make such actual settlement as aforesaid, then, in either Huidekoper's case,

3d. "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."

The terms of relief are, persisting in endeavours to make such actual settlement as aforesaid.

The whole question is as to the legitimate meaning of "persist in his endeavours," &c. For if the grantee or actual settler complies with the proper construction as to the thing intended to be done, the condition is done away.

It is contended that the party must persist until settlement and residence are actually achieved.

This we say is utterly inconsistent with the letter and spirit of the proviso. Had the legislature intended this, *it would have been so expressed, and might have been readily done by a declaration that, during war, time should not run against the warrantee or settler.

And

Instead of which, a substitute for settlement and residence is plainly introduced. That substitute is a persisting in endeavours to make such actual settlement as aforesaid. Instead of requiring a persisting in endeavours until settlement and residence actually obtained or made, the law contemplates something short of settlement and residence, which being performed was to operate in the same manner as if the actual settlement and residence had been made and continued. Such actual settlement, in the proviso, is considered as distinct from residence; and to it, as such, the proviso relates. if the party persists in his endeavours to make such actual settlement as aforesaid, (that is, clear, fence, cultivate and build, not reside,) then he is to hold in the same manner as if the actual settlement had been made and continued; to wit, by residence. In the proviso, residence is nowhere contemplated. except where the effect of persistance in endeavours is declared to be, to hold "in the same manner as if," &c. The legislature having thus plainly considered settlement and residence as different things, have declared that persistance in endeavours to attain the one shall be equivalent to the actual accomplishment of both.

The proviso affords relief on the ground, and solely

Lessee

V.

Douglass.

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Huidekoper's on the ground, that settlement and residence were not

Lessee

v.

Douglass.

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had.

How strange is their construction! If the actual settler or warrantee persists in his endeavours until he actually makes a settlement with residence, he shall hold the land as if actual settlement had been made and continued. This renders all the words " in the same manner as if," &c. entirely nugatory.

This is not the case to which the proviso applies. It applies only to a case in which settlement and residence had not taken place, but in which, from a proper consideration of circumstances, the party was to hold as if, &c. looking to something other which is to be as if. Nullum simile est idem. As if does not mean the same.

*Persisting in endeavours is all the proviso requires. If unsuccessful, they are still endeavours within the meaning of the proviso. Attaining the end is not the only evidence of persisting in endeavours; else all endeavours must necessarily be successful, as, without success, on their principles, there can be no endeavours persisted in.

If attaining the end was to be absolutely necessary, why did not the legislature expressly prescribe the end and not the means? Or rather, why, having already prescribed the end, in the former part of the section, did they say any thing of the endeavour (the means) in the proviso?

By the construction on the other side, the only benefit the grantee or actual settler gains from the proviso is time during the actual existence of the impossibility to perform; so that if the then raging war should last ten years, and the party persist in his endeavours the whole time, his title would still be incomplete without actual settlement and residence.

The legislature never intended to impose such ruinous hardships on persons whose money they had taken, or on actual settlers. If time only was their object, why not give it absolutely during the war, without requiring a circumstance that must be attended with great expense and trouble to the party? Why make endeavours and persistance necessary, unless intended as a substitute for settlement and residence?

On these principles, the proviso does the party more harm than good; it was better for him at once to fall

Lessee

V.

a victim to the strict letter of the condition. Had Huidekoper's these principles been fairly and clearly avowed and stated in the act, would any man flagrante bello, have Douglass. paid his money for warrants? No. The state would have remained involved in debt till the close of the

war.

But it is said, you are not to persist in your endeavours during war, but you are to begin after the peace.

There is nothing of this sort in the law; and why, after peace, is persistance required? Why should not the enacting *clause, after some certain time, recur in full force, if this was the intention? Why not say that during war and for such a time after peace the condition shall not run against you?

Surely, the persistance in endeavours to make a settlement refers to the time during which a hindrance existed; and cannot apply to a time when there would be nothing to hinder the compassing the thing itself. What is the relief granted?

They say it is only time; a suspension of the forfeiture during the war. There is no idea of this kind held up in the law. Instead of dispensing with a forfeiture, it dispenses with the condition. It declares that if something is done it shall amount to a performance of the condition, and the party shall hold in the same manner as if the condition itself had been per

formed.

It is not enough to say that the general intention and spirit of the law is only to suspend the forfeiture for a time, Such spirit and intention must be shown and extracted from the bowels of the act.

By our construction, viz. that two years' persistance from the date of the warrant gives a complete title, every thing is rendered intelligible and consistent, and every word of the act has its proper meaning and effect. But upon theirs all is confusion and inconsistency. They confound the larger with the smaller number; they make the legislature speak without any meaning, and they reject whole passages of the law.

If it is settled that persistance in endeavours to make actual settlement is a performance of the condition, how long is such persistance to be?

Surely, two years only from the date of the warrant,

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V.

Huidekoper's that being the time within which, by the enacting clause, Lessee the settlement is to be made, and as persistance is a substitute for settlement, must be for the same term, and not longer.

Douglass.

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*The act affords no other terms, no other rule of construction. Persistance cannot apply to the five years' residence, because there can be no residence without settlement; and when there had been a fruitless perseverance for two years in endeavours to attain a settlement, there cannot, in the nature of things, be a persistance to attain residence; for settlement being out of the question, there cannot be residence, which presupposes settlement, and which cannot exist without settlement.

Besides, the proviso excludes all ideas of endeavour being applied to residence; they are attached to settlement, and are to operate as if actual settlement had been made and continued.

Consequently, endeavours are only to be commensurate with the time required for settlement, viz. two years from the date of the warrant.

M'Kean, (Attorney-General of Pennsylvania,) contra, The defeat of Harmer in 1790, and of St. Clair in 1791, show that the power of the United States, aided by that of Pennsylvania, was insufficient to protect that part of the country. The view of the legislature, therefore, was the settlement, not the sale of the lands. They reduced the price from 80 to 20 dollars per 100 acres. Settlement was not a condition subsequent, but precedent; or rather, it was a part of the consideration of the sale. With the same view the legislature reduced the size of the tracts from 1,000 to 400 acres, so that on every tract of 400 acres they might have a soldier. It was not their intention that a large tract should be purchased by any one person or body of men. They meant to have a family upon every tract of 400 acres. The Holland Company purchased 1,162 tracts, which was to produce 1,162 soldiers, distributed among the same number of tracts. The object was, that the country should be settled during the war, if possible, so as to form a barrier against the incursions of the Indians. But it is said a peace was in contem

Lessee

V.

Douglass.

plation. If so, why did they enact the proviso? why Huidekoper's stipulate for immediate settlement? why oblige purchasers to persist in their endeavours? Immediate settlement was the object; and if so, they could not mean to limit the perseverance to *two years; they meant a perseverance as long as there was any obstacle. Every thing in the act shows this to be their meaning.

The preamble states that the price at which they had been held was so high as to discourage, not purchasers, but actual settlers.

The 2d section offers the lands "for sale to persons who will cultivate, improve, and settle the same, or cause the same to be cultivated, improved, and settled."

The 3d section declares, that "upon the application of any person who may have settled and improv d, or is desirous to settle and improve, a plantation within the limits aforesaid, to the secretary of the land-office, there shall be granted to him a warrant for any quantity of land within the said limits, not exceeding 400 acres, requiring the surveyor to cause the same to be surveyed for the use of the grantee, his heirs and assigns for ever."

The 5th section prohibits the deputy surveyor, by virtue of any warrant, to survey any tract of land that may have been actually settled and improved prior to the date of the entry of such warrant with the deputy surveyor of the district, except for the owner of such settlement and improvement.

The 8th section authorizes the deputy surveyor, upon application of any person who has made an actual settlement and improvement, to survey and mark out the lines of the tract to which such person may, by conforming to the provisions of this act, become entitled by virtue of such settlement and improvement, provided it does not exceed 400 acres.

The 10th section provides, that the lands thus actually settled and improved, according to the provisions of this act, shall remain liable for the purchase-money and interest from the dates of the improvements. And if such actual settler, not being hindered as aforesaid by death, or the enemies of the United States, shall neglect to apply for a warrant in ten years after

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