This was a cause of great expectation, involving several
important questions of constitutional law, in relation to the
territorial controversy between the States of Pennsylvania and
Connecticut. After a trial, which continued for 15 days, the
presiding Judge delivered the following charge to the Jury,
comprising a full review of all the important facts and principles,
that had occurred during the discussion.
Patterson, Justice.
Having arrived at the last stage of this long and interesting
cause, it now becomes the duty of the Court to sum up the evidence,
and to declare the law arising upon it. A mass of testimony has
been brought forward in the course of the trial, the far greater
part of which is altogether immaterial, and can be of no use in
forming a decision. The great points, on which the cause turns, are
of a legal nature; they are questions of law; and, therefore, for
the sake of the parties, as well as for my own sake, they ought to
be put in a train for ultimate adjudication by the Supreme Court.
In the administration of justice it is a consolatory idea, that no
opinion of a single judge can be final and decisive; but that the
same may be removed before the highest tribunal for revision,
where, if erroneous, it will be rectified. For the sake of
clearness, I shall consider,
1st. The title of the plaintiff. 2nd. The title of the
defendant. I. The Title of the Plaintiff. In deducing the title,
the plaintiff exhibited: 1. The charter or grant from Ch. 2. to
William Penn. The lands in question lie within the limits of this
charter. 2. *A Deed from the Six Nations to Thomas and Richard
Penn. To this deed a map is annexed and made part of it, by which
the land conveyed is accurately delineated, or laid down. This mode
of procedure is eminently just and laudable; it furnishes a
precedent, which, as far as possible, ought to be observed in
* Nov. 5th 1768.
Page 2 U.S.
304, 305
every transfer of land made by the Indians, as it obviously
tends to quiet the spirit of jealousy, to remove suspicion, and
prevent imposition and fraud. 3. *A warrant to survey for the
proprietors, certain tracts of land containing twenty thousand
acres. 4. *Survey of the above lands. The land in controversy lies
within the Indian deed to the Penns, and is covered by this survey.
5. *Lease from Thomas & Richard Penn to Thomas Van Horne, for
the term of seven years, of lot No. 38, containing one hundred
acres. 6. Instructions to lay out and sell the land. 7. *Allotment
to Thomas Van Horne of lot No. 20, containing 190 acres and 90
perches. 8. *Warrant from Richard Penn, lieutenant governor, to
make a separate return of lot No. 20, to Thomas Van Horne. A
separate return was made accordingly, and marked on the general
survey of March 1771. 9. *Patent from Thomas and John Penn to
Thomas Van Horne for lot No. 20. The consideration money was paid
agreeably to contract. 10. *Deed from Thomas Van Horne to Cornelius
Van Horne, lessor of the plaintiff, for lot No. 20. It is in
evidence, that this lot was built upon, fenced, tilled, and
improved by Van Horne. It is also in evidence, that John Dorance,
the defendant, is in possession of, and resides upon, the said lot.
Such is the title upon which the plaintiff rests his cause. It is
clearly deduced and legally correct; and, therefore, unless
sufficient appears on the part of the defendant, will entitle the
plaintiff to your verdict. To repel the plaintiff's right, and to
establish his own, the defendant sets up a title.
1st. Under Connecticut. 2nd. Under the Indians. 3rd. Under
Pennsylvania.
I. Under Connecticut.
The title under Connecticut is of no avail: Because the land in
controversy is ex-territorial; it does not lie within the charter
bounds of Connecticut, but within the charter-bounds of
Pennsylvania. The charter of Connecticut does not cover or spread
over the lands in question: Of course no title can be derived from
Connecticut. Here then the defendant fails. [305-Continued]
II. Under the Indians.
The Indian deed, under which the defendant claims, bears date
the 11th of July 1754. It has been observed, that this
* 29th Octob. 1768.
* 8th & 9th Dec. 1768.
* 1st March. 1769.
* Feb. & March 1771.
* 15th Jan. 1772.
* 17th Jan. 1772.
* 15th Nov. 1774.
Page 2 U.S.
304, 306
deed is radically defective and faulty; that fraud is apparent
on the face of it; and, particularly, that the specification or
description of the land is written on a razure. Of this, gentlemen,
you will judge, as the deed will be given to you for inspection.
Permit me to observe, that there are several ways, by which a deed
may be voided or rendered of no effect. One of these is by razure,
addition, interlining, or other alteration, in any material part,
if done after its execution. It is the province of the jury to
determine, whether any such alteration was made after the delivery
of the deed. Besides, this deed appears to have been executed at
different times; and not in that open, public, national manner, in
which the Indians sell and transfer their lands. But if the deed
was fairly obtained; if it has legal existence, then what is its
legal operation? By the charter to William Penn, the right of
pre-emption attached, and was vested in him, to all the lands
comprehended within its limits. The Penn family had, exclusively,
the right of purchasing the lands of the Indians; and, indeed, the
Indians entered into a stipulation of that kind. Again, this deed
is invalid by the laws of Pennsylvania. The Legislature of
Pennsylvania, by an act passed the 7th Feb. 1705, declare; 'That if
any person presume to buy any land of the natives, within the
limits of this province and territories, without leave from the
proprietary thereof, every such bargain or purchase shall be void
and of no effect.' (1 Penn. Laws. Dall. Ed. 5.) By an act passed
the 14th Feb. 1729 30, it is further declared; 'That every gift,
grant, bargain, sale, written or verbal contract or agreement, and
every pretended conveyance, lease, demise, and every other
assurance made, or that shall hereafter be made, with any of the
Indian natives, for any lands, &c. within the limits of this
province, without the order or direction of the proprietary or his
commissioners, shall be null, void, and of no effect.' (1 Penn.
Laws. Dall. Ed. 248.) The land in controversy, being within the
limits of Pennsylvania, the Connecticut settlers were, in legal
estimation, trespassers and intruders. They purchased the land
without leave, and entered upon it without right. They purchased
and entered upon the land without the consent of the Legislature of
Connecticut. True it is, that the Legislature of Connecticut gave a
subsequent approbation, but this was posterior to the deed executed
by the Six Nations to Penn, at fort Stanwix, and the principle of
relation does not retrospect so as to affect third persons. The
consequence is, that the Connecticut settlers derive no title under
the Indian deed.
Page 2 U.S.
304, 307
III. The title which the defendant sets up under Pennsylvania.
This is the keystone of the defendant's title, as one of his
counsel very properly expressed it. It required no great fagacity
to perceive, that the defendant's hope of success was founded on a
law of Pennsylvania, commonly called 'the quieting and confirming
act.' This act, and the two subsequent ones of a suspending and a
repealing nature, open an extensive and important field for
discussion. In general verdicts, it frequently becomes necessary
for juries to decide upon the law as well as the facts. To form a
correct judgment, legal principles must be taken up and applied,
and when this is done in a proper manner, it gives stability to
judicial decisions, and security to civil rights. Hence uniformity
and certainty; hence the decisions of tomorrow will be like the
decisions of to-day; they will run in the same line, because they
are founded on the same principles. To aid you, Gentlemen, in
forming a verdict, I shall consider: I. The constitutionality of
the confirming act; or, in other words, whether the Legislature had
authority to make that act? Legislature is the exercise of
sovereign authority. High and important powers are necessarily
vested in the Legislative body; whose acts, under some forms of
government, are irresistible and subject to no controul. In
England, from whence most of our legal principles and legislative
notions are derived, the authority of the Parliament is
transcendant and has no bounds.
'The power and jurisdiction of
Parliament, says Sir Edward Coke, is so transcendant and absolute,
that it cannot be confined, either for causes or persons, within
any bounds. And of this high court, he adds, it may be truly said,
Si antiquitatem spectes, est vetustissima; si dignitatem, est
honoratissima; si jurisdictionem, est capacissima. It has sovereign
and uncontroulable authority in the making, confirming, enlarging,
restraining, abrogating, repealing, reviving, and expounding of
laws, concerning matters of all possible denominations,
ecclesiastical or temporal, civil, military, maritime, or criminal:
[307-Continued]
This being the place where that absolute despotic power, which
must in all governments reside somewhere, is entrusted by the
constitution of these kingdoms. All mischiefs and grievances,
operations and remedies, that transcend the ordinary course of the
laws, are within the reach of this extraordinary tribunal. It can
regulate or new model the succession to the crown; as was done in
the reign of Henry VIII. and William III. It can alter the
established religion of the land; as was done in a variety of
instances, in the reigns of king Henry VIII. and his three
children. It can change and create afresh even the constitution of
the kingdom and of Parliaments themselves; as was done by the act
of union, and the several statutes for triennial and septennial
elections. It can, in
Page 2 U.S.
304, 308
short, do every thing that is not naturally impossible; and
therefore some have not scrupled to call its power, by a figure
rather too bold, the omnipotence of Parliament. True it is, that
what the Parliament doth, no authority upon earth can undo.' (1 Bl.
Com. 160.) From this passage it is evident, that, in England, the
authority of the Parliament runs without limits, and rises above
controul. It is difficult to say what the constitution of England
is; because, not being reduced to written certainty and precision,
it lies entirely at the mercy of the Parliament: It bends to every
governmental exigency; it varies and is blown about by every breeze
of legislative humour or political caprice. Some of the judges in
England have had the boldness to assert, that an act of Parliament,
made against natural equity, is void; but this opinion contravenes
the general position, that the validity of an act of Parliament
cannot be drawn into question by the judicial department: It cannot
be disputed, and must be obeyed. The power of Parliament is
absolute and transcendant; it is omnipotent in the scale of
political existence. Besides, in England there is no written
constitution, no fundamental law, nothing visible, nothing real,
nothing certain, by which a statute can be tested. In America the
case is widely different: Every State in the Union has its
constitution reduced to written exactitude and precision. What is a
Constitution? It is the form of government, delineated by the
mighty hand of the people, in which certain first principles of
fundamental laws are established. The Constitution is certain and
fixed; it contains the permanent will of the people, and is the
supreme law of the land; it is paramount to the power of the
Legislature, and can be revoked or altered only by the authority
that made it. The life-giving principle and the death-doing stroke
must proceed from the same hand. What are Legislatures? Creatures
of the Constitution; they owe their existence to the Constitution:
they derive their powers from the Constitution: It is their
commission; and, therefore, all their acts must be conformable to
it, or else they will be void. The Constitution is the work or will
of the People themselves, in their original, sovereign, and
unlimited capacity. Law is the work or will of the Legislature in
their derivative and subordinate capacity. The one is the work of
the Creator, and the other of the Creature. The Constitution fixes
limits to the exercise of legislative authority, and prescribes the
orbit within which it must move. In short, gentlemen, the
Constitution is the sun of the political system, around which all
Legislative, Executive and Judicial bodies must revolve. Whatever
may be the case in other countries, yet in this there can be no
doubt, that every act of the Legislature, repugnant to the
Constitution, as absolutely void.
Page 2 U.S.
304, 309
In the second article of the Declaration of Rights, which was
made part of the late Constitution of Pennsylvania, it is declared:
'That all men have a natural and unalienable right to worship
Almighty God, according to the dictates of their own consciences
and understanding; and that no man ought or of right can be
compelled, to attend any religious worship, or erect or support any
place of worship, or maintain any ministry, contrary to, or
against, his own free will and consent; nor can any man, who
acknowledges the being of a God, be justly deprived or abridged of
any civil right as a citizen, on account of his religious
sentiments, or peculiar mode of religious worship; and that no
authority can, or ought to be, vested in, or assumed, by any power
whatever, that shall, in any case, interfere with, or in any manner
controul, the right of conscience in the free exercise of religious
worship.' (Dec. of Rights, Art. 2.) In the thirty-second section of
the same Constitution, it is ordained; 'that all elections, whether
by the people or in general assembly, shall be by ballot, free and
voluntary.' (Const. Penn. sect. 32.) Could the Legislature have
annulled these articles, respecting religion, the rights of
conscience, and elections by ballot? Surely no. As to these points
there was no devolution of power; the authority was purposely
withheld, and reserved by the people to themselves. If the
Legislature had passed an act declaring, that, in future, there
should be no trial by Jury, would it have been obligatory? No: It
would have been void for want of jurisdiction, or constitutional
extent of power. The right of trial by Jury is a fundamental law,
made sacred by the Constitution, and cannot be legislated away. The
Constitution of a State is stable and permanent, not to be worked
upon by the temper of the times, nor to rise and fall with the tide
of events: notwithstanding the competition of opposing interests,
and the violence of contending parties, it remains firm and
immoveable, as a mountain amidst the strife of storms, or a rock in
the ocean amidst the raging of the waves. I take it to be a clear
position; that if a legislative act oppugns a constitutional
principle, the former must give way, and be rejected on the score
of repugnance. I hold it to be a position equally clear and found,
that, in such case, it will be the duty of the Court to adhere to
the Constitution, and to declare the act null and void. The
Constitution is the basis of legislative authority; it lies at the
foundation of all law, and is a rule and commission by which both
Legislators and Judges are to proceed. It is an important
principle, which, in the discussion of questions of the present
kind, ought never to be lost sight of, that the Judiciary in this
country is not a subordinate, but co-ordinate, branch of the
government.
Page 2 U.S.
304, 310
Having made these preliminary observations, we shall proceed to
contemplate the quieting and confirming act, and to bring its
validity to the test of the Constitution. In the course of
argument, the counsel on both sides relied upon certain parts of
the late Bill of Rights and Constitution of Pennsylvania, which I
shall now read, and then refer to them occasionally in the sequel
of the charge. (The Judge then read the 1st. 8th. and 11th articles
of the Declaration of Rights; and the 9th. and 46th sections of the
Constitution of Pennsylvania. See 1 Vol. Dall. Edit. Penn. Laws p.
55. 6. 60. in the Appendix.) From these passages it is evident;
that the right of acquiring and possessing property, and having it
protected, is one of the natural, inherent, and unalienable rights
of man. Men have a sense of property: Property is necessary to
their subsistence, and correspondent to their natural wants and
desires; its security was one of the objects, that induced them to
unite in society. No man would become a member of a community, in
which he could not enjoy the fruits of his honest labour and
industry. The preservation of property then is a primary object of
the social compact, and, by the late Constitution of Pennsylvania,
was made a fundamental law. Every person ought to contribute his
proportion for public purposes and public exigencies; but no one
can be called upon to surrender or sacrifice his whole property,
real and personal, for the good of the community, without receiving
a recompence in value. This would be laying a burden upon an
individual, which ought to be sustained by the society at large.
The English history does not furnish an instance of the kind; the
Parliament, with all their boasted omnipotence, never committed
such an outrage on private property; and if they had, it would have
served only to display the dangerous nature of unlimited authority;
it would have been an exercise of power and not of right. Such an
act would be a monster in legislation, and shock all mankind. The
legislature, therefore, had no authority to make an act devesting
one citizen of his freehold, and vesting it in another, without a
just compensation. It is inconsistent with the principles of
reason, justice, and moral rectitude; it is incompatible with the
comfort, peace, and happiness of mankind; it is contrary to the
principles of social alliance in every free government; and lastly,
it is contrary both to the letter and spirit of the Constitution.
In short, it is what every one would think unreasonable and unjust
in his own case. The next step in the line of progression is,
whether the Legislature had authority to make an act, divesting one
citizen of his freehold and vesting it in another, even with
compensation. That the Legislature, on certain emergencies, had
authority to exercise this high power, has been urged from the
Page 2 U.S.
304, 311
nature of the social compact, and from the words of the
Constitution, which says, that the House of Representatives shall
have all other powers necessary for the Legislature of a free state
or commonwealth; but they shall have no power to add to, alter,
abolish, or infringe any part of this Constitution. The course of
reasoning, on the part of the defendant, may be comprized in a few
words. The despotic power, as it is aptly called by some writers,
of taking private property, when state necessity requires, exists
in every government; the existence of such power is necessary;
government could not subsist without it; and if this be the case,
it cannot be lodged any where with so much safety as with the
Legislature. The presumption is, that they will not call it into
exercise except in urgent cases, or cases of the first necessity.
There is force in this reasoning. It is, however, difficult to form
a case, in which the necessity of a state can be of such a nature,
as to authorise or excuse the seizing of landed property belonging
to one citizen, and giving it to another citizen. It is immaterial
to the state, in which of its citizens the land is vested; but it
is of primary importance, that, when vested, it should be secured,
and the proprietor protected in the enjoyment of it. The
constitution encircles, and renders it an holy thing. We must,
gentlemen, bear constantly in mind, that the present is a case of
landed property; vested by law in one set of citizens, attempted to
be divested, for the purpose of vesting the same property in
another set of citizens. It cannot be assimilated to the case of
personal property taken or used in time of war or famine, or other
extreme necessity; it cannot be assimilated to the temporary
possession of land itself, on a pressing public emergency, or the
spur of the occasion. In the latter case there is no change of
property, no divestment of right; the title remains, and the
proprietor, though out of possession for a while, is still
proprietor and lord of the soil. The possession grew out of the
occasion and ceases with it: Then the right of necessity is
satisfied and at an end; it does not affect the title, is temporary
in its nature, and cannot exist forever. The constitution expressly
declares, that the right of acquiring, possessing, and protecting
property is natural, inherent, and unalienable. It is a right not
ex gratia from the legislature, but ex debito from the
constitution. [311-Continued]
It is sacred; for, it is further declared, that the legislature
shall have no power to add to, alter, abolish, or infringe any part
of, the constitution. The constitution is the origin and measure of
legislative authority. It says to legislators, thus far ye shall go
and no further. Not a particle of it should be shaken; not a pebble
of it should be removed. Innovation is dangerous. One incroachment
leads to another; precedent gives birth to precedent; what has been
done may be done again; thus radical principles are generally
broken in upon, and the constitution
Page 2 U.S.
304, 312
eventually destroyed. Where is the security, where the
inviolability of property, if the legislature, by a private act,
affecting particular persons only, can take land from one citizen,
who acquired it legally, and vest it in another? The rights of
private property are regulated, protected, and governed by general,
known, and established laws; and decided upon, by general, known,
and established tribunals; laws and tribunals not made and created
on an instant exigency, on an urgent emergency, to serve a present
turn, or the interest of a moment. Their operation and influence
are equal and universal; they press alike on all. Hence security
and safety, tranquillity and peace. One man is not afraid of
another, and no man afraid of the legislature. It is infinitely
wiser and safer to risk some possible mischiefs, than to vest in
the legislature so unnecessary, dangerous, and enormous a power as
that which has been exercised on the present occasion; a power,
that, according to the full extent of the argument, is boundless
and omnipotent: For, the legislature judged of the necessity of the
case, and also of the nature and value of the equivalent. Such a
case of necessity, and judging too of the compensation, can never
occur in any nation. Singular, indeed, and untoward must be the
state of things, that would induce the Legislature, supposing they
had the power, to divest one individual of his landed estate merely
for the purpose of vesting it in another, even upon full
indemnification; unless that indemnification be ascertained in the
manner which I shall mention hereafter. But admitting, that the
Legislature can take the real estate of A. and give it to B. on
making compensation, the principle and reasoning upon it go no
further than to shew, that the Legislature are the sole and
exclusive judges of the necessity of the case, in which this
despotic power should be called into action. It cannot, on the
principles of the social alliance, or of the Constitution, be
extended beyond the point of judging upon every existing case of
necessity. The Legislature declare and enact, that such are the
public exigencies, or necessities of the State, as to authorise
them to take the land of A. and give it to B.; the dictates of
reason and the eternal principles of justice, as well as the sacred
principles of the social contract, and the Constitution, direct,
and they accordingly declare and ordain, that A. shall receive
compensation for the land. But here the Legislature must stop; they
have run the full length of their authority, and can go no further:
they cannot constitutionally determine upon the amount of the
compensation, or value of the land. Public exigencies do not
require, necessity does not demand, that the Legislature should, of
themselves, without the participation of the proprietor, or
intervention of a jury, assess
Page 2 U.S.
304, 313
the value of the thing, or ascertain the amount of the
compensation to be paid for it. This can constitutionally be
effected only in three ways. 1. By the parties that is, by
stipulation between the Legislature and proprietor of the land. 2.
By commissioners mutually elected by the parties. 3. By the
intervention of a Jury. The compensatory part of the act lies in
the ninth section. 'And whereas the late proprietaries, and divers
other persons have heretofore acquired titles to parcels of the
land aforesaid, agreeably to the laws and usages of Pennsylvania,
and who will be deprived thereof by the operation of this act, and
as justice requires, that compensation be made for the lands, of
which they shall be thus divested; and as the State is possessed of
other lands, in which an equivalent may be rendered to the
claimants under Pennsylvania, and as it will be necessary, that
their claims should be ascertained by a proper examination: Be it
therefore enacted, by the authority aforesaid, That all persons
having such claims to lands, which will be affected by the
operation of this act, shall be, and they are hereby required, by
themselves, guardians, or other lawful agents, within twelve months
from the passing of this act, to present the same to the Board of
Property, therein clearly describing those lands, and stating the
grounds of their claims, and also adducing the proper proofs, not
only of their titles, but of the situations, qualities, and values
of the lands so claimed, to enable the Board to judge of the
validity of their claims, and of the quantities of vacant lands
proper to be granted as equivalents. And for every claim, which
shall be admitted by said Board, as duly supported, the equivalent,
by them allowed, may be taken either in the old or new purchase, at
the option of the claimant; and warrants, and patents, and all
other acts of the public offices relating thereto, shall be
performed free of expence. The said Board shall also allow such a
quanity of vacant land, to be added to such equivalent, as shall,
in their judgment, be equal to the expences, which must necessarily
be incurred in locating and surveying the same. And that the Board
of Property may, in every case obtain satisfactory evidence of the
quality and value of the land, which shall be claimed as aforesaid,
under the proprietary title, they may require the commissioners
aforesaid, during their sitting in the County of Luzerne, to make
the necessary enquiries by the oaths or affirmations of lawful
witnesses, to ascertain those points; and it shall be the duty of
the said commissioners to enquire and report accordingly.' ( Act of
Penn. 28th March 1789. sect. 9.) In this section two things are
worthy of consideration.
Page 2 U.S.
304, 314
1. The mode or manner, in which compensation for the lands is to
be ascertained.
2. The nature of the compensation itself.
The Pennsylvania claimants are directed to present their claims
to the Board of Property and what is the Board to do thereupon?
Why, it is,
1. To judge of the validity of their claims.
2. To ascertain, by the aid and through the medium of
commissioners, appointed by the Legislature, the quality and value
of the land.
3. To judge of the quantity of vacant land to be granted
as an equivalent.
This is not the constitutional line of procedure. I have already
observed, that there are but three modes, in which matters of this
kind can be conducted consistently with the principles and spirit
of the Constitution, and social alliance. The first of which is by
the parties, that is to say, by the Legislature and proprietor of
the land. Of this the British history presents an illustrious
example in the case of the Isle of Man. 'The distinct jurisdiction
of this little subordinate royalty being found inconvenient for the
purposes of public justice, and for the revenue ( it affording a
commodious asylum for debtors, outlaws, and smugglers) authority
was given to the treasury, by statute 12. Geo. I. c. 28, to
purchase the interest of the then proprietors for the use of the
Crown; which purchase was at length compleated in the year 1765,
and confirmed by statutes 5 Geo. Iii. c. 26 and 38, whereby the
whole island and all its dependencies, so granted as aforesaid
(except the landed property of the Atholl family, their manerial
rights and emoluments, and the patronage of bishopricks, and other
ecclesiastical benefices) and unalienably vested in the Crown, and
subjected to the regulations of the British excise and customs.' 1
Bl. Com. 107. [314-Continued]
Shame to American legislation! That in England, a limited
monarchy, where there is no written constitution, where the
Parliament is omnipotent, and can mould the Constitution at
pleasure, a more sacred regard should have been paid to property,
than in America, surrounded as we are with a blaze of political
illumination; where the Legislatures are limited; where we have
republican governments, and written Constitutions, by which the
protection and enjoyment of property are rendered inviolable. The
case of the Isle of Man was a fair and honorable stipulation; it
partook of the spirit and essence of a contract; it was free and
mutual; and was treating with the proprietors on equal terms. But
if the business cannot be effected in this way, then the value of
the land, intended to be taken, should be ascertained by
commissioners, or persons mutually elected by the parties,
Page 2 U.S.
304, 315
or by the intervention of the Judiciary, of which a Jury is a
component part. In the first case, we approximate nearly to a
contract; because the will of the party, whose property is to be
affected, is in some degree exercised; he has a choice; his own act
co-operates with that of the Legislature. In the other case, there
is the intervention of a court of law, or, in other words, a jury
is to pass between the public and the individual, who, after
hearing the proofs and allegations of the parties, will, by their
verdict, fix the value of the property, or the sum to be paid for
it. The compensation, if not agreed upon by the parties on their
agents, must be ascertained by a jury. The interposition of a jury
is, in such case, a constitutional guard upon property, and a
necessary check to legislative authority. It is a barrier between
the individual and the legislature, and ought never to be removed;
as long as it is preserved, the rights of private property will be
in no danger of violation, except in cases of absolute necessity,
or great public utility. By the confirming act, the value of the
land taken, and the value of the land to be paid in recompense, are
to be ascertained by the Board of Property. And who are the persons
that constitute this board? Men appointed by one of the parties, by
the Legislature only. The person, whose property is to be divested
and valued, had no volition, no choice, no co-operation in the
appointment; and besides, the other constitutional guard upon
property, that of a jury, is removed and done away. The Board of
Property thus constituted, are authorised to decide upon the value
of the land to be taken, and upon the value of the land to be given
by way of equivalent, without the participation of the party, or
the intervention of a jury. 2. The nature of the compensation. By
the act the equivalent is to be in land. No just compensation can
be made except in money. Money is a common standard, by comparison
with which the value of any thing may be ascertained. It is not
only a sign which represents the respective values of commodities,
but is an universal medium, easily portable, liable to little
variation, and readily exchanged for any kind of property.
Compensation is a recompence in value, a quid pro quo, and must be
in money. True it is, that land or any thing else may be a
compensation, but then it must be at the election of the party; it
cannot be forced upon him. His consent will legalise the act, and
make it valid; nothing short of it will have the effect. It is
obvious, that if a jury pass upon the subject, or value of the
property, their verdict must be in money. To close this part of the
discourse: It is contended that the Legislature must judge of the
necessity of interposing their despotic authority; it is a right of
necessity upon which no other
Page 2 U.S.
304, 316
power in government can decide: That no civil institution is
perfect; and that cases will occur, in which private property must
yield to urgent calls of public utility or general danger. Be it
so. But then it must be upon complete indemnification to the
individual. Agreed: But who shall judge of this? Did there also
exist a state necessity, that the Legislature, or persons solely
appointed by them, must admeasure the compensation, or value of the
lands seized and taken, and the validity of the title thereto? Did
a third state necessity exist, that the proprietor must take land
by way of equivalent for his land? And did a fourth state necessity
exist, that the value of this land-equivalent must be adjusted by
the board of property, without the consent of the party, or the
interference of a Jury? Alas! how necessity begets necessity. They
rise upon each other and become endless. The proprietor stands afar
off, a solitary and unprotected member of the community, and is
stript of his property, without his consent, without a hearing,
without notice, the value of that property judged upon without his
participation, or the intervention of a Jury, and the equivalent
therefor in lands ascertained in the same way. If this be the
Legislation of a Republican Government, in which the preservation
of property is made sacred by the Constitution, I ask, wherein it
differs from the mandate of an Asiatic Prince? Omnipotence in
Legislation is despotism. According to this doctrine, we have
nothing that we can call our own, or are sure of for a moment; we
are all tenants at will, and hold our landed property at the mere
pleasure of the Legislature. Wretched situation, precarious tenure!
And yet we boast of property and its security, of Laws, of Courts,
of Constitutions, and call ourselves free! In short, gentlemen, the
confirming act is void; it never had Constitutional existence; it
is a dead letter, and of no more virtue or avail, than if it never
had been made. II. But, admitting the confirming act to be
Constitutional and valid, the next subject of enquiry is, what is
its operation, or, in other words, what construction ought to be
put upon it. It is contended, on the part of the defendant, that on
the passing of the act, the estate was divested from the
Pennsylvania claimants and instantly vested in the Connecticut
settlers. To decide upon this question, it will not be amiss to lay
down a rule or two of exposition, applicable to the act under
consideration. A statute shall never have an equitable construction
in order to overthrow or divest an estate. Every statute,
derogatory to the rights of property, or that takes away the estate
of a citizen, ought to be construed strictly.
Page 2 U.S.
304, 317
Let us test this act by the foregoing rules. The act is
entitled, 'An act, for ascertaining and confirming to certain
persons, called Connecticut claimants, the lands by them claimed
within the county of Luzerne, and for other purposes therein
mentioned,' and was passed the 28th of March, 1787. The first five
sections, being material in the discussion of this part of the
subject, run in the following words. (Here the Judge read the Law.)
The act requires, That the Connecticut settlers shall prefer their
claims to the commissioners. That they shall support their claims
by reasonable proof. That the commissioners shall adjudicate upon
or confirm the claims. That they shall have the lots, to which
claims are set up and admitted, surveyed; that they shall make
return of their surveys and their book of entries to the Supreme
Executive Council, who shall cause patents to be issued for their
confirmation, and each patent shall comprehend all the parcels of
land, which are to be confirmed to the same claimant, to whom, by
the return of the commissioners, the same shall be found to belong.
The mere offering or presenting of the claim is not sufficient. It
must be supported by reasonable proof, and ascertained, and
established by the Commissioners. These acts must be performed
before the estate passes out of the Pennsylvania claimants, and is
vested in the Connecticut settlers. They are antecedent acts, and
in nature of a condition precedent. Now conditions precedent are
such as must happen or be performed before the estate can vest or
be enlarged; they admit of no latitude; they must be strictly,
literally, and punctually performed. It is a known maxim, that
where the estate is to arise upon a condition precedent, it cannot
vest till that condition is performed; and this has been so
strongly adhered to, that even where the condition has become
impossible, no estate or interest grew thereupon. Where a condition
copulative precedes an estate, the whole must be performed before
the estate can arise; or where an act is previous to any estate,
and that act consists of several particulars, every particular must
be performed before the estate can vest or take effect. Co. Lit.
206, 218. 1 Atk. 374. 376. Com. Rep. 732. [317-Continued]
The estate of the Pennsylvania claimants was not divested on the
passing of the act; it was not divested on presenting the claim on
the part of the Connecticut settlers. Other acts were previously
necessary, and, in particular, the commissioners must pass upon and
confirm the claim, before the estate is divested from the one party
and vested in the other. These things precede,
Page 2 U.S.
304, 318
and must be done before any estate can vest in the defendant;
but they have not been done, and therefore the estate remains in
the plaintiff. This construction corresponds with the meaning and
spirit, the tendency and scope, of the act itself. The intention of
the Legislature was to vest in Connecticut claimants of a
particular description a perfect estate to certain lands in the
County of Luzerne; but then it was upon condition; it was to
operate upon, secure, and sanctify, such claims only as should be
admitted and ascertained, approved and established, by the
Commissioners. This is further evident from the powers and
functions of the commissioners, who were to enquire, examine, hear
proofs, &c. respecting the claims; and for what purpose? Why,
that they might admit and approve of such as were supported by
satisfactory evidence, and make return thereof to the Executive
Council, who should thereupon cause patents to be issued for their
confirmation. Until the commissioners had decided in favor of a
claim, it remained in statu quo; the act did not cover and protect
it. Further, if the act will admit of two constructions, that one
certainly ought to be adopted, which is in favor of the legal
owner, and which will not divest his estate, till the terms
specified in the act shall have been fully complied with. When the
Legislature undertake to give away what is not their own, when they
attempt to take the property of one man, which he fairly acquired,
and the general law of the land protects, in order to transfer it
to another, even upon complete indemnification, it will naturally
be considered as an extraordinary act of legislation, which ought
to be viewed with jealous eyes, examined with critical exactness,
and scrutinized with all the severity of legal exposition. An act
of this sort deserves no favor; to construe it liberally would be
sinning against the rights of private property. Besides, it was the
manifest intention of the makers of the act, that a just
compensation should be made in land, to the Pennsylvania claimants;
upon this principle the act proceeds; and therefore, if it appear,
that such compensation cannot be made, or that it is very dubious,
whether it can be effected, the Court ought not to give such a
construction, as will deprive the owner of his estate, with little
or no prospect of being recompensed in value. If either party ought
to be driven to the necessity of controverting the question with
the state of Pennsylvania, it ought to be the Connecticut settlers,
who have no legal title to the land, and not the Pennsylvania
claimants, in whom is vested a good estate at law. Deeming the
construction, which has been put upon the act, to be the sound one,
it precludes the enquiry, how far a patent of confirmation was
necessary to substantiate the claim of the
Page 2 U.S.
304, 319
defendant, so as to render it available in a court of common
law.
III. The nature and operation of the suspending act. This act
was passed the 20th of March, 1788, and is as follows. (Here the
Judge read the act at large.) This act was passed before the
adoption of the Constitution of the United States, and therefore is
not affected by it. If the Legislature had authority to make the
confirming act, they had, also, authority to suspend it. Their
Constitutional power reached to both, or to neither. By the act of
the 28th of March 1787, the commissioners were to ascertain and
confirm the claims of the Connecticut settlers, upon the doing
whereof the estate, if the law was Constitutional, would become
vested in them. This has not been done; the claim in the present
instance has not been ascertained and confirmed; and as this act
suspends or revokes these ascertaining and confirming powers, it
never can be done. Of course, there is an end of the business. The
parties are placed on their original ground; they are restored to
their pristine situation. IV. After the opinion delivered on the
preceeding questions, it is not necessary to determine upon the
validity of the repealing law. But it being my intention in this
charge to decide upon all the material points in the cause, in
order that the whole may, at once, be carried before the Supreme
Judicature for revision, I shall detain you, gentlemen, a few
minutes only, while I just touch upon the Constitutionality of the
repealing act. This act was passed the 1st of April 1790: The
repealing part is as follows.
(Here the Judge read the 1st and 2nd sections of the act. See 2
Vol. Dall. Edit. Penn. Laws. p. 786.)
This act was made after the adoption of the Constitution of the
United States, and the argument is, that it is contrary to it.
1. Because it is an ex post facto law. 2. Because it is a
law impairing the obligation of a contract. [319-Continued]
1. That it is an ex post facto law. But what is the fact?
If making a law be a fact within the words of the Constitution,
then no law, when once made, can ever be repealed. Some of the
Connecticut settlers presented their claims to the commissioners,
who received and entered them. These are facts. But are they facts
of any avail? Did they give any right or vest any estate? No
whether done or not done, they leave the parties just where they
were. They create no interest, affect no title, change no property,
when done they are useless and of no efficacy. Other acts were
necessary to be performed, but before the performance of them, the
law was
Page 2 U.S.
304, 320
suspended and then repealed.
2. It impairs the obligation of a contract, and is
therefore void. If the property to the lands in question had been
vested in the State of Pennsylvania, then the Legislature would
have had the liberty and right of disposing or granting them to
whom they pleased, at any time, and in any manner. Over public
property they have a disposing and controlling power, over private
property they have none, except, perhaps, in certain cases, and
those under restrictions, and except also, what may arise from the
enactment and operation of general laws respecting property, which
will affect themselves as well as their constituents. But if the
confirming act be a contract between the Legislature of
Pennsylvania and the Connecticut settlers, it must be regulated by
the rules and principles, which pervade and govern all cases of
contracts; and if so, it is clearly void, because it tends, in its
operation and consequences, to defraud the Pennsylvania claimants,
who are third persons, of their just rights; rights ascertained,
protected, and secured by the Constitution and known laws of the
land. The plaintiff's title to the land in question, is legally
derived from Pennsylvania; how then, on the principles of contract,
could Pennsylvania lawfully dispose of it to another? As a
contract, it could convey no right, without the owner's consent;
without that, it was fraudulent and void.
I shall close the discourse with a brief recapitulation of its
leading points.
1. The confirming act is unconstitutional and void. It
was invalid from the beginning, had no life or operation, and is
precisely in the same state, as if it had not been made. If so, the
plaintiff's title remains in full force. 2. If the confirming act
is constitutional, the conditions of it have not been performed;
and, therefore, the estate continues in the plaintiff. 3. The
confirming act has been suspended and 4. Repealed. The result is,
that the plaintiff is, by law, entitled to recover the premises in
question, and of course to your verdict. Verdict for the Plaintiff.
*
* Writ of Error was brought on the Judgment in this case, and is
now depending in the Supreme Court.