1800. contracts for settlement, and quieting adverse ciaims. 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 the state, at the period of obtaining warrants, was 222,071 10 The amount of taxes and expenditures, for the 157,000 18,000 Dollárs, 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: The original number of warrants called for, On account of tracts lost upon re-surveys in district On account of tracts lost upon re-surveys in district On account of bounties to actual settlers, who im- Tracts. 1162 113 11 3 259 386 776 Then, it is seen, that the gross amount of the expenditure to the present period, of 178,000 dollars being equally apportioned o 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. But But leaving these details, for a moment, to contemplate the 1800. 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 (17) The minute of the board of property, is in these words: Present JOHN HALL, Secretary, 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, 1800. "Ohio and Alleghany, and Conewango creek, to be unexception"able; 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 ac"tually been made and continued.” (18) (18) The proceedings on this subject are as follow: Upon 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 86 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: "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, hatlı 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 Upon such deliberation, and with such uniformity of opinion, 1800. in all the officers of the government, the forms of patents, as well 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. ANDREW ELLICOTT, Secretary of the land office. (L. S.) The form of Patent adopted in case of Prevention, and issued to the Company. THE COMMONWEALTH OF PENNSYLVANIA. KNOW YE, That in consideration of the (L. S.) THO. MIFFLIN. 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 Vollenhopen, 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 Schiinmelpenninck, have persisted in their endeavours to make such settlement, there is granted by the said commonwealth unto the said Wilhem Willink, Nicolaas Van Staphorst, Pieter Stalnitski, 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 scal to be hereinto affixed, the 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. Scc'ry. as 1800. 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. (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 the 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 he country; and the persevering endeavours of the Holland company, to accómplish the settlement prescribed by the act. (19) Several objections were made, in the course of the argument, to 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. Whatever |