Chapter 12, Section 4
Madison

It was under that act that the Holland Company took out many of their warrants. They, like others, could not make the settlements required by the strict letter of that act, within two years from the dates of their warrants, on account of the Indian hostilities. The board of property during Gov. Mifflin�s administration construed that act as meaning that the warrantees were entitled to patents after two years� prevention, and, with the advice of Attorney-General Ingersoll, framed a prevention certificate, setting forth that the warrantee or settler, as the case might be, had been prevented from making a settlement on a described tract of land containing 400 acres or less, conformable to that ninth section and proviso, by force of arms of the enemies of the United States, and that he had persisted in his endeavors to make such settlement, upon which, when signed by two justices of the peace, a prevention patent, as it was called was issued. This practice continued until 1800, and under it the Holland Company obtained numerous prevention patents. Gov. McKean was elected in October, 1799. The new board of property construed that proviso differently from their predecessors, and their practice in granting such patents as not binding. Tench Coxe, who was then secretary of the land office, refused to issue any more of them. The company then moved the supreme court for a rule to show cause why a mandamus should not be awarded commanding him to prepare and deliver divers patents on prevention certificates. The case¹⁰ was fully argued at March term, 1800. The court differed in opinion. Chief Justice Shippen held that "the legislature meant to sell the remaining lands of the state, particularly those lying on the north and west of the rivers Ohio and Allegheny. The consideration was to be paid on issuing the warrants. They had likewise another object, namely, that, if possible, the land should be settled by improvers. The latter terms, however, were not exacted from the grantees at all events," i. e., in all exigencies that might arise. "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 warrantees to make settlements required, for a length of time, not perhaps, until after these hostilities should entirely cease. Yet they made no provision that the settlements should be made within a reasonable time after the peace, but expressly within two years after the date 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 400 acres, house to be built, and lands 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." He then asks: "When were such actual settlements to be made?" His reply is: "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 warrant.�" He then argues: "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 endeavors to effect the settlement, then, by the express words of the law, the residence of the improvers for five years afterward was expressly dispensed with, and the titles to the land were complete, and patents might issue accordingly. It is contended that the words �persist in their endeavors� in the proviso should be extended to mean that, if within two years, they should be prevented by the Indian hostilities from making the settlement, yet when they should no longer be prevented by these 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 these 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 two years from the date of the warrant. * * * If the contrary had been their meaning they would not have made use of the word �endeavors,� which supposes a possibility at least, if not a probability, as things then stood, of those endeavors failing on account of the hostilities, and would, 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 the 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 settlement had been made and continued, I cannot conceive they could mean to exact that settlement at any future indefinite time. * * * 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 increasing the revenue of the state by the sale of the lands. The very title of the act is, "For the sale of vacant lands within this commonwealth." This latter object they have really affected, 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." Thus he argued, that the words "persist in their endeavors" related to the grantees, or warrantees, as well as to the settlers, and, after showing why he did so, proceeded: "The act says, in either case, that is, if the grantees are prevented from making their settlements, or if the settlers are driven away, and persist in their endeavors to complete their settlements, they shall be entitled to the land." On the other hand, Judge Yeates, after paying a high tribute to the enterprise and liberality of the Holland Company, and presenting a summary of the provisions of the first eight sections of that act and of the three constructions placed upon its ninth section and the proviso, held that the words "actual settlement" were used in an extensive sense, "as inclusive of residence for five years, because its constituent parts are enumerated and described to be clearing, fencing and cultivating at least two acres for every 100 acres contained in one survey," and so on, as contained in the act. After commenting on the grammatical construction of a portion of the ninth section and the proviso, he proceeded: "The words �actual settlement 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 to be a strange provision. A war with the Indian nations subsisted when the law passed, and its continuance was uncertain," and surveys might thus be prevented, "and until the lands were appropriated by surveys the precise places where they lay could not be ascertained generally." He adhered to this construction of the ninth section, which was, "That in all events, except the death of the party, the settlement and residence shall precede the vesting of the complete and absolute estate." He continued: "�Persist� is the correlative of attempt, endeavor, and signifies to �hold on,� �persevere.� The beginning words of the section restrict the settlement to be within two years next after the date of the warrant by clearing, etc., 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, etc., and shall persist in his endeavors to make such actual settlement as aforesaid. The relief, then, as I read the words, goes merely as to the times of the two years next after the date of the warrant, and five years next after the party�s first settling of the same, and the proviso declares that persisting, etc., shall be equivalent to a continuation of the settlement. * * * The proviso supplies the chasm of successive years of residence for every day and week he resides on the soil he is entitled to a 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. * * * It is admitted, on all sides, that the 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 the 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. * * * 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 the 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. * * * 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." It had been decided in the cases of Morris�s lessees vs. Neighman and Sheiner, that individuals could not, the commonwealth alone could, take advantage of the laches of either settler or a warrant-holder to perfect his title to any chosen tract or tracts of land. That had become the established doctrine before the inception of this case. Judge Smith concurred with Judge Yeates, and Judge Brackenridge, having been concerned for the Holland Company, while at the bar, declined to give an opinion. The rule was discharged. The mandamus was not granted. The divided opinion of the court did not allay the controversy between the warrant-holders � in this instance, the Holland Company � and the settlers. The latter sent up numerous petitions to the legislature, asking for needed legislation. The writer has an unsigned copy of one found among the papers of the late David Reynolds. It was probably one of those prepared, but needed for signing in this county. It is headed: "The petition of the inhabitants northwest of the Allegheny, etc." It represented that prevention certificates had been obtained in some unaccountable manner, on which patents had been issued for numerous tracts of land on which no settlement had ever been made, which had been substituted in the courts for sufficient titles, regardless of all the requisitions of the law of 1792, whereby numerous families of the most useful class of citizens were threatened with immediate ruin and the country with depopulation, with being reduced to its primitive state of an uncultivated wilderness; that "all the humane and economical uses of your predecessors of 1792 are, with one brush of the besom of destruction, swept into everlasting oblivion, and as an aggravation of our calamities, while we are yet a maiden character, we are calumniated as lawless and unruly violators of the laws, unworthy of notice, and absorbed in total ignorance." That petition further represented and prayed: "We have submitted to oppression and injustice beyond all former example. Hoping that our conduct would have excited your clemency, we now pray your honors to take our present circumstances into your consideration by examining these prevention certificates, as being in our opinion merely dead, comprehending no facts, and as for Indian war or prevention, in vain do search the secretary of war�s office for documentation proving hostilities. So extremely enigmated (enigmatic) are these certificates, that we are unable to unriddle how men could prevent (be prevented) from making improvements they never attempted, of being driven from land they never saw. We therefore pray that by your interference you may remove our embarrassments by destroying the idea of a prevention, of giving the due weight and operation to the law, of fulfilling the intention of the former legislature, of restoring peace and harmony to our country, and delivering thousands of useful families from the fangs of voracious speculators. And your petitioners as in duty bound will ever pray."

It is without date, but it was probably prepared in or about the year 1800, and it is, perhaps, a fair specimen of the petitions presented to the legislature about that time from inhabitants occupying tracts and parcels of tracts west of the Allegheny river, whose inchoate titles were affected by those prevention certificates and patents. Though the Holland Company had no tracts within the limits of that part of this county, the principle involved in those certificates and patents for the tracts thus granted to them elsewhere west of the Allegheny river would operate within those limits, and thus affect the titles claimed there by settlers. That and other companies, whose titles rested upon such certificates, presented counter memorials to the legislature setting forth their side of the question. The controversy still continued to rage. The legislature, therefore, passed the act of April 2, 1802, entitled "An act to settle the controversies arising from contending claims to land within that part of the territory of this Commonwealth north and west of the rivers Ohio and Allegheny and Conewango creek, which, among other things, directed the judges of the supreme court to meet within three months from the then 1^st of April, and devise a form of action for trying and determining certain proposed questions relative to those disputed titles, and transmit the same to the governor, whose duty it was made, with the assistance of the attorney-general, to carry the same into effect without delay. The proposed questions related, 1. To the validity of warrants theretofore issued under the act of April 3, 1792, in cases where the warrantees had not fully and fairly complied with the conditions of settlement, improvements and residence required by that act, at any time before the respective dates of those warrants, or within two years after; 2. To the validity of titles against the Commonwealth or any person claiming under that act, founded upon those prevention certificates, without any other evidence being given of the nature and circumstances of prevention, whereby, as it was alleged, the conditions of settlement, improvement and residence required by that act could not be complied with. The Holland Company, in declining to submit their claims to the control of that special jurisdiction, assigned as reasons to the judges that they could not approve of the terms of the preamble of the act by which the legislature had undertaken to declare the meaning and construction of the original contract, which was the very point in controversy, nor could they admit the right and propriety of dictating a new and perhaps, unconstitutional mode of settling a judicial question without the assent of all parties interested. They also intimated that the merits of the case involved several other considerations respecting the effect and operation of the ninth section of the act and its proviso, but the questions proposed by the legislature excluded an investigation and decision upon any other point than those embraced in their two proposed questions as above stated. Hence, they declined becoming a party to the proposed suit, because a decision on those two abstract questions would still leave untouched and undecided the great and essential part of the controversy.

The judges devised and published the form of a feigned issue on a wager to try those two proposed questions,¹¹ and gave public notice that all parties interested in the issue would be heard at the trial. The other necessary proceedings having been prescribed, the court met at Sunbury November 25, 1802, when a jury was empaneled and sworn. The chief justice was not present. No counsel appeared for the grantees. Judge Yeates presided, and the next day delivered an extended and elaborate charge to the jury reflecting the views of the other members of the court, except chief-justice Shippen, which were substantially those expressed in their opinion in the Commonwealth vs. Tench Coxe. The jury found a general verdict in favor of the plaintiff (i. e., the attorney-general) on that feigned issue upon which judgment for the plaintiff was entered, subject to the above-mentioned proviso. The result of that trial did not stop the controversy, did not prevent law suits, no particular title was settled, and the act authorizing that trial was not favorably regarded.

The Holland Company, being foreigners, resorted to the courts of the United Sates. While their cases were there pending, the legislature passed the act of April 3, 1804, for ascertaining the right of this state to certain lands north and west of the above-mentioned streams, which provided that applications of actual settlers under the act of April 3, 1792, describing particularly the lands applied for, and filed with the secretary of the land office, vouching such other requisites as were provided for by the act of September 22, 1794, should for two years after its passage entitle the applicant to all the privileges of an original or vacating warrant, and in all land suits brought and to be brought between warrantees and actual settlers, the actual settler should be permitted to plead and make proof of his improvement and residence, as fully as if he had obtained a vacating warrant, without impairing any contract, altering the legal and equitable claims of any persons to the lands in dispute, or releasing such lands from the conditions of settlement, purchase money and interest required by the act of April 3, 1793, and it empowered the governor to employ counsel to attend to the interests of the state in these cases in the United States courts.

A test case was that of Huidekoper�s lessee vs. Douglass, reported in 4 Dallas, 392 et seq. It was an ejectment for a tract of land lying north and west, etc. The plaintiff claimed under the Holland Company, to whom a patent had been issued upon a warrant and survey. The defendant claimed as an actual settler under the act of April 3, 1792. It was tried in the circuit court of the United States, Pennsylvania district, April term, 1805. Numerous other ejectments were depending on the same facts and principles. At the trial of another ejectment, at a former term, Judge Washington delivered the charge to the jury, concurring generally with the construction given by a majority of the supreme court of this state to the last-mentioned act, from which Judge Peters dissented. It was, therefore, determined to submit the questions, upon which the opinions of the judges were opposed, to the supreme court of the United States, under the provision made in case of such disagreement, by the act of congress, April 29, 1802. Three questions, involving the various matters in controversy, had been formally settled at the preceding October term. After argument in the supreme court, its opinion was delivered by Chief Justice Marshall, in the course of which he said: "Two classes of purchasers are contemplated. The one has already performed every condition of the sale, and is about to pay the consideration money; the other pays the consideration money in the first instance, and is afterward to perform the conditions. They are both described in the same sentence, and from each an actual settlement is required as indispensable to the completion of the title. In describing this actual settlement, it is declared that it shall be made, in the case of a warrant previously granted, within two years next after the date of such warrant, �by clearing,� etc. * * * The manifest impossibility of completing a residence of five years within the space of two years would lead to an opinion that the part of the descriptions relative to residence applied to those only who had performed the condition before the payment of the purchase money, and not to those who were to perform it afterward. But there are subsequent parts of the act which will not admit of this construction, and, consequently, residence is a condition required from the person who settles under a warrant, as well as from one who entitles himself to a warrant by his settlement.

"The law, requiring two repugnant and incompatible things, is incapable of receiving a literal construction, and must sustain some change of language to be rendered intelligible. The change, however, ought to be as small as possible, and with a view to the sense of the legislature, as manifested by themselves. The reading suggested by the counsel for the plaintiff appears to be most reasonable, to comport best with the general language of the section and with the nature of the subject. It is by changing the participle into the future tense of the verb, and instead of �and residing, or causing a family to reside thereon,� reading and shall reside, etc. The effect of this correction of language will be to destroy the repugnancy which exists in the act as it stands, and to reconcile this part of the sentence to that which immediately follows, and which absolutely demonstrates that, in the view of the legislature, the settlement and the residence thereon were distinct parts of the condition; the settlement to be made within two years from the date of the warrant, and the residence of five years from the commencement of the settlement. This construction is the more necessary, because the very words �such actual settlement and residence,� which prove that the residence is required from the warrantee, prove also that settlement and residence are in contemplation of the law distinct operations. From the nature of things and the import of words they are also distinct. To make a settlement no more requires a residence of five that a residence of five hundred years; and, of consequence, it is much more reasonable to understand the legislature as requiring the residence for that term, in addition to a settlement, than as declaring it to be a component part of a settlement." After thus defining the terms settlement and residence he proceeds to consider the proviso.

"That part of the act treats of an actual settler, under which term is intended as well the person who makes his settlement the foundation of his claim to a warrant as a warrantee who had made an actual settlement in performance of the conditions annexed to his purchase, and if �any grantee in any such original warrant or succeeding warrant,� who must be considered as contradistinguished from one who had made an actual settlement. Persons thus distinctly circumstanced are brought together in the same sentence, and terms are used appropriate to the situation of each, but not applicable to both. Thus the idea of �an actual settler� �prevented from making an actual settlement,� and, after �being driven therefrom,� �persisting in his endeavors� to make it, would be absurd. To apply to each class of purchasers all parts of the proviso would involve a contradiction in terms. Under such circumstances the plain and natural mode of construing the act is to apply the provisions, distributively, to the description of the persons to whom they are adapted, reddendo singula singulis. The proviso, then, would read thus: �Provided, that if any such actual settler shall be driven from his settlement by force of arms of the enemies of the United States, 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, and shall persist in his endeavors 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.� The two cases are the actual settler who has been driven from his settlement, and the warrantee who has been prevented from making a settlement, but has persisted in his endeavors to make one. It is perfectly clear that the proviso, in each case, substitutes something for the settlement to be made within two years from the date of the warrant, and for the residence to continue five years from the commencement of the settlement, both of which were required in the enacting clause. What is that something? The proviso answers, that in case of �an actual settler,� it is his being driven from his settlement by force of arms of the enemies of the United States, and in case of his being a grantee of a warrant, not having settled, it is his �persisting in his endeavors to make settlement.� In neither case is residence, or persisting in his endeavors at residence, required. Yet the legislature had not forgotten that by the enacting clause residence was to be added to settlement, for in the same sentence they say that the person who comes within the proviso shall hold the land �as if the actual settlement had been made and continued.�

"It is contended, on that part of the defendant, that as the time during which persistence shall continue is not prescribed, the person claiming land must persist until he shall have effected both his settlement and residence, as required by the enacting clause of the act, and that is, that the proviso dispense with the time during which the condition is to be performed. But the words are not only inapt for the expression of such an intent; they absolutely contradict it. If the proviso be read so as to be intelligible, it requires nothing from the actual settler who has been driven from his settlement. He is not to persist in his endeavors at residence, or, in other words, to continue his settlement, but is to hold the land. From the warrantee who has been prevented from making a settlement no endeavors at a residence are required. He is to �persist in his endeavors,� not to make and continue such actual settlement, but �to make such actual settlement as aforesaid.� And if he does persist in those endeavors he is to hold the land �as if the actual settlement had been made and continued.�" * * * "By persisting he has become an actual settler, and the part of the proviso which applies to actual settlers protects him. If after two years he should be driven off he is still protected. The application of external violence dispenses with residence. The court feels itself bound to say so, because the proviso contains a substitute, which, in such a state of things, shall be received instead of a performance of the conditions required by the enacting clause, and of that substitute residence forms no part. * * * That the exclusive object of an act to give land to settlers would be the settlement of the country will be admitted. But that an act to sell lands to settlers must have for its exclusive object the settlement of the country cannot be so readily conceded. In attempting to procure settlements the treasury was certainly not forgotten. How far the two objects might be consulted, or how far the one yielded to the other, is only to be inferred from the words in which the legislative intention has been expressed. * * * This is a contract, and, although a state is a party, it ought to be construed according to those well established principles which regulate contracts generally. The state is in the situation of a person who holds forth to the world the conditions on which he is willing to sell his property. If he should couch his propositions in such ambiguous terms that they might be understood differently, in consequence of which sales were to be made and the purchase money paid, he would come with an ill grace into court to insist on a latent and obscure meaning which should give him back his property and permit him to retain the purchase money. All those principles of equity and fair dealing which constitute the basis of judicial proceedings require that courts should lean against such a construction."

It was thereupon directed that an opinion in accordance with the foregoing utterances be certified to the circuit court, in which the case was again tried, and Judge Washington charged the jury in accordance with that opinion. Verdict for plaintiff. Thus the vexed question of the validity of the Holland Company�s prevention certificates and of the titles founded on them was settled by the highest judicial tribunal in the United States. Still there was considerable controversy thereafter as to what constituted a settlement under the law. Much light was shed upon this point, which was at issue in the trial, in the opinion of Judge Washington, in the case of Balfour�s Lessee vs. Meade, in the circuit court of the United States.

Source: Page(s) 259-285, History of Armstrong County, Pennsylvania by Robert Walker Smith, Esq. Chicago: Waterman, Watkins & Co., 1883.
Transcribed December 1998 by Jeffrey Bish for the Armstrong County Smith Project.
Contributed by Jeffrey Bish for use by the Armstrong County Genealogy Project (http://www.pa-roots.com/armstrong/)

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