Green and others v. Biddle, 8 Wheat. 1

Stoky, Justice, delivered the opinion of the court. —*The first question certified from the circuit court of Kentucky, in this cause, is, whether the acts of Kentucky, of the 27th of February 1797, and of the 31st of January 183 2, concerning occupying claimants of land, are unconstitutional ? This question depends principally upon the construction of the 7th

article of the compact made between Virginia and Kentucky, upon the separation of the latter from the-former state — that compact being a part of the constitution of Kentucky. The 7th

article declares, “ that all private rights and interests of lands, within the said district, derived from the laws of Virginia, shall remain valid and secure, under the laws of the proposed state, and shall be determined by the laws now existing in this state.” We should have been glad, in the consideration of this subject, to have had the benefit of an argument on behalf of the tenant; but as ho counsel has appeared for him, and the cause has been for some time before the court, it is necessary to pronounce the decision, which, upon deliberation, we have formed. So far as we can understand the construction of the 7th

article of the compact, contended for by those who assert the constitutionality of the laws in question, it is, that it was intended to secure to claimants of lands their rights and interests therein, by preserving a determination of their titles, by the laws under which they were acquired. If this be the true and only import of the article, it is a mere nullity ; for, by the general principles of law, and from the necessity of the case, titles to *real estate can be determined only by the laws, of the state under which they are acquired.

Titles to land cannot be acquired or transferred in any other mode than that prescribed by the laws of the territory where it is situate. Every government has, and from the nature of sovereignty, must have, the exclusive right of regulating the descent, distribution and grants of the domain within its own boundaries ; and this right must remain, until it yields it up by compact or conquest.

When once a title to lands is asserted under the laws of a territory, the validity of that title can be judged of by no other rule than those laws furnish, in which it had its origin ; for no title can be acquired, contrary to those laws ; and a title good by those laws cannot be disregarded, but by a .departure from the first principles of justice. If the

article meant, therefore, what has been supposed, it meant only to provide for the affirmation of that which is the universal rule in the courts of civilized nations, professing to be governed by the dictates of law. Besides, the titles to lands can, in no just sense, in compacts of this sort, be supposed to be separated from the rights and interests in those lands. It would be almost a mockery, to suppose, that Virginia could feel any solicitude, as to the recognition of the abstract validity of titles, when they would draw after them'no beneficial enjoyment of the property.

Of what value is that title, which communicates no right or interest in the land itself ? or how can that be said, to be any title at all, which cannot be asserted in a court of justice *by the owner, to defend or obtain possession of his property? The language of the 7th article, cannot, in our judgment, be so construed. The word title does not occur in it. It declares, in the most explicit terms, that all private rights and interests of lands, derived from the laws of Virginia, shall remain valid and secure under the laws of Kentucky, and shall be determined by the laws then existing in Virginia.

It plainly imports, therefore, that these rights and interests, as to their nature and extent, shall be exclusively determined by the laws of Virginia, and that their security and validity shall not be in any way impaired by the laws of Kentucky. Whatever law, therefore, of Kentucky, does narrow these rights and diminish these interests, is a violation of the compact,, and is consequently unconstitutional. The only question, therefore, is, whether the acts of 1797 and 1812 have this effect.

It is undeniable, that no acts of a similar character were ⅛ existence in Virginia, at the time when the compact was made, and therefore, no aid can be derived from the actual legislation of Virginia, to support them. The act of 1797 provides, that persons evicted fe-om lands to which they can show a plain and connected title in law or equity, without actual notice of an adverse title, shall be exempt from all suits for rents or profits, prior to actual notice of such adverse title.

It also provides, that commissioners shall be appointed by the court pronouncing the judgment of eviction, to assess the value of all lasting and valuable improvements *made on the land, prior to such notice, and they are to return the assessment thereof, after subtracting all damages to the land by waste, &c., to the court; and judgment is to be entered for the assessment, in favor of the person evicted, if the balance be for him, against the successful party, upon which judgment, execution shall immediately issue, unless such party shall give bond for the payment of the same, with five per cent, interest, in twelve months from the date thereof.

And if the balance be in favor of the successful party, a like judgment and proceedings are to be had in his favor. The act further provides, that the commissioners shall also estimate the value of the lands, exclusive of the improvements ; and if the value of the improvements, shall exceed the value of the lands, the successful claimant may transfer his title to the other party, and have a judgment in his favor against such party for such estimated value of the lands, <fcc. There are other provisions not material to be stated.

The act of the 31st of January 1812, provides, that if any person hath seated or improved, or shall thereafter seat or improve, any lands supposing them to be his own, by reason of a claim in law or equity, the foundation of such claim being of public record, but which lands shall be proved to belong to another, the charge and value of such seating and improving, shall be paid by the right owner, to such seater or improver, or his assignee, or occupant so claiming.

If the right owner is not willing to disburse so much, an estimate is to be made of the value of the lands, exclusive of the seating *and improvements; and also of the value of such seating and improvements. If the value of the seating and improving exceeds three-fourths of the value of the lands, if unimproved, then the valuation of the land is to be paid by the seater or improver; if not exceeding three-fourths, then the valuation of the seating and improving is to be paid by the right owner of the land.

The act further provides, that no action shall be •maintained for rents or profits, against the occupier, for any time elapsed before the judgment or decree in the suit. The act then provides for the appointment of commissioners to make the valuations ; and for the giving of bonds, &c., for the amount of the valuations, by the party who is to pay the same; and in default thereof, provides that judgment shall be given against the party for the amount; or if the right owner fails to give bond, &c., the other party may, at his election, give bond, &c., and take the land.

And the áct then proceeds to declare, that the occupant shall not be evicted or dispossessed, by a writ of possession, until tbe report of the commissioners is made, and judgment rendered, or bonds executed in pursuance of tie act. From this

summary of the principal provisions of the acts of 1797 and 3812, it is apparent, that they materially impair the rights and interests of the righful owner in the land itself. They are parts of a system, the object of which is to compel the rightful owner to relinquish his lands, or pay for all lasting improvements made upon them, without his consent or default; and in many cases, *those improvements may greatly exceed the original cost and value of the lands in his hands. No judgment can be executed, and no possession obtained for the lands, unless upon the terms of complying with the requisitions of the acts.

They, therefore, in effect, .create a direct and permanent lien upon the lands, for the value of all lasting improvements made upon them ; without the payment of which, the possession and enjoyment of the lands cannot be acquired. It requires no reasoning to show, that such laws necessarily diminish the beneficial interests of the rightful owner in the lands. Under the laws of Virginia, no such burden was imposed on the owner. He had a right to sue for, recover and enjoy them, without any such deductions or payments. The 7th

article of the compact meant to secure all private rights and interests derived from the laws of Virginia, as valid and secure under the laws of Kentucky, as they were under the then existing laws of Virginia. To make those rights and interests so valid and secure, it is essential, to preserve the beneficial proprietary interest of the rightful owner, in the same state in which they were, by the laws of Virginia, at the time of the separation.

If the legislature of Kentucky had declared by law, that no person should recover lands in this predicament, unless npon payment, by the owner, of a moiety, or of the whole of their value, it would be obvious, that the former rights and interests of the owner would be completely extinguished pro tanto. If it had further provided, that he should be compelled to sell the same, at *one-half or one-third of their value, or compelled to sell, without his own consent, at a price to be fixed by others, it would hardly be doubted, that such laws were a violation of the compact.

These cases may seem strong ; but they differ not in the nature, but in the degree only, of the wrong inflicted on the innocent owner. He is no more bound, by the laws of Virginia, to pay for improvements, which he has not authorized, which he may not want, or which he may deem useless, than he is to pay a sum to a stranger for the ^liberty of possessing and using his own property, according to the rights and interests secured to him by those laws. It is no answer, that the acts of Kentucky, now in question, are regulations of the remedy, and not of the right to lands.

If those acts so change the nature and extent of existing remedies, as materially to impair the rights and interests of the owner, they are just as much a violation of the compact, as if they directly overturned his rights and interests. It is the unanimous opinion of the court, that the acts of 1797 and 1812 are a violation of the 7th

article of the compact with Virginia, and therefore, are unconstitutional. This opinion renders it unnecessary to give any opinion on the second question certified to us from the circuit court, March 8th-11th, 1822. Montgomery, for the demandant, made three points : 1st. That this court is invested with the power of questioning the validity of the legislative acts of Kentucky, under which the tenant claims, both by the national constitution and the state constitution of Kentucky. 2d. That the acts of Kentucky, so far as they respect the present controversy, are null and void. 3d.

That the act of 1812 cannot be applied to the case, consistently with the provisions of the constitution of Kentucky and of the United States. *1.

He denied, that this court was bound by the exposition, given by the state courts, to that part of the state constitution now drawn in question, even in a case of which the national judiciary had cognisance merely from the character of the parties litigant, as being citizens of different states : and still less, where the subject-matter in controversy was connected with that provision of the United States constitution, which secured the inviolability of contracts against state legislative acts.

Such a doctrine would furnish an effectual recipe for sanctioning injustice by the forms of law, by giving to local decisions a much more extensive effect than had ever been béfore attributed to them. Unquestionably, the adjudications of the state courts, where they have become a settled rule of property, are, in general, to be regarded as conclusive evidence of the local law ; but where the

interpretation of the fundamental law of the state is involved, and especially, where that

interpretation depends upon the constitution of the Union, (which is the supreme law), the state .courts must necessarily be controlled by the superintending authority of this court. This depends upon a principle peculiar to our constitutions, and which distinguishes them from every free and limited government which has been hitherto known in the world. In England, the legislative power of parliament is not only supreme, but it is absolute, and (so far as depends upon written rules) despotic and uncontrollable by any other authority whatever. 1 Bl. Com. 160-62.

But various ^limitations upon the legislative power are contained in the constitution of Kentucky; and that of the United States contains other restraints upon the legislative power of the several states, and gives to the national judiciary the authority of enforcing them, especially, in controversies arising between citizens of different states, as the present case does. March 12th, 1821.

Clay, as amicus curias, moved for a rehearing in the cause, upon the ground, that it involved *the rights and claims of numerous occupants of land in Kentucky, who had been allowed by the laws of that state, in consequence of the confusion of the land titles, arising out of the vicious system of location under the land law of Virginia, an indemnity for their expenses and labor bestowed upon lands of which they had been the bond fide possessors and improvers, and which were reclaimed by the true owners.

He stated, that the rights and interests of those claimants would be irrevocably determined by this decision of the court, the tenant in the present cause having permitted it to be brought to a hearing, without appearing by counsel, and without any argument on that side of the question. He, therefore, moved, that the certificate to the circuit court, of the opinion of this court upon the questions stated, should be withheld, and the cause continued to the next term, for argument. Motion granted. 2. He stated, that the second point would be maintained by establishing two propositions : 1st.

That the legislative acts in question are repugnant to the terms of the compact of 1789, between the states of Virginia and Kentucky, which is made a fundamental

article of the constitution of Kentucky : 2d. That the acts are repugnant to that constitution, in depriving the demandant of the trial by jury. The terms used in the compact, “ rights and interests of land,” import something more than a mere formal title. A right of property necessarily includes the right to recover the possession, to enter, to enjoy the rents and profits, and to continue to possess, undisturbed by others. Jac. Law Dict, tit. Right, 536 ; Co. Litt. § 445, 447 ; Altham’s Case, 8 Co. 299 ; Plowd. 478.

He who has a right to land, and is in possession, has a right to be maintained in that possession, and in the use of the land and its fruits; and he who has a right to land, but is out of possession, has a right to recover the possession or seisin. These are the qualities and incidents of a right to land, at common law ; none of which had been taken away by the statute> the time the compact was made. *As to the word “ interest,” it might have been inserted ex abundanti cautela, to protect rights which, at the time of the compact, were not yet carried into grant.

The term interest, as applied to land, according to many authorities, may be something different from a right to land in fee-simple ; yet it cannot be doubted, that he who has a fee-simple has an interest in the land. A term for years is an interest, and so is the right both of mortgagor and mortgagee. It is, then, quite clear, that the term “ rights and interests of land” means a great deal more than the mere use and possession of the evidence of title. What, then, were the pre-existing rules of law and equity, with reference to which the compact of 1789 is to be construed?

By the common law, then in force in Virginia, and by the statute of 1785, the remedy by writ of right was given to him who had the fee; and if the demandant recovered his seisin, he might also recover damages, to be assessed by the recognitors of assize, for the tenant’s withholding possession of the tenement demanded. 1 Virg. Rev. Code 33. In cases where an ejectment was brought, the party might have his separate action for the mesne profits, which could only be restrained in its operation by the statute of limitations of five years.

As to the system of positive equity, which had been established at the period referred to, and which it was supposed was not infringed by the legislative acts now in question, it will be found, that the cases where ⅛6 court of chancery *has interfered, may be reduced to the following classes : 1. Where the party came into equity in order to disembar-rass his legal title of difficulties resulting from the defect of evidence at law, and also prayed a decree for the mesne profits. 2. Where the title was merely equitable, chancery has decreed both as to the title and for the mesne profits. 3.

So also, in cases of dower, the title as well as the mesne profits has been decreed. 4. In cases where infants are interested, the title and mesne profits have both been determined. In all these cases, the plaintiff sought relief, as well touching the title, as for an account of the mesne profits ; and the claimant has, therefore, been allowed, for valuable and lasting improvements, bond fide made. In the first and second classes, the account for mesne profits has been taken from the time of bringing the suit only, because the plaintiff had improperly lain by with his title.

But where-that fact does not appear, the account is always' carried back to the time the title accrued. 2 Vern. 724 ; 1 Atk. 524-26 ; 2 Ibid. 83, 283 ; 3 Ibid. 130-34 ; 2 P. Wms. 645-46 ; 1 Madd. Ch. 73-75 ; 1 Wash. 329. There is no case where a bill has been filed by the occupant, claiming the value of his improvements against the right owner.

The cases where it has been allowed, are where the title and an account of rents and profits constituted the matter of the complainant’s bill, and where the defendant resisted the relief sought, by setting up some color of .title in himself, with a *claim for the improvements. This went upon the favorite maxim of the court of chancery, that he who will have equity must do equity.

But though no case, where the occupant was the plaintiff, is to be found, before 1789, yet it is admitted, there are certain maxims and principles of equity, which, combined with the peculiar state of land titles in Kentucky, would authorize a court of equity to relieve. Yet it is quite evident, that a party coming with his bill for relief, after a recovery had against him at law, must have stood upon a very different ground than the complainants in the cases above referred to.

His application must have been to the extraordinaiy powers of the court; he must have come in under the rule that he who will have equity must do equity; he would not have been permitted to gain by the loss of the other party, Upon a bill brought after a recovery in a real action, the account would have been carried back to the time of his first taking possession: completei equity would have been done, by making a full estimate of the value of the rents and waste on one side, and of the improvements on the other; the want of notice of the defendant’s title couid not have been considered as important, since he would stand upon his judgment at law : but the decree would be for the balance of the account thus taken.

After a recovery of mesne profits, in the action of trespass, *following a recovery in ejectment, if the occupant had not pleaded.the statute of limitations, he might have brought his bill, and the matter would have been adjusted in the same mode ; but if he had pleaded the statute, and thus deprived the true owner of a part of his indemnity, he could not stand before the court as a party willing to do equity, and consequently, could not have equity.

But even supposing that a bill would be retained in such a case, most certainly, the same rule of limitations, which deprived the proprietor of a part of his damages, would also be applied to the improvements made before the time of limitation.

Admitting, too, that with respect to questions between the owner of the title, as complainant, claiming relief, as well touching the title as for the rents and profits, and the other party, all the cases cannot be reconciled, yet there is a very decided preponderance in favor of the doctrine now maintained ; and with respect to a naked claim for improvements, there is no contradiction whatever.

As to the terms “ valid and secure,” which are used in the compact with reference to the rights and interests of land derived from the laws of Virginia, they must import the permanent validity and security of whatever is included in, or incident to, the complete enjoyment of those rights and interests. This validity and security is impaired by the acts of the state legislature now in question.

By the common law, connected with the statute of Virginia, before cited, the demandant in a writ of right was entitled to recover, '-'’together with his seisin, such damages as the jury might think him entitled to, for the detention of the land, and for the waste committed upon it, extending back to the time when the occupant entered upon the land. But by the act of 1797, § 1, he is to recover no damagesfor the use of the land, before actual notice, nor even subsequent to that notice, unless the suit is brought within a year. By the third

section of the act of 1812, his damages for the detention are not to commence until the final judgment or decree in the courts of original jurisdiction. Under the first act, his right to damages is greatly diminished ; under the second, it is almost annihilated. But suppose the respective rights of the parties are tested by the settled doctrines of positive equity ; the tenant, in the present case, seeking equity from a party who had a clear legal right, would have been compelled to do complete equity.

He would have received an equitable allowance for his improvements, if bond fide made ; but the judgment of the demandant would not have been disturbed ; the value of the improvements would have been compared with the amount of his damages, and a decree rendered according to the result of that comparison. In the case of a recovery by ejectment, followed by the action of trespass for mesne profits, which was the undoubted right of the owner of the land, as the law stood in 1789, the right of the plaintiff is diminished by the acts now in question.

Under the old law, he could not be restricted from inquiring into the damages sustained, from the time the defendant entered- upon *the land, down to the time of suit brought, unless the defendant pleaded the statute of limitations. But if the occupant insisted on that defence, he could have no remedy in equity. The act of 1812 also makes the giving a bond for the value of the improvements, a condition to the recovery of possession, thus depriving the true owner of his pre-existent absolute right to the appropriate writ of execution.

It is clear, then that the rights of the proprietor of the land are impaired by the statutes in question ; they are neither determined by the same laws, nor by the same principles of equity incorporated into new laws. Nor can these statutes be supported on the principles of abstract justice. It is not only a maxim of the court of chancery, but of every wise legislator that equality is equity. So also, one ought not to gain by the loss of another, who was in no fault.

From these two maxims, the corollary may be drawn, that where the respective capitals of two individuals are equal, and their occupations, skill and industry are the same, their condition in the social state (so far as it depends upon legislative regulations) ought to be precisely the same. Not that one may not benefit by turns of good fortune, without sharing his gains with the other ; but that the law should not take from the one to give to the other, rendering the one richer, to make the other poorer, without some fault of the latter.

Here, the counsel illustrated the application of this principles, by putting a variety of cases which might °°cur under the ^statutes, to show the extreme injustice and inequality of their operation. Nor does the fourth

article of the compact of 1789, warrant the passage of the acts under consideration. It merely gives to Kentucky the power of requiring lands to be improved and cultivated after six years. That this

article does not apply to the present case may be shown by several considerations : 1. The acts in question do not, by their terms, purport to be in execution of such a power. 2. A power to require the owners of land to improve and cultivate for the general welfare, is one thing ; and a power to take away the property of one citizen and give it to another, is a very different thing. 8. A law requiring improvement and cultivation, and declaring a forfeiture for non-compliance, would only be applied to unoccupied lands ; whereas, the lands to which alone the acts are applied are actually improved and cultivated.

The true owner is prevented, by the acts of him who has usurped the possession, from personal compliance. It may be contended, that there are certain ancient statutes of Virginia recognising the same obnoxious principles with the recent acts of Kentucky. But the only statute at all partaking of this character was that (called) of the 13th of Charles II., but in fact passed immediately after the restoration. This statute was entirely retrospective in its operation, and was intended to apply to a peculiar state of things existing during the civil wars and the commonwealth, as distinctly appears, both by the

preamble and the enacting *clauses. It contained, however, no provision for depriving the true owner of the rents, &e., and was actually repealed in 1748. As to the second particular proposition, under this general head, the constitution of Kentucky expressly declares (art. 10, § 6), that “ the ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate.” The law of Virginia prescribed this mode of trial as to writs of right, with all its details, and amongst others, that the damages of the demandant for the detention of the land should be assessed by the jury.

An arbitrary tribunal of commissioners is substituted for this ancient mode of trial, by the acts, the validity of which is now drawn in question. Thus is not only the amount of damages to which the demandant was entitled, under the old law, diminished to a pittance, but even that is to be liquidated by a tribunal far more unfavorable to him than a jury. 3. The third general point would follow as a corollary from the proof of the two following propositions, or either of them : 1.

That the act of 1812 is repugnant both to the United States constitution and that of Kentucky, as being retrospective in its operation upon vested rights, and as impairing the obligation of contracts. 2. That it is repugnant to the constitution of Kentucky, in determining, by the legislative department, a matter which is exclusively cognisable by the judicial.

And first, the state constitution provides, art. 10, § 18, that “no ex post facto law, nor law impairing contracts, shall be made and the national constitution declares, art. 1, § 13, that “ no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” The terms of the prohibition are very similar, and the substance is absolutely the same. In the case at bar, the injury to the demand-ant was committed long before the passage of the act of 1812, which has interposed and violently deprived him of his remedy, even pendente lite.

Considering the two prohibitions against ex post facto laws, and against laws impairing the obligation of contracts, together, they will be found to afford a complete protection to vested rights of property, and to apply precisely to the present case. All rights of action are founded either upon contracts or upon torts ; they are either ex contract'd or ex delicto.

The framers of our constitutions, by the prohibitions against impairing the obligation of contracts, intended to protect all rights dependent upon contract from being diminished or destroyed; and they could not certainly have intended to leave injuries to property arising ex delicto wholly unredressed, or to leave the remedy to the caprice of the state legislatures. Doubtless, the more generally received opinion is, that this prohibition of ex post facto laws is to be restricted to criminal matters ; but there are great authorities to the contrary.

The commentator on the laws of England, in laying down the maxim of political philosophy, that ex post facto laws ought not to be passed, does, indeed, illustrate his position by a criminal case ; and probably, some have been misled, *by taking the example for the rule. 1 Bl. Com. 46. Dr. Paley, however, lays down the rule without any qualification whatever. Paley’s Moral & Political Philos. 444. But supposing this first proposition to be questionable, there certainly can be no doubt as to the second.

By the constitution of Kentucky, it is declared, that “ the powers of government shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy, to wit, those which are' legislative, to one ; those which are executive, to another; and those which are judicial, to another.” And by the second

section of the same article, that “ no person, or collection of persons, shall exercise any power properly belonging to either of the others ; excepting in the instances hereinafter expressly directed or permitted.” Row, it cannot be denied, that a particular controversy, arising out of facts, which, by an existing law, give the parties a right to certain remedies in the courts, is a matter exclusively of judicial cognisance, But here, the legislative department has adjudicated upon it, by interfering with these remedies, after a lis pendens, so as to take away the property of one and give it to another party.

It is an adjudication discharging the tenant from a just claim, which the demandant had against him under the former law, without any equivalent or indemnity to the latter. That this adjudication has been clothed with the forms of public and general legislation, and includes every case of the same class, can make no ^difference. This is an example of that very sort of legislation which Dr. Paley reprobates, and calls double; it being the exercise both of judicial and legislative power.

Such legislative acts do not discriminate between different cases, according to their peculiar circumstances, as the judicial authority would do. Thus, the act of 1812 confounds together the case of the person lying in wait with his title, to take an unfair advantage of the compact, and that of the rightful owner, who has constantly and openly pursued his claim ; cases of infancy and of full age ; of fair and fraudulent settlement: in short, all circumstances and qualities are indistinguishably blended in one sweeping act of retrospective injustice.

Bibb, contra, contended, that the substantial effect of the acts of 1797 aud 1812, went merely to allow the grantee from the commonwealth, who, under faith in his grant, has made valuable and lasting improvements, the amount of those improvements ; and to exempt him from accounting • for rents and profits, down to the time when he begins to be a maid fide possessor, by resisting the better title of the true owner. That the acts did not apply even to cases of disputed boundaries, but only to cases of. conflicting titles ; nor to cases of fraud, or of lands previously cultivated and improved.

He entered into a detail of the provisions of the laws, of the practice under them, and of the exposition they had received from the courts ; and contended, 1st. That the principle of the act of 1812, is a ^principle of natural equity and justice, as to permanent improvements by a bond fide possessor. 2d. That the principle of postponing the accounts of rents and profits, is the true chancery rule, and such as is familiarly applied in the practice of courts of equity. 3d. That' the laws are not repugnant to the compact of 1789. 1.

The circumstances under which the country, where this momentous question arises, was settled, are to be considered. The manner in which it was colonized, and in which the titles to land were first acquired, and the consequent confusion of conflicting claims and litigation, are unfortunately, but too well known to the court.

Under these difficult circumstances, all that the local legislature has done, is, to assert the principle of natural justice and artificial equity, that he who takes possession of vacant lands, under a ‘primdfaeie legal title, and makes valuable and lasting improvements, shall be considered as a bond fide possessor. Such is the well-established rule of the court of chancery, as to improvements, which must pass with the freehold, to the party asserting his paramount title.

It is applied, where a ven-dee, under an agreement for a sale, takes possession : so also, where a mortgagee is in possession, the court never permits a redemption without paying for permanent improvements. If, then, the party has a right, in similar cases, to an indemnity, is it any objection, that the statute has defined a rule, declaring what requisites shall be indispensable ? *What better evidence of bona fides can there be, than a grant under the great seal ?

There is a great variety of claims, consisting of different grades or classes, complicating the titles to lands in Kentucky, and depending not merely on legal doubts, but on questions of evidence of great difficulty. 1 Bibb’s Rep., Preface. What is the opposing claim, which is of such validity as primdfaeie to convert the occupant into a maid fide possession? The local tribunals have laid down the only safe practical rule, which is, that the positive decision of a court of record shall alone be sufficient. All grants are by record, and the patent can only be repealed by matter of record.

There must be a scire facias to repeal the patent; and in the case of escheat, a regluar inquisition is indispensable. Until the grant of the commonwealth is annulled, a person claiming and holding under it, cannot be considered as a maid fide possessor. The validity of the laws in question, has been confirmed by innumerable decisions ; and they have been always strictly confined in their operation to eases of conflicting titles under grants, and have never been extended to protect a maid fide possession. 1 Marsh. (Ky.) 443; 2 Ibid. 214; 3 Bibb 298 ; 4 Ibid. 461 ; 1 Marsh. 246, 247. 2.

The general principle of equity is settled by a series of decisions, both in England and in this country. A leading ease on this subject, is that of the Duke of Bolton v. Beane, Prec. Ch. 516. There, the *doctrine was established, that if the lessor suffers the lessee to hold over, equity will not compel the tenant to account for mesne profits, unless the lessor was hindered from entering, by fraud, or some extraordinary accident. The same principle is laid down, as to mesne profits, in several other adjudged cases. Eq. Cas. Abr., tit. Mesne Profits ; 1 Atk. 526.

And wherever there has been any default or laches on the part of the true owner in asserting bis title, tbe account is restrained to tbe filing of the bill. Dormer v. Fortescue, 3 P. Wins. 136. So, where a man suffers another to build on his ground, without setting up a right till afterwards, a court of equity will compel the owner to permit, the builder to enjoy it quietly. Fast India Go. v. Vincent, 2 Atk. 83. The same principle has been recognised by our own courts, and is also to be found among the maxims of the Roman law. Southall v. McKean, 1 Wash. 336 ; 2 Domat’s Civ.

Law 432, Strahan’s Translation ; Karnes’ Eq. 189, (1st ed.) 2*70. 3. As to the compact of 1789, between Virginia and Kentucky, it is a treaty for good faith ; a mere recognition of the principles of natural law and morality. A change of sovereignty does not usually make any change in proprietary interests in the soil; and the compact is merely declaratory of that principle of public law.

The Louisiana treaty contains stipulations for the protection of the property of the inhabitants, but it has never been construed to limit the sovereign rights of the United States over the domain of that province. * Neither did the compact of 1789 intend to limit the sovereignty of Kentucky. It is merely a stipulation for the conservation of titles in their integrity ; for fair and impartial legislation upon the rights of property which were originally derived from the laws of Virginia. It could not have meant to prevent the modification of remedies in the courts, and generally what is called the lex fori.

According to the doctrine contended for on the other side, the legislature of Kentucky could not even extend the time for entering surveys; than which nothing could be more absurd and extravagant. But the true principles by which the compact is to be interpreted have already been settled by this court. In Bodley v. Taylor, 5 Cranch 223, it is laid down, that if the same measure of justice be meted to the citizens of each state ; if laws be neither made nor expounded, for the purpose of depriving those who are meant to be protected by the compact, of their rights ; no violation of the compact can be said to exist.

This case also determines the principle, that the decisions of the local courts are to be followed: and the inconveniences which would flow from shaking the system of land titles established by the uniform series of their adjudications, is insisted on as a reason for adhering to the rules of property thus established. Ibid. 234. So also, this court has solemnly sanctioned the act of Kentucky, giving further time for surveys ; as well as *the statute of limitations of that state; and the act concerning champerty and maintenance. 2 Wheat. 324; 1 Ibid. 292.

The system of legislation now in question, does but follow the maxims laid down by Montesquieu, that the laws should encourage industry ; that the more climate, and other circumstances, tend to discourage the cultivation of the earth, the more should the legislator excite agriculture ; and that those laws which tend to monopolize the lands, and take from individuals the proprietary spirit, augment the effect of those unfavorable circumstances. Esprit des Lois, lib. 14, c. 6, 8, 9, 11.

Here, though it is acknowledged that the titles are to be decided according to the laws of Virginia, existing at the epoch of the compact, a new proprietary interest has grown up since, not foreseen nor provided for. The possessor in good faith has covered the face of the country with his own property, the fruits of his toil and industry, which it is not just that the owner of the unimproved land should take from him, without an indemnity.

Again, how can this court interfere, after the settled decisions of the local courts has confirmed the validity of these laws, and thus disturb the rules of property which have been firmly established ; and that, too, in a case where the parties on both sides, really interested in the controversy, are citizens of the same state ? The subject is not within the jurisdiction of the court, either as to the character of the parties really interested, or *as to the subject-matter of the controversy.

The jurisdiction originally given by the constitution has been defined and limited by the judieiary act, and is not eo-extensive with what might have been granted by congress under the constitution. United, States v. JBevans, 3 Wheat. 336, 387, 390 ; United States v. Wiltberger, 5 Ibid. 93. The states may, with the consent of congress, make compacts or agreements with each other ; but they cannot make a treaty, even with the consent of congress.

The judicial power then does not extend to such compacts, considering them as treaties, nor does that clause of the constitution, which prohibits the states from making any law impairing the obligation of contracts, apply to the present case. That prohibition can only be fairly construed to extend to contracts between private individuals, or, at most, between a state and individuals.

An agreement or compact between two different states, in their sovereign capacities, and respecting their sovereign rights, can never, by the utmost latitude of construction, be brought within the grasp of a prohibition, which was evidently intended merely for the protection of private rights, growing out of private contracts, or out of a grant from the state vesting a proprietary interest in the grantee.

The only remaining question then is, whether this court can declare a state law void, as being repugnant to the constitution of the state, contrary to the uniform decisions of the state courts, who are the rightful exclusive expounders of their own local law ? It is ^conceived, that this point is irrevocably settled by the decisions of this court. Galder v. Bull, 3 Dali. 386. But even supposing this to be a mistaken inference, it is quite clear, from the uniform language and conduct of the court, that it will not declare

an act, whether of the state or national legislature, to be void, as being repugnant to the fundamental law, unless in a very clear ease.

Besides, there is the less necessity for the interference of the court in the present case, as the compact itself provides a tribunal for the adjustment of any disputes which may arise under it; and that stipulation, if it does not entirely exclude the jurisdiction of any other tribunal in all cases arising under it, will, at least, furnish a motive for great caution on the part of the national judiciary in a case ■ where,, if citizens of Kentucky alone are interested, they ought to be bound by the decisions of their own courts ; and if the rights of citizens of Yirginia are involved, it depends upon the pleasure of that state to create the tribunal by which they are to be determined.

Clay, on the same side, stated, that the great question in the cause was, what is that paramount rule, with which these laws are to be compared, and if found repugnant, to be declared void by this court. If the jurisdiction now to be exercised arises under that clause of the national constitution, prohibiting the individual states from making any law impairing the obligation of contracts, then the court may draw to its cognisance *the subject-matter in controversy.

But if otherwise, then it can only acquire jurisdiction by the character of the parties litigant, as being citizens of different states, and so entitled to the protection of the federal forum. The first inquiry then would be, whether there was any subsisting compact between the states of Virginia and Kentucky upon which the jurisdiction of the court could fasten ? If there be a compact, it must be between parties capable of making it; upon a subject on which they might constitutionally stipulate ; and made in a form warranted by the constitution. Waiving the question as to the parties, he would contend, 1st.

That the supposed compact had not been constitutionally made ; and 2d. That if the compact is to be interpreted as restraining the state of Kentucky from passing the laws in question, the restraint itself would be unconstitutional and void. 1. Both by the original articles of confederation and the existing national constitution, the states are prohibited from treating or contracting with each other, without the consent of congress.

The terms of the prohibition in the constitution are very strong: “ no state shall, without the consent of congress, enter into any agreement or compact with another state, or a foreign power.” It extends to all agreements or compacts, no matter what is the subject of them. It is immaterial, therefore, whether that subject be harmless or dangerous to the Union. There is here no *room for

interpretation. “ Any agreement or compact,” are the words, and all contracts between the states, without the consent of congress, are interdicted. To make, therefore, the supposed compact binding, it must have been entered into with that consent. It is not now insisted that (though perhaps it may be), that this consent must precede the compact. All that will be asked is (what cannot be denied), that it must either precede or follow the compact. In the present case, there is no pretence for alleging a subsequent express assent. Was there, then, a prior one ?

The act of Virginia did not even profess to ask the consent of congress to the compact. All that it demanded was, that congress should consent to the admission of the proposed state into the Union, &c., and congress has not even responded to all that was asked. What it has assented to, can only be ascertained by resorting to the language it has thought fit to use.

The act of February 4th, 1791 (by which alone the will of congress on this subject is signified), merely declares the consent of that body to the erecting of the district of Kentucky into a separate and independent state, and its reception into the Union upon a certain day. Beyond what was asked of it, congress has not gone ; as to the rest of the matters connected with these, it was altogether passive. There was, then, no compact.

It was a mere negotiation ; for the people of Kentucky did not meet in convention, until 1792, when it is supposed that their assent to the compact was given. *But it may be said, that though congress did not expressly consent, yet it acquiesced in the compact, which is equivalent. This is what is denied. The consent of congress being required, it must be evidenced by some positive act. Congress is a collective body, or, rather, it consists of three bodies, each of which participates in the exercise of the legislative power of the nation. The forms and ceremonies of passing laws must be observed.

The doctrine of acquiescence cannot apply to the exercise of such a sovereign power. Did the house of representatives ? did the senate ? did the president, acquiesce ? How do you ascertain it ? Their silence cannot he interpreted into acquiescence. It was not necessary for them to interpose, in order to prevent that, which, without their consent, would be a mere nullity. If they had actually interposed, by an express prohibition, in the the most solemn form, it could not make the compact more void than it was before.

Being a nullity, from an inherent defect in its original formation, it could not be made more so, by any extraneous act. Never having existed, its existence could not be destroyed by any conceivable power whatever. Indeed, to set up the doctrine, that congress can tacitly acquiesce in agreements, unconstitutionally made between the states, would be of most dangerous and fatal consequences.

It would sanction whatever agreements the several states might choose to make with each other, and introduce chaos into the confederacy, by engagements between its different members, inconsistent with *each other, and conflicting with the duties they all own to the Union. All the analogies of the constitution are against such a doctrine. Various prohibitions of the exercise of different powers by the states, without the consent of congress, are contained in the constitution.

Thus, they are prohibited, without that consent, from laying imposts or duties on imports or exports, except such as are necessary for executing the inspection laws; or any tonnage duty ; and from keeping troops or ships in time of peace ; and from engaging in war, unless actually invaded, or in such imminent danger as will not admit of delay. These prohibitions are all connected in the same clause with the prohibition against their making contracts with each other. Vet, surely, it cannot be pretended, that in all these cases the consent of congress can be inferred from its silence.

It is true, that the consent of congress to such acts, has not always been asked by the states. But it was their duty to have asked it; and the acts are mere nullities, unless the consent be obtained. 2. If the supposed compact is to be interpreted to restrain the state of Kentucky from passing the laws in question, such restraint would be unconstitutional. It is incontestable, that there are some attributes of sovereignty, of which a state cannot be deprived, even with the concurrence of congress and the state itself. The true theory of our government is, that of perfect equality among the members of the Union.

Whatever sovereign powers one has, each and all have. A state may *refuse to allow another state to be carved out of its territory ; but if it consents to the formation of a new state, such new state becomes invested with all the sovereign attributes of every old one. Congress may refuse to admit a new state; but if it admits it, the state stands in the Union, freed and liberated from every condition which would degrade it below its compeers. Whatever one state can do, all can do. The pressure of the whole on all the parts, is equal, and all the parts are equal to each other.

This implied prohibition extends to every compact, in every form, by which a state attempts to deprive itself of its sovereign faculties. The sovereignty of a state cannot exist, without a territorial domain upon which it is to act; and there can be no other restrictions upon its action within its own territory, but what is to be found in its own constitution, or in the national constitution. Of all the attributes of sovereignty, none is more indisputable than that of its action upon its own territory.

If that territory happens to be in a waste and wilderness state, it may pass laws to reclaim it; to encourage its population ; to promote cultivation ; to increase production. That any of the old states can pass such laws, is incontestable ; and if they may rightfully do it, then Kentucky may do the same.

If, then, there be no compact constitutionally made, and could have been none, with the power of restricting the state legislature from passing the laws in question, there is no fundamental rule, with the violation of which they stand chargeable. *But it may be said, that this rule is incorporated into the state constitution. To this it is answered, that the incorporation of the supposed compact into the state constitution, did not make it a compact, if otherwise it wanted the requisite sanctions under the federal constitution.

If it were inserted, upon the mistaken supposition of its being a binding contract, does the insertion produce any effect ? Is it not to be considered as the insertion of that which, being before void, remains null, notwithstanding the insertion ? That it is not made a compact by the insertion, is clear : for the prohibition upon the states, to contract or agree, without the consent of congress, is a prohibition to contract or agree in any form, constitutional or otherwise.

But although it has not the properties of a compact, it may possibly be contended, that it is nevertheless a part of the constitution of Kentucky, and therefore, binding upon the legislature of the state. The convention of Kentucky proceeded upon the notion that it was a compact. If, in that, they were mistaken, ought it to be treated in a character which was never intended ? Can it be treated in that character ? There are reciprocal provisions in it.

Supposing it to be no compact, those stipulations on the part of Virginia, which formed the considerations of stipulations on the part of Kentucky, would not be binding on Virginia. It would, therefore, be most unjust, to hold Kentucky bound for grants, the equivalents for which she cannot enforce. If one party is not bound, the other ought to be deemed free : and *the incorporation of the compact into the constitution of to be considered as the erroneous supposition; it was the compact, emphatically, that was made a part of the constitution.

If there were no compact, nothing was inserted : or it was the will of one party, expressed in the most solemn form, to which there was wanting the will of the other, or the federal sanction, to make it a compact. If, notwithstanding the freedom of Virginia from any obligations, Kentucky is to be regarded as bound by her separate constitutional act, then, the question is, what did she intend by that act ? Who is to expound it ? Are we to look for the meaning of the constitution of a state, within the state itself, or are we to look abroad for foreign interpreters ?

It need not be denied, that in case of an appeal to the federal tribunals, by citizens of other states, against the acts of local legislation, upon the ground of repugnance to the state constitutions, they may pronounce on that repugnancy. But it must be a clear case of repugnancy, to justify them in annulling the state law. And after all the departments of a state government had united in giving an exposition to its constitution, which had been uniformly acted on for a series of years, and become a rule of property, this court would solemnly pause, before it overturned such a construction.

This court, in liodley v. Taylor, 5 Crunch 223, determined, that it would follow the decisions of one department only (the judiciary) in respect to *the land laws of Virginia, although, it intimated strong doubts of their correctness. The ground on which this determination justly proceeds, is a regard to the peace of society, a respect for the rights of property, and the prevention of those disorders which would flow from opposite and conflicting rules.

The convention, by inserting the declaration in the constitution, that the compact was to he considered as a part of it, could not have intended to prevent the passage of the laws for the benefit of the occupying claimants, because the first of those laws preceded the formation of the last constitution. The state court of last resort has affirmed the consistency of the law with the compact; and, conseqently, its consistency with the constitution. 4 Bibb 52.

Thus, we have the deliberate adoption of that system by the legislative authority, almost contemporaneously with the date of the compact ; the formation of the present constitution, without disapproving of that system ; and an adherence to it by the legislative authority, for a long series of years, during which it has reviewed it, expressly adhered to its principle, and given it a more expansive effect. 3.

If the compact is to be treated as one made with all necessary solemnities, the jurisdiction of this court cannot attach, until the party charged with a violation of it has refused to constitute the tribunal of the compact. The 8th

article of the compact provides for *a special tribunal. That provision is as much a part of the compact as any other. It is admitted, that rights, which existed prior to and independent of the compact, cannot be affected by the decisions of that tribunal. But whatever rights spring out of the compact, originate with it, and are liable to be affected by it. They rest, coupled with all the conditions which the enactment that gave them birth has imposed upon them.

If the party complained of, for violating the compact, had refused to co-operate in the constitution of the tribunal of the compact, then the jurisdiction of this court might attach, under that branch of the distribution of judicial powers, which gives it cogni-sance of controversies between the states (if congress had made provision for giving effect to that part of the constitution) ; or, perhaps, the court might, in such case, exercise jurisdiction as between the individuals interested. If there be cause of, complaint, it is by Virginia against Kentucky.

But Virginia has never (until recently) complained — she has acquiesced : and Kentucky, so far from refusing to create the tribunal of the compact, has offered to refer to it this very matter. It will probably be contended, that this provision is like the ordinary stipulation in policies of insurance, and other contracts for referring to arbitration, which has never been held to exclude the jurisdiction of the ordinary courts of the land. But the grounds on which the courts of Westminster have assumed jurisdiction in such cases is *that of their transcendent authority. 2 Marsh. Ins. 679.

If it were res integra, there would certainly be great reason to contend, that, in these cases, the forum domesti-cum stipulated for by the parties ought to have exclusive jurisdiction. But, be this as it may, there is this plain distinction, that the courts of Westminster Hall have a general jurisdiction over the realm, whilst this court is one of limited jurisdiction, having special cognisance of a few classes of cases only. So far as that jurisdiction results from the will of the states, who are parties to the compact, it must be taken- with the restrictions which that will imposes.

The parties, in effect, say, “ we make such a contract; if we differ about its

interpretation, or execution, we will constitute a special tribunal to decide that difference.” Congress might, indeed, .give you jurisdiction over the compact, by providing a mode in which your constitutional jurisdiction over controversies between the states shall be exercised. But all jurisdiction over sovereign states (however derived), is limited by the very nature of things. Suppose, this were a foreign treaty, and provided for a reference to the arbitration of a foreign sovereign, would you take jurisdiction in that case ?

Supposing, however, that the court should feel itself compelled to take cognisance of the present cause, as being a private controversy between citizens of different states, it will exercise its power with the most deliberate caution. This court is invested with the most important trust that was *ever possessed by any tribunal, for the benefit of mankind. The political problem is to be solved in America, whether written constitutions of government can exist.

They certainly cannot exist, without a depositary somewhere of the power to pronounce upon the conformity of the acts of the delegated authority to the fundamental law. This court is that depositary, and I know not of any better. But the success of this experiment, so interesting to all that is dear to the interests of human nature, depends upon the prudence with which this high trust is executed. 4. The compact, supposing it to be valid and binding, does not prohibit the passage of these laws.

The mode by which private individuals could acquire a part of the public domain in Virginia, as prescribed by the act of 1748, was by a survey, accompanied with certain specified improvements. Leigh’s Rev. Virg. Laws, 338. If not settled within three years, the grant was forfeited, without any formal proceeding to repeal the patent. In 1779, commenced the calamitous system under which Kentucky now suffers. In order to raise a revenue, and provide for the defence of the frontier, the previous survey was dispensed with; and hence the conflicting claims which now cover the whole surface of the country.

At the period of the separation of the two states, the titles acquired under the law of 1779 were incomplete, and in every stage of progression, from the entry *to the patent. Virginia was about to part with the sovereignty ; that is, with the power of consummating the titles and fulfilling her engagements. If she made no provision ; if she obtained no guarantee for the complete execution ©f her engagements ; if she exposed those who had acquired the right to, or interests in, land from her, to the uncontrolled action of the new sovereignty, she might justly be reproached with infidelity to her engagements.

Faithful to these, the stipulation in question was inserted. The object, and the only object of it, was to notify the new state that it must not abuse its power, to the detriment of persons claiming under Virginia, and to proclaim to those persons her parental attention to their interests. It was to announce to them, and to the new state, that their titles were to remain valid and secure, under the new sovereign. It was a devolution upon the new sovereign of all the duties towards them of the old sovereign, and nothing more.

It was to bind the new state so far as Virginia was bound, but to leave it as free as she would have been, had there been no separation. Virginia could have had no imaginable motive to prevent the .new state from exercising all the accustomed rights of sovereignty.. On the contrary, she displayed a solicitude for the admission of the new state into the Union, making it a condition of its independence. In conformity with this view, is the language of the third

article : it provides, “ that all private rights and interests of lands, within the said district, derived from the laws of Virginia, prior to such separation, *shall remain valid and secure, under the laws of the proposed state, and shall be determined by the laws now existing in this state.” If the reason for using the terms “ rights and interests,” be attended to, it will be seen, that it is a guarantee for the security of the title, and nothing but the title. It is no restriction upon the new sovereignty as [ to any public policy which it might think fit to adopt. All the parts of the ’ compact are to be taken together, and one

article may serve to expound another', where there is ambiguity. What is meant by the third, may be - ascertained by the fourth condition. That is a clear recognition of the right ■ of the new state to enforce cultivation or improvement, by forfeiture or . other penalty. It expressly recognises the right to exercise that power forthwith, as to citizens ; and as to non-residents, merely leaves a reasonable time (six years) to enable them to settle and improve. It admits the right; of the state to effect the object, by forfeiture or other penalty.

If the parties to the compact had intended, by a provision for the security of the title, to exclude the legislative authority from acting at all upon the subject, would they have left that subject exposed to the most formidable action of the sovereign power, by forfeiture or other penalty ? The courts of Kentucky, the people of Kentucky, the legislature of Kentucky, have all proceeded upon the principle of the perfect validity of the titles derived from the laws of Virginia. Everybody is interested in the preservation of those titles.

The legislative system of Kentucky *does not begin to act, until the system of Virginia has had its complete effect. After the decision upon the title, and after it has been pronounced valid ; after the terms of the compact are completely fulfilled, the laws of Kentucky commence their operation. When they do operate, it is not upon the title, but upon the subject. It is not on account of any defect in the title, that they operate at all. They spring from those considerations of policy which a sovereign state has a right to weigh and give effect to.

The title is admitted ; but from other causes dehors the title, the owner of it is not compelled to pay for the title, nor for the land, which he had a right to only in its native state : but he is compelled (on ground of public policy) to pay for something which is not inherent in the title, which does not naturally belong to the land. If this be not according to the true

interpretation of the compact, then the erection of Kentucky into an independent state was a solemn mockery. It was a grant of the sovereignty, without a capacity to exercise it; and a transfer of the sovereign power of Virginia to the new state, with a prohibition to the exercise of any sovereign power. If the compact restrains her from legislating on the subject to this extent, it goes a great deal further, and exempts the subject entirely from her legislative jurisdiction.

She could not tax the lands of non-residents ; nor subject the land to the payment of debts in any novel manner ; nor make a new law of descents ; nor establish a ferry; nor lay out a road ; nor build a town. In short, she can exert no sovereign power *whatever over the subject. For if those considerations of public policy, which led her to adopt the system of compensation to the boná fide occupant, cannot prevail, neither could similar considerations, in any other case, prevail to authorize her legislative interference. The Virginia code of R789, must immutably govern the territory.

But it may be said, that the words of the third

article must mean something more than a mere security of the title, according to the laws under which it is derived ; otherwise, the insertion of the

article was utterly useless, since it would create no obligation other than that what would exist without it. The answer to this is, that the necessity of such a stipulation grew out of the very extraordinary state of land titles in Kentucky. Even, however, if this reason had not existed, instances might be cited, without number, of similar precautions in international pacts and treaties.

Such are, among others, the cession by Virginia of her western territory to congress, which contains a confirmation to the settlers of Kaskaskias, Vincennes, &e., of their possession^ and titles ; the Louisiana treaty; and the Florida treaty ; all of which contain similar confirmations. It may, however, be urged, that the rights and interests in land, as derived from the laws of Virginia, cannot be valid and secure, if these acts have their effect: that there would be a nominal compliance with the compact, but a real violation of it.

If the laws operated on the title ; if they obstructed or defeated it, the argument would indeed *have weight. It would, however, at the same time, be equally applicable to a case of forfeiture for non-settlement or non-cultivation ; for in that case, too, it might be said, that you admit the title, but forfeit the land. So, in all other cases where the state exercises its right of eminent domain, it might be said, that the title was acknowledged, but the land taken away. The ground on which the laws repose, is not that of any inherent taint or defect in the title.

It is one of policy, founded on the peculiar condition of the country ; the multitude of dormant claims to the same land ; the non-assertion of their titles by adverse claimants ; and the necessity of encouraging improvement. The decisions of this court conform to these principles of

interpretation. In Wilson v. Mason, 1 Cranch 45, 91, the court says, “it must be considered as providing for the preservation of titles, not for the tribunals which should decide on those titles.” The laws are of universal and impartial application. They apply as well between citizens of the state, as between them and nonresidents. Such an application of them was considered by the court, in Taylor v. JBodley, 5 Cranch 223, as a conclusive test of their validity. 5.

If the compact limited the action of the new sovereignty to the situation of the Virginia laws respecting real property, in all cases whatever, at the period of the separation ; still, it is insisted, that the principle on which the oecupying-claimant laws are founded, had been recognised by that *state, and was then in force, and that Kentucky had a right to constitute the tribunals which should execute it, and to dir.ect its application. That the whole subject of remedy devolved on the new state, is too clear a proposition to be contested.

It might refuse to establish courts of justice at all; it might adopt the civil law, or the Napoleon code ; it might abolish the court of chancery. In Wilson v. Mason, 1 Cranch 45, 91, this doctrine was substantially held. The principle of the acts in question, was first adopted, by a law of the colony of Virginia, enacted in 1643. 1 Hen. Dig. Laws of Virg. Preface 15. It seems, that this law never was repealed ; and by it, even the occupant, without color of title, was exempted from the payment of rents, on eviction.

But on general principles of law and equity, such as they have been recognised in every system of jurisprudence which has prevailed among civilized nations, .the meliorations by a bond fide possessor are to be paid for, on eviction by the true owner ; and such possessor is also exempt from responsibility for rents and' profits. Karnes’ Prin. Eq. 26-8, 189. The whole law of prescription proceeds by the same analogy. Southall v. McKean, 1 Wash. 336, is an adjudication on that principle, posterior to the separation, in a case occuring prior to it. Lowther v.

Commonwealth, 1 Hen. & Munf. 201, proceeded on the same ground; and the case of a party claiming under the state, is much stronger than if he claimed under a private individual. The principle, then, being *in existence in the parent state, it was competent to the new state to modify it, and direct its application. The cases are numerous, where a principle originally applied by courts of equity, is adopted by the legislature, and being incorporated into a statute, is enforced by the courts of law as a legal rule. Such are the cases of set-off, of penal bonds, and the remedy of creditors against devisees. 6.

At all events, the laws are not wholly repugnant to the compact, in their application to every species of action or suit; and the court will discriminate between the void and the valid provisions. The two laws provide, in substance, 1. That there shall be no allowance of rents and profits, prior to notice. 2. A definition of what shall be considered as notice. By the act of 1797, it is the commencement of a suit, or the delivery of a certified copy of the record on which the party claims, and the bringing a suit within a year. By the act of 1812, it is the rendering a judgment or decree. 3.

That the occupant shall be paid for all valuable and lasting improvements, subject, by the act of 1797, to the restriction, that the value of such improvements, after notice, shall not exceed the amount of the rents and profits, after notice. 4. That the occupant shall be chargeable with all waste or damage committed on the land. 5. That he shall hold possession until the balance due to him is secured or paid. 6. That a sworn board of commissioners shall liquidate the account between the parties. 7.

The right of election given by the act of 1812. *Are all, and if not all, which of these principles contrary to the compact? Is the repugnancy in the principles adopted, or the mode of executing them ? As to what is that notice which shall convert a bond fide into a maid fide possession, it is so uncertain in itself, that it cannot be denied, that the legislature has a right to establish a rule of positive institution on that subject. As to the remedy, it may certainly change the form of action, and the proceedings in any action ; or convert an equitable into a legal right, with its appropriate legal remedy.

Or it may forfeit the whole property, for non-cultivation or non-improvement. This court is not a mere court of justice, applying ordinary laws. It is a political tribunal, and may look to political considerations and consequences. If there be doubt, ought the settled policy of a state, and its rules of property, to be disturbed ? The protection of property should extend as well to one subject as to another: to that which results from improvements, made under the faith of titles emanating from the government, as to a proprietary interest in the soil, derived from the same source.

It extends to literary property, the fruit of mental labor. Here is a confusion of the proprietary interest in the land, with the accession to its value, from the industry of man fairly bestowed upon it. The wisdom of the legislature is tasked to separate the two, and do exact justice to the claimants of each. The laws now in question are founded upon that great law of nature, which secures the right resulting from occupation and bodily labor. The laws %of society are but modifications of that superior law.

If there be doubt respecting their validity, considerations of convenience and utility ought to prevail, in a case where the settled order of a great people would be disturbed. Conquerors themselves respect the religion, the laws, the property of the vanquished : and surely, this court will respect those rules of property which had their origin in early colonial times, which were adopted by the parent state, and have been so long acquiesced in and confirmed by inveterate habit and usage among the people where they prevail. JB.

Hardin, for the demandant, in reply, stated, that the cause divided itself into the following questions : 1. What are the laws of Virginia respecting a compensation for ameliorations by a bond fide possessor (for no other could be entitled), and his accountability for rents and profits, at the time the compact was made ? 2. Whether the consent of congress was given to the compact, in the manner required by the constitution of the United States? 3. What is the true exposition of the compact? 4.

The exposition of the legislative acts of Kentucky, of 1797 and 1812, and an examination of the question, how far they depart from the laws of Virginia on the same subject-matter, existing in 3 789? 5. Whether this court has jurisdiction over the cause, and power to declare the acts of Kentucky null nnd void, as being repugnant to the compact, *and the constitution of the United States ; and whether it will exercise that jurisdiction and power in the present case ? 1.

The laws of Virginia, respecting this matter, in force at the time of the compact, could only consist of such parts of the common law of England as had been adopted in that state ; of the system of equity, and the principles of the civil law, applicable to the question; or, of the then existing local statutes respecting it. The rule of the common law, as to the action for mesne profits, is well ascertained to be, that the plaintiff is entitled to the mesne profits from the time of the demise laid in the declaration in ejectment, and that the tenant cannot set off his improvements made upon the land. Runn.

Eject. 437-8. At law, then, the occupant was not entitled to compensation for his meliorations : and in equity, the universal rule is, that the rents and profits are to be accounted for ; though, under some circumstances, the bond fide occupant will be allowed to deduct the value of his improvements, i. e., of the increased value of the land. 3 Madd. Ch. 73-4. But, both by the chaucery rule, and that of the civil law, the bona fides of his possession ceases the moment he has notice of the adverse better title. In the case cited on the other side, of Southall v.

McKean, 1 Wash. 336, the court of appeals of Virginia did not mean to impugn the rule uniformly aPPlied hY English court of chancery. It went on the *ordinary ground, that he who will have equity must do equity : and that if a party purchases land, with notice of another’s equitable title, but that other lies by, and neglects to assert his right for a long time, during which, valuable improvements are made, the purchaser ought not, in equity, to lose these improvements. Still less does the case of Lowther.v. Commonwealth, 1 Hen. & Munf. 201, impugn the rule.

It decides nothing more than that where land is sold with warranty, and the vendee is evicted, he shall recover of the vendor, not the value of the land at the time of eviction, but the purchase-moneys, with interest. 2. The consent of congress was given to the compact between Virginia and Kentucky, in the manner required by the constitution of the United States. No particular form of words is necessary to signify this assent. Congress had the compact before them, and have agreed to the agreement for the formation of the new state, and its admission into the Union.

The state courts have repeatedly and constantly recognised the validity of the compact (1 Marsh. Ky. 199 ; Brown v, MeMurray, MS. decision of the court of appeals of' Kentucky); and if this court were now to determine it to be void, Kentucky would be compelled to recede the whole country south of Green river, which was one of the equivalents she received for the stipulations on her part. The compact is also recognised as valid and binding by the sovereign authority of the people of Kentucky, *being incorporated into the state constitution, and thus made a part of their fundamental law. 3. As to the

interpretation of the compact (supposing it valid), if that on the other side be correct, the compact is merely declaratory of the public law, as applicable to the case. It is a well-established principle, that changes of sovereignty work no change in the rights of property in the soil; and this applies even to such rights acquired by governments defacto, established by violence, against legal right. The stipulations inserted in the treaties, and other public pacts, referred to on the other side, are merely in affirmation of this principle of universal law. Such is the stipulation in the third

article of the Louisiana treaty, that “the inhabitants of the ceded territory shall be maintained and protected in the free enjoyment of their liberty, property and the religion they profess.” Such a general provision must be considered as merely declaratory of what the high contracting parties understood and admitted to be the law of nations, as to the effect of a change of sovereignty on proprietary interests of private individuals.

But how much broader and stronger is the provision in the compact, that “all rights and interests of land, derived from the laws of this state (i. e., Virginia) shall remain valid and secure, and shall be determined by the laws now existing in this state.” It must surely have been meant to protect, not merely the naked title, but the beneficial enjoyment of the interest in the land. The public law of the world, and the constitution of the United States, would have been *suffieient to protect the mere naked title. _⅜ Fletcher v.

Peck, 6 Cranch 143, per JOHNSON, J. “ All private rights L and interests,” legal and equitable, were to “remain valid and secure.” The term valid is applicable to rights, and the term secure, to interests, and both to each. But the provision does not stop here. These “ rights and interests” are to be determined by the laws now existing in this state.” Most certainly, this was not intended to prevent Kentucky from making general regulations on the subject of real property, and the remedies applicable to it, so far as they make a part of the lex fori.

But she stipulates, that she will not affect injuriously “ private rights and interests,” of land derived under the laws of Virginia, i. e., the beneficial proprietary interest in land. The MS. case of Brown v. MeMurray, shows that this exposition has been given to the compact by the court of appeals of Kentucky. So also, the circuit court in that district has determined that the act of assembly of Kentucky, of 1814 (5 Litt.

Laws of Ky. 9), which alters the statute of limitations of 1808, as to real actions (4 Ibid. 56), by taking away the proviso in favor of non-residents, is void, as being repugnant to the compact, not merely as an alteration of the remedy, but as rendering invalid and insecure the rights and interests of land derived under the laws of Virginia. As to the

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