I am therefore of opinion, that this contract is repugnant to the welfare of the state, to sound policy, and that neither party can resort to the laws of the state, to assist him in carrying it into execution. If either party be entitled to the assistance of the laws of the state to execute such contract, the laws ought equally to assist the other party. Now suppose that on this contract, the seller had conveyed to the purchaser, had received the whole of the consideration money, and refused to deliver up the possession, could the purchaser, claiming the land in opposition to the title of the state, recover in ejectment ? If he could not (and it will not be alledged that he could) this is a conclusive reason against a recovery by the original plaintiff, in the case before us, were all the other cases out of the question. But independent of this reason, each class of the cases which I have stated, would be sufficient for the reasons stated in them, to prevent a recovery by the original plaintiff on this contract.
This last class applied so pointedly against the recovery by the original plaintiff, that his able and ingenious counsel was compelled to relinquish all reasoning on the merits, and resort to the observation, that all revenue cases in England, bend the laws till they almost break; and he gave the instance in 7 Term Rep. 601. When that case was first cited in this court, I in pointed terms expressed my disapprobation of its extent, nor am I yet reconciled to it. But our learned, ingenious and candid brother does not say, that any law was bent in the cases which I have cited, which almost independently govern the case before us. For it is not alledged, that any of the acts inflicting penalties on all smuggling transactions, declare any of the contracts *for goods purchased, for the purpose of smuggling to be „„ void. The decisions are grounded on principles of public *- 9 policy alone.
It is indeed said by a great judge, upon a very remarkable occasion, that courts must not regard political consequences. 4 Burr. 2562. But it is well known to every well read lawyer, to almost every man of learning in Britain and in the United States, that the only fault ever imputed to that excellent judge, was, that he paid too much regard to political consequences, in his judicial *89capacity. It is perhaps because I venerate his transcendent abilities, that I never have been able to discover the justice of the imputation. Nor is it necessary on this occasion to discuss the point. Because the same great judge, after twelve years more experience, says, if the question had been doubtful, arguments from utility and public convenience, ought to have turned the scale. Doug. 597. He had the preceding years, declared, that upon principles of law, conveniency and sound policy, the action in question would not lie. Ib. 573.
Another great judge, Lord Chancellor HardwicKE, equal tc Lord Mansfield, greater he could not be, declares, that “ these “reasons of public benefit and convenience weigh greatly with “me, and are a principal ingredient in my present opinion.” 3 \tky. 16.
The same ornament of the English bench, seven years after-wards, in a cause of very great importance indeed, so great that he called to his assistance the chief justice of England, the chief justice of the Court of Common Pleas, the master of the rolls, and the eminent judge BarNET, who all concurred' in judgment; declares, “that political arguments in the fullest sense of the “word, as they concern the government of a nation, must and “ have always been of great weight in the Court of Chancery; “ and though there may be no dolus malus in contracts as to other “persons, yet if the rest of mankind are concerned as well as the “ parties, it may be properly said, that it regards the public utility.”. 1 Atky. 352.
If there ever was a case, in which political arguments ought to have great weight, if ever, were the case even doubtful, arguments from utility and public policy ought to turn the scale, if upon principles of law, conveniency and sound policy, the original plaintiff ought not to prevail, this is that cause, perhaps more emphatically so than any other cause which ever came before any court in this state.
Here a number of people from another state, called intruders in the language of the legislature, have in combination taken possession of lands within this state, the property of its citizens, and hold these lands in defiance of its laws ; and yet those violated laws are applied to, to aid the violaters in carrying into # 1 *effect their contracts respecting the property, for which ^ J its citizens have paid their money, to enable the intruders to increase their influence and force, so as to bid defiance to the state. That this is their aim, he must be an idiot who can doubt. The man of understanding, who can affect a doubt, must be a knave; and yet forsooth, the laws of the state must assist those, who hold lands in opposition to the grants of the state, to transfer their pretensions to others; who can more effectually oppose the rights of those, whom the state is under the most solemn obligation to defend and protect!
I might rest here on this point: but because next to the duty of administering justice between the litigant parties, is that of *90convincing the losing party, that the whole case has been examined and considered by the court,.(6 Term Rep. 408,) I will take notice of some other cases, on which some reliance has been placed by the counsel of the original plaintiff. The chief of which is Robinson v. Bland, 2 Burr. 1077. But it does not apply ; because that part of the contract on which the plaintiff recovered, was warranted by the laws of France where it was made, and by the laws of England, where it was to be.performed.
Cowp. 734, was cited to prove, that where parliament says, you shall not wager or insure in certain cases, you may wager or insure by implication in cases not prohibited specially, although these last cases where you are at liberty to wager or insure, may be contrary to the act of parliament: but it does not seem to me, that the book warrants the position ; and if it were warranted, it would not apply to the case before us.
The case in 1 Bos. and Pull. 3, would apply if the assured had sued the underwriters.
2. I now proceed to consider, whether the act of 6th April 1802, (5 St. Laws 198) has any, and if any, what influence on this contract. This act is relied on greatly by the counsel for the original plaintiff, who says, this act clearly expresses the sentiments of the legislature, that the contract was not before void; that it required that act to make it void; and that it is a question of state policy, not of judicial construction. I will examine each of the points.
The preamble states, “whereas certain persons, under the “pretence of title derived either from the state.of Connecticut, “ or from certain Companies known by the names of the Connect“icut Susquehannah Company and the Connecticut Delaware “ Company, to a considerable extent of territory within this state, “have by various improper practices, long endeavoured to defeat “ the execution of the laws of this state, and to defame titles of “persons holding lands by grants from the state, or the late “ * proprietaries before the revolution, in order therefore r* “to counteract• such practices, and to preserve the just L 91 “ rights of this state,” &c.
The 1st section declares, that no conveyance after the 1st May 1802, made of any land within Luzerne, Lycoming, and Wayne counties, shall be good or effectual to pass any right, &c. unless, &c., and it inflicts a penalty on the judge or justice who shall take an acknowledgment or proof of such deed, and a penalty on the recorder who shall record it.
The 4th sect, inflicts a penalty on any person, who shall after the 1st June 1802, bargain, sell, or convey, or by any ways or means obtain, get, or procure any pretended right or title, or make, or take any promise, contract, grant, or covenant, to have any right or title of any person in or to srich lands, &c., and “ such promise, contract, grant, or covenant is thereby declared “■to be utterly void, and of none effect.”
Had there been nothing more in this act, there would be con*91siderable force in the remark, that it would or might amount to a legislative construction or declaration, that such contract was not void before.
Courts ought to pay, and always will pay great attention and regard to legislative constructions ; but they are not conclusive, for if they were, the legislative would become also the judicial power.
It is asked, “ if the intrusion law reached this case to avoid “ the contract, would the last law have been made ? Besides, “ this last law was not in force as to vacating the contract, till “ the 1st May, and as to the penalty, not till the ist June after “ the passing of the act; which affords strong evidence, that “ until such time as the people of Luzerne county should have “ notice of the law, such contracts, which might even be made “in the mean time, were not void.”
In answer to the question, permit me to repeat the words of Lord MANSFIELD. Cowp. 434. The principles and rules of the common law, as now universally known and understood, are so strong against fraud, in every shape, that the common law would have every end proposed by the statutes 13 Eliz. c. 5, and 27 Eliz. c. 4, though the former relates to creditors only, the latter to purchasers. And yet although these two statutes were not really necessary, they always had been held in high estimation. And the same great judge declares, that they cannot receive too liberal a construction, or be too much extended in suppression of fraud.
It is well known, that commerce and mercantile credit consequent on it, were rapidly increasing just at the time that these ,s. -, *statutes were enacted ; the frauds incident, and to a de-9 gree peculiar to such transactions, no doubt increased in the same proportion.
Judges generally are, and frequently ought to be cautious, in applying the principles of the common law to new subjects. Some of them might and probably did express doubts, how far those principles were sufficient to suppress the mischief, which the legislature seeing daily growing, removed the doubts at once: and the statutes aforesaid, though really not necessary, probably prevented much of the growing evil. So may the last act of our legislature prevent many men from entering into the combinations, which have long proved, and which always will prove, while they exist, so dangerous to the peace, and so destructive of the prosperity, improvement and happiness of that part of the state.
General principles of law and reason would thus apply in giving construction to the law of 6th April 1802, and in judging of its influence in the construction of the preceding act, were there no proviso in the act of 6th April 1802. But when we read this proviso, “That nothing herein contained shall be so “ construed as to make valid any conveyances, heretofore made ‘ of any pretended title or claim to land under the colony or *92“ state of Connecticut, or either of the companies, known by “ the names of the Connecticut Susquehannah, or the Connecti- “ cut Delaware Company,” the implied legislative construction contended for is expressly guarded against. This act therefore, so much relied on, if it has any operation on the case before us, is certainly not in favour of the original plaintiff’s demand.
As to contracts made between 6th April 1802 and 1st May and 1st June respectively, they remain exactly as if this last act had not been made.
It is asked, may not the possessor devise this land ? May it not descend ? May it not be taken in execution, and the purchaser from the sheriff hold it till recovered by a Pennsylvania title ?
I answer that neither the devisee, nor the heir, nor the purchaser from the sheriff can have the aid of the courts in this state, to recover land claimed in opposition to the right of the state. The consequence in the last instance will be, that no person will trust the intruder.
It is also said, that the conscience of the original defendant cannot support him in this defence; that on this contract he has obtained possession, on which he alone can obtain a warrant for the land; that he is not ousted ; that no Pennsylvania title appears; and that on this possession he can maintain trespass. I reply : that true it is, that as to land for which there is no office *right, the possessor has the right of pre-emption; but he must pay the state for the land. Now, here it was ^ 93 not the possession alone which the original defendant bought, but the title to the land.
But on this contract he has obtained the possession, and all the benefits accompanying it, and therefore he ought to give it up, or pay for it according to his contract, as understood by both parties. Were judges the keepers of the consciences of the parties to every suit, (we are eased of a great burthen in not having that duty imposed on us) there would be great weight in the observation; but this agreement, which the court cannot for the-reason before stated, assist in carrying into effect, “may “ perhaps be fit to be executed by the parties, but can only be “ enforced by considerations which apply to their feelings. The “ law encourages no man to be unfaithful to his promise; but “legal obligations are, from their nature, more circumscribed “ than moral duties.” 1. H. Bla. 327-8. Per Ld. Lough-IiOROUGH.
The parties are looked upon to treat together, as if there were no law about the matter, and so to renounce the benefits which might accrue by the law to either of them. 1 Pow. contra 201.
I concur in opinion, that the judgment below should be reversed.