48*] *a private right of entry, for there cannot be actual settlement without actual entry. These expressions of the act imply as complete a right of entry as a warrant itself. By the act of the 22d of April, 1794, vol. 3, p. 81, 636, no warrant can be obtained for unimproved lands. There must be a previous actual settlement. 49*] *It is not necessary that any act should be done on the part of the commonwealth, because there is no title to be defeated. But if she is bound to do any act, the act of the actual settler is her authorized act. He cannot be a trespasser, because the land was vacant.

mate meaning of the act of 1792, extracted ex vi-, ceribus suis, independent of any legislative exposition thereof. I adhere to the opinion which I formerly delivered in bank; yet, if a different interpretation of the law shall be made by courts of competent jurisdiction in the dernier resort I shall be bound to acquiesce, though I may not be able to change my sentiments. If the meaning of the first question be, are titles under warrants issued under the law of the 3d of April, 1792, for lands north and west of the rivers Ohio and Alleghany, and Conewango creek, good and available against the commonwealth, so as to bar the granting of the same land to other applicants, where the warrantees have not fully and fairly complied with the conditions of settlement, improvement and residence, required by the law at any time before, or within two years after, the dates of the respective warrants, in time of profound peace, when they were not prevented from making such actual settlement by force of arms of the enemies of the United States, or reasonable and well grounded fear of the enemies of the savages? The answer is ready in the language of the acts before us, and can admit of no hesitation.

"No warrant or survey for those lands 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., and in default thereof, it shall and may be lawful to and for the commonwealth to issue new warrants to other actual settlers for the said lands, or any part thereof," &c. (Act of the 3d of April, 1792, sec 8.) For "the commonwealth regarded a full compliance with these conditions of settlement and residence as an indisputable part of the purchase or consideration of the lands so granted." Preamble to act of 1802.

But if the true meaning of the question be, whether under all given or supposed circumstances of peace or war, of times of perfect tranquillity or imminent danger, such warrants are not ipso facto void and dead in law, we are constrained to say that our minds refuse assent to the general af firmative of the proposition.

We will exemplify our ideas on this subject. Put the case, that a warrant taken out early in 1792, calls for an island, or describes certain land, with accuracy and precision, by the course of waters, or other natural boundaries, distant from any military post, and that the warrantee, after evidencing the fullest intentions of making an actual settlement on the land applied for, by all the necessary preparation of provisions, implements of husbandry, laborers, cattle, &c., cannot, with any degree of personal safety, seat himself on the lands within two years after the date of the warrant, and by reason of the just terror of savage hostili ties. Will not the proviso in the 9th section of the act of 3d April, 1792, excuse the temporary nonperformance of an act, rendered highly dangerous, if not absolutely impracticable, by imperious circumstances, over which he had no control?

Or, suppose another warrant, depending, in point of description, on other leading warrants, which the district surveyor, either from the state of the country, the hurry of the business of his office, or other causes, could not survey until the two years were nearly expired, and the depredations of the Indians should intervene for the residue of the term, will not this also suspend the operation of the forfeiture? Nothing can be clearer to us than that the terms of the proviso embrace and aid such cases; and, independent of the strong expressions made use of, we should require strong proof to satisfy our minds that the legislature could possibly

*By the 15th section of the act, certain [*50 holders of warrants theretofore granted are authorized to locate them in any district of vacant land in the state, provided that the owners of such warrants "shall be under the same regulations and restrictions, as other owners of warrants taken for lands lying north and west of the Alleghany river and Conewango creek are made subject by this act;" that is, they are to make their settlement in two years from the date of their warrants, although their warrants were more than two years old when the act *passed. This can only be done by giv- [*51 mean to make a wanton sacrifice of the lives of her citizens.

It is said in the books, that conditions rendered impossible by the act of God are void. Salk. 107, 2 Co. 79, b; Co. Lit. 206, a. 290, b; 1 Roll. Abr. 449, 1, 50; 1 Fonb. 199.

But conditions precedent must be strictly performed to make the estate vest, and though become impossible, even by the act of God, the estate will not vest; Aliter, of conditions subsequent. 12 Mod. 183; Co. Lit. 218, a; 2 Vern, 339; 1 Ch. Ca. 129, 138; Salk. 231; 1 Vern. 183; 4 Mod. 66; We desire to be understood to mean that the "prevention by force of arms of the enemies of the United States" does not, in our idea, absolutely dispense with and annul the conditions of actual settlement, improvement and residence, but that it suspends the forfeiture by protracting the limited periods. Still the conditions must be performed cy pres, whenever the real terror arising from the enemy has subsided, and he shall honestly persist in his endeavors to make such actual settlement, improvement and residence, until the conditions are fairly and fully complied with.

Other instances may be supposed, wherein the principles of prevention may effectually be applicable. If a person, under the pretense of being an actual settler, shall seat himself on lands previously warranted and surveyed within the period allowed, under a fair construction of the law, to the warrantee, for the making his settlement, withhold the possession, and obstruct him from making his settlement, he shall derive no benefit from this unlawful act. If the party himself is the cause wherefore the condition cannot be performed, he shall never take advantage. Co. Lit. 206; Doug. 661; 1 Roll. Abr. 454, pl. 8; Godb 76; 5 Vin. 246, pl. 25.

We trust that we have said enough to convey our sentiments on the first point. Our answer to the question, as proposed, is, that such warrants may or may not be valid and effectual in law against the commonwealth, according to the several times and existing facts accompanying such warrants. The result of our opinion, founded on our best consideration of the matter is, that every case must depend on, and be governed by, its own peculiar circumstances.

The second question for decision is, are the titles that have issued from the land office under the act aforesaid, whether by warrant or patent, good and effectual against the commonwealth, or any person claiming under the act aforesaid, in cases where such titles have issued on the authority, and have been grounded on the certificates of two justices of the peace, usually called prevention certificates, without any other evidence being given of whereby, as is alleged, the conditions of settlement, the nature and circumstances of such prevention, improvement and residence, required by the said act, could not be complied with?

It was stated in evidence on the motion for the of property being desirous of settling a formal mode mandamus, and proved on this trial, that the board of certificate on which patents might issue for lands north and west of the rivers Ohio and Alleghany, and Conewango creek, required the opinion of Mr. Ingersoll, the then attorney general thereon; on due consideration, a form was afterwards adopted on the 21st of December, 1797, which was ordered to be published in the Pittsburgh Gazette, and patents issued of course, on the prescribed form being complied with.

The received opinion of the supreme executive magistrate, the attorney general, the board of property, and of a respectable part of the bar, (whose sentiments on legal questions will always have great and deserved weight,) at that day. certainly

ing a construction to this section similar to that which we contend ought to be given to the 9th. W. Tilghman, on the same side.

The treasury of Pennsylvania was overflowing by the sales of lands between 1784 and 1792. The utmost that has been received from the sale of the lands under the act of 1792, including the tract called the triangle, is 500,000 dollars.

There are two descriptions of persons contemplated by the act. 1st. The moneyed men who could procure settlers; and, 2d. The hardy but poor actual settler, who was to have a was, that if a warrant holder was prevented by force of arms of the enemies of the United States from making his actual settlement, within two years after the date of his warrant, and afterwards persisted in his endeavor to make such settlement, that the condition was extinguished and gone. Persisting in endeavors, was construed to mean something, attempts, essays, &c., but that did not imply absolute success, or accomplishment of the objects intended to be effected. By some it was thought that the endeavors were only to be commensurate as to the time of making the actual settlement, and were tantamount, and should avail the parties in the same manner as if the actual settlement had been made and continued."

The decisions of the court in Morris's Lessee v. Neighman and Shaines, at Pittsburgh, May, 1799, tended to make the former opinion questionable; and two of the justices of the Supreme Court adopted a different doctrine, in their judgment between the Holland Company and Tenche Coxe.

In the argument in that case, it was insisted by the counsel for the plaintiffs, that the board of property in their resolves, and the governor by his patent, represented the commonwealth pro hac vice; and that interests vested under them which could not afterwards be defeated.

We cannot subscribe hereto. If the conditions of settlement, improvement and residence, are indispensable at all events, they become so by an act of the different branches of the legislature. The governor, who has a qualified negative in the passing of laws, cannot dispense with their injunctions; it cannot be said that this case falls within the meaning of the 9th section of the second article of the constitution. "The governor shall have power to remit nines and forfeitures, and grant reprieves and pardons except in case of impeachment." It relates merely to penalties consequent on public offences, nor can it be pretended that the board of property, by any act whatever of their own, can derogate from the binding force of law. But the fact is, an intention of dispensing with the law of 1792 cannot, with any degree of justice, be ascribed to the governor or board of property for the time being. They considered themselves in their different functions virtually discharging their respective duties in carrying the act into execution according to the generally received opinion of the day; they never intended to purge a forfeiture if it had really accrued, nor to excuse the non-performance of a condition, if it had not been complied with agreeably to the public will, expressed in a legislative

contract.

credit of ten years for his purchase money. The state did not want money; but a barrier. Population, and not revenue, was the object. The actual settlement of the land was the sine qua non *of the contract. This appears [*52 from the whole tenor of the act itself, as well as from the general circumstances and policy of the state.

The term actual settler has two different significations, as used in the act. But there can be no settlement without actual personal residence. An actual settler sometimes means a person who is on the land with an intent to rewealth, or any person claiming under the act of 3d of April, 1792, of the patentees having performed the conditions enjoined on them, although they have pursued the form prescribed by the land officers. But we also think that the circumstance of recital of such certificates will not ipso facto, avoid and nullify the patent, if the actual settlement, improvement and residence, pointed out by the law, can be established by other proof.

We must repeat on this head, what we asserted on the former, that every case must be governed by its own peculiar circumstances. Until the facts really existing, as to each tract of land, are ascertained with accuracy, the legal conclusion cannot be drawn with any degree of correctness. Ex facto oritur jus.

2. Here we feel ourselves irresistibly impelled to mention a difficulty which strikes our minds forcibly. Our reflections on the subject have led us to ask ourselves this question on our pillows. What would a wise, just and independent chancellor decree on the last question? Executory contracts are the peculiar objects of chancery jurisdiction, and can be specifically enforced by chancery alone; equity forms a part of our law, says the late Chief Justice, truly. i Dall. 213.

If it had appeared to such a chancellor, by the pleadings or other proofs, that the purchase money had been fully paid to the government by the individual for a tract of land under the law of the 3d April, 1792; that times of difficulty and danger had intervened; that sums of money had been expended to effect an actual settlement, improvement and residence, which had not been accomplished fully; that by means of an unintentional mistake on the part of the state officers in granting him his patent; not led to that mistake by any species of fraud or deception on the part of the grantee; he had been led into an error and lulled into a confidence that the conditions of the grant had been legally complied with, and, therefore, he had remitted in his endeavors therein; would not he think, that under all these circumstances, thus combined, equity would interpose and mitigate the rigid law of forfeiture by protracting the limited periods? And would it not be an additional ground of equity, that the political state of the country has materially changed since 1792, by a surrender of the western posts to the government of the United States, and peace with the Indian nations, both which rendered an immediate settlement of the frontiers, in some measure, less necessary than heretofore.

But it is not submitted to us to draw the line of property to these lands; they must be left to the cool and temperate decisions of others, before whom the questions of title may be agitated. We are confined to the wager on the matter before us, and on both questions we have given you our dispassionate sentiments, formed on due reflection, according to the best of our judgment. We are interested merely as common citizens, whose safety and happiness is involved in a due administration of the laws. We profess and feel an ardent desire that peace and tranquility should be preserved to the most remote inhabitants of this commonwealth. The same question was again agitated in the cirthe case of Balfour's Lessee v. Meade. The charge of Judge Washington to the jury was as follows:

We are decidedly of opinion, that the patents, and the prevention certificates recited in the patents, are not conclusive against this common

WASHINGTON, J. The importance of this cause led the court to wink at some irregularities in the argument of it at the bar, which has tended to protract it to an unreasonable length. Depending on the construction of laws of the state, and particularly on that of the 3d of April, 1792, it ad

main, and sometimes it means fencing, clearing, cultivating, building, and residing five years. By the act of the 30th December, 1786, vol. 2, p. 488, it is declared, "that by a settlement shall be understood an actual, personal, resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family, and continued from time to time, unless interrupted by the enemy, or by going on the military service of this country during the war." Thus, the word settlement, in the 8th section, is used in its common accepta tion. It is merely the inception of title; but

at first the appearance of a difficult and very com- | plicated case. It is not easy, at the first reading of a long statute, to discover the bearings of one section upon another, so as to obtain a distinct view of the meaning and intention of the legislature. But the opinion I now entertain was formed on Saturday Delore we parted, open, however, as it always is, to such alterations as ulterior reason and argument may produce.

The better to explain and to understand the subject, it will be necessary to take a general view of the different sections of the act of the 3d of April, 1792, upon which this cause must turn. The first section reduces the price of all vacant land, not previously settled or improved within the limits of the Indian purchase made in 1768, and all precedent purchases to 50 8. for every 100 acres; that of the vacant lands within the Indian purchase made in 1784, lying east of Alleghany river and Conewango creek, to 51., to be granted to purchasers in the manner authorized by former laws. The second section offers for sale all the other lands of the state, lying north and west of the Ohio, Alleghany, and Conewango, to persons who will cultivate, improve and settie the same, or cause it to be done at the price of 71. 108. per hundred acres, to be located, surveyed and secured as directed by this law. It is to be remarked, that all the above lands lie in different districts, and are offered at different prices. Title to any of them may be acquired by settlement, and to all except those lying north and west of the Ohio, Alleghany and Conewango, by warrant without settlement.

The third section, referring to all the above lands, authorizes application to the secretary of the land office by any person having settled and improved, or who was desirous to settle and improve a plantation to be particularly described, for a warrant for any quantity of land not exceeding 400 acres, which warrant is to authorize and require the surveyor general to cause the same to be surveyed, and to make return of it, the grantee paying the purchase money and fees of the office. The eighth section, which I notice in this place because intimately connected with the third section, directs the deputy surveyor to survey and mark the lines of the tract upon the application of the settler. This survey, I conceive, has no other validity than to furnish the particular description which must accompany the application at the land office for a warrant.

The fourth section, amongst other regulations, protects the title of an actual settler against a warrant entered with the deputy surveyor posterior to such actual settlement.

The ninth section, referring exclusively to the lands north and west of the Ohio, Alleghany and Conewango, declares, "that no warrant or survey of lands within that district shall give a title, unless the grantee has, prior to the date of the warrant made or caused to be made, or shall, within two years after the date of it, make, or cause to be made an actual settlement, by clearing, fencing and cultivating two acres at least in each hundred acres, erecting thereon a house for the habitation of man, and residing, or causing a family to reside, thereon for five years next following his first settling the same, if he shall so long live, and in de fault of such actual settlement and residence, other actual settlers may acquire title thereto." Let us now consider this case, as if the law had stopped here. A title to the land in controversy lying north and west of the Ohio, Alleghany and Conewango, could be acquired in no other manner than by actual settlement; no sum of money could entitle a person to a warrant, unless the application was preceded by actual settlement on the land, or if not so preceded by actual settlement, the war

|

the settlement mentioned in the 9th section is the completion of title. The 9th section was intended to define more exactly what kind of settlement should vest a title.

There being, then, no settlement without residence, and no time of residence prescribed, except the five years, if there has not been such a residence, there has been no residence, and if no residence, no settlement. Settlement, therefore, includes both improvement and residence.

Every tract of 400 acres was to be specifically settled. The misfortune of the Holland Comrant would give no title unless it were followed by such settlement within two years thereafter. The question then is, what constitutes such an actual settler within the meaning and intention of this law, as will vest in him an inceptive title so as to authorize the granting to him of a warrant? not a pedis possessio, not the erection of a cabin, the clearing or cultivation of a field. These acts may deserve the name of improvements, but not settlements. There must be an occupancy accompanied with a bona fide intention to reside and live upon the land, either in person or by that of his tenant; to make it the place of his habitation, not at some distant day, but at the time he is improving; for if this intention be only future, either as to his own personal residence or that of a tenant, then the execution of that intention by such actual residence fixes the date; the commencement of the settlement, and the previous improvements, will stand for nothing in the calculation.

The erection of a house, and the clearing and cultivating the ground, all or either of them, may afford evidence of the quo animo with which it was done, of the intention to settle; but neither nor all will constitute a settlement, if unaccompanied by residence. Suppose, then, improvements made, the person making them declaring at the time that they were intended for temporary purposes of convenience, and not with a view to settle and reside; could this be called an actual settlement within the meaning and intention of the legislature? Surely no. But though such acts against express declarations of the quo animo will not make a settlement, it does not follow that the converse of the proposition will; for a declaration of an intention to settle, without actually carrying that intention into execution, will not constitute an actual settlement.

How do these principles apply to the case of the plaintiff. In 1793 he leaves the fort at which he was stationed, and in which he was an officer, with a few soldiers; cuts down some trees, erects four or five pens, (for not being covered, they do not deserve the name of cabins,) and in five, six or seven days, having accomplished this work, he returns into the fort to his former place of residence. Why did he retreat so precipitately? We hear of no danger existing at the time of completing these labors which did not exist during the time he was engaged in them. What prevented him from proceeding to cover the cabins, and from inhabiting them? Except the state of general hostility which existed in that part of the country, there is no evidence of a particular necessity for flight in the instance of this plaintiff. It is most obvious that the object of his visit to this wilderness was to erect what he considered to be improvements; but they were, in fact, uninhabitable by a human being, and, consequently, could not have been intended for a present settlement. He was, besides, an officer in the army, and whilst in that service he could not settle and reside at his cabin, although the country had been in a state of perfect tranquillity. In short, his whole conduct, both at that time and afterwards; his own statements when asserting a title to the lands, the recitals in his warrants of acceptance, and certificates of survey, all afford proof which is irresistible, that he did not mean, in 1793, to settle. Mistaking the law, as it seems many others have done in this respect, he supposed that an improvement was equivalent to a settlement, for vesting a right to those lands. It is not pretended even now, nor is it proved by a single witness, not even by Crouse, who assisted in making the improvements, that he contemplated a settlement. It has been asked, could the legislature have meant to require persons to sit down for a

pany was, that they undertook an impossibility. They had engaged to settle 1,162 tracts in two

years.

The words "in default," &c., show that settlement was the main object. It is improbable that the proviso should be intended totally to defeat the great object of actual settlement; and yet that would be its effect, if the war should continue for two years, which, at the time of passing the act, was a very probable 53*] event. *Much reliance has been placed on the words "as if;" yet on our construction we allow them their full effect. The settlement

moment on lands encompassed by dangers from a savage enemy? I answer no. At such a time it was very improbable that men would be found rash enough to make settlements. But yet no title could be acquired without such a settlement, and if men were found hardy enough to brave the dangers of a savage wilderness, they might be called imprudent men, but they would also deserve the promised reward, not for their boldness, but for their settle

ment.

The first evidence we have of an intention in the plaintiff to make an actual settlement was in the spring of 1796, long after the actual bona fide settlement of the defendant with his family, for I give no credit to the notice from the plaintiff to the defendant in July, 1795 since, so far from accompanying it with an actual settlement, he speaks of a future settlement, which, however, was never carried into execution. Every thing which I have said with respect to the 400 acres surveyed in the name of George Balfour, will apply a fortiori against the three other surveys in the name of Elizabeth Balfour, &c., who, it is not pretended, were ever privy even to the making of the cabins, or ever contemplated a settlement upon those lands.

If the law, then, had stopped at the proviso, it is clear that the plaintiff never made such a settlement as would entitle him to a warrant. But he excuses himself from having made such a settlement as the law required, by urging the danger to which any person attempting a residence in that country would have been exposed. He relies on the proviso to the ninth section of the law, which declares, "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 endeavors 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 each actual settlement had been made and continued." Evidence has been given of the hostile state of that country, during the years 1793, 1794, 1795, and the danger to which settlers would have been exposed. We know that the treaty at Fort Granville was signed on the 3d of August, 1795, and ratified the 22d of December in the same year; although Meade settled with his family in November, 1795, it is not conclusive proof that there was no danger even then, and at any rate, it would require some little time and preparation, for those who had been driven off, to return to their settlements, and if the cause turned upon the question whether the plaintiff had persevered in his exertions to return and make such settlement as the law requires, I should leave that question to the jury, upon the evidence they have heard. But the plaintiff, to entitle himself to the benefit of the proviso, should have had an incipient title at some time or other, and this could only have been created by actual settlement preceding the necessity which obliges him to seek the benefit of the proviso, or by warrant.

I do not mean to say that he must have had such an actual settlement as this section requires, to give a perfect title; for if he had built a cabin, and commenced his improvement in such manner as to afford evidence of a bona fide intention to reside, and had been forced off by the enemy, at any stage of his labors, persevering at all proper times afterwards in endeavors to return, when he might safely do so, he would have been saved by the proviso. But it is incumbent on the plaintiff, if he would excuse himself from the performance of what has been correctly called a condition precedent, to bring himself fully and fairly within the

was to be made in two years; but, says the proviso, if you shall be prevented from making it within two years, and persist until it be accomplished, you shall hold the land as if it had been made within the two years according to the enacting clause.

But if persisting two years in time of war gives a complete title, the proviso gives the purchaser in time of war better terms than the enacting_clause gives to a purchaser in time of peace. For the latter is obliged to settle and reside five years, while the former gets the land without any such condition.

proviso which was made for his benefit; this he has not done.

Decisions in the Supreme Court and in the common pleas of this state have been cited at the bar, two of which I shall notice for the purpose of pointing out the peculiar mark which distinguishes them from the present, and to prevent any conclusions from being drawn from what has been said either to countenance or impeach those decisions. The cases I allude to are The Holland Company v. Cooke, and the feigned issue tried at Sunbury. The incipient title under which the plaintiffs claimed in those causes were warrants authorized by the third section of the law. The incipient title in the present case is settlement. The former was to be completed by settlement, survey and patent. This to precede the warrant, and for the most distinct explanation of this distinction, it will be im- . portant to ascertain what acts will constitute an actual settler to whom a warrant may issue, and what constitute an actual settlement as the foundation of a title. I have before explained who may be an actual settler to demand a warrant, namely, one who has gone upon and occupied land with a bona fide intention of an actual present residence, although he should have been compelled to abandon his settlement by the public enemies in the first stages of his settlement; but actual settlement, intended by the 9th section, consists in clearing, fencing and cultivating two acres of ground at least on each of one hundred acres, erecting a house thereon, fit for the habitation of man, and a residence continued for five years next following his first settling, if he shall so long live. This kind of settlement more properly deserves the name of improvements, as the different acts to be performed clearly import. This will satisfactorily explain what at first appeared to be an absurdity in that part of the proviso which declares that "if such actual settler shall be prevented from making such actual settlement," &c.; the plain meaning is, that if a person has once occupied land with an intention of residing, though he has neither cleared nor fenced any land, and is forced off by the enemies of the United States before he could make the improvements, and continue thereon for five years; having once had an incipient title, he shall be excused by the necessity which prevented his doing what the law required, and in the manner required; or if the warrant holder, who likewise has an incipient title, although he never put his foot upon the land, shall be prevented by the same cause from making these improvements, &c., he too shall be excused if, as is required also of the settler, he has persevered in his endeavors to make those improvements, &c.

But what it becomes such a grantee to do before he can claim a patent, or even a good title, is quite another question, upon which I give no opinion. As to the plaintiff's surveys and warrants, they cannot give him a title. Not the surveys; 1st. Because they are a mere description of the land which the surveyor is authorized by the eighth section to make, and the applicant for the warrant is directed by the third section to lodge in the land office at the time he applies for the warrant. It is merely a demarcation, a special location of the land intended to be appropriated, and give notice of the bounds thereof, that others may be able to made adjoining locations without danger of interference; this is not such a survey as is returnable so as to lay the foundation of a patent; 2d. It is not authorized by a warrant; 3d. It was not for an actual settler; 4th. It was not made by an authorized surveyor, if you believe, upon the evidence, that the authority to Steel was antedated, and given after the survey was returned. Not the warrant; 1st. Because it was not a warrant of