
4 U.S. 170 (____)
4 Dall. 170
The Commonwealth
versus
Tench Coxc, Esq.
Supreme Court of United States.

*196 SHIPPEN, Chief Justice.
The legislature, by the act of the 3d of April 1792, meant to sell the remaining lands of the state, particularly those lying on the north and west of the rivers Ohio and Alleghany. The consideration money was to be paid on issuing the warrants. They had, likewise, another object, namely, that, if possible, the lands should be settled by improvers. The latter terms, however, were not to be exacted from the grantees at all evens. The act passed at a time when hostilities existed on the part of the Indian tribes. It was uncertain when they would cease: the legislature, therefore, contemplated, that warrants might be taken out during the existence of these hostilities, which might continue so long, as to make it impossible for the *197 warrantees to make the settlements required, for a length of time; not, perhaps, until after these hostilities should entirely cease. Yet, they make no provision, that the settlements should be made within a reasonable time after the peace; but expressly within two years after the dates of the warrants. As, however, they wished to sell the lands, and were to receive the consideration money immediately, it would have been unreasonable, and, probably, have defeated their views in selling, to require settlements to be made on each tract of four hundred acres, houses to be built; and lands to be cleared; in case such acts should be rendered impossible by the continuance of the Indian war. They, therefore, make the proviso, which is the subject of the present dispute, in the following words: "Provided always, nevertheless, " That if any such actual settler, or any grantee, in 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."
When were such actual settlements to be made? The same section of the act which contains the above proviso, gives a direct and unequivocal answer to this question, "Within the space " of two years next after the date of the warrant." If the settlements were not made within that time, owing to the force, or reasonable dread, of the enemies of the United States, and it was evident that the parties had used their best endeavours to effect the settlement; then, by the express words of the law, the residence of the improvers for five years afterwards, was expressly dispensed with; and their title to the lands was complete, and patents might issue accordingly. It is contended, that the words "persist in their endeavours" in the proviso, should be extended to mean, that if within the two years, they should be prevented by the Indian hostilities from making the settlement; yet, when they should be no longer prevented by those hostilities, as by a treaty of peace, it was incumbent on them, then to persist to make such settlement. The legislature might, if they had so pleased, have exacted those terms; (and they would not, perhaps, have been unreasonable) but they have not done so: they have expressly confined the time of making such settlements, to the term of two years from the date of the warrant. Their meaning and intention can alone be sought for, from the words they have used, in which there seems to me, in this part of the act, to be no great ambiguity. If the contrary had been their meaning, they would not have made use of the word "endeavours," which supposes a possibility, at least, if not a probability, as things then stood, of those endeavours failing on account of the hostilities; and would, *198 therefore, have expressly exacted actual settlements to be made, when the purchasers should no longer run any risk in making them.
The state having received the consideration money, and required a settlement within two years, if not prevented by enemies; and in that case dispensing with the condition of settlement and residence, and declaring that the title shall be then good, and as effectual, as if the settlement had been made and continued: I cannot conceive they could mean to exact that settlement at any future indefinite time. And, although it is said, they meant that condition to be indispensable, and that it must be complied with in a reasonable time; we have not left to us that latitude of construction, as the legislature have expressly limited the time themselves.
It is urged, that the main view of the legislature was to get the country settled and a barrier formed: this was, undoubtedly, one of their views, and for that purpose, they have given extraordinary encouragement to individual settlers; but they had, likewise, evidently, another view, that of encreasing the revenue of the state, by the sale of the lands. The very title of the act is "For the sale of the vacant lands within this commonwealth;" this latter object they have really effected, but not by the means of the voluntary settlers: it could alone be effected by the purses of rich men, or large companies of men, who would not have been prevailed upon to lay out such sums of money as they have done, if they had thought their purchases were clogged with such impracticable conditions.
I have hitherto argued upon the presumption, that the words "persist in their endeavours," relate to the grantees, as well as the settlers; but, in considering the words of the proviso, it may be well doubted, whether they relate to any other grantee, or settler, than those who have been driven from their settlements. The word "persist," applies very properly to such. The words of the proviso are, "If such actual settler, or any grantee, shall, by " force of arms of the enemies of the United States, be prevented " from making such settlement, or be driven therefrom, and shall " persist in his endeavours to make such actual settlement; then, " in either case, he and his heirs shall be entitled, &c." Here, besides that the grammatical construction of referring the word "persist," to the last antecedent, is best answered; the sense of it is only applicable to settlements begun, and not to the condition of the grantees. There are two members of the sentence, one relates to the grantees, who it is supposed, may be prevented from making their settlements: the other to the settlers, who are supposed to be driven away from the settlements. The latter words, as to them, are proper; as to the grantees, who never began a settlement, improper. The act, says, in either case, that is, if the grantees are prevented from making their settlements, or *199 if the settlers are driven away, and persist in their endeavours to complete their settlements, in either case they shall be entitled to the land.
I will not say this construction is entirely free from doubt: if it was, there would be an end of the question.
But taking it for granted, as it has been done at the bar, that the words relate to the grantees, as well as to the settlers; yet, although inaccurate, with regard to the former, it seems to me, the legislature could only mean to exact from the grantees, their best endeavours to make the settlements, within the space of two years from the date of their warrants; at the end of which time, if they have been prevented from complying with the terms of the law, by the actual force of the enemy, as they had actually paid for the land, they are then entitled to their patents. If the legislature really meant differently, all I can say, is, that they have very unfortunately expressed their meaning.
The propriety of awarding a mandamus, is another question, which I mean not to discuss, as I presume a decision of a majority of the Court will make it unnecessary.
YEATES, Justice.
I have long hoped and flattered myself, that the difficulties attendant on the present motion, would have been brought before the justice and equity of the legislature for solution, and not come before the judicial authority, who are compelled to deliver the law as they find it written for decision. The question has often occurred to our minds, under the act of the 3d of April 1792, which has so frequently engaged our attention in our western circuits.
The Holland company have paid to the state, the consideration money of one thousand one hundred and sixty-two warrants, and the surveying fees, on one thousand and forty-eight tracts of land; besides making very considerable expenditures by their exertions, honourable to themselves, and useful to the community (as has been correctly stated) in order to effect settlements. Computing the sums advanced, the lost tracts, by prior improvements and interferences, and the quantity of one hundred acres granted to each individual for making an actual settlement on their lands; it is said, that averaging the whole, between two hundred and thirty and two hundred and forty dollars, have been expended by the company, on each tract of land they now lay claim to.
The Indian war, which raged previous to, and at the time of the passing of the law, and until the ratification of the treaty at fort Grenville, must have thrown insurmountable bars in the way of those persons, 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 *200 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 question, Whether if a warrant-holder, under the act of the 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 therefrom," 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:
1st. 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.
2d. "The lands lying north and west of the rivers Ohio and " Alleghany, and Conewango 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 7l. 10s. for every hundred acres thereof." By sect. 2. The price of lands is thus lowered, to encourage actual settlements.
3d. By sect. 3. "Upon the application of any person who " may have settled and 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.
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.
*201 4th. By sect. 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; 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 intention of the legislature.
5th. By sect. 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.
6th. I found my opinion, on what I take to be the true and legitimate construction of the 9th section; 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.
1st. 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 settlement and residence is extinct and gone.
2d. 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,
3d. That in all events, except the death of the party, the settlement and residence, shall precede the vesting of the complete and absolute estate.
Though such great disagreement has obtained, as to the true meaning of this 9th section, both sides agree 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, *202 "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 expression "and residence," 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. Again, 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 country 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 9th 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 9th section. It enacts, in the first instance, that "no warrant or survey for "lands, lying north and west of the rivers Ohio and Alleghany, "and Conewango creek, 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. Provided always, nevertheless, "That if any such actual settler, or any grantee, in 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 signifies "hold on," "persevere," &c. The beginning words of the *203 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 9th 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 of 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 superior 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.
*204 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 interpretation given of it be correct or not.
7th. 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 land-holders, 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 controlled by imperious circumstances, was the great criterion, which marked the preference in such cases; and I have seen no reason to alter my opinion.
8th. Lastly, it is obvious from the preamble, and section 2, that the settlement of the country, as well as the sale of the lands, was 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 the warrants to be dead, according to the cant word of the day, and who, though not parties to the suit, are asserted to be implicated in our decision. If the lands are forfeited in the eye of the law, though they have been fully paid for, the breach of the condition can only be taken advantage of by the commonwealth, in a method prescribed by law. Innumerable mischiefs, and endless confusion, would ensue, from individuals taking upon themselves to judge when warrants and surveys cease to have validity, and making entries on such lands at their will and pleasure. I will repeat what we told the jury in Morris's Lessee v. Neighman and Shaines, "If the expressions of the law were not "as particular as we find them, we should have no difficulty in *205 "pronouncing that no person should take advantage of their own "wrong, and that it does not lie in the mouths of men, like those "we are speaking of, to say the warrants are dead; we will take "and withhold the possession, and thereby entitle ourselves to "reap benefits from an unlawful act." On the whole, I am of opinion, that the rule should be discharged.
SMITH, Justice.
I have had a full opportunity of considering the opinion delivered by my brother YEATES; and as I perfectly concur in all its principles, I shall confine myself to a simple declaration of assent. I could not hope, indeed, to add to the argument; and I am certain I could not equal the language, which he has used on the occasion.
By the COURT:
Let the rule be discharged.[(24)]
NOTES
[(24)]  Since this decision was pronounced, the subject has been revived and agitated in various interesting forms. In the winter of 1801  2, several petitions were presented by the intruders to the legislature, requesting their interposition, but the committee of the senate, to whom these petitions were referred, reported against them, and admitted, that the controversy belonged exclusively to the Courts of justice. But soon after this report was made, a bill was introduced, entitled "An act," &c. which recites the existing controversies, gives a legislative opinion against the claim of the warrantees, and institutes an extraordinary tribunal, to hear and decide between the parties. The appearance of this bill produced two remonstrances from the Holland company, but without effect. As soon as it became a law, the attorney-general and the counsel for the company were invited to a conference with the judges, on the carrying of it into effect; but, upon mature consideration, the counsel for the company declined taking any part in the business, and assigned their reasons in a letter addressed to the judges, dated the 24th of June 1802. An issue was then formed, by the direction of the judges, which was tried at Sunbury, on the 25th of November following, before YEATES, SMITH, and BRACKENRIDGE, Justices, and a report of the proceedings and decision on that occasion will be found in a subsequent part of the present volume.
