IN September term last, a rule was obtained, on behalf of a
number of persons, who had associated under the denomination of
'The Holland Company,' the the purchase and settlement of lands,
lying in the county of Alleghany, north and west of the rivers Ohio
and Alleghany, and west of Conewango creek, by which the secretary
of the land office was directed to show cause, why a mandamus
should not be awarded, commanding him to prepare and deliver
patents to the company, for various tracts of land, for which
warrants had previously issued in their favour, under the act of
the general assembly, passed the 3d of April 1792.
Theattorney-general ( M'Kean M. Levy, W. Tilghman, and Cooper, now
showed cause for discharging the rule; and Lewis, E. Tilghman,
Ingersoll, and Dallas argued for making it absolute. In order,
however, to introduce, with perspicuity and advantage, a discussion
of the important question involved in this case, it is necessary to
give a general view of the facts and circumstances, which produced
the controversy.
By the charter granted to William Penn, on the 14th of March
1681,1 he became the proprietor of the soil embraced within the
boundaries of Pennsylvania. The charter title, however, was
fortified, as well since, as before the revolution, by successive
purchases from the Indians; whose claim may be considered as fairly
and finally extinguished, throughout the territory of the state, by
the treaty of fort Stanwix, on the 23d of October 1784; and the
treaty of fort M'Intosh, on the 21st of January 1785. 2
Independent,
Page 4 U.S.
170, 171
too, of the charter, the boundaries of the state have been
defined and enlarged, by judicial decisions, by compact, and by
purchase. A controversy on the subject early arose between the
proprietaries of Pennsylvania and Maryland; which was finally
adjusted in the year 1750, by a decree in the Chancery of England,
enforcing the specific performance of an agreement, which the
parties had entered into in the year 1732.3 The visionary and
extravagant pretensions of Connecticut, extending to lands
westward, as far as the South Sea, began to annoy the peace of
Pennsylvania so early as the year 1753;4 and although the rights of
sovereignty and jurisdiction, after much irritation, and conflict,
were at last, in the year 1782, authoritatively decided to belong
to the latter state, the intruders under the spurious title of
Connecticut, continue to assert a private right of soil, over a
considerable tract of Pennsylvania. 5 The western line of the
charter boundary, corresponding with the meanders of the river
Delaware, remained undefined by actual survey; and it was, for a
while, difficult to ascertain the limits between the jurisdiction
of Pennsylvania and Virginia; but the two states, actuated by a
just and friendly spirit of compromise, appointed commissioners to
run a line of separation; and their report upon the subject was
adopted and established in the year 1784.6 On similar principles,
the jurisdiction and property of the islands in the river Delaware
had been settled between Pennsylvania and New-Jersey in the year
1783.7 And in the year 1792 the state completed the present range
of her territory, by obtaining a formal grant from the United
States of a triangular tract of land, bounded by lake Erie: which
tract had been ceded and relinquished by resolutions of congress of
the 6th of June, and 4th of September 1788; and the Indian title
was purchased, and extinguished by commissioners, appointed by the
state, in January 1789.
The settlement and cultivation of Pennsylvania, have, at all
times, been the favourite objects of her government. The
proprietaries, while the soil and jurisdiction were vested in them,
resisted every attempt of individuals to purchase lands from the
Indians: but permitted a free access to the land office, or board
of commissioners, which they instituted, either for the purpose of
obtaining original grants, or for the purpose of completing
equitable
Page 4 U.S.
170, 172
titles, within the territory over which they had themselves
extinguished the Indian claim. The ownership of the unappropriated
soil, naturally passed with the political sovereignty, from the
proprietaries to the commonwealth, upon the principles of the
revolution; and accordingly the legislature, on the 27th of
November 1779, assumed the general territorial rights of the
proprietaries; but, at the same time, confirmed to them all their
private estates, and such proprietary tenths or manors, with the
rents reserved on them, as had been surveyed and returned into the
land office, before the 4th of July 1776: granting also a sum of
130,000l. sterling to the Penn family, as a mark of gratitude for
the services of the founder of Pennsylvania. [
Footnote 8] This change in the ownership of the
soil, rendered in necessary to provide, under the authority of the
state, for pre-existing claims to particular tracts of land, taken
up and located under the proprietary grants, warrants, and other
office rights. With that view, exclusively, a land office was
opened in the year 1781;9 and in the ensuing year a board of
property was instituted, with power 'to hear and determine in all
cases of controversy or caveats, in all matters of difficulty, or
irregularity, touching escheats, warrants on escheats, warrants to
agree, rights of pre-emption, promises, imperfect titles, or
otherwise, which heretofore have, or hereafter may, arise, in
transacting the business of the land office.' [
Footnote 10] The earliest direct appropriations
of any of the territory of the state for public use, subsequent to
the revolution, were two provisions; the first for laying off a
tract of land, to redeem the depreciation certificates, which had
been issued to the officers and soldiers of the Pennsylvania line;
and the second for laying off another tract of land, to satisfy the
donation, which had been promised to the same troops, by a
legislative vote of the 7th of March 1780; both tracts lying north
and west of the rivers Ohio and Alleghany, and Conewango creek.
[
Footnote 11] On the 13th of
April 1784, however, the land office was opened, for granting and
disposing of such of the unappropriated lands, as had been
previously purchased from the Indians, at the rate of 10l. per
hundred acres:12 and soon afwards, it was extended to the sale of
lands within the purchase then made, or about to be made, at the
rate of 30l. per hundred acres;13 the proceedings being regulated,
so as to secure impartiality in the treatment of applicants, by an
act of the 8th of April 1785.14 From this operation of the land
office, thus opened, the reservations were confined, 1st, to
islands within the rivers Susquehannah, and its branches, the Ohio,
the Alleghany, and the Delaware;
Page 4 U.S.
170, 173
2d, to the appropriated lands north-westward of the Ohio and
Alleghany; 3d. to the triangular tract on lake Erie, purchased from
the United States; and, 4th, to certain bounties, or gifts,
conferred on religious, or scholastic, institutions, and
pre-emptive rights granted, or recognised, by law. But a great
portion of the valuable land of the state being sold, an act was
passed on the 3d of April 1792, for the sale of all the remaining
vacant lands within the commonwealth. By this act the price of the
vacant land within the purchase of the year 1768, and all prior
purchases from the Indians, was reduced to 50 shillings for every
hundred acres; the price of the vacant land within the limits of
the purchase of the year 1784, and lying east of the river
Alleghany and Conewango creek, was reduced 5l. for every hundred
acres; and all other lands belonging to the commonwealth, lying
north and west of the rivers Ohio and Alleghany, and Conewango
creek (not specifically appropriated) were offered for sale, 'to
persons who will cultivate, improve, and settle the same, or cause
the same to be cultivated, improved, and settled,' for the price of
7l. 10s. for every hundred acres, with an allowance of six per
centum for roads.
The manner of locating, surveying, and securing, to the
respective purchasers, the tracts of land, claimed, either upon
warrants, upon actual settlements completed, or upon actual
settlements commenced, may easily be traced in the several sections
of the act: but as the present case depends particularly on a
construction of the ninth section, it is proper to recite it here
at large: 'And be it further enacted, &c. that no warrant, or
survey, to be issued, or made, in pursuance of this act, for lands
lying north and west of the rivers Ohio and Alleghany, and
Conewango creek, shall vest any title in or to the lands therein
mentioned, unless the grantee has, prior to the date of such
warrant, made, or caused to be made, or shall, within the space of
two years next after the date of the same, make, or cause to be
made, an actual settlement thereon, by clearing, fencing, and
cultivating, at least two acres for every hundred acres contained
in one survey, erecting thereon a messuage for the habitation of
man, and residing, or causing a family to reside thereon, for the
space of five years next following his first settling of the same,
if he or she shall so long live; and that in default of such actual
settlement and residence, it shall and may be lawful to and for
this commonwealth, to issue new warrants to other actual settlers
for the said lands, or any part thereof, reciting the original
warrants, and that actual settlements and residence have not been
made in pursuance thereof, and so as often as default shall be
made, for the time and in the manner aforesaid, which new grants
shall be under and subject to all and every the regulations
contained in this act: Provided always nevertheless, That if any
such actual settler, or any grantee in any
Page 4 U.S.
170, 174
such original or succeeding warrant shall, by force of arms of
the enemies of the United States, be prevented from making such
actual settlement, or be driven therefrom, and shall persist in his
endeavours to make such actual settlement as aforesaid, then, in
either case, he and his heirs shall be entitled to have and to hold
the said lands, in the same manner as if the actual settlement had
been made and continued.' 3 vol. 212. Dall. edit. As the
dispensation contained in the proviso, was to operate only in the
case of an existing warfare, it was stated, in the discussion of
the present case, that, in fact, hostilities between the United
States, and the Indians, were never so entirely discontinued, from
the period of the revolutionary contest, until general Wayne's
treaty in the year 1795, as to render it practicable, with safety,
to make actual settlements upon the lands in question. The position
was shown historically, from the military operations or the federal
and state governments; judicially, from the opinions of the Courts
of justice; and experimentally from the evidence of disinterested
individuals. Thus, After the European peace of 1783, an army was
always maintained on the western frontier. During several years,
general Harmer was employed in making hostile incursions into the
Indian country; and, in the year 1790, he was defeated. The
progress of general St. Clair terminated, also, in defeat, on the
4th of November 1791, only five months previously to the date of
the law. General Wayne succeeded to the command, prosecuted the war
with vigor, and completely routed the enemy in the year 1794. This
victory produced a treaty, which was signed on the 3d of August
1795, and was ratified on the 22d of December following. While
these events occurred, the north-western frontier of Pennsylvania
was constantly exposed to the sanguinary incursions of the Indians;
many lives were lost; and, in the very description of the proviso
to the 9th section of the act, every actual settler, or grantee,
was 'by force of arms of the enemies of the United States, either
prevented from making an actual settlement, or driven from it.' The
state of Pennsylvania, co-operating with the federal government,
before the act passed, in the very session in which it passed, and
so late as December 1795, called out parties of the militia, raised
regular troops, and established military posts: and, at one period,
while negotiations for peace were carrying on, the state suspended
her settlements, and plans of defence, in the country bordering on
lake Erie, at the request of the federal government, lest the enemy
might take umbrage and break off the treaty. [
Footnote 15] In fine,
Page 4 U.S.
170, 175
the result of these circumstances to prevent making, and
continuing actual settlements, during the Indian war, has been
repeatedly recognised in the western county Courts, and in the
Courts of Nisi Prius, held by the Judges of the Supreme Court in
Alleghany county, subsequent to the ratification of general Wayne's
treaty. [
Footnote 16]
But the dispensation, contained in the proviso, is, likewise,
qualified with a stipulation, that the actual settler, or grantee,
in any warrant, 'shall persist in his endeavours to make such
actual settlement' as the law describes. The perseverance of the
Holland company, in time, in labour, and in money, was, therefore,
exhibited in detail upon the present occasion. It appeared from
various official documents, and depositions, that the company had
purchased and paid for 1162 tracts, of 400 acres each, situated in
districts No. 1, 2, 3, 6, and 7, and that for these tracts warrants
of survey were issued, dated respectively, in the months of April
1792, and of April and August 1793. From the day of issuing the
warrants until the present day, the endeavour of the company and
their agents, to occupy, improve, and settle the lands, has been
incessant. Thus, as soon after the dates of the warrants, are the
deputy surveyors could be prevailed upon to attempt to execute the
surveys, in the years 1794, and 1795, a general agent was appointed
to superintend the business of the company, a large store was built
at Cassewago, or Meadeville, and a sum exceeding 5000 dollars was
actually disbursed. In the year 1796, companies of settlers were
invited, encouraged, and engaged; ample supplies of provisions,
implements, utensils, &c. were sent into the country; the
expense of transporting families was liberally advanced; a bounty
of one hundred acres was given for improving and settling each
tract; and a further sum of about 22,000 dollars was actually
disbursed.
In the year 1797 a sum of about 60,000 dollars was further
expended in promoting the same objects, including payments on
Page 4 U.S.
170, 176
contracts for settlements, and quieting adverse claims. In the
year 1798, mills were erected, roads were opened, and other
exertions were made, at a charge of not less than 30,000 dollars.
In the year 1799, the sum of 40, 000 dollars and upwards was
expended in improvements and settlements; in the salaries and wages
of agents and workmen; in opening and repairing roads; and in
patenting 876 tracts of land. And in 1800 the operations and
advances of the company will, at least, be equal to those of any
preceding year. In short, at the close of the present year, near
400,000 dollars will be expended, according to the following view
of the subject.
The amount of the purchase of the late James Wilson, Esq.,
including the purchase-money paid to the state, at the period of
obtaining the warrants, was 222,071 10 The amount of disbursements
for making improvements, settlements, &c., was 157,000 00 The
amount of taxes and expenditures, for the year 1800, will be 18,000
00 ___ $397,071 10
And regarding the operations of the company, in another aspect,
we find, that the gross amount of the expenditures, upon the
quantity of land, which remained for them to improve and settle,
will furnish an average at the rate of 230 dollars, for each and
every tract. For instance:
Tracts.
The original number of warrants called for, 1162 But, from this
aggregate, there must be deducted, on account of prior occupants of
the land, 113 On account of tracts lost, upon resurveys, in
district No. 1, 11 On account of tracts lost, upon resurveys, in
district No. 6, 3 On account of bounties to actual settlers, who
improved under the company, but at their own charge, one-fourth of
1021 tracts, 259 ___ 386 ___ 776
Then, it is seen, that the gross amount of the expenditure to
the present period, of 178,000 dollars being equally apportioned to
776 tracts, furnishes, as has been stated, an average disbursement
of about 230 dollars, for improving each tract; a sum which, in
ordinary times, would certainly have been competent to accomplish
every improvement designated in the act of the 3d of April
1792.
Page 4 U.S.
170, 177
But leaving these details, for a moment, to contemplate the
general effect of the capital, industry, and enterprise, which the
Holland company have thus employed and displayed; and, it is found,
that by a conduct the most upright and conciliatory, they have
avoided, or adjusted, every conflicting claim to any part of their
purchase; so that there does not now exist a single caveat on the
files of the land office, against the issuing of any patent they
demand. The benefit of their exertions has extended, too, far
beyond the limits of their own property: nor are they merely their
neighbours, who are accommodated and enriched; but the opulence,
population, and security, of the whole range of western frontier,
have been augmented beyond all calculation. Nay, the influence of
the example has been diffused throughout the state, and is felt in
every quarter of the union.
Considering the terms of the act of the 3d of April 1792, it
became a question at the land office, in what manner the
accomplishment of an actual settlement and residence, within the
meaning of the enacting part of the 9th section, should be proved;
and, also, upon what evidence, the dispensation of the proviso, was
to be allowed. On the first object, the board of property, on the
16th of December 1797, prepared and published the form of a
certificate in the terms of the law, to be signed by the deputy
surveyor of the proper district, and by the district judge, or two
justices of the peace, residing in the vicinity of the land:17 and
on the second object, they took the precaution of consulting the
attorney-general, upon the form which they had drafted; and that
gentleman, as it appears from the minutes of the board, dated the
21st December 1797, declared 'the certificate proposed by them,
respecting the lands lying north and west of the rivers
Page 4 U.S.
170, 178
Ohio and Alleghany, and Conewango creek, to be unexceptionable;
if there was added a clause, conformable to the proviso contained
in the ninth section of the act, that where the settler, or
grantee, has been prevented making such settlement, or hath been
driven therefrom, by force of arms of the enemies of the United
States, and has persisted in his endeavours to make such
settlement, he is entitled, as if such settlement had actually been
made and continued.' [
Footnote
18]
Page 4 U.S.
170, 179
Upon such deliberation, and with such uniformity of opinion, in
all the officers of the government, the forms of patents, as
well
'We do hereby certify, satisfactory
proof having been made to us, That ________ hath made, or caused to
be made, an actual settlement on a tract of land, containing _____
acres, lying north and west of the rivers Ohio and Alleghany and
Conewango creek, situate, &c. (here describe the land) by
clearing, fencing, and cultivating, at least two acres for every
hundred acres contained in the survey of the said tract: that he
hath erected, or caused to be erected, a messuage for the
habitation of man, and resided, or caused a family to reside
thereon, for the space of five years next following his first
settling the same.'
Or,
'We do hereby certify, That _____ the
grantee, or settler, hath been prevented from making a settlement
on a tract of land, containing _____ situate, &c. _____
conformable to the proviso, contained in the 9th section of the
act, entitled 'An act for the sale of vacant lands within this
Commonwealth,' passed the third day of April, 1792, by force of
arms of the enemies of the United States; and that he, the said
_____, hath persisted in his endeavours to make such
settlement.'
I certify, That the above, and foregoing, is a true copy of a
minute of the Board of Property of Pennsylvania, entered in minute
of property book, No. 5. pages 259 and 260, remaining in the office
of the secretary of the land office of Pennsylvania. In testimony
whereof, I have hereunto set my hand and seal of the land office
aforesaid, at Lancaster, this 14th day of February 1803.
(L. S.)
ANDREW ELLICOTT,
Secretary of the land office.
The form of Patent adopted in case of Prevention, and issued to
the Company.
THE COMMONWEALTH OF PENNSYLVANIA.
To all to whom these presents shall come, Greeting:
(L. S.) THO. MIFFLIN. [179-Continued.]
KNOW YE, That in consideration of the monies paid by John
Melbeck, into the receiver general's office of this commonwealth,
at the granting of the warrant herein after mentioned, and of the
sum of three pounds eight shillings and nine pence, lawful money,
now paid by Wilhem Willink, Nicolaas Van Staphorst, Pieter
Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven, and
Rutgert Jan Schimmelpenninck, into the said office; and also in
consideration of the said Wilhem Willink, Nicolaas Van Staphorst,
Pieter Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven, and
Rutgert Jan Schimmelpenninck, having made it appear to the board of
property, that they were, by force of arms of the enemies of the
United States, prevented from making such settlement on the herein
after described tract of land, as is required by the 9th section of
an act of the general assembly of this commonwealth, passed the
third day of April 1792, entitled 'An act for the sale of vacant
lands within this commonwealth,' within the time therein mentioned,
and that they the said Wilhem Willink, Nicolaas Van Staphorst,
Pieter Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven, and
Rutgert Jan Schimmelpenninck, have persisted in their endeavours to
make such settlement, there is granted by the said commonweath unto
the said Wilhem Willink, Nicolaas Van Staphorst, Pieter Stadnitski,
Christiaan Van Eeghen, Hendrick Vollenhoven, and Rutgert Jan
Schimmelpenninck, of the city of Amsterdam, a certain tract of land
called Normandy, situate in district No. 2, north and west of the
rivers Ohio and Alleghany, in Alleghany county, beginning at an
ironwood; thence by land of Charles W. Peale, south three hundred
and twenty perches, to a red oak; thence by land of Michael Canner,
west two hundred and thirteen perches, to an oak; thence by land of
William Cameron and land of Peter Baynton, north, three hundred and
twenty perches, to a white oak; and thence by land of Isaac Paxton,
east, two hundred and thirteen perches, to the beginning,
containing four hundred and one acres one hundred and fifty
perches, and the allowance of six per cent. for roads, &c.
[which said tract was surveyed in pursuance of a warrant, dated the
eighteenth day of April 1792, granted to the said John Melbeck, who
by deed, dated the fifth day of January 1797, conveyed the said
tract to the said Wilhem Willink, Nicolaas Van Staphorst, Pieter
Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven, and
Rutgert Jan Schimmelpenninck] with the appurtenances. To have and
to hold the said tract or parcel of land, with the appurtenances,
unto the said Wilhem Willink, Nicolaas Van Staphorst, Pieter
Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven, and
Rutgert Jan Schimmelpenninck, their heirs and assigns, to the use
of the said Wilhem Willink, Nicolaas Van Staphorst, Pieter
Stadnitski, Christiaan Van Eeghen, Hendrick Vollenhoven, and
Rutgert Jan Schimmelpenninck, their heirs and assigns forever, free
and clear of all restrictions and reservations as to mines,
royalties, quit-rents, or otherwise, excepting and reserving only
the fifth part of all gold and silver ore, for the use of this
commonwealth, to be delivered at the pit's mouth, clear of all
charges. IN WITNESS whereof, THOMAS MIFFLIN, governor of the said
commonwealth, hath hereto set his hand, and caused the state seal
to be hereunto affixed, he seventh day of October, in the year of
our Lord one thousand seven hundred and ninety-nine, and of the
commonwealth the twenty- fourth.
Attest,
JAMES TRIMBLE, Dep. Sec'ry.
Page 4 U.S.
170, 180
as the forms of the certificates of settlement, or of
prevention, were fixed and declared. The Population Company (an
association formed on similar principles and with similar views)
received on the 4th of February 1799, patents for numerous tracts
of land, upon exhibiting the proofs of prevention prescribed by the
board of property. The Holland company applied for patents for all
their tracts, and have actually received patents for 876 tracts;
the other patents being then withheld, merely for the purpose of a
re-survey, which the surveyor general directed to be made, in
consequence of the inaccuracy of the deputy surveyor. But before
the re- survey could be executed, a change had taken place in the
land officers; a new construction was given to the proviso,
attached to the 9th section of the act; it was insisted, that no
patent could issue unless the terms of settlement and residence
were, at some period, completed, though the obligation to complete
them, during the Indian war, was suspended; and the resolutions and
proceedings of the former board of property, on the subject, were
not deemed authoritative and conclusive upon the present board. At
the same time, a number of persons intruded upon the lands of the
warrantees, on the pretence that the forfeiture for non-settlement,
was absolute, at the expiration of two years from the date of the
warrants, and set up claims as actual settlers. When, therefore,
the Holland company renewed their applications, for the rest of
their patents, the secretary of the land office refused to issue
them; and the present motion was made to compel him to do so, as an
official duty, by a writ of mandamus. [
Footnote 19] Such were the circumstances (collected
from evidence, of unquestionable notoriety, from testimony in the
cause, or from concessions of counsel) upon which the controversy
arose. The general question was, whether the Holland company had
performed the condition of improvement, settlement, and residence,
annexed to the sale of the lands: or were released, by the
operation of the proviso to the 9th section of the act, from the
obligation to perform it? And the arguments in support of th rule,
embraced three distinct objects of inquiry: 1st. The facts relative
to the hostile state of the country, and the persevering endeavours
of the Holland company to accomplish the settlement prescribed by
the act. 2d. The construction of the proviso, attached to the 9th
section of the act. 3d. The propriety of proceeding, in this case,
by mandamus. 1st. Of the facts relative to the hostile state of the
country; and the persevering endeavours of the Holland company, to
accomplish the settlement prescribed by the act.
Page 4 U.S.
170, 181
Whatever may be the effect of the proviso in suspending, or
releasing, the obligation to settle and improve the land, the case
in which it operates cannot be mistaken. If a grantee in any
warrant is prevented, by force of arms of the enemies of the United
States, from making an actual settlement, it is the express case of
the proviso: but, it will not be contended, that the force of arms,
here mentioned, means an actual application of military force, the
tomahawk, or the rifle, either to drive a man from his settlement,
or to prevent his entering upon the land, with a view to settle it.
A well grounded apprehension of personal violence and danger, from
a public enemy; a terror arising from the force of arms in the
neighbourhood; are equally within the spirit and protection of the
law.
The actual state of hostility is proved in every possible way.
The army of the United States was opposed to the Indians, as to a
public enemy, and, with various success, from the year 1783, to the
year 1795. At the time of passing the act, of the 3d of April 1792
(and, certainly, this fact furnished the inducement, for inserting
the proviso to the 9th section) the whole of the north western
frontier of Pennsylvania was in constant danger and alarm. For some
time after the act was passed, the deputy surveyors did not dare to
venture upon the execution of the duties of their office. And,
until the spring of 1796, not an actual settler inhabited the
country, except, perhaps, a few bold and enterprising men, in the
vicinity of a garrison. But the constitution of the United States,
has declared 'that no state shall, without the consent of congress,
lay any duty of tonnage, keep troops, or ships of war, in time of
peace, &c. or engage in war, unless actually invaded, or in
such imminent danger as will not admit of delay.' Art. 1. s. 10.
Now, the state of Pennsylvania did raise and maintain troops, for
the defence of her western frontier, from the 17th of March 1791,
until the spring of the year 1796, alleging 'that there was
imminent danger of being invaded by the Indian tribes, then at war
with the United States; and that it was necessary to take immediate
and vigorous measures to prevent hostile incursions, and to provide
for the security of the frontier inhabitants of this commonwealth.'
The military operations of the state, must, therefore, be regarded,
on constitutional ground, as the best evidence, that a war existed;
and the effects of that war, in preventing the settlement and
occupancy of lands lying north and west of the rivers Ohio and
Alleghany, and Conewango creek, cannot be more forcibly pourtrayed,
than in the legislative and executive declarations and acts of the
government. The judicial authority, indeed, has already settled the
fact, that hostilities existed from the time of passing the act,
until the ratification of general Wayne's treaty; and, without
limiting the operation of the fact to a mere suspension of the
condition of settlement, improvement, and residence, the operation
so far,
Page 4 U.S.
170, 182
at least, was expressly recognised, during the continuance of
hostilities, in the case of Morris's Lessee v. Neighman.
But, notwithstanding the hostile state of the country, the
Holland company commenced and prosecuted their attempts to settle
and improve the land, during the whole period of the war, in a
manner equally meritorious and beneficial. It is true, perhaps,
that an attempt was not made to settle each particular tract; but
the general effort to settle the whole, was all that could be
reasonably expected, under such circumstances; a combination of
force and capital could alone diminish the danger to be
encountered; and the result greatly contributed to establish a
barrier against the incursions of the Indians. To the exertions
during the years 1794 and 1795, while the war continued, must be
added the perseverence of the company, in their endeavours to
settle and improve in every subsequent year. During the war, the
disbursements for purchase money, and charges of improvement,
amounted to near 230,000 dollars; and since the war, besides the
allowance to settlers, the disbursements of cash, have exceeded
178, 000 dollars. Nor, ought it to be forgotten, that after the
dangers of war had ceased, another evil, almost as embarrassing,
interrupted, annoyed, and, in many instances, frustrated the
endeavours of the company. Rumours, raised and circulated by artful
and interested men, and countenanced by the obscure and equivocal
language of the law, were heard to insinuate, that the warrantees
had incurred a forfeiture of their lands, by the lapse of two years
from the dates of the warrants, notwithstanding the terms of the
proviso. Some of those persons, who had engaged to settle for the
company, began to assert a right of settlement for themselves.
Hordes of intruders were pressing eagerly into the possession of
the best tracts: and, in short, such was the doubt and solicitude,
universally excited upon this question of forfeiture, that the
warrantees could hardly obtain assistance, in the business of
settlement and improvement, upon the most liberal terms of
participation in the land, or payment of expenses. Although these
occurrences will sufficiently show the impracticability of settling
each particular tract, even since the peace; and although they
increased the difficulties to be surmounted, in the general effort
to settle the whole; yet the integrity, enterprise, and
perseverance, of the company, to effectuate the settlements, were
uniformly displayed, and have, on every occasion, been candidly
applauded. Upon motives of interest, as well as upon the principles
of their contract, they 'persisted in their endeavours:' for, even
after the board of property had decided, that they had acquired a
legal title to the lands, and issued patents in their favour; even
at the moment of the present discussion; they have been, and are,
employed (anxiously, laboriously, and expensively, employed) in
completing the settlement and improvement of every tract, which
they have purchased.
Page 4 U.S.
170, 183
Let it, then, be recollected, that this controversy does not
arise between contending individuals, claiming under adverse
titles; but between individuals, who have long paid for the lands,
and the commonwealth, who annexed to the sale certain conditions,
to be released on a certain event, which event has actually
happened. Of the forfeiture, if a forfeiture has accrued, the state
alone can take advantage; and, independent of the strict legal
question, will it be pretended, that, on any principle of equity,
the advantage of a forfeiture ought, in such a case, to be taken?
The obstacle to a full compliance with the conditions of sale,
proceeded from a public calamity, against which it was the duty of
the government to protect its citizens; the existence and operation
of which the individuals could not avert, or controul; and for the
consequences of which they ought not, upon the soundest maxims of
civil policy, to be condemned to suffer. But, if it was the object
of the state to replenish her treasury by the sale of her western
lands, that object has been promoted by the sale to the Holland
company, far beyond what could reasonably have been hoped. If the
object was to strengthen and secure the frontiers, that object too,
has been more effectually obtained by the general operations of the
company, than it could have been by the weak and unconnected
efforts of particular men: and if it is the spirit and policy of
our laws, that the country should be settled, its soil cultivated,
and the arts of social life extended, what country was ever more
rapidly, or more by the exertions of a single association,
converted from a desert and a wilderness, into a scene of
population, industry, and prosperity? Every inhabitant, every
traveller, every writer, will be found in unison upon this subject;
and even the secretary of the land office, whose conduct has
occasioned the present motion for a mandamus, has appeared as the
eulogist of the Holland company; exhibiting the merit and the
success of their example, as an instrument to procure the public
patronage for his own project of settlement, in other parts of the
state.
Whatever, then, is the law, it must prevail: but it will not be
denied, that a claim to a liberal and equitable construction of an
ambiguous law, never was better founded. Prevented from
accomplishing the settlements designated in the act by a public
enemy; opposed in the prosecution of those settlements by
intruders, who derived, indeed, some colour for their pretensions,
from an imperfect expression of the legislative meaning; and thrown
off their guard by the deliberate decisions of the board of
property, and the authoritative proceedings of the public officers,
under the seal of the commonwealth; can it be conscientious, can it
be just, can it be honourable, that the Holland company, after a
labour of eight years, and an expenditure of 400,000 dollars,
should be condemned to a forfeiture of the lands, for which they
have paid the full consideration, in favour of the state, who has
received that consideration; who, if there has been error or
mistake,
Page 4 U.S.
170, 184
the error or mistake, lies in the persons of her officers; and
who, if the doctrine of forfeiture prevails, will not only retain
the consideration money, but resume the soil, in absolute
ownership, with all its ameliorations and improvement! Strange as
it would appear, to exact a forfeiture, under such circumstances,
for the benefit of the state, the occurrence would be still more
extraordinary, if it had only the effect, to take the land from a
meritorious warrantee, and to give it to a lawless intruder. Till
the forfeiture is regularly established, till the government has
determined to take advantage of it, and until a second warrant has
issued, reciting the default of the first warrantee, any attempt of
an individual to seize and retain the possession of the land,
merits, not reward, but punishment. If such conduct should receive
an executive, a judicial, or a legislative, countenance, a scene of
conflict, litigation, and tumult, must inevitably ensue, fatal to
the rights of property, and the peace of the community. The spirit
of interested jealousy, will extend its baneful influence, over
what has been sanctioned with the seal of office; intrusions and
forcible entries will generate riots and civil feuds; the company
will be despoiled of every benefit from their patents, their
labours, and their disbursements; and, if right is not to be
passively surrendered to violence, the state will ultimately find
another insurrection to suppress.
To avert the danger of such a scene, as well as to obtain a safe
and certain guide for their conduct, the Holland company have
anxiously sought the opinion of this Court; and, they trust, that
exceptions to form, will not be permitted to defeat the present
opportunity, to place the subject on a permanent foundation, just
to the public, beneficial to settlers, and useful to warrantees.
Unless, indeed, a judicial construction of the law can now be
obtained, exertions and success will be in an inverse ratio:
exertions will be greater, but settlements will be fewer in each
succeeding year; until despair takes the place of enterprise; and
the whole business of settlement and improvement shall be abandoned
to occupants, whose only title is force, without patent, without
warrant, and without purchase.
2d. The construction of the proviso, attached to the 9th section
of the act of the 3d of April 1792.
The exposition of the proviso, has produced a variety of
propositions. 1st. By some, it has been supposed, that unless the
terms of improvement, settlement, and residence, had been strictly
performed, within the respective periods of two years, and five
years, a forfeiture accrued, though a war had raged throughout, and
beyond those periods. 2d. Others, admitting a qualified suspension
of the condition during a war, have, nevertheless, held, that no
title could be acquired, until the performance of the terms of
improvement, settlement, and residence, though the was should last
for a century; nor even then, unless the warrantee
Page 4 U.S.
170, 185
had, during the whole war, persisted in his endeavours to
perform them. 3d. A third construction maintains, that if a
warrantee has been prevented, by force of arms, from accomplishing
the improvement, settlement, and residence, designated in the act,
but has persisted in his endeavours to accomplish them, during the
time mentioned in the 9th section, the proviso operates as an
extinguishment of the condition, and the title becomes absolute.
And, 4th. It has been asserted, that a warrantee, having been
prevented by war, from making the improvement, settlement, and
residence, during the time mentioned in the act, will acquire an
absolute title, if he persists in his endeavours for a reasonable
period, after the expiration of the war, though all his endeavours
should prove ineffectual.
1st. The first opinion is at once extravagant, and iniquitous.
No rational man, during the existence of a war, which the could not
resist, or terminate, would have formed a contract of such a
nature. Nor is it conceivable, if this were the design and meaning
of the legislature, that the proviso would have found any place in
the act, unless, indeed, fraud and deception can be imputed to its
authors; and, it is to be presumed, that an inconsistent,
repugnant, and ambiguous, proviso, has been employed, as the
instrument to effectuate them. The enacting part of the 9th section
prescribes a settlement to be finished in two years, and a
residence to be continued for five years; and unless the proviso,
either dispensed with the settlement and residence altogether, or
enlarged the periods for accomplishing them, it is utterly
impossible to ascribe to it a motive, or a use.
2d. The second opinion is, also, pregnant with inconvenience,
injustice, and absurdity. If it affords the legitimate construction
of the act, it applies equally to the case of the actual settler
before warrant, and to the case of the warrantee, with a view to
actual settlement. The price of the land could not, therefore, be
collected for the use of the state, nor could a title be acquired
by the individual for a century, if the war should last so long;
nay, even at the termination of a long protracted war, the
individual would be without remedy, unless he could prove, that,
whatever might be the intermediate expense, or danger, his
endeavours to accomplish a settlement, had never been suspended, or
remitted. Consider the state of the country, and such a condition
annexed to the purchase of lands, would inevitably frustrate the
primary intention of the legislature.
2d and 3d. But it is not directly denied, that the right of the
Holland company is alive; and it is insinuated, that the opposite
arguments, do not militate against future grants, if the company
shall go on to complete the settlements and residence described in
the act. It is proper, therefore, to consider the second and third
constructions of the 9th section, connected with each other,
Page 4 U.S.
170, 186
and with the facts arising in the present case. The concession
of the opposite counsel, is, indeed, an acknowledgement of the
inception and progress, but a denial of the maturity, of the
company's title: while, it is contended, for the company, that
although the enacting part of the 9th section constitutes a
condition precedent, to the vesting of a legal title in the
warrantees, that condition is totally superseded, or extinguished,
if the case of the warrantee is embraced by the descriptions of the
proviso; so that he thereupon acquires a legal title, without
settlement, improvement, or residence.
By the act, two descriptions of settlers are contemplated: 1st.
Those who have made improvements and settlements without warrants;
and, 2dly. Those who apply for warrants, with a desire to settle
and improve. On both descriptions it is imposed as a condition
precedent, that they shall pay the price of the land, when warrants
are taken out; that they shall pay the expense of surveys; and that
they shall improve, settle, and reside, in the manner, and for the
period, prescribed. It is to be remarked, however, that a
distinction is made, in one respect, between the settler, and the
warrantee; the former being bound to fulfil the condition precedent
personally; and the latter being authorised either to do it
himself, or to cause it to be done by others. This, which, at the
first blush, might appear an advantage to the warrantee, is
converted into a hardship and an injury, the moment the suspicion
of forfeiture insinuates itself among the class of people, who are
to form the actual settlers. There is another distinction, also,
that the actual settler must pay interest from the date of the
improvement; and he was bound to apply for a warrant within ten
years after passing the act;20 but, on the other hand, the land and
personal property of the warrantee and actual settler were equally
exempt from state taxes, for the same period; and, it is urged,
that the price of the land was trifling, compared with its real
value. Let it be answered, however, that the exemption from taxes
can hardly be regarded as a favour; and the lowness of the price
affords no reasonable ground of argument. The settler without
warrant is charged an interest, and the settler with warrant
advances his money. From the fund created by warrantees, invested
in the bank of Pennsylvania and in public stock, the state has
drawn a great portion of that revenue, which has been adequate, for
many years, to all her objects of public expenditure and
improvement. Besides, no state tax was then imposed, there was none
likely to be imposed for ten years; and, the fact is, that even at
this day a state tax is not in existence, nor in contemplation. The
lowness of the price, too, arose from an avowed consciousness that
a great part of the public lands would not sell higher; and, as to
the rest, the price would be exorbitant,
Page 4 U.S.
170, 187
indeed, on the prindiples of the opposite construction. After
all, the wealth of the state consists in its population, and
advancement in the arts of agriculture, commerce, and manufactures,
not in the mere accumulation of coin.
These preliminary remarks are suggested, with a view to place
the controversy on its real footing; on the footing of a bargain,
in which the seller and the purchaser equally consulted their
respective interests, and are equally bound (though the one is a
state, and the other a private person) by the terms of the
contract. It is agreed, that there was a condition precedent, which
must be performed, or be dispensed with, upon the terms of the
contract, before any title could vest in the warrantees. It is,
also, agreed, that the condition precedent has not been strictly
performed; for, more that two years have elapsed since the date of
the warrants, but no such settlement, improvement, and residence,
have been made and continued, as the enacting part of the 9th
section describes. What, then, is the operation of the contract,
under such circumstances, connected with the Indian war? The
adverse counsel will not explicitly aver, that the result is an
absolute forfeiture of the lands; but they peremptorily deny, that
it amounts to a release, or extinguishment, of the condition
precedent. Where, however, is the expression to be found, that, the
predicated event, dispenses with the condition in part, and adheres
to it in part; that dispenses with the limitation of time, for
performing the act, but, nevertheless, insists upon the act being
performed? Even in the condition precedent, a residence of five
years is not, in every case, necessary: for, it is only required,
(independent of hostilities) if the warrantee, or settler, 'shall
so long live.' That cause of absolute dispensation, with respect to
residence, must often occur; and it is reasonable to conclude, that
the existence of hostilities was, likewise, considered, and
intended as entitling the party to an equal degree of
indulgence.
But, after all, it must be agreed, that the wording of the act
is, in some places, incoherent and absurd. Thus, on a grammatical
construction, the actual settlement described by the 9th section,
comprises a residence of five years; and, yet, the same actual
settlement is required to be made within two years from the date of
the warrant. Subsequent passages, indeed, treat actual settlement
and residence, as distinct objects; but, another confusion of ideas
is introduced: for, we find that the party is called ' such actual
settler,' though he has been 'prevented making such actual
settlement,' and, it is provided, that 'if he is prevented from
making an actual settlement, but persists in his endeavours to make
it, he and his heirs shall have and hold the lands, in the same
manner, as if the actual settlement had been made and continued.'
From the difficulties of the language of the act, therefore, we
must endeavour to rescue ourselves, by ascribing to the legislature
a meaning, which, while it comports
Page 4 U.S.
170, 188
with a rational exposition of the words, shall be consistent
with public policy and the principles of justice.
The state, having received the money of the warrantees, was
naturally led, from the existing hostilities, to contemplate the
injury to which their purchase was exposed. Whether the hostilities
would prevent the settlement, or not, it might be difficult to
foresee; but the legislature, in offering the lands for sale, must
have held out the probability, that there would be a safe
opportunity to settle; or the condition of settlement could never
rationally and fairly have been proposed. If, therefore, the
opportunity, implied in this overture, was defeated, it seems to
follow as a legitimate consequence, that the condition ought not to
be enforced. Consider, for a moment, the situation of a warrantee,
bound by the strict condition to settle, or, by the dispensing
proviso, to persist in his endeavours to settle. He must explore,
locate, and survey, each tract, before he can attempt to settle. He
must collect, appropriate, and apply, the funds necessary to defray
the various expenses of settlement, improvement, and residence. He
must be in constant preparation to seize and employ the opportunity
for settling. Under such obligations the mere pecuniary charge of
watching, for a safe occasion to enter upon his lands (independent
of time, labour, and anxiety) would, in most instances, be greater,
than the cost of actual settlement, in a season of public
tranquillity. Exhausted in money, perplexed by doubt and suspense,
grown old and infirm in a course of exertion, or persistence, what
pretext could justify an accumulation of such disappointment,
injury, and loss, by exacting a forfeiture of the lands? The peace
warrantee, who has waited till the storm has passed away; or the
intruder, who, at the close of a war, usurps the name of actual
settler, has none of these calamities to encounter; and, yet, no
greater price has been paid, no other conditions are imposed, in
either of those cases, than in the case of the warrantee, who is
defeated in all his exertions, and drained of all his resources, by
the unavoidable operations of a public war!
Is there, then, no principle of justice and humanity, to claim
relief from the legislature, upon the construction, for which the
Holland company contend? Would it be unreasonable to suppose, that
under such circumstances, the legislature intended to vest in the
persevering, but unsuccessful, warrantee, an absolute estate in the
land, upon which he might establish a credit, to furnish means for
renewing his exertions, and ultimately compensating his advances
and his labours? If the supposition involves nothing unjust, or
irrational, the frame of words will sufficiently serve to give it
body and effect. Thus: it is declared, that should the grantee 'be
prevented from making such actual settlement,' and persist in his
endeavours to make it, he shall hold the lands, as if it were made
and continued: but the word prevented, implies
Page 4 U.S.
170, 189
that he had failed; and persisting in an endeavour, does not
import succeeding in it. Again: the grantee is to have the lands,'
if the persists in his endeavours to make such actual settlement:
but this does not involve a condition, that he shall persist until
he has made it, or so as to make it; and 'endeavouring to make,' is
an expression that designates an attempt, not a performance. Again:
If the grantee is prevented, but persists in his endeavours to
settle, he is entitled 'to have and to hold the lands, in the same
manner, as if the actual settlement had been made and continued:'
but no title could vest in the grantee, unless the condition
precedent was performed; and, yet, by force of the proviso, he is
to have the lands (not merely the benefit of a prolongation of the
time for settlement) in a case, where from the hypothetical terms
employed, it must be clearly understood, that the condition had not
been performed. Again: The grantee, being prevented, but persisting
in his endeavours to settle, is, by force of the proviso, to have
and to hold the lands, 'in the same manner,' as if the condition
precedent had been performed: but if the condition precedent had
been performed, the grantee would have held the lands in fee,
discharged from any limitation, contingency, or incumbrance
whatsoever; and, consequently, in this case, to enable the grantee
to hold in the same manner, persisting in his endeavours to settle,
must be considered as tantamount to actual settlement and
residence. In short, in every sentence of the proviso, the
legislature plainly points at a certain state of things, at some
concurrence of circumstances, when the grantee would be absolutely
entitled to the land before, and without, making and continuing, an
actual settlement.
The only question, then, must be, what is the nature of the
endeavours prescribed; during what period the endeavours are to be
made: and how long the grantee is bound to persist? The actual
settlement must be made, or excused, within two years from the date
of the warrant; and the residence must not only be five years, but
five years next following the first settlement. The time,
therefore, is a characteristic of the condition precedent; an
ingredient in the definition, as essential to the contract, as the
nature of the act required to be performed. If the time is as
essential, it is as limited, as the nature of the act to be
performed; and hence, does it not follow, that at the expiration of
two years, as to the settlement, and of five years, as to the
residence, the condition must be actually performed, or virtually
annulled? The excuse for non-performance is, also, limited; since,
on an allegation of being prevented from settling, or residing, the
grantee must state the force of arms, which prevented him, to be
within, and until the end of two years ( as to the settlement) next
immediately after the date of his warrant; and within and until the
end of five years (as to the residence) from the date of his first
settlement; or his plea shows no dispensation from the
condition.
Page 4 U.S.
170, 190
Thus, the time, within which performance is to be effected, or
an apology for non-performance to be received, is the same, or, at
least, commensurate: and if the period, within which the substitute
for performance is exacted, within which the endeavour to perform
must be shown, cannot be extended in favour of the warrantee, what
right, express or implied, can there be, on the part of the state,
to insist on a continuance of the endeavour, beyond the period,
within which the contract obliged her to accept it, as a
commutation for the performance? Equality is equity, whoever may be
the parties to the bargain; states, or individuals: but it would be
a doctrine of arbitrary prerogative, if performance, or endeavours
to perform, should only avail the grantee, to release him from the
condition, within a limited period; yet, that the obligation to
perform, or to persist in the endeavour to perform, should be
indefinite and perpetual. Nor is the idea correct, that the war
excused the warrantees from endeavouring to effect a settlement,
during its continuance; and that the law contemplated a
perseverance only when it could be effectual. On the contrary, the
law obviously required a perseverance in the endeavour to settle,
during the war; but left the degree of persverance to be regulated,
by considerations of a reasonable discretion, and personal safety.
That this was the construction of the Holland company, appears
incontestibly from the immediate steps which they pursued to
complete their surveys and improvements: and this is, in truth, the
material ground of complaint against the opposite doctrine; that,
by the contract, the grantees were obliged to make laborious,
hazardous, and expensive exertions, during the war; and, yet, at
the conclusion of the war, derive no advantage from those
exertions, in consummating the legal title to the lands.
On the doctrine, that the grantee, or settler, must persist in
his endeavours to improve and reside, for any other periods, or
beyond the respective periods, of two and five years, let it be
asked, when those other periods are to commence, and how long are
they to be protracted? The law itself is silent; and, yet, if an
intention of that kind had been entertained, how easily, and how
certainly, would the legislature have said, that 'the grantee shall
have the lands, if the settlement is completed, within two years,
after the cessation of hostilities, and the residence continued for
five years subsequent to the same epoch.' But by whom shall the
silence of the law be supplied? What power exists to add the
slightest circumstance to the terms of the contract? The
legislature, as a party, cannot explain, or expound, it. The Courts
of justice can only declare the meaning, from the fair and genuine
import of the language of the act: they cannot diminish, or
enlarge, the vested rights of individuals, any more than they can
supersede the rights of the state. And, on this occasion, the
officers of the land-office, have only a ministerial function to
perform. Let it, therefore, be repeated, that
Page 4 U.S.
170, 191
the proviso to the 9th section, having rested the consummation
of the grantee's title, simply, upon the persisting in an
endeavour, it would be creating a new contract, making a new law,
introducing another principle, and amplifying the words of the
legislature, to require, not a persevering endeavour, but an actual
performance. Besides; would it be just to fix upon the close of the
war, as the period for commencing the endeavour, without giving
some credit for the exertions of the grantee, or the settler,
flagrante bello? And, yet, who shall make the apportionment, of
time, of labour, and of expense; and upon what principle can it be
made? It often happens, that what is intended to afford an undue
preference to a favourite, in a remote consequence, proves
peculiarly injurious to him. The merits of the actual settler have
sometimes been enhanced, in order, by an invidious comparison, to
depreciate the claims of the purchaser, or warrantee: but, it is
obvious, that a determination, upon the ground taken by the
opposite counsel, would operate more severely, with greater
cruelty, towards the actual settler, than any consequence that can
flow from the construction urged in favour of the Holland company.
For instance: A man enters upon his lands in the year 1792, with a
view to make the improvements, which the act requires. He is
attacked by the Indians, and driven from his cabin and and his
field, before he has time to make any visible progress in building,
clearing, and cultivating; but, he observes, in the words of the
act, that being driven from his settlement, he shall, nevertheless,
have title, as if he had completed his improvement, and continued
his residence, if he persists in his endeavours: he, therefore,
returns the next year, and is again driven away, re infecta; and so
on, for a succession of years. Shall such a perseverance be
accounted as nothing? And, is it not obvious, that to require that
the actual settler shall be driven away, and constantly kept away,
and yet shall complete the settlement and residence, places him in
a condition more grievous, than even the case of the warrantee, who
is merely prevented from entering and improving the land?
Upon the whole, then, let the proviso operate as a release of
the condition precedent, or let it be taken as qualifying the
condition, and requiring a reasonable perseverance during, or
after, a war, the claim of the Holland company must be established.
They persisted, in spite of every danger, while hostilities raged;
and more than five years have elapsed, since the Indian treaty,
during which they have, also, persisted.
3d. Of the propriety of proceeding, in this case, by a
Mandamus.
In entering upon this part of the discussion, it is proper to
inquire, whether the construction given by the board of property to
the proviso, is not conclusive. It was given after great
deliberation,
Page 4 U.S.
170, 192
and upon the legal advice of the law officer of the state.
Patents have been issued, in pursuance of the construction; and
transfers have been made and accepted upon the faith of the public
grants, under the great seal. Stare decisis, is a maxim to be held
forever sacred, on questions of property; and, in the present
instance, applies with peculiar force, as the rule was given by the
state herself, through the medium of her officers; and with her
alone, not with any individual, can a conflict arise. The board of
property is of a judicial character, and had jurisdiction in the
present case. 2 vol. State Laws, p. 21. s. 2, 3. 3 vol. 2. 456. 4
vol. 476. 3 vol. 213. 311. There is no revisionary, or appellate,
authority established for questions of this nature: and, certainly,
the secretary of the land-office, though a constituent member of
the board of property, is merely, as secretary, a ministerial
officer, bound by the decisions of the board, though contrary to
his own opinions. His ministerial duties (of which it is one, that
he shall obey the orders of the board of property) are stated in
the several laws, relating to the land-office, and they have
received a practical exposition, which devolves on him the care of
preparing patents for the governor's signature, and the seal of the
state. He is bound, then, to execute the public laws, relating to
the land-office; and, if he refuses to do so, the Court will compel
him by mandamus, on general principles, as well as on the authority
of particular cases.
The general principale of the mandamus, points at cases, in
which there is no other legal, specific, remedy, for a satisfaction
in damages is not regarded, in such cases, as an adequate
reparation: and then it may be awarded to any public, or private,
person. 1 Woodes. Lect. 118. 3 Black. Com. 110. 3 Burr. 1267. 1659.
4 Burr. 2188. 2 Burr. 1045. 3 T. Rep. 651. 1 T. Rep. 404. Douglas,
568. The particular instances are numerous. It lies to compel the
ordinary to grant letters of administration: 1 Black. Rep. 640. To
compel the delivery of an administration bond to be put in suit: 4
Bac. Abr. 508. Cowp. 140. To compel the grant of a licence to a
curate, if refused without just reason: 4 Bac. Abr. 502. 506. 2
Stra. 797. To compel the proper officer to affix a seal: 4 Bac.
Abr. 509. Or to register a certificate, being merely a ministerial
act: Id. 508. 1 Wils. 283. To compel the party to proceed in
proving a will: Raym. 235. 15 Vin. Abr. 203. To oblige any officer
to do his duty: 4 Com. Dig. 207. To compel obedience to things
enjoined by state: 2 Stra. 992. To compel the enrolment of a
testament, which by custom ought to be enrolled: 2 Roll. Abr. 106.
1 Sid. 443. To compel a clerk of a company to deliver up books: 1
Stra. 879. To compel an old officer to deliver records to a new
one: 1 Sid. 31.
The arguments in opposition to the motion for a mandamus, were
arranged under three considerations: 1st. What is the real
Page 4 U.S.
170, 193
import of the condition precedent: 2d. What the Holland company
had performed, to vest in them a legal title to the lands: and, 3d.
Whether a mandamus does lie to the secretary of the land-office,
even if the company are entitled to patents.
1st. What is the real import of the condition precedent.
This general inquiry, naturally, divides itself into a view of
what must be accomplished, by persons, who meet with no prevention
from the enemies of the United States; and of what must be done,
even by persons who are so prevented; in order to obtain a legal
title to the land. The policy and object of the legislature, are to
be ascertained, by the circumstances which induced them to pass the
act of the 3d of April 1792. Before it was passed, and at the time
of passing it, there was a subsisting Indian war; and the treaty of
1794, between the United States and Great Britain, had not removed
the causes of irritation, and apprehension, in relation to that
power, which extended along the northern and western boundaries of
the state. Hence, it became of the greatest importance, to advance
the range of settlement; and to interpose the barrier of a bold and
hardy population, in the quarter, where danger was so apparent.
Treasure was, obviously, only a secondary consideration; and
settlement itself was only stipulated where the danger existed.
Thus, the lands east of the Alleghany were offered for sale,
unshackled with conditions of settlement; while those on the west,
could never be vested in any individual, upon any other terms, than
those of actual settlement and residence. The steady caution of the
legislature on this point, is conspicuous in almost every section
of the act. The sale is only offered to persons, who will
cultivate, improve, and settle the lands, 3 vol. p. 209. s. 2. An
actual settler, without warrant, is so highly regarded, that
although the law would deem him a trespasser, on general
principles, the act prohibits any deputy surveyor from surveying
any settled land, but for the owner of the settlement. s. 5. p.
210. A period of ten years credit is given to an actual settler for
the price of his land. s. 10. p. 210. The land is exempt from
direct taxes for an equal term. s. 12. p. 213. And when the
legislature, in the year 1794, closed the land-office, it was with
an express exception in favour of actual settlers. 3 State Laws,
637. 21 In addition to these proofs of the policy and design of the
legislature, it must be of great force to recollect, that shortly
before the time of offering the land for sale at the rate of 7l.
10s. per 100 acres, the state had paid to the United States, at the
rate of three-fourths of a
Page 4 U.S.
170, 194
dollar for every acre, contained in the triangular tract
bordering on lake Erie. [
Footnote 22]
The language of the act ought, then, to be expounded, in
consistency with the policy, that gave it birth; and this can only
by done, by considering the effect of a prevention, by a public
enemy, to be a suspension, and not an extinguishment, of the
obligation, to settle and reside upon the land. The legislature
must have presumed, that, notwithstanding the existence of the
Indian war, there would be an extension of the western settlements;
the accomplishment of a settlement was made a sine qua non, to the
investment of a legal title; and the proviso declares nothing more,
in effect, than that the war shall be an excuse for non-settlement,
while it continues, and the warrantee sincerely persists in his
endeavour to settle. But an endeavour to settle must be shown,
whether war raged, or not; and the endeavour must be to settle
every tract, (each being the subject of a separate grant) not a
general effort to improve an extensive and indefinite range of
country. It being the spirit of the contract, that the land should
be settled, no argument ought to avail on the score of the
warrantee's having paid the stipulated price; and the word
settlement, wherever used, is pregnant with all the consequences,
of building, cultivation, and residence, described in the 9th
section of the act. It is now too late to complain of hard terms.
Whatever was intended, and undertaken, by virtue of the law, it is
just and lawful to enforce. Say, even that a forfeiture has been
incurred, and insisted on, it can be no reason, at this day, to
reproach the government. That point, however, is not urged; for,
every argument, used on the present occasion, to oppose the
mandamus, is perfectly consistent with the idea of future grants,
or patents, being issued to the Halland company, if they persevere,
and, in a reasonable time, comply with the requisites of the
condition precedent.
2d. What have the Holland company performed to vest in them a
legal title to the lands.
It must be repeated, that every tract is the subject of a
distinct grant; and that the condition precedent attaches to each
tract. Nor does it affect the obligations of the condition, that
the Holland company are the holders of all the warrants in
question; for, the law is the same, as if each warrant belonged to
a separate individual owner. Have the company, then, shown an
actual settlement, or even an endeavour to settle, upon each of the
tracts? The evidence exhibited by the company themselves,
establishes a contrary position. Can it be sufficient to say, that
they have improved a great deal of the country, and, therefore, are
entitled to hold what they have not improved? The spirit of
monopoly,
Page 4 U.S.
170, 195
was an evil against which the legislature meant to guard, by
dividing the territory offered for sale into tracts, and
restricting the right of purchase to a single tract. It is true,
that the contrivance of opulent speculators has evaded the
legislative precaution; and instead of each settler being the owner
of the tract on which he resides, he is the mere instrument of an
association of foreigners (who never have visited, and, probably,
never will visit, America) to obtain, for their emolument, the
lands, which the state had offered for sale, with very different
views of policy and benefit.
Let it be admitted, however, that the Indian war, operated as an
excuse, for not settling each tract, till the spring of 1796, yet,
the ratification of general Wayne's treaty removed every obstacle,
and was a warning to every warrantee, that the season had arrived,
when, by persisting in his endeavours, he might consummate his
legal title. If, indeed, no industry, or care, could have enabled
the company to comply with their contract, the condition would
still, perhaps, be suspended: but it is not clear, that a
settlement was impracticable at any time, and certainly it has been
practicable for five years past. The company have already obtained
876 patents, without a performance of the condition; and it is
remarkable, that until the re-survey in 1799, they could not even
ascertain, what tracts were embraced by the remaining 153 warrants.
As to the lands, therefore, for which patents are now claimed,
nothing more has been done by the company, than to locate and
survey them; and unless the Indian war operated as a release of the
condition, there is no title acquired.
3d. Whether a mandamus does lie to the secretary of the land
office, even if the Holland company are entitled to patents.
The board of property is a Court of Justice; and should be
governed by the principles of law, in relation to the proof of
matters, within their jurisdiction. The certificate of prevention,
framed by the order of the 21st of December 1797, is destitute of
every characteristic of evidence; and it has even been evaded in
the manner of returning it; for, the order required the signature
of the proper deputy surveyor, and two Justices; but, in many
instances, the certificate is signed by the same person twice, once
as deputy surveyor, and again as a justice. Consider the order as a
rule of practice; rules of practice are forever in the power of the
Court, to alter or rescind; and the succeeding board of property
could not be restrained in this respect, by the acts of their
predecessors. Besides, the order of the 21st December 1797, is
radically defective in other points. The board of property was
bound to inquire for themselves, whether settlements had been
completed, or prevented, within the meaning of the law; it was a
judicial authority, which could not be delegated; and, yet, by this
order, it was actually transferred to the deputy
Page 4 U.S.
170, 196
surveyors and justices; nor was the sanction of an oath required
for the fidelity of their certificate; which, indeed, is not a
statement of facts, but the declaration of a result. The
introduction of such an order was, therefore, an error, and its
revocation became a duty.
The secretary of the land office, in his judicial capacity, as a
member of the board of property, decided against the force of the
certificate of prevention, to entitle warrantees to patents: and
the effect of the mandamus would be to compel him to do, as an
executive officer, what he has declared, as a judge, ought not to
be done. Nor is the act required within the duties of his office.
The patent is an act of the governor; and affixing the state seal,
is an act of the secretary of the commonwealth: but the secretary
of the land-office can neither issue a patent, nor affix the seal,
nor compel others to do so. It is to be remembered, likewise, that
the board of property is established expressly as a tribunal, to
advise and regulate the proceedings of the land office; and a
mandamus ought not to issue to any of the ministerial officers,
requiring an act to be done, which the board has prohibited. 2
State Laws, 21. 3 State Laws, 3. s. 3. 3 Bl. Com. 111.
But there is, both in law, and in practice, a specific,
appropriate, and adequate, remedy, which supersedes any pretext for
issuing a mandamus. If the secretary of the land office refuses to
perform a duty, an application may be made to the board of
property, whose orders he must obey; and if the decision of the
board of property is not satisfactory to the applicant, he may
institute an ejectment. By this course, order will be preserved,
justice will be administered, and the interests of the state, as
well as of individuals, will be protected.
After taking time for deliberation, the Judges23 delivered their
opinions seriatim:
SHIPPEN, Chief Justice.
The legislature, by the act of the 3d of April 1792, meant to
sell the remaining lands of the state, particularly those lying on
the north and west of the rivers Ohio and Allegany. The
consideration money was to be paid on issuing the warrants. They
had, likewise, another object, namely, that, if possible, the lands
should be settled by improvers. The latter terms, however, were not
to be exacted from the grantees at all events. The act passed at a
time when hostilities existed on the part of the Indian tribes. It
was uncertain when they would cease: the legislature, therefore,
contemplated, that warrants might be taken out during the existence
of these hostilities, which might continue so long, as to make it
impossible for the
Page 4 U.S.
170, 197
warrantees to make the settlements required, for a length of
time; not, perhaps, until after these hostilities should entirely
cease. Yet, they make no provision, that the settlements should be
made within a reasonable time after the peace; but expressly within
two years after the dates of the warrants. As, however, they wished
to sell the lands, and were to receive the consideration money
immediately, it would have been unreasonable, and, probably, have
defeated their views in selling, to require settlements to be made
on each tract of four hundred acres, houses to be built, and lands
to be cleared; in case such acts should be rendered impossible by
the continuance of the Indian war. They, therefore, make the
proviso, which is the subject of the present dispute, in the
following words: 'Provided always, nevertheless, That if any such
actual settler, or any grantee, in any such original or succeeding
warrant, shall by force of arms of the enemies of the United
States, be prevented from making such actual settlement, or be
driven therefrom; and shall persist in his endeavours to make such
actual settlement, as aforesaid; then, in either case, he and his
heirs, shall be entitled to have and to hold the said lands, in the
same manner, as if the actual settlement had been made and
continued.'
When were such actual settlements to be made? The same section
of the act which contains the above proviso, gives a direct and
unequivocal answer to this question, 'Within the space of two years
next after the date of the warrant.' If the settlements were not
made, within that time, owing to the force, or reasonable dread, of
the enemies of the United States, and it was evident that the
parties had used their best endeavours to effect the settlement;
then, by the express words of the law, the residence of the
improvers for five years afterwards, was expressly dispensed with;
and their title to the lands was complete, and patents might issue
accordingly. It is contended, that the words 'persist in their
endeavours' in the proviso, should be extended to mean, that if
within the two years, they should be prevented by the Indian
hostilities from making the settlement; yet, when they should be no
longer prevented by those hostilities, as by a treaty of peace, it
was incumbent on them, then to persist to make such settlement. The
legislature might, if they had so pleased, have exacted those
terms; (and they would not, perhaps, have been unreasonable) but
they have not done so: they have expressly confined the time of
making such settlements, to the term of two years from the date of
the warrant. Their meaning and intention can alone be sought for,
from the words they have used, in which there seems to me, in this
part of the act, to be no great ambiguity. If the contrary had been
their meaning, they would not have made use of the word
'endeavours,' which supposes a possibility, at least, if not a
probability, as things then stood, of those endeavours failing on
account of the hostilities; and would, therefore,
Page 4 U.S.
170, 198
have expressly exacted actual settlements to be made, when the
purchasers should no longer run any risk in making them.
The state having received the consideration money, and required
a settlement within two years, if not prevented by enemies; and in
that case dispending with the condition of settlement and
residence, and declaring that the title shall be then good, and as
effectual, as if the settlement had been made and continued: I
cannot conceive they could mean to exact that settlement at any
future indefinite time. And, although it is said, they meant that
condition to be indispensable, and that it must be complied with in
a reasonable time; we have not left to us that latitude of
construction, as the legislature have expressly limited the time
themselves.
It is urged, that the main view of the legislature was to get
the country settled and a barrier formed: this was, undoubtedly,
one of their views, and for that purpose, they have given
extraordinary encouragement to individual settlers; but they had,
likewise, evidently, another view, that of encreasing the revenue
of the state, by the sale of the lands. The very title of the act
is 'For the sale of the vacant lands within this commonwealth;'
this latter object they have really effected, but not by the means
of the voluntary settlers: it could alone be effected by the purses
of rich men, or large companies of men, who would not have been
prevailed upon to lay out such sums of money as they have done, if
they had thought their purchases were clogged with such
impracticable conditions.
I have hitherto argued upon the presumption, that the words
'persist in their endeavours,' relate to the grantees, as well as
the settlers; but, in considering the words of the proviso, it may
be well doubted, whether they relate to any other grantee, or
settler, than those who have been driven from their settlements.
The word 'persist,' applies very properly to such. The words of the
proviso are, 'If such actual settler, or any grantee, shall, by
force of arms of the enemies of the United States, be prevented
from making such settlement, or be driven therefrom, and shall
persist in his endeavours to make such actual settlement; then, in
either case, he and his heirs shall be entitled, &c.' Here,
besides that the grammatical construction of referring the word
'persist,' to the last antecedent, is best answered; the sense of
it is only applicable to settlements begun, and not to the
condition of the grantees. There are two members of the sentence,
one relates to the grantees, who it is supposed, may be prevented
from making their settlements: the other to the settlers, who are
supposed to be driven away from the settlements. The latter words,
as to them, are proper; as to the grantees, who never began a
settlement, improper. The act, says, in either case, that is, if
the grantees are prevented from making their settlements, or
Page 4 U.S.
170, 199
if the settlers are driven away, and persist in their endeavours
to complete their settlements, in either case they shall be
entitled to the land. I will not say this construction is entirely
free from doubt: if it was, there would be an end of the question.
But taking it for granted, as it has been done at the bar, that the
words relate to the grantees, as well as to the settlers; yet,
although inaccurate, with regard to the former, it seems to me, the
legislature could only mean to exact from the grantees, their best
endeavours to make the settlements, within the space of two years
from the date of their warrants; at the end of which time, if they
have been prevented from complying with the terms of the law, by
the actual force of the enemy, as they had actually paid for the
land, they are then entitled to their patents. If the legislature
really meant differently, all I can say, is, that they have very
unfortunately expressed their meaning. The propriety of awarding a
mandamus, is another question, which I mean not to discuss, as I
presume a decision of a majority of the Court will make it
unnecessary.
YEATES, Justice. I have long hoped and flattered myself, that
the difficulties attendant on the present motion, would have been
brought before the justice and equity of the legislature for
solution, and not come before the judicial authority, who are
compelled to deliver the law as they find it written for decision.
The question has often occurred to our minds, under the act of the
3d of April 1792, which has so frequently engaged our attention in
our western circuits. The Holland company have paid to the state,
the consideration money of one thousand one hundred and sixty-two
warrants, and the surveying fees, on the thousand and forty-eight
tracts of land; besides making very considerable expenditures by
their exertions, honourable to themselves, and useful to the
community (as has been correctly stated) in order to effect
settlements. Computing the sums advanced, the lost tracts, by prior
improvements and interferences, and the quantity of one hundred
acres granted to each individual for making an actual settlement on
their lands; it is said, that averaging the whole, between two
hundred and thirty and two hundred and forty dollars, have been
expended by the company, on each tract of land they now lay claim
to. The Indian war, which raged previous to, and at the time of the
passing of the law, and until the ratification of the treaty at
fort Grenville, must have thrown insurmountable bars in the way of
those persons, who were desirous of sitting down immediately on
lands, at any distance from the military posts. These obstacles
must necessarily have continued for some time after the removal of
impending danger, from imperious eircumstances; the
Page 4 U.S.
170, 200
scattered state of the inhabitants, and the difficulty of early
collecting supplies of provisions: besides, it is obvious, that
settlements, in most instances, could not be made, until the lands
were designated and appropriated by surveys, and more especially
so, where warrants have express relation to others, depending on a
leading warrant, which particularly locates some known spot of
ground.
On the head of merit, in the Holland land company's sparing no
expense to procure settlements, I believe there are few dissenting
voices beyond the mountains: and one would be induced to conclude,
that a variety of united, equitable, circumstances, would not fail
to produce a proper degree of influence on the public will of the
community. But we are compelled by the duties of our office, to
give a judicial opinion, upon the abstract legal question, Whether
if a warrant-holder, under the act of the 3d of April 1792, has
begun to make his actual settlement, and is prevented from
completing the same, 'by force of arms of the enemies of the United
States, or is driven therefrom,' and shall make new endeavours to
complete the same; but fails in the accomplishment thereof, the
condition of actual settlement and residence is dispensed with and
extinguished?
I am constrained, after giving the subject every consideration
in my power, to declare, that I hold the negative of the
proposition, for the following reasons, collected from the body of
the act itself:
1st. The motives inducing the legislature to enact the law, are
distinctly marked in the preamble, that 'the prices fixed by law
for other lands,' (than those included in the Indian purchase of
1768) 'are found to be so high, as to discourage actual settlers
from purchasing and improving the same.' 3 State Laws, 209.
3d. 'The lands lying north and west of the rivers Ohio and
Alleghany, and Conewango creek, are offered for sale, to persons
who will cultivate, improve, and settle the same, or cause the same
to be cultivated, improved, and settled, at and for the price of
7l. 10s. for every hundred acres thereof.' By sect. 2. The price of
lands is thus lowered, to encourage actual settlements.
3d. By sect. 3. 'Upon the application of any person who may have
settled and improved, or is desirous to settle and improve, a
plantation within the limits aforesaid; there shall be granted to
him a warrant not exceeding four hundred acres,' &c.
The application granted, is not to take up lands; but it must be
accompanied, either by a previous settlement and improvement, or
expressions of a desire to settle and improve a plantation; and in
this form all such warrants have issued.
Page 4 U.S.
170, 201
4th. By sect. 5. 'Lands actually settled and improved, prior to
the date of the entry of a warrant with the deputy surveyor of the
district, shall not be surveyed; except for the owner of such
settlement and improvement.' This marked preference of actual
settlers over warrant-holders, who may have paid their money into
the treasury for a particular tract; even, perhaps, before any
improvement of the land was meditated, shows, in a striking manner,
the intention of the legislature. 5th. By sect. 8. 'The deputy
surveyor of the district, shall, upon the application of any
person, who has made an actual settlement and improvement on these
lands, survey and mark out the lines of the tract of land, not
exceeding four hundred for such applicant.' The settlement and
improvement alone, are made equivalent to a warrant; which may be
taken out, by section 10, ten years after the time of passing this
act. 6th. I found my opinion, on what I take to the true and
legitimate construction of the 9th section; in the close of which
is to be found the proviso, from whence spring all the doubts on
the subject. It has been said at the bar, that three different
constructions have been put on this section. 1st. That if the
warrant-holder has been prevented by Indian hostilities, from
making his settlement within two years, next after the date of his
warrant, and until the 22d of December 1795; (the time of
ratification of general Wayne's treaty) the condition of settlement
and residence is extinct and gone. 2d. That though such prevention
did not wholly dispense with the condition, it hindred its running
within that period; and that the grantee's persisting in his
endeavours, to make an actual settlement and residence for five
years, or within a reasonable time thereafter, shall be deemed a
full compliance with the condition: And, 3d. That in all events,
except the death of the party, the settlement and residence, shall
precede the vesting of the complete and absolute estate. Though
such great disagreement has obtained, as to the true meaning of
this 9th section, both sides agree in this, that it is worded very
inaccurately, inartificially, and obscurely. Thus it will be found
towards the beginning of the clause, that the words 'actual
settlement,' are used in an extensive sense, as inclusive of
residence for five years: because its constituent parts are
enumerated and described, to be by 'clearing, fencing, and
cultivating, at least two acres for every hundred acres, contained
in one survey; erecting thereon, a messuage for the habitation of
man, and residing, or causing a family to reside thereon,
Page 4 U.S.
170, 202
for the space of five years, next following his first settling
the same, if he or she shall so long live.' In the middle of the
clause, the same words are used in a more limited sense, and are
coupled with the expression 'and residence,' and in the close of
the section, in the proviso, the same words, as I understand them,
in a strict grammatical construction of the whole clause, must be
taken in the same large and comprehensive sense, as they first
conveyed; because the terms 'such actual settlement,' used in the
middle of the section, are repeated in the proviso, and refer to
the settlement described in the foregoing part: and the words
'actual settlement, as aforesaid,' evidently relate to the
enumeration of the qualities of such settlement. Again, the
confining of the settlement to be within the space of two years,
next after the date of the warrant, seems a strange provision. A
war with the Indian natives subsisted when the law passed, and its
continuance was uncertain. The state of the country might prevent
the making of surveys for several years; and until the lands were
appropriated by surveys, the precise places where they lay, could
not be ascertained generally.
Still, I apprehend that the intention of the legislature may be
fairly collected from their own words. But I cannot accede to the
first construction, said to have been made of the proviso in this
9th section; because it rejects as wholly superfluous, and assigns
no operation whatever, to the subsequent expressions 'if any
grantee shall persist in his endeavours,' &c. which is taking
an unwarrantable liberty with the law. Nor can I subscribe to the
second construction stated, because it appears to me to militate
against the general spirit and words of the law, and distorts its
great prominent features in the passages already cited, and for
other reasons, which I shall subjoin. I adhere to the third
construction, and will now again consider the 9th section. It
enacts, in the first instance, that 'no warrant or survey for
lands, lying north and west of the rivers Ohio and Alleghany, and
Conewango creek, shall vest any title, unless the grantee has,
prior to the date of such warrant, made, or caused to be made; or
shall within the space of two years next after the date of the
same, make, or cause to be made, an actual settlement thereon, by
clearing, &c. Provided always, nevertheless, That if any such
actual settler, or any grantee, in any such original or succeeding
warrant, shall by force of arms of the enemies of the United
States, be prevented from making such actual settlement, or be
driven therefrom, and shall persist in his endeavours to make such
actual settlement as aforesaid; then, in either case, he and his
heirs, shall be entitled to have and to hold the said lands, in the
same manner, as if the actual settlement had been made and
continued.'
'Persist' is the correlative of
attempt or endeavour, and signifies 'hold on,' 'persevere,' &c.
The beginning words of the section,
Page 4 U.S.
170, 203
restrict the settlement, 'to be within two years next after the
date of the warrant, by clearing, &c. and by residing for the
space of five years, next following his first settling of the same,
if he or she shall so long live;' and in default thereof, annexes a
penalty of forfeiture in a mode prescribed. But the proviso
relieves against this penalty, if the grantee is prevented from
making such settlement by force, &c. and shall persist in his
endeavours to make such actual settlement, as aforesaid. The
relief, then, as I read the words, goes merely as to the times of
two years next after the date of the warrant, and five years next
following the party's first settling of the same; and the proviso
declares, that persisting, &c. shall be equivalent to a
continuation of the settlement.
To be more intelligible, I paraphrase the 9th section
thus:-Every warrant-holder shall cause a settlement to be made on
his lands within two years next after the date of his warrant, and
a residence thereon for five years next following the first
settlement, on pain of forfeiture by a new warrant. Nevertheless,
if he shall be interrupted, or obstructed, by external force, from
doing these acts within the limited periods, and shall afterwards
persevere in his efforts in a reasonable time, after the removal of
such force, until those objects are accomplished, no advantage
shall be taken of him, for the want of a successive continuation of
his settlement.
The construction I have adopted, appears to me to restore
perfect symmetry to the whole act, and to preserve its due
proportions. It affords an easy answer to the ingenious question,
proposed by the counsel of the Holland company. If, say they,
immediately after a warrant issues, a settler, without delay, goes
on the ground the 11th of April 1792, and stays there until the
next day, when he is driven off by a savage enemy, after a gallant
defence; and then fixes his residence as near the spot, as he can,
consistently with his personal safety, does the warrantee lose all
pretensions of equity? Or, suppose he has the good fortune to
continue there, firmly adhering to the soil, for two or three
years, during the Indian hostilities; but is, at length, compelled
to remove by a superior force: is all to go for nothing, and must
he necessarily begin again? I answer to both queries, in the
negative;-by no means. The proviso supplies the chasm of successive
years of residence; for every day and week he resides on the soil,
he is entitled to credit in his account with the commonwealth; but,
upon a return of peace, when the state of the country will admit of
it, after making all reasonable allowances, he must resume the
occupation of the land, and complete his actual settlement.
Although a charity cannot take place according to the letter, yet
it ought to be performed cy-pres, and the substance pursued. 2
Vern. 266. 2 Fonb. 221.
Page 4 U.S.
170, 204
It has been objected, that such a contract with the state, is
unreasonable, and hard on those land-holders, and ought not to be
insisted upon. It will be said, in reply, they knew the terms
before they engaged in the bargain, and must abide by the
consequences: The only question is, whether the interpretation
given of it be correct or not.
7th. A due conformity to the provisions of the act, is equally
exacted of those who found their preference to lands on their
personal labour, as of those who ground it on the payment of money.
I know of no other distinctions between these two sets of
land-holders, as to actual settlement and residence; than that the
claims of the former, must be limited to a single plantaion, and
the labour be exerted by them, or under their direction; while the
latter may purchase as many warrants as they can, and make, or
cause to be made, the settlements required by law. Addison, 340,
341.
It is admitted, on all sides, that the terms of actual
settlement and residence, are, in the first place, precedent
conditions, to the vesting of absolute estates in these lands; and
I cannot bring myself to believe, that they are dispensed with, by
unsuccessful efforts, either in the case of warrant-holders, or
actual settlers. In the latter instance, our uniform decisions have
been, that a firm adherence to the soil, unless controlled by
imperious circumstances, was the great criterion, which marked the
preference in such cases; and I have seen no reason to alter my
opinion.
8th. Lastly, it is obvious from the preamble, and section 2,
that the settlement of the country, as well as the sale of the
lands, was meditated by this law; the latter, however, appears to
be a secondary object with the legislature. The peopling of the
country, by a hardy race of men, to the most extreme frontier, was
certainly the most powerful barrier against a savage enemy.
Having been thus minute, and I fear tedious, in delivering my
opinion, it remains for me to say a few words, respecting those
persons who have taken possession of part of these lands, supposing
the warrants to be dead, according to the cant word of the day, and
who, though not parties to the suit, are asserted to be implicated
in our decision. If the lands are forfeited in the eye of the law,
though they have been fully paid for, the breach of the condition
can only be taken advantage of by the commonwealth, in a method
prescribed by law. Innumerable mischiefs, and endless confusion,
would ensue, from individuals taking upon themselves to judge when
warrants and surveys cease to have validity, and making entries on
such lands at their will and pleasure. I will repeat what we told
the jury in Morris's Lessee v. Neighman and Shaines, 'If the
expressions of the law were not as particular as we find them, we
should have no difficulty in
Page 4 U.S.
170, 205
pronouncing that no person should take advantage of their own
wrong, and that it does not lie in the mouths of men, like those we
are speaking of, to say the warrants are dead; we will take and
withhold the possession, and thereby entitle ourselves to reap
benefits from an unlawful act.' On the whole, I am of opinion, that
the rule should be discharged.
SMITH, Justice.
I have had a full opportunity of considering the opinion
delivered by my brother YEATES; and as I perfectly concur in all
its principles, I shall confine myself to a simple declaration of
assent. I could not hope, indeed, to add to the argument; and I am
certain I could not equal the language, which he has used on the
occasion.
By the COURT:
Let the rule be discharged. [
Footnote 24]
Footnotes
Footnote 1 See 1 vol. State
Laws, in Appendix, p. 1. Dall. edit.
Footnote 2 For a reference
to the purchases from the Indians, and to the laws respecting lands
and the land office, see 1 vol. p. 5. 39. 248. 503. 891. 908. 2
vol. 21. 201. (e) 3 vol. 209. and, generally, the proper titles to
the index in Dallas's edition.
Footnote 3 See Proud's
History of Pennsylvania, 1 vol. 187. Cases in Chancery temp. Ld.
Hardwicke, 332. Penn v. Baltimore, 1 Vez. 444. S. C.
Footnote 4 For a history of
the rise and progress of the claim, see a pamphlet published in the
year 1774, by Dr. William Smith, the late provost of the college of
Philadelphia.
Footnote 5 For the
proceedings, which terminated in the decree of Trenton, see the
Journals of Congress, for the year 1781, 7 vol. p. 169. 171,
&c.
Footnote 6 See 2 vol. p.
207.
Footnote 7 See 2 vol. p.
143.
Footnote 8 See 1 vol. p.
822.
Footnote 9 See 1 vol. p.
891.
Footnote 10 See 2 vol. p.
21. 5th April 1782.
Footnote 11 See 2 vol. p.
88. 12th March 1783.
Footnote 12 See 2 vol. p.
201.
Footnote 13 See 2 vol. p.
234. 21st Dec. 1784.
Footnote 14 See 2 vol. p.
311.
Footnote 15 For the
various military measures pursued by the state government, and the
general opinion of danger, see the following laws, and the entries
in the journals of the senate: 3 vol. 19. 17th March 1791. 1
Journal Sen. 272, 3. 24th August 1791. ibid. 27. 29. 37. 47. 54.
December 1791, and January 1792. 3 State Laws, 177. 20th January
1792. 2 Journ. Sen. 8th December 1792. 3 State Laws, 335. 3d April
1793. 2 journ. Sen. 288. 29th August 1793. Ib. 294. 4th September
1793. Ib. 5th December 1793. 3 State Laws, 464. s. 2, 3. 28th
February 1794. Ib. 483. 8th April 1794. 2 Journ. Sen. 264, 5. 2d
September 1794. 3 State Laws, 757. 13th April 1795. Ib. 763. s. 13,
14.
Footnote 16 See Ewalt's
Lessee v. Highland, ante, p. 161. M'Laughlin's Lessee v. Dawson,
and Morris's Lessee v. Neighman, post.
Since this report was prepared, the same question has been
agitated in the Circuit Court of the United States, in the Lessee
of Balfour v. Meade, at April term 1803. The evidence was
conclusive, that until the spring of 1796, it was not safe to
prosecute settlements in the country, lying north and west of the
rivers Ohio and Alleghany, and Conewango creek: and although the
cause was decided in favour of the defendant, who claimed as an
actual settler, upon other grounds, Judge Washington, in his charge
to the jury, admitted the fact to be proved, and declared, that
where the fact of prevention could avail the party, it operated
during the whole war, and for a reasonable time (according to the
circumstances of the case) after the treaty of peace. The case is
reported in a subsequent part of the present volume.
Footnote 17 The minute of
the board of property, is in these words: At a special meeting of
the Board of Property, 16th Dec. 1797. Present DANIEL BRODHEAD, S.
G. JOHN HALL, Secretary, FRANCIS JOHNSTON, R. G. of the Land
Office. Resolved, That the following be the form of the certificate
to be produced to the secretary of the land office, before any
patents shall issue for land lying north and west of the rivers
Ohio and Alleghany and Conewango creek, and that the same be signed
by the proper deputy surveyor of the district where the land lies,
and by the district judge, or two justices of the peace in the
vicinity of the said land, and that the secretary cause the said
form, with this resolution, to be published in the Pittsburgh
Gazette. We do hereby certify, that _____ hath made, or caused to
be made, an actual settlement on a tract of land, containing _____
acres, lying north and west of the rivers Ohio and Alleghany, and
Conewango creek, situate, & c. (here describe the land) by
clearing, fencing, and cultivating, at least two acres for every
hundred acres, contained in the survey of said tract; that he hath
erected thereon a messuage for the habitation of man, and resided,
or caused a family to reside thereon, for the space of five years
next following his first settling of the same. (A true copy) JOHN
HALL, Secretary of the land office.
Footnote 18 The
proceedings on this subject are as follow:
December 21st, 1797.
The board, desirous of establishing a legal form of a
certificate, to be produced to the secretary of the land office,
before patents shall issue for lands lying north and west of the
rivers Ohio and Alleghany and Conewango creek, wrote to Jared
Ingersoll, Esq. attorney-general, for his opinion and directions on
this subject, to which they received the following reply, viz.
'Gentlemen,
'The certificate proposed by you,
respecting the lands lying north and west of the rivers Ohio and
Alleghany and Conewango creek, appears to me to be unexceptionable
in its form, provided you add a clause conformable to the proviso
contained in the 9th section, that where the settler or grantee has
been prevented making such settlement, or hath been driven
therefrom by force of arms of the enemies of the United States, and
has persisted in his endeavours to make such settlement, he is
entitled as if such settlement had actually been made and
continued.'
Whereupon, the board made the following resolution, adopting the
annexed form of certificates, viz.
Resolved, that the following be the form of the certificate, or
certificates, to be produced to the secretary of the land office,
before any patent or patents shall issue for lands lying north and
west of the rivers Ohio and Alleghany and Conewango creek, and that
the same be signed by the proper deputy surveyor of the district
where the land lies, and by the district judge, or two justices of
the peace, in the vicinity of the said land; and that the secretary
cause the same form, with this resolution, to be published in the
Pittsburgh Gazette:
Footnote 19 Several
objections were made, in the course of the argument, t o the form
of the certificates produced by the Holland company; but these, and
other objections in point of form, eventually yielded to a
discussion and decision of the general question.
Footnote 20 The period
has been enlarged. See 6 vol. p. 25.
Footnote 21 The land
office appears to have been closed, upon the suggestion of the
governor, that warrants had issued for a greater quantity of land,
than the state owned; and not with a view to favour actual
settlers. See the governor's message of the 2d of Sept. 1794.
Footnote 22 The payment
was made in public certificates; which, it was insisted, were
greatly depreciated in value.
Footnote 23 Mr. Justice
BRACKENRIDGE, having been retained, while he was at the bar, as
counsel for the Holland company, declined taking any part in the
decision of this cause.
Footnote 24 Since this
decision was pronounced, the subject has been revived and agitated
in various interesting forms. In the winter of 1801-2, several
petitions were presented by the intruders to the legislature,
requesting their interposition, but the committee of the senate, to
whom these petitions were referred, reported against them, and
admitted, that the controversy belonged exclusively to the Courts
of justice. But soon after this report was made, a bill was
introduced, entitled 'An act,' &c. which recites the existing
controversies, gives a legislative opinion against the claim of the
warrantees, and institutes an extraordinary tribunal, to hear and
decide between the parties. The appearance of this bill produced
two remonstrances from the Holland company, but without effect. As
soon as it became a law, the attorney-general and the counsel for
the company were invited to a conference with the judges, on the
carrying of it into effect; but, upon mature consideration, the
counsel for the company declined taking any part in the business,
and assigned their reasons in a letter addressed to the judges,
dated the 24th of June 1802. An issue was then formed, by the
direction of the judges, which was tried at Sunbury, on the 25th of
November following, before YEATES, SMITH, and BRACKENRIDGE,
Justices, and a report of the proceedings and decision on that
occasion will be found in a subsequent part of the present
volume.