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By the proviso no time is limited for the persist- HUIDEKOing. We say it means persisting with effect; otherwise PER'S LESSEE the object of the legislature would be totally defeated DOUGLASS. if the war should continue two years after the dates of

those person's, 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 circumstances: the 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 questionwhether, if a warrant-holder, under the act of 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 there from," 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.

1. 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.

2. "The lands lying north and west of the rivers Ohio and Alleghany, and Cone wango 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 £7 10, for every hundred acres thereof." By $ 2. The price of lands is thus lowered, to encourage actual settlements.

3. By $3. "Upon the application of any person who may have settled or 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.

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the warrants. Besides, the proviso would be repug nant to the enacting clause, and therefore void. It only provides that the incipient title should not be lost. during the war, if thereby the settlement was prevent

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.

4. By § 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 thereon; 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 intentions of the legislature.

5. By § 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.

6. I found my opinion, on what I take to be the true and legitimate construction of the § 9; 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.

1. 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 setlement and residence is extinct and gone.

2. That though such prevention did not wholly dispense with the condition, it hindered 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,

3. That in all events, except the death of the party, the settlement and residence, shall precede the vesting of the complete and absolute estate.

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ed. Every person who claims under this act must be an actual settler. It does not say that if the grantee, or actual settler shall be prevented, or driven away, 'DOUGLASS. he shall hold ; but if prevented, or driven away, and he shall persist, then he shall hold.

Though such great disagreement has obtained, as to the true meaning of this § 9, both sides agreed 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, 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 expressions "and resi dence," 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 :— ·Ágain, 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 coun try 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 ninth 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 $ 9. It enacts, in the first instance, that "no warrant or survey for lands, lying north and west of the rivers Ohio and Alleghany, and Cone wango creck, 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 thercon, by clearing, &c. Provided always, nevertheless, That if any such settler, or any grantee, in

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What is persisting? Buying implements? No.-Going on the land? We do not contend for that. But still DOUGLASS. it is something, and who is to determine what it is? It is a fact which must be decided by a jury in every case; which would be productive of endless litigation.

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 signi. fies "hold on," "persevere," &c., the beginning words of the section, 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 ninth 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 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 supe

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When the prevention ceased, they were to settle in a reasonable time; otherwise the purchaser of 1793 would PER'S LESSEE be in a better situation than the purchaser of 1796, because the former would get his title without the condition of settlement.

rior 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.

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 interpretations given of it be

correct or not.

7. 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 landholders, as to actual settlement and residence; than that the claims of the former, must be limited to a single plantation, 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 controuled by imperious circumstances, was the great criterion, which marked the preference in such cases; and I have seen no reason to alter my opinion.

8. Lastly, it is obvious from the preamble, and § 2, that the settlement of the country, as well as the sale of the lands, were 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

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