I. The constitutionality of the confirming act, or, in other words, whether the legislature had authority to make that act.

Legislation is the exercise of sovereign authority. High and important powers are necessarily vested in the legislative body, whose acts, under some forms of government, are irresistible and subject to no control. In England, from whence most of our legal principles and legislative notions are derived, the authority of the parliament is transcendent and has no bounds.

1. Bl. Com. 160. ‘The power and jurisdiction of parliament, says Sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. And of this high court, he adds, it may be truly said, Si antiquitatem spectes, est vetus­tissima; si dignitatem, est honoratissima; si jurisdic­tionem, [Page 11] est capacissima. It has sovereign and un­controlable authority in the making, confirming, enlarging, restraining, abrogating, repealing, re­viving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or tem­poral, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown; as was done in the reign of Henry VIII. and William III. It can alter the established re­ligion of the land; as was done in a variety of in­stances, in the reigns of king Henry VIII. and his three children. It can change and create afresh even the constitution of the kingdom and of parliaments themselves; as was done by the act of union, and the several statutes for triennial and septennial elections. It can, in short, do every thing that is not naturally impossible; and there­fore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parlia­ment. True it is, that what the parliament doth, no authority upon earth can undo.’

From this passage it is evident, that, in England, the authority of the parliament runs without limits, and rises above control. It is difficult to say what the constitution of England is, because not being reduced to written certainty and precision, it lies entirely at [Page 12] the mercy of the parliament. It bends to every go­vermental exigency; it varies and is blown about by every breeze of legislative humour or political caprice. Hob. 87. 12 Mod. 687.Some of the judges in England have had the boldness to assert, that an act of parliament made against natu­ral equity is void; but this opinion contravenes the general position, that the validity of an act of parlia­ment cannot be drawn into question by the judicial department. It cannot be disputed, and must be obeyed. The power of parliament is absolute and transcendent; it is omnipotent in the scale of politi­cal existence. Besides, in England there is no writ­ten constitution, no fundamental law, nothing visible, nothing real, nothing certain, by which a statute can be tested. In America the case is widely different. Every state in the union has its constitution reduced to written exactitude and precision.

What is a constitution? It is the form of govern­ment, delineated by the mighty hand of the people, in which certain first principles or fundamental laws are established. The constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or al­tered only by the authority that made it. The life-giv­ing principle and the death-doing stroke must proceed from the same hand. What are legislatures? Creatures of the constitution—they owe their existence to the constitution—they derive their powers from the con­stitution—it is their commission; and therefore all their acts must be conformable to it, or else they will be void—The constitution is the work or will of the [Page 13] people themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the legislature in their derivative and subordinate capaci­ty. The one is the work of the creator, and the other of the creature. The constitution fixes limits to the exercise of legislative authority, and prescribes the orbit, within which it must move. In short, gentle­men, the constitution is the sun of the political sys­tem, around which all legislative, executive, and judi­cial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the legislature repugnant to the consti­tution is absolutely void.

In the second article of the declaration of rights, which was made part of the late constitution of Penn­sylvania, it is declared, ‘That all men have a natural and unalienable right to worship Almighty God ac­cording to the dictates of their own consciences and understanding: Declaration of rights, Article 2.and that no man ought, or of right can be compelled to attend any religious wor­ship, or erect or support any place of worship, or, maintain any ministry, contrary to, or against, his own free will and consent: nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments, or peculiar mode of reli­gious worship; and that no authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any man­ner control, the right of conscience in the free exer­cise of religious worship.’

[Page 14] In the thirty second section of the same constitution it is ordained, ‘That all elections, Constitution of [...] sect. 32.whether by the people or in general assembly shall be by ballot, free and voluntary.’

Could the legislature have annulled these articles respecting religion, the rights of conscience, and elec­tions by ballot? Surely no. As to these points there was no devolution of power—the authority was pur­posely withheld, and reserved by the people to them­selves. If the legislature had passed an act declaring, that, in future, there should be no trial by jury, would it have been obligatory? No—it would have been void for want of jurisdiction, or constitutional extent of power. The right of trial by jury is a fundamental law, made sacred by the constitution, and cannot be legislated away. The constitution of a state is stable and permanent, not to be worked upon by the tem­per of the times, nor to rise and fall with the tide of events: notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immoveable, as a mountain amidst the strife of storms, or a rock in the ocean amidst the raging of the waves. I take it to be a clear posi­tion, that if a legislative act oppugns a constitutional principle, the former must give way, and be rejected on the score of repugnance. I hold it to be a position equally clear and sound, that, in such case, it will be the duty of the court to adhere to the constitution, and to declare the act null and void. The constitution is the basis of legislative authority; it lies at the foun­dation of all law, and is a rule and commission by which both legislators and judges are to proceed. It [Page 15] is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the judiciary in this country is not a sub­ordinate, but co-ordinate, branch of the govern­ment.

Having made these preliminary observations, we shall proceed to contemplate the quieting and confirm­ing act, and to bring its validity to the test of the con­stitution.

In the course of argument, the counsel on both sides relied upon certain parts of the late bill of rights and constitution of Pennsylvania, which I shall now read, and then refer to them occasionally in the sequel of the charge.

From these passages it is evident, that the right of acquiring and possessing property, and having it pro­tected, is one of the natural, inherent, and unaliena­ble rights of man. Men have a sense of property. Property is necessary to their subsistence, and corres­pondent [Page 17] to their natural wants and desires; its security was one of the objects, that induced them to unite in society. No man would become a member of a com­munity, in which he could not enjoy the fruits of his honest labour and industry. The preservation of pro­perty then is a primary object of the social compact, and by the late constitution of Pennsylvania, was made a fundamental law. Every person ought to contribute his proportion for public purposes and public exigen­cies; but, no one can be called upon to surrender or sacrifice his whole property, real and personal, for the good of the community, without receiving a recom­pence in value. This would be laying a burden upon an individual, which ought to be sustained by the so­ciety at large. The English history does not furnish an instance of the kind; the parliament, with all their boasted omnipotence, never committed such an out­rage on private property; and if they had, it would have served only to display the dangerous nature of un­limited authority; it would have been an exercise of power and not of right. Such an act would be a mon­ster in legislation, and shock all mankind. The legisla­ture, therefore, had no authority to make an act divest­ing one citizen of his freehold, and vesting it in ano­ther, without a just compensation. It is inconsistent with the principles of reason, justice and moral rec­titude; it is incompatible with the comfort, peace, and happiness of mankind; it is contrary to the principles of social alliance in every free government, and lastly it is contrary both to the letter and spirit of the consti­tution. In short, it is what every one would think un­reasonable and unjust in his own case. The next step [Page 18] in the line of progression is, whether the legislature had authority to make an act divesting one citizen of his freehold and vesting it in another, even with compensation. That the legislature, on certain emer­gencies, had authority to exercise this high power has been urged from the nature of the social compact, and from the words of the constitution, which says, that the House of Representatives shall have all other powers necessary for the legislature of a free state or commonwealth; but they shall have no power to add to, alter, abolish, or infringe any part of this constitution. The course of reasoning on the part of the defendant may be comprised in a few words. The despotic power, as it is aptly called by some writers, of ta­king private property, when state necessity requires, exists in every government; the existence of such power is necessary; government could not subsist without it; and if this be the case, it cannot be lodg­ed any where with so much safety as with the legisla­ture. The presumption is, that they will not call it into exercise except in urgent cases, or cases of the first necessity. There is force in this reasoning. It is, however, difficult to form a case, in which the ne­cessity of a state can be of such a nature as to au­thorise or excuse the seizing of landed property, be­longing to one citizen and giving it to another citizen. It is immaterial to the state, in which of its citizens the land is vested; but it is of primary importance, that, when vested, it should be secured, and the pro­prietor protected in the enjoyment of it. The con­stitution encircles, and renders it an holy thing. We must, gentlemen, bear constantly in mind, that the [Page 19] present is a case of landed property, vested by law in one set of citizens, attempted to be divested, for the purpose of vesting the same property in another set of citizens. It cannot be assimilated to the case of person­al property taken or used in time of war or famine, or other extreme necessity; it cannot be assimilated to the temporary possession of land itself on a pressing public emergency, or the spur of the occasion. In the latter case there is no change of property, no divestment of right, the title remains, and the proprietor, though out of possession for a while, is still proprietor and lord of the soil. The possession grew out of the occasion and ceases with it. Then the right of necessity is sa­tisfied and at an end; it does not affect the title, is tem­porary in its nature, and cannot exist forever. The constitution expressly declares, that the right of acquir­ing, possessing, and protecting property is natural, in­herent, and unalienable. It is a right not ex gratia from the legislature, but ex debito from the constituti­on. It is sacred; for it is further declared, that the legislature shall have no power to add to, alter, abolish, or infringe any part of the constitution. The consti­tution is the origin and measure of legislative authority. It says to legislators, Thus far ye shall go and no fur­ther. Not a particle of it should be shaken; not a pebble of it should be removed. Innovation is dan­gerous. One incroachment leads to another; prece­dent gives birth to precedent; what has been done may be done again; thus radical principles are gradually broken in upon, and the constitution eventually de­stroyed. Where the security, where the inviolability of property, if the legislature, by a private act, affect­ing [Page 20] particular persons only, can take land from one citizen, who acquired it legally, and vest it in ano­ther? The rights of private property are regulated, protected, and governed by general, known, and esta­blished laws; and decided upon by general, known, and established tribunals; laws and tribunals not made and created on an instant exigency, on an urgent emergency, to serve a present turn, or the interest of a moment. Their operation and influence are equal and universal; they press alike on all. Hence security and safety, tranquillity and peace. One man is not afraid of another, and no man afraid of the legislature. It is infinitely wiser and safer to risk some possible mischiefs than to vest in the legislature so unnecessary, dangerous, and enormous a power as that which has been exercised on the present occasion; a power, that, according to the full extent of the argu­ment, is boundless and omnipotent. For the legis­lature judged of the necessity of the case, and also of the nature and value of the equivalent.

Such a case of necessity, and judging too of the compensation, can never occur in any nation. Sin­gular, indeed, and untoward must be the state of things, that would induce the legislature, supposing they had the power, to divest one individual of his landed estate merely for the purpose of vesting it in another, even upon full indemnification; unless that indemnification be ascertained in the manner which I shall mention hereafter.

But admitting, that the legislature can take the real estate of A. and give it to B. on making compen­sation, the principle and reasoning upon it go no further [Page 21] than to shew, that the legislature are the sole and ex­clusive judges of the necessity of the case, in which this despotic power should be called into action. It cannot, on the principles of the social alliance, or of the constitution, be extended beyond the point of judging upon every existing case of necessity. The legis­lature declare and enact, that such are the public exi­gencies, or necessities of the state, as to authorise them to take the land of A. and give it to B.; the dictates of rea­son and the eternal principles of justice, as well as the sacred principles of the social contract, and the consti­tution, direct, and they accordingly declare and ordain, that A. shall receive compensation for the land. But here the legislature mast stop; they have run the full length of their authority, and can go no further: they cannot constitutionally determine upon the a­mount of the compensation, or value of the land. Public exigencies do not require, necessity does not demand, that the legislature should, of themselves, without the participation of the proprietor, or inter­vention of a jury, assess the value of the thing, or as­certain the amount of the compensation to be paid for it. This can constitutionally be effected only in three ways.

1. By the parties—that is, by stipulation between the legislature and proprietor of the land.

2. By commissioners mutually elected by the par­ties.

3. By the intervention of a jury.

The compensatory part of the act lies in the ninth section.

[Page 22] ‘And whereas the late proprietaries, [...] 18th March 178 [...]. [...]. 9. and divers other persons, have heretofore acquired titles to parcels of the lands aforesaid, agreeably to the laws and usages of Pennsylvania, and who will be deprived thereof by the operation of this act, and as justice requires, that compensation be made for the lands, of which they shall be thus divested; and as the state is possessed of other lands, in which an equi­valent may be rendered to the claimants under Pennsylvania, and as it will be necessary, that their claims should be ascertained by a proper ex­amination. Be it therefore enacted, by the au­thority aforesaid, That all persons having such claims to lands, which will be affected by the ope­ration of this act, shall be, and they are hereby re­quired, by themselves, guardians, or other lawful agents, within twelve months, from the passing of this act, to present the same to the board of proper­ty, therein clearly describing those lands and sta­ting the grounds of their claims, and also adducing the proper proofs, not only of their titles, but of the situations, qualities, and values of the lands so claim­ed, to enable the board to judge of the validity of their claims, and of quantities of vacant lands pro­per to be granted as equivalents. And for every claim, which shall be admitted by said board as duly supported, the equivalent, by them allowed, may be taken either in the old or new purchase, at the option of the claimant; and warrants and pa­tents, and all other acts of the public offices rela­ting thereto, shall be performed free of expence. The said board shall also allow such a quantity of [Page 23] vacant land, to be added to such equivalent, as shall, in their judgment, be equal to the expences, which must necessarily be incurred in locating and surveying the same. And that the board of property may, in every case obtain satisfactory evidence of the quality and value of the land, which shall be claimed as aforesaid, under the proprietary title, they may require the commissioners aforesaid, during their [...]it­ting in the said county of Luzerne, to make the necessary enquiries, by the oaths or affirmations of lawful witnesses, to ascertain those points; and it shall be the duty of the said commissioners to en­quire and report accordingly.’

In this section two things are worthy of considera­tion.

1. The mode or manner, in which compensation for the lands is to be ascertained.

2. The nature of the compensation itself. The Pennsylvania claimants are directed to pre­sent their claims to the board of property—and what is the board to do thereupon? Why, it is,

1. To judge of the validity of their claims.

2. To ascertain, by the aid and through the me­dium of commissioners appointed by the legislature, the quality and value of the land.

3. To judge of the quantity of vacant land to be granted as an equivalent.

This is not the constitutional line of procedure. I have already observed, that there are but three modes, in which matters of this kind can be conduc­ted consistently with the principles and spirit of the constitution, and social alliance. The first of which [Page 24] is by the parties, that is to say, by the legislature and proprietor of the land. Of this the British history presents an illustrious example in the case of the Isle of Man.

1. [...]. Com. 107. ‘The distinct jurisdiction of this little subordi­nate royalty being found inconvenient for the pur­poses of public justice, and for the revenue, (it affording a commodious asylum for debtors, outlaws, and smugglers) authority was given to the treasury, by statute 12. Geo. 1. c. 28. to purchase the in­terest of the then proprietors for the use of the crown; which purchase was at length completed in the year 1765, and confirmed by statutes 5. Geo. 3. c. 26, and 39, whereby the whole island and all its dependencies, so granted as aforesaid, (except the landed property of the Atholl family, their manerial rights and emoluments, and the patro­nage of bishopricks, and other ecclesiastical benefi­ces) are unalienably vested in the crown, and sub­jected to the regulations of the British excise and customs.’

Shame to American legislation! That in England, a limited monarchy, where there is no written con­stitution, where the parliament is omnipotent, and can mould the constitution at pleasure, a more sacred regard should have been paid to property, than in America, surrounded as we are with a blaze of poli­tical illumination, where the legislatures are limited, where we have republican governments, and written constitutions, by which the protection and enjoyment of property are rendered inviolable.

[Page 25] The case of the Isle of Man was a fair and honour­able stipulation; it partook of the spirit and essence of a contract: it was free and mutual; and was treat­ing with the proprietors on equal terms. But if the business cannot be effected in this way, then the value of the land, intended to be taken, should be ascer­tained by commissioners, or persons mutually elected by the parties, or by the intervention of the judiciary, of which a jury is a component part. In the first case, we approximate nearly to a contract; because the will of the party, whose property is to be affected, is in some degree exercised; he has a choice; his own act co-operates with that of the legislature. In the other case, there is the intervention of a court of law, or, in other words, a jury is to pass between the pub­lic and the individual, who, after hearing the proofs and allegations of the parties, will, by their verdict, fix the value of the property, or the sum to be paid for it. The compensation, if not agreed upon by the parties or their agents, must be ascertained by a jury. The interposition of a jury is, in such case, a constitutional guard upon property, and a necessary check to legislative authority. It is a barrier between the individual and the legislature, and ought never to be removed; as long as it is preserved, the rights of private property will be in no danger of violation, ex­cept in cases of absolute necessity, or great public uti­lity. By the confirming act, the value of the land taken and the value of the land to be paid in recom­pence, are to be ascertained by the board of property. And who are the persons that constitute this board? Men appointed by one of the parties, by the legisla­ture [Page 26] only. The person, whose property is to be di­vested and valued, had no volition, no choice, no co-operation in the appointment; and besides, the other constitutional guard upon property, that of a jury, is removed and done away. The board of pro­perty, thus constituted, are authorised to decide upon the value of the land to be taken, and upon the value of the land to be given by way of equivalent, with­out the participation of the party or the intervention of a jury.

2. The nature of the compensation.

By the act the equivalent is to be in land. No just compensation can be made except in money. Money is a common standard, by comparison with which the value of any thing may be ascertained. It is not only a sign which represents the respective values of com­modities, but is an universal medium, easily portable, liable to little variation, and readily exchanged for any kind of property. Compensation is a recompence in value, a quid pro quo, and must be in money. True it is, that land or any thing else may be a compensa­tion, but then it must be at the election of the party; it cannot be forced upon him. His consent will lega­lise the act, and make it valid; nothing short of it will have the effect. It is obvious, that if a jury pass upon the subject or value of the property, their verdict must be in money.

To close this part of the discourse: It is con­tended that the legislature must judge of the necessity of interposing their despotic authority; it is a right of necessity upon which no other power in govern­ment can decide: that no civil institution is perfect; [Page 27] and that cases will occur, in which private property must yield to urgent calls of public utility or general danger. Be it so. But then it must be upon complete indemnification to the individual. Agreed. But who shall judge of this indemnification? Did there also exist a state necessity, that the legislature, or persons solely appointed by them, must admeasure the compen­sation, or value of the lands seized and taken, and the validity of the title thereto? Did a third state necessity exist, that the proprietor must take land by way of equivalent for his land? And did a fourth state neces­sity exist, that the value of this land equivalent must be adjusted by the board of property, without the con­sent of the party, or the interference of a jury? Alas! how necessity begets necessity. They rise upon each other and become endless. The proprietor stands afar off, a solitary and unprotected member of the community, and is stript of his property, without his consent, without a hearing, without notice, the value of that property judged upon without his participa­tion, or the intervention of a jury, and the equiva­lent therefor in lands ascertained in the same way. If this be the legislation of a republican government, in which the preservation of property is made sacred by the constitution, I ask, wherein it differs from the mandate of an Asiatic prince. Omnipotence in le­gislation is despotism. According to this doctrine, we have nothing that we can call our own, or are sure of for a moment; we are all tenants at will, and hold our landed property at the mere pleasure of the legis­lature. Wretched situation, precarious tenure! And yet we boast of property and its security, of laws, of [Page 28] courts, of constitutions, and call ourselves free. In short, gentlemen, the confirming act is void; it never had constitutional existence; it is a dead letter, and of no more virtue or avail, than if it never had been made.

II. But admitting the confirming act to be consti­tutional and valid, the next subject of enquiry is, what is its operation, or, in other words, what construc­tion ought to be put upon it.

It is contended, on the part of the defendant, that on the passing of the act the estate was divested from the Pennsylvania claimants, and instantly vested in the Connecticut settlers. To decide upon this ques­tion, it will not be amiss to lay down a rule or two of exposition applicable to the act under considera­tion.

A statute shall never have an equitable construc­tion in order to overthrow or divest an estate.

Every statute, derogatory to the rights of pro­perty, or that takes away the estate of a citizen, ought to be construed strictly.

Let us test this act by the foregoing rules. The act is entitled, ‘An act for ascertaining and confirm­ing to certain persons, called Connecticut claim­ants, the lands by them claimed within the county of Luzerne, and for other purposes therein men­tioned,’ and was passed the 28th March, 1787.

The first five sections, being material in the dis­cussion of this part of the subject, run in the following words.

The act requires,

That the Connecticut settlers shall prefer their claims to the commissioners.

That they shall support their claims by reasonable proof. That the commissioners shall adjudicate upon or confirm the claims.

That they shall have the lots, to which claims are set up and admitted, surveyed; that they shall make return of their surveys and their book of entries to the supreme executive council, who shall cause patents to be issued for their confirmation, and each patent shall comprehend all the parcels of land, which are to be confirmed to the same claimant, to whom, by the re­turn of the commissioners, the same shall be found to belong.

The mere offering or presenting of the claim is not sufficient. It must be supported by reasonable proof, and ascertained, and established by the com­missioners. These acts must be performed before the estate passes out of the Pennsylvania claimants, and is vested in the Connecticut settlers. They are antecedent acts, and in nature of a condition prece­dent. Now conditions precedent are such as must happen or be performed before the estate can vest or be enlarged; they admit of no latitude; they must [Page 34] be strictly, Co. Lit. [...]06. [...]1 [...]. 1 A [...]k. 374. 376. Com. Rep. 732. literally, and punctually performed. It is a known maxim, that where the estate is to arise upon a condition precedent, it cannot vest till that con­dition is performed: and this has been so strongly ad­hered to, that even where the condition has become impossible, no estate or interest grew thereupon. Where a condition copulative precedes an estate, the whole must be performed before the estate can arise; or where an act is previous to any estate, and that act consists of several particulars, every particular must be performed before the estate can vest or take effect.

The estate of the Pennsylvania claimants was not divested on the passing of the act; it was not divested on presenting the claim on the part of the Connecticut settlers. Other acts were previously necessary, and in particular the commissioners must pass upon and con­firm the claim before the estate is divested from the one party and vested in the other. These things pre­cede, and must be done before any estate can vest in the defendant; but they have not been, and therefore the estate remains in the plaintiff. This construction corresponds with the meaning and spirit, the tenden­cy and scope of the act itself. The intention of the legislature was to vest in Connecticut claimants of a particular description a perfect estate to certain lands in the county of Luzerne; but then it was upon con­dition; it was to operate upon, secure, and sanctify such claims only as should be admitted and ascertained, approved and established by the commissioners. This is further evident from the powers and functions of the commissioners, who were to enquire, examine, hear [Page 35] proofs, &c. respecting the claims; and for what pur­pose? why, that they might admit and approve of such as were supported by satisfactory evidence, and make return thereof to the executive council, who should thereupon cause patents to be issued for their confirmation. Until the commissioners had decided in favor of a claim, it remained in statu quo; the act did not cover and protect it. Further, if the act will ad­mit of two constructions, that one certainly ought to be adopted, which is in favor of the legal owner, and which will not divest his estate, till the terms specified in the act shall have been fully complied with. When the legislature undertake to give away what is not their own, when they attempt to take the property of one man, which he fairly acquired, and the general law of the land protects, in order to transfer it to another, even upon complete indemnification, it will naturally be considered as an extraordinary act of legislation, which ought to be viewed with jealous eyes, examined with critical exactness, and scrutinized with all the se­verity of legal exposition. An act of this sort deserves no favor; to construe it liberally would be sinning against the rights of property.

Besides, it was the manifest intention of the makers of the act, that a just compensation should be made in land to the Pennsylvania claimants; upon this prin­ciple the act proceeds; and therefore if it appear, that such compensation cannot be made, or that it is very dubious, whether it can be effected; the court ought not to give such a construction, as will deprive the owner of his estate, with little or no prospect of being recompensed in value. If either party ought to be [Page 36] driven to the necessity of controverting the question with the state of Pennsylvania, it ought to be the Con­necticut settlers, who have no legal title to the land, and not the Pennsylvania claimants, in whom is vested a good estate at law.

Deeming the construction, which has been put upon the act, to be the sound one, it precludes the enquiry, how far a patent of confirmation was necessary to substantiate the claim of the defendant, so as to render it available in a court of common law.

III. The nature and operation of the suspending act.

This act was passed the 29th of March, 1788, and is as follows.

This act was passed before the adoption of the con­stitution of the United States, and therefore is not af­fected by it. If the legislature had authority to make the confirming act, they had also authority to suspend [Page 38] it. Their constitutional power reached to both, or to neither. By the act of the 28th of March 1787, the commissioners were to ascertain and confirm the claims of the Connecticut settlers, upon the doing whereof the estate, if the law was constitutional, would become vested in them. This has not been done; the claim in the present instance has not been as­certained and confirmed; and as this act suspends or revokes these ascertaining and confirming powers, it never can be done. Of course there is an end of the business. The parties are placed on their original ground; they are restored to their pristine situation.

IV. After the opinion delivered on the preceding questions, it is not necessary to determine upon the validity of the repealing law. But it being my inten­tion in this charge to decide upon all the material points in the cause, in order that the whole may at once be carried before the supreme judicature for re­vision, I shall detain you, gentlemen, a few minutes only, while I just touch upon the constitutionality of the repealing act. This act was passed the 1st of A­pril 179 [...]: the repealing part is as follows.

[Page 40] [...] was made after the adoption of the [...] United States, and the argument is, [...] is contrary to it.

1. Because it is an ex post facto law.

2. Because it is a law impairing the obligation of a contract.

1. That it is an ex post facto law. But what is the fact [...] If making a law be a fact within the words of the constitution, then no law, when once made, [...] ever be repealed. Some of the Connecticut set­tlers presented their claims to the commissioners, who received and entered them. These are facts. But are they facts of any avail? Did they give any right, or vest any estate? No—whether done or not done, they leave the parties just where they were. They create no interest, affect no title, change no property; when done, they are useless and of no efficacy. Other acts were necessary to be performed, but before the performance of them, the law was suspended and then repealed.

2. It impairs the obligation of a contract, and is therefore void. If the property to the lands in ques­tion had been vested in the state of Pennsylvania, then the legislature would have had the liberty and right of disposing or granting them to whom they pleased, at any time, and in any manner. Over public pro­perty they have a disposing and controlling power, over private property they have none, except, per­haps, in certain cases, and those under restrictions, and except also what may arise from the enactment and o­peration of general laws respecting property, which will affect themselves as well as their constituents. But [Page 41] it the confirming act be a contract between the legis­lature of Pennsylvania and the Connecticut settlers, it must be regulated by the rules and principles, which pervade and govern all cases of contracts; and if so, it is clearly void, because it tends, in its operation and consequences, to defraud the Pennsylvania claimants, who are third persons, of their just rights; rights as­certained, protected, and secured by the constitution and known laws of the land. The plaintiffs title to the land in question is legally derived from Pennsyl­vania; how then, on the principles of contract, could Pennsylvania lawfully dispose of it to another? As a contract, it could convey no right, without the owner's consent; without that, it was fraudulent and void.

I shall close the discourse with a brief recapitula­tion of its leading points.

1. The confirming act is unconstitutional and void. It was invalid from the beginning, had no life or ope­ration, and is precisely in the same state, as if it had not been made. If so, the plaintiffs title remains in full force.

2. If the confirming act is constitutional, the con­ditions of it have not been performed; and therefore the estate continues in the plaintiff.

3. The confirming act has been suspended—and

4. Repealed.

The result is, that the plaintiff is by law entitled to recover the premises in question, and of course to your verdict.