within the two years. Did the legislature mean to dispense with the five years' residence, if the settlement could not be made in two years? The 9th section says, the title shall not vest, unless, &c. The only difficulty was, to limit the time within which the settlement

doing those acts within the limited periods, and shall afterwards persevere in his efforts in a reasonable time after the removal of such force, until these objects should be accomplished, no advantage shall be taken of him for the want of a successive continuation of his settlement." To this opinion Judge Brackenridge subscribes.

It would ill become us to say which of these constructions is entitled to a preference. It is true, that in the preamble of the act of the 2d April, 1802, (p. 154.) it is expressed, that "it appears from the act aforesaid, (3d of April, 1792,) that the commonwealth regarded a full compliance with those conditions of settlement, improvement and residence, as an indispensable part of the purchase or consideration of the land itself." But it is equally certain that the true test of title to the lands in question must be resolved into the legiti mate meaning of the act of 1792, extracted ex viceribus suis, independent of any legislative exposition thereof. I adhere to the opinion which 1 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 Cone wango 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 ma king 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 affirmative 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

Lessee v.

Douglass.

should be made. *If the settlement is incomplete, he Huidekoper's is still to persist. If the improvements are made, but the residence not completed, it is said he is not to perBut the proviso says, that if the actual settler shall be driven off, and shall persist, &c. What is he

sist.

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, labourers, 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 hostilities. 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 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. 170. 2 Co. 79. b. Co. Lit. 206. a. 290. b. 1 Roll. Abr. 449. L. 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 endeavours 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 pretention may effectually be applicable. If a person, under the pretence 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.

v.

Huidekoper's to persist to do? Something *certainly which remainLessee ed to be done; and nothing remained to be done but to Douglass. complete his residence. But if he persist in his endeavours to do this, the time during which he is prevented and persists, shall go to his credit. Hence there must be a persistance for five years at least.

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 common wealth, 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 the nature and circumstances of such prevention, whereby, as is alleged, the conditions of settlement, improvement and residence, required by the said act, could not be complied with?

It was stated in evidence on the motion for the mandamus, and proved on this trial, that the board of property being desirous of settling a formal mode 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 at torney-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 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 endeavours to make such settlement, that the condition was extinguished and gone. Persisting in endeavours, 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 endeavours 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 gover

Lessee

V.

*The warrant gave a right to enter the land, to sur- Huidekoper's vey it, and to make the settlement. But this right would be forfeited under the former part of the section, Douglass. if not exercised in two years.

This was the right which the proviso meant to pro

nor by his patent, represented the commonwealth pro hac vice; and that interests vested under them which could not afterwards be defeated.

vernor,

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 gowho 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 fines 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.

The rule of law is thus laid down in England. A false or partial suggestion by the grantee to the king, to the king's prejudice, whereby he is deceived, will make the grant of the king void. Hob. 229. Cro. El. 632. Yelv 48. 1 Co. 44. a. 51 b. 3 Leon, 5. 2 Hawk. 398. Bl. 226. But where the words are the words of the king, and it appears that he has only mistaken the law, there he shall not be said to be so deceived to the avoidance of the grant, per Sir Samuel Eyre, Just. Ld. Ray. 50. 6 Co. 55. b. 56. b accord But if any of the lands concerning which the question arises, become forfeited by the omission of certain acts enjoined on the warrant holders, they do not escheat to the governor for the time being, for his benefit, nor can he be prejudiced as gover nor by any grant thereof; they become vested in the whole body of the citizens, as the property of the commonwealth, subject to the disposition of the laws.

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

Lessee

V.

Huidekoper's tect, and nothing more. This is the right which is saved *by persisting as long as the prevention continues. But when the prevention ceases, the ultimate condition of settlement is still to be performed. As the law does not require impossibilities, a reasonable time after ces

Douglass.

* 43

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 diffi culty which strikes our minds forcibly. Our reflections on the sub. ject 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. 1 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 endeavours therein; would not he think, that under all these circumstances, thus combined, equi ty 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 matters 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 tranquillity should be preserved to the most remote inhabitants of this commonwealth.

The same question was again agitated in the circuit court of the United States, in April, 1803, in the case of Balfour's Lessee v. Meade. The charge of Judge Washington to the jury was as follows:

WASHINGTON, J. The importance of this cause led the court