1800. 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section constitutes a condition precedent, to the vesting of a legal title in the warrantees, that condition is totally superseded, or extinguished, if the case of the warrantee is embraced by the descriptions of the proviso; so that he thereupon acquires a legal title, without settlement,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 re marked, 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 pub lic 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 existencé, 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 ex

(20) The period has been enlarged. See 6 col. p. 25.

orbitant

orbitant, indeed, on the principles of the opposite construction. 1800. 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 grammati cal 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 pre"vented from making an actual settlement, but persists in his en"deavours to make it, he and his heirs shall have and hold the "lands, in the same manner, as if the actual settlement had een “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

1800. 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 lefray 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

that

that he had failed; and persisting in an endeavour, does not im- 1800. port succeeding in it. Again: the grantee is to have the lands," if he 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 condi

1800. tion. 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 is granice shall have the lands, if the settlement is completed, "within two years, after the cessation of hostilities, and the resi"dence 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

the