy against it, courts are to apply such remedy in a spirit of liberality, and not by any narrow rule of construction defeat the object and purpose of the law; more especially should this be the guide, when the mischief is within the words of the act.” If this indictment is to be tested solely by this rule, or by the older and more explicit rule of the common law which says, “ the best and surest mode of expounding an instrument is by referring to the time when, and circumstances under which it was made,” let us examine the results. Sec. 5421 of the Revised Statutes was originally passed on March 3, 1823. While in certain cases persons were allowed to purchase land previously occupied by them, and this privilege was sometimes called the right or privilege of preemption, no general pre-emption law was passed for some years after 1823.
There had been some local pre-emption laws passed prior to that date, but I think none were in force at the date of the passage of Sec. 5421.
The lands have become more valuable within only a few years. If at the time of the passage of Sec. 5421, and for years thereafter, there were no pre-emption claims, either in law or in fact, can it be claimed that the rule of interpretation above cited, will apply to this case? Was this “within the mischief intended to be guarded against and within the words?”
Sections 2264, 2265, 2266, 2267, 2269, and 2270 of the Revised Statutes, cited to show the meaning of the word claim, were afterwards made assignable.
*98each passed years after the section under which this- case was brought, became a law.
So far as I am informed this is the first case (unless the case of the United States v. Reese, hereinafter cited is claimed to be one) ever brought into our courts, attempting to place this construction on this law; although this section has been enacted, and on the Statute books for nearly 60 years, and the pre-emption law has been in force, and frequently violated, for over 40 years.
"While all the dangers and perils so urgently set forth by the prosecution may exist and may imperil the interest of the public, unless this new construction is given to the law, I apprehend greater dangers from a forced construction placed upon the laws by the courts to meet new emergencies.
The only case cited by the prosecution which can possibly have any weight in support of this construction, is the case of the United States v. Wilcox, decided by District Judge Hall in the Northern District of N. Y., and reported in 4 Blatcliford, page 388.
And even that case in any opiaaioai, upoaa a careful examiaiation fails eaitirely as aai authority to support the theory of the prosecu-tioai. That was a claim for a bounty land warrant. The judge, to be sure, uses the word bounty land; but the claim was solely and only for a bounty land warrant; and in that case the defense urged that the claim conteanplated in the statutes was for anoney only, but Judge Hall held that it exteaided to and included the bounty laaad warraaat.
The universal rule is that the expressions of courts in decisions are to be coaastrued with reference to the question under immediate consideration. Lands were not under coaisideration, oaaly laaad warrants. As early as 1812, it was expressly provided by act of Congress, that in all cases where parties should be entitled to bounty laaads, warrants should be issued to theaia, and these were
*99The Crimes Act of the United States every where uses the word bounty land warrant. See Sec. 5420 of the Revised Statutes. The decision of Judge Hall is undoubtedly correct as to this species of government obligations. The bounty land warrants were issued by the government and went into the market; were bought and sold like bankable paper, assigned in blank, and had a known commercial value.
Not so with pre-emption claims; they were never bought nor sold, no more than claims for promotion in the civil and military service of the government.
I must respectfully but most firmly dissent, in the interpretation by our courts of our penal statutes whereby the life or liberty of the citizen is involved, from the doctrine that, “A claim to exercise the right of pre-emption, or a homestead right, is too valuable, especially in this territory, where frequently now its perfection at once raises a man from poverty to comfort and sometimes almost affluence, to permit the unmixed evil to ensue of throwing open wide the door for fraud and putting these valuable lands at the mercy of the unscrupulous and rapacious speculator, if the law by any reasonable construction has interposed a barrier.”
Chief Justice Bronson says “ Courts of justice should take care that they are not misled by the hardship of a particular case, or by the passion or préj udice which may be excited against a particular individual, to make a precedent which would run counter to well established principles. It should never be forgotten that a wrong-doer, however great the wrong may be, has not forfeited all his rights, and although the individual may be'entitled to no sympathy, care should be taken that the blow which destroys him does not inflict a wound upon Justice herself.” Lord Tenterdeu is reported to have said, “Hard cases make bad law.”
The court say in the United States v. Reese, reported in 5 Dillon, as follows:
*100“ It must be remembered that this is a penal statute, and it must therefore be construed strictly. In the office of the interpretation of statutes, courts, particularly in statutes that create crimes, must closely regard and ever cling to the language which the legislature has selected to express its purpose. And when the words are not technical, or words of art, the presumption is a reasonable and strong one that they were used by the legislature in their ordinary, popular, and general signification. Statutes enjoin obedience to their requirements, and, unless the contrary appears, it is to be taken that the legislature did not use the words in which its commands are expressed, in any unusual sense. Therefore, the law is settled in construing statutes; the language used is never to be lost sight of, and the presumption is that the language used is used in no’extraordinary sense, but in its common, every day meaning. The legitimate function of courts is to interpret the legislative will, not to supplement it or to supply it. 'I he judiciary must limit themselves to explaining the law; they cannot make it. It belongs only to the legislative department to create crimes and enjoin punishments. Accordingly, courts, in the construction of statutable offenses, have always regafded.it as their plain duty cautiously to keep clearly within the expressed will of the legislature, as otherwise [they may hold an act or an omission to be a crime, and punish it, when, in fact, the legislature had never so intended. ( United States v. Clayton, 2 Dillon, 219.) Statutes creating crimes will not be extended by judicial interpretion to cases not plainly and unmistakably within their terms. If there is a fair doubt whether the act charged in the indictment is embraced in the criminal prohibition, that doubt is to be resolved in favor of the accused.”
“ And again, if this rule is violated,” says Chief Justice Rest, “ the fate of the accused person is decided by the arbitrary dis-ci etion of the judges and not by the express authority of the laws.”
*101Chief Justice Marshall says, in delivering the opinion of the court in United States v. Wiltberger, reported in 5 Wheaton, page 96.
“ To determine that a case is within the intention of a statute, its language must authorize us 'to say so. It would be dangerous indeed, to carry the principle, that ar case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity or of kindred character, with those • which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considex-able irritation, which it would be unsafe to consider as precedents forming a general rule for other cases.”
There are certain maxims which have been adhered to by courts for ages in interpreting doubtful words and phrases, and one of great authority is “ The coupling of words shows their acceptance in the same sense.”
The coupling of the words of “ accounts or claims ” has a peculiar significance, and dispels any other theoiy than that they are in fact “ ejusdem generis.”
The words “ accounts or claims ” are quite frequently associated or coupled together in the laws and in the ppinións of the attorney generals, and in no other instance can it be assumed that the interpretation now claimed is even possible. ■ “ JSToseitur a soeiis.” “ The meaning of a word may be ascertained by reference to the meaning of words associated with it.” This rule has long been relied upon by the courts in determining the intent of the lawmakers in the use of words susceptible of different interpretations. The association of the word “ accounts or claims ” in this section was proper and logical. An account is a statement of charge in money and may have two sides to it, when a balance is finally struck in favor of one side or party in the account. “A claim sup*102poses an unacknowledged right.” See Smith’s Synonyms. Consequently the propriety will appear of the association of these words to meet both kinds of demands against the government.
For the reasons above given, I do not think the opinion of Judge Hall, in the case of the United States v. Wilcox, throws any light on this question, except, perhaps, to show that the furthest limit any court has heretofore gone, is to include, land warrants within the meaning 'of the word claims, for the reason, I think, that these land warrants (if not technically) are treated in the markets of the country as obligations of the government. The only reported case which throws any light upon this question, so far as I am informed, is the case of the United States v. Reese, reported in 4 Sawyer, U. S. Circuit Courts Reports, page 629. That case was tried before Mr. Justice Field, and he says in that case upon rendering the decision of the circuit court, after quoting Sec. 5421, being the section under which this indictment is brought: “The first par' agraph covers the altering or forging of such instruments; the second paragraph, the uttering or publishing them as true; and the third their transmission or presentation to any office or officer of the government.
“Neither of them applies to an instrument forged for the purpose of obtaining a cession'of land from the United States, or the confirmation of a claim to land alleged to have been granted by the Mexican government. There was no act of Congress which reached a case of this nature until the eighteenth of May, 1858, when an act was passed covering all cases of the altering or forging of documents or title papers, or uttering or publishing them as true, for the purpose.of establishing against the United States any claims to land in California. That act was passed,, it is believed, in consequence of the defects in existing legislation, suggested by this case of Limantour.”
This case was reviewed in the Supreme Court of the United States, and reported in 9 Wallace, page 13. Mr. Justice Field, in *103rendering the decision of the Supreme Court says: “ As a defense to this action, the defendant relied in the circuit court upon several grounds, the principal of which were these:
First. That the acts charged in the two indictments did not at the time of their alleged commission constitute any offense under the laws of the United States; and, asa consequence, that the indictments and all proceedings thereunder, including the requiring of bail for the appearance of the party indicted, were void.
Second. That if the indictments and proceedings thereunder were not void, the stipulation of August, 1857, fora postponement of the trials, released the sureties from liability on their recognizance; and,
Third. That the recognizance was void in embracing the amount required as bail upon both indictments.
The third ground here stated is not pressed in this court. The other two grounds are substantially the same which are urged here, differing only in their form of statement. Upon the first of these we express no opinion. Upon the second we are of opinion that the circuit court erred.”
Thus it will be seen that while Mr. Justice Field had decided in the circuit court that the word claims in Sec. 5421, would not bear the interpretation now claimed in this case, the Supreme Court declined to review that portion of the opinion, and reversed the case upon another and different question.
Consequently the opinion of that eminent Judge as declared at the circuit, remains, so far as the question now under consideration is concerned, unreversed and authoritative.
But to follow the history of this case still further, while this question was before the United States courts in California, Congress was appealed to, and on May 18, 1858, passed a law expressly providing for the punishment of the false making, forging, or uttering any evidence of right, title, or olcoim to ■ lands etc. See *104Sec. 2471 of the Revised Statutes. This section follows the general form of Sec. 5421, but embraces specifically claims to land, and is confined for some reason, by its terms to frauds committed in reference to lands in California. If the construction claimed by the prosecution in this case be correct, what was the necessity in 1858, for further legislation. Undoubtedly this law of 1353, as all proposed changes in the penal laws are, was fully considered by the judiciary committees of both houses, comprising some of the ablest lawyers in Congress. The law was then passed. This, to say the least, was a legislative construction of this very question now before us.
One of the ablest judges of the Supreme Court of the United States has decided this question, and his decision stands unreversed.
Congress has given to it its interpretation; the different departments of the government have accepted the doctrine for sixty years, and now we are called upon to reverse this uninterrupted series of authorities.
In my mind neither reason nor authority justifies the reversal.
The j udgment of the District Court should be
Affirmed.