locations to individuals was tolerated. It had not entered into the mind of man to conceive, that they thereby produced any change in the relation which subsisted between those individuals and the Commonwealth; or could expose them to be separated from the mass of the community, in the several legislation of the State; or exclude them from an equal participation in all the benefits of the revolution. But by this geographical construction, without any act or offence on their part, they are shut out from immunities extended to others, who had no greater claims upon the community than themselves.

But again; if we are to construe this act without a reference to its general spirit and intent, we have but to carry the principle through, in order to involve us in irreconcilable absurdity, and such as will oblige us, for the purpose of common sense, to come back to the very principle of construction which I would apply to the law throughout. A liberal construction of the 8th section, vests in the Penns the whole geographical contents of their manors, whether sold or unsold; and then adds to the grant the rents reserved out of the parts sold. The words are, "All the lands, &c. duly surveyed, &c., together with the quit or other rents, or arrearages of rent, reserved out of the said proprietary tenths, or manors, or any part or parts thereof sold." Now, to reduce this section to the standard of common sense, we have at once to reject the geographical limits, and circumscribe the thing granted to the estate or interest existing in the Penns at the time specified,

1824.

Kirk

V.

Smith.

Kirk

1.

Smith.

1824. Nor is it immaterial, to note the particular phraseology here made use of. The words are, "reserved out of the said proprietary tenths, or manors, or the part or parts thereof which have been sold." Now the lands sold to these defendants below, were sold out of the general funds of the State, and the quit-rent on these was reserved out of the land of the State, and not of the manor, for that had no legal existence when this sale and reservation were made. The land was not sold as part of the manor, nor was the rent reserved out of part of the manor.

But, secondly; there is not a pretext for this supposed resulting legal estate in the Penns, except the assumed reservation to them of the balance of purchase money on the grants held within their lines upon common terms. And how does this stand? It will be found to be only an implied grant, to which this implied legal estate is appended; an implication tacked to another implication; and finally, as the concluding link of this ehain of implication, that ejectment is the remedy reserved for the recovery of that balance of the purchase money, which is itself the subject of the first implication.

If the rights of the Penns be circumscribed by the positive enactments of this law, then are they not only precluded from all claim to the balances due by this class of grantees, but also from those due by every description of purchasers; for there is no positive provision in the law which vests those balances in them. Their quit-rents are expressly reserved to them in the manors, but not so

But in

of pur

with their balances of purchase money.
the 9th and 10th sections, these arrearages
chase money are excepted from the provisions of
the law, without any express declaration to whom
they shall belong; and from this, an implication is
supposed to result in their favour. But surely, so
far as relates to the balances due by the general
grantees, the implication is so far from being a
necessary implication, that its bearing is altogether
the other way; the implied intent of the Legisla-
ture is against a construction so obviously incon-
sistent with the general purposes of that body; a
construction producing such an unjust, unreason-
able, and improbable discrimination between inno-
cent and equally meritorious men of the same class.
Construe the act so as to confine the grant to the
Penns to their private interests in the manors, and
it becomes sensible and consistent throughout; and
while it secures to them, on the one hand, all the
interests which, as individuals, they are entitled to;
on the other hand, you extend to all other indivi-
dual citizens, one uniform rále of legislation and
relief.

Again; there is no reason for supposing that when the Legislature uses the terms tenths and manors aforesaid, in the 9th section, or the said tenths and manors, in the 10th section, that it uses them in any other sense than that in which they are used in the 8th section. The terms used, in fact, identify their meaning. But a correct construction of the terms used in the 8th section, in describing these tenths, or manors, is fatal to all implication in favour of the Penns. with reference to any

1824.

Kirk

V.

Smith.

Kirk

Smith.

1824. interest in the lands legally seated, previous to their appropriation. The words are, "tenths, or manors, duly surveyed and returned into the land office." But who will deny, that these words are to be construed with reference to the intent and effect of such surveys? And what was that intent and effect? simply to appropriate unseated lands. Would these proprietaries have been content in laying off these surveys, to have been precluded and deprived of half their interest by previous surveys, over which they could not have exercised the right of selling or retaining, as they thought proper? If not, then, so far as relates to previously ceded lands, they never were appropriated by them, and it cannot be predicated of them, that in the sense of the parties they were surveyed and returned.

The construction now contended for, is obviously an after thought of the plaintiffs below, growing entirely out of a supposed ambiguity in the words of the confiscation act, and would have been strenuously resisted, had they been so applied when their surveys of manors were first made.

Again; the rule of construction applicable to leases and wills are not essentially different in their principles. In legislating on this subject, the State had assumed all the rights, and, at least, could exercise all the powers of a manor-holder, in making his last will. Although by the charter, the purchasers under manors are restricted from any alienation of their purchases, by which they might be devested of the incident of holding directly of the manor, it is obvious that such a change of

estate might be produced, by the act of the manorholder. Suppose, then, the grantees of the manor of Springetsbury had sold any portion of the soil, and devested it of this incident, lying, we may suppose, in the very centre of the whole, would a devise in the very words of this act, " to wit, of the manor of Springetsbury, as duly surveyed and returned," have been construed to carry the portion previously disposed of? Or, to pursue the analogy further; suppose the purchase money unpaid, and a covenant by indenture of the tenant to pay the money to the vendor and his heirs, and even to hold the land charged with the payment, would a devise of the manor carry the money so reserved, or the devise of the debt carry the freehold in the land sold?

But, on this doctrine of implication I will make another observation. It is rebutted by the provisions of the instrument itself; and, in the case of

will, would be considered as an undisposed residue; for, when we look through the whole act, and find this 8th section to be the only one which purports to give any thing to the proprietaries, their whole interest having been previously confiscated; and when, in this section, we find their individual interests in the soil of the State, whether acquired as other individuals, or as proprietary appropriations, carefully designated, and even to the arrearages of quit-rents on such lands, expressly reserved to them; surely the implication arises, that this section was intended to embrace the whole provision meant to be made for them out of the common patrimony of the State.

1824.

Kirk

V.

Smith.