Green v. Biddle

delivered the opinion of the court. —*The first question certified from the circuit court of Kentucky, in

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,

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

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.

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

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 consider

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 obli

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.

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

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,

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 obliga

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

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

*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

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;

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

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 legis

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,

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

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.

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

As to the objections made on the other side to our interpretation of the compact, that it impugns *the right to the pursuit of happiness, which is inherent in every society of men, and is incompatible with these inalienable rights of sovereignty and of self-government, which every independent state must possess, the answer is obvious : that no people has a right to pursue its own happiness to the injury of others, for whose protection, solemn compacts, like the present, have been made. It is a trite maxim, that man gives up a part of his natural liberty, when he enters into civil society, as the price of the blessings of that state : and it may be said, with truth, this liberty is well exchanged for the advantages which flow from law and justice. The sovereignty of Kentucky will not be impaired by a faithful observance of this compact in its true spirit. It does not prevent her from making any general regulations of police and revenue, which any other state may make; but it does prevent her from confiscating the property of individuals, under the pretext of a mere modification of the law, as to improvements made by occupying claimants. There can be no doubt, that sovereign states may make pacts with each other, limiting and restraining their rights of sovereignty as to proprietary interests in the soil. Such conventions are not inconsistent with the eminent domain which the law of nations attributes to them. Here, the sole object of the compact is perpetually to secure the vested rights of private individuals from violation by legislative acts. It is in furtherance of the most sacred duty which society owes to its members.' And even if it stipulated a special restraint upon the legislative *power, in respect to the public revenue, it would not be the less obligatory. All the new states, on their admission into the Union, uniformly bind themselves not to tax the lands of the United States. Various other restraints upon their sovereign powers have been voluntarily consented to by the states : such, for example, as that contained in the act for the admission of Louisiana into the Union, which provides that all the legislative proceedings shall be conducted in the English language.

But this compact, so far from interfering with the revenue of Kentucky, plainly recognises her right to tax the lands: and if it did not, it is clear, that she might exercise the right, since she could not exist or support her civil government without a revenue. The means involve the end ; and therefore, she may not only tax, but sell the lands to enforce payment. Nor is there anything in the compact, interfering with the legislative authority of the state, to regulate the course of descents, or the liability of real estates for the payment of debts. An alteration of the law of descents does not affect the right, title or interest in land, as derived from the laws in force at the epoch of the compact: unless, indeed, the new law of descents be retrospective in its operation. Nor is it denied, that the remedies in the courts of law and equity, the lex fori, may be modified, as the wisdom of the legisla

4. A fair exposition of the legislative acts of 1797 and 1812, will show that they operate to invalidate the rights and interests of land, derived under the laws of Virginia. And first, as to the law of 1812. It was intended for the protection of any person “ peaceably seating or improving any vacant land, supposing it to be his own in law or equity.” The land not being occupied by the true owner, it is not necessary (under this law) that the party occupying it should bond fide and honestly believe it to be his own property : but only that he should believe it to be so, from the circumstance of “having a connected' title.” The law supplies him with his ground of belief, or rather it substitutes a fact in the place of his belief. The state courts, whose peculiar province it is to interpret the local law, have expressly determined, that the words “ supposing them to be his own,” &c., are satisfied, if the party had that foundation for his supposition. No matter how much mala fides there may be, if the possession was vacant, and he can deduce a connected paper title. This interpretation goes far beyond the ancient chancery rule, and therefore, the statute goes beyond the ‘^principle of that rule. Besides, the rule of equity only pays the occupant for the increased value of the land : not for “ improvements ” (in the sense which local usage has given to that Word, as indicating any fixtures annexed to the freehold), but only for actual ameliorations in the value of the land. The statute, on the contrary, compensates him for accessions to the property, which are really deteri-orations, instead of ameliorations, of its value to the real owner. The terms used by the legislature — “ the charge and value of seating and improving,” shows evidently that it meant to transcend the rule of equity, which according to Lord Karnes, goes to make compensation for ameliorations only. The whole discussion in the legislature turned on these emphatic words “ charge and value ;” and various amendments were proposed to strike them out of the bill, and to proceed on the true chancery principle of taking a fair account between the parties, of rents and profits on the one side, and the actual amelioration of the property on the other.

5. The law in question is both a violation of the compact and the national and state constitutions ; and the court will declare it void. It is void by its retrospective operation, in giving compensation for work and labor antecedent to the epoch of the compact of 1789, and even back to the first settlement of the country ; and that, too, whether this work and labor bestowed upon the land, actually deteriorated or ameliorated its value. It may be admitted, that it is not an ex post facto law in the sense of the constitutional prohibition, *as that is only applied to penal matters. But upon general principles, all retrospective laws, whether civil or criminal, are unjust, and contrary to the fundamental maxims of universal jurisprudence. The nature of the social state, and of civil government itself, prescribes some

The statute now in question is retrospective, in releasing rights of action already vested. By the pre-existing local law, the successful claimant was entitled to recover the mesne profits, even in a real action. But this act deprives him of this right, as to rents and profits previously acquired, and even antecedent to the compact itself ; and repeals the saving clause in the former act, as to infants, &c. It is, in effect, a law releasing A. from the right of action which B. has against him.

*But even considered as a prospective enactment, the law operates unjustly and oppressively, because the lawful owner is compelled to pay, not merely for the actual ameliorations in the land, not its increased value only — but the expense incurred by the occupant in making pretended improvements, whether they are merely useful or fanciful, and matter of taste and ornament only, dictated by his whim and caprice. He is not even liable for waste, unless committed after suit brought; and may destroy the timber, constituting, perhaps, the sole value of the land, without being called to any account.

If the law be partly constitutional, and partly not, the whole must fall; and there can be no doubt, that the character of the parties, as being citizens of different states, gives the court cognisance of the cause, and jurisdiction to pronounce the law a nullity. If you have jurisdiction, you must decide according to law. But you cannot so decide, without looking to see whether the acts of the state legislature are repugnant to the state constitution. This repugnancy has been frequently made the ground of decision in the federal courts, where the character of the parties gave them jurisdiction of the cause. Society, &c. v. Wheeler, 2 Gallis. 105.

But the acts are clearly void, as being repugnant to the constitution of the United States. They are laws impairing the obligation of contracts, within the spirit of all the decisions of this court, according to which, it is immaterial, whether the *sovereign states of the Union are parties to the contract, or whether it is made between private individuals. Fletcher v. Peck, 6 Cranch 87 ; New Jersey v. Wilson, 7 Ibid. 164 ; Terrett v. Taylor, 9 Ibid. 43 ; Partmouth College v. Woodward, 4 Wheat. 518 . The special tribunal provided by the compact, cannot oust the transcendent jurisdiction of this court. Even according so the maxims of private jurisprudence, an agreement to submit to arbitration cannot be pleaded in bar, without an award actually made ; and this must apply in a case where the agreement, though made by the high contracting parties, was intended exclusively for the benefit of private individuals, and for the protection of private rights.

The material provisions of the act of 1797, are as follows : *lst. That the occupant of land, from which he is evicted by better title, is, in all cases, excused from the payment of rents and profits, accrued prior to actual notice of the adverse title, provided his possession, in its inception, was peaceable, and he shows a plain and connected title, in law or equity, deduced from some record. 2d. That the claimant is liable to a judgment against him for all valuable and lasting improvements made on the land, prior to actual notice of the adverse title, after deducting from the amount the damages which the land has sustained by waste or deterioration of the soil by cultivation. 3d. As to improvements made, and rents and profits accrued, after notice of the adverse title, the amount of the one was to be deducted from that of the other, and the balance was to be added to, or subtracted from, the estimated value of the improvements made before such notice, as the nature of the case should require. But it was provided by a subsequent clause, that in no case should the successful claimant be obliged to pay for improvements made after notice, more than what should be equal to the rents and profits. 4th. If the improvements exceed the value of the land, in its unimproved state, the claimant was allowed the privilege of conveying the land to the occupant, and receiving in return the assessed value of it, without the improvements, and thus to protect himself against a judgment and execution for the value of the improvements. If he should decline doing this, he might recover possession of *his land, but then he must pay the estimated value of the improvements, and lose also the rents and profits accrued before notice of the claim. But to entitle him to claim the value of the land, as above mentioned, he must give bond and security to warrant the title.

The act of 1812 contains the following provisions : 1. That the peaceable occupant of land, who supposes it to belong to him, in virtue of some legal or equitable title, founded on a record, is to be paid by the successful claimant for his improvements : 2. But the claimant may avoid the payment of the value of such improvements, if he please, by relinquishing his land to the occupant, and be paid its estimated value in its unimproved state ; thus, if he elect to pay for the value of the improvements, he is to give bond and security to pay the same, with interest, at different instal-ments. If he fail to do this, or if the value of the improvements exceed three-fourths the value of the unimproved land, an election is given to the occupant, to have a judgment entered against the claimant for the assessed value of the improvements, or to take the land, giving bond and security to pay the assessed value of the land, if unimproved, with interest, and by instalments. But if the claimant is not willing to pay for the improve

These laws differ from each other only in degi’ee ; in principle, they are the same. They agree in depriving the rightful owner of the land, of the rents and profits received by the occupant, up to a certain period, the first act fixing it to the time of actual notice of the adverse claim, and the latter *act to the time of the judgment rendered against the occupant They also agree in compelling the successful claimant to pay, to a certain extent, the assessed value of the improvements made on the land by the occupant.

They differ in the following particulars : 1. By the former act, the improvements to be paid for must be valuable and lasting; by the latter, they need not be either. 2. By the former, the successful claimant was entitled to a deduction from the value of the improvements, for all damages sustained by the land, by waste or deterioration of the soil by cultivation, during the occupancy of the defendant; by the latter, he is entitled to such a deduction, only for the damages and waste committed after suit brought. 3. By the former, the claimant was bound to pay for such improvements only as were made before notice of the adverse title ; if those made afterwards should exceed the rents and profits which afterwards accrued, then he was not liable, beyond the rents and profits, for the value of such improvements ; by the latter, he is liable for the value of all improvements made up to the time of the judgment, deducting only the rents and profits accrued, and the damage and waste committed after suit brought. 4. By the former, the claimant might, if he pleased, protect himself against a judgment for the value of the improvements, by surrendering the land to his adversary, and giving bond and security to warrant the title ; but he was not *bound to do so, nor was his giving bond and security to pay the value of the improvements, a pre-requisite to his obtaining possession of his land, nor was the judgment against him made a lien on the land. By the latter act, the claimant is bound to give such bond, at the peril of losing his land ; for if he fail to give it, the occupant is at liberty to keep the land, upon giving bond and security to pay the estimated value of it, unimproved ; and even

The only remaining provision of these acts, which is at all important, and is not comprised in the above view of them, is the mode pointed out for estimating the value of the land in its unimproved state, of the improvements, and of the rents and profits ; and this is the same, or nearly so, in both : so that it may be safely affirmed, that every part of the act of 1797 is within the purview of the act of 1812 ; and, consequently, the former act was repealed, by the repealing clause contained in the latter. In pursuing the first head of inquiry, therefore, to which this case gives rise, the court will confine its observations to the act of 1812, and compare its provisions with the law of Virginia, as it existed on the 18th of December 1789.

The common law of England was, at that period,* as it still is, the law of that state ; and we are informed by the highest authority, that a right to land, by that law, includes the right to enter on it, when the possession is withheld from the right owner; to recover the possession by suit; to retain the possession, and to receive the issues and profits arising from it. {Altham?s Case, 8 Co. 299.) In Liford’s Case (11 Ibid. 46), it is laid down, that the regress of the disseisee revests the property in him, in the fruits or profits of the land, as well those that were produced by the industry of the occupant, as those which were the natural production of the land, not only against the disseisor himself, but against his feoffee, lessee or disseisee ; “foi-,” says the book, “the act of my disseisor may alter my action, but cannot take away my action, property or right; so that, after the regress, the disseisee may seize these fruits, though removed from the land, and the only remedy of the disseisor, in such case, is to recoup their value against the claim of damages.” The doctrine laid down in this case, that the disseisee can maintain trespass only against the disseisor for the rents and profits, is, with great reason, overruled in the case of Holcomb v. Rawlyns, Cro. Eliz. 540. (See also Bull. N. P. 87.)

Nothing, in short, can be more clear, upon the principles of law and reason, than that a law which denies to the owner of land a remedy to recover the possession of it, when withheld by any person, however innocently he may have obtained it; or to recover the profits received from it by the occupant; or which clogs his recovery of such possession *and profits, by conditions and restrictions tending to diminish the value and amount of the thing recovered, impairs his right to, and interest in, the property. If there be no remedy to recover the possession, the law necessarily presumes a want of right to it. If the remedy afforded be qualified and restrained by conditions of any kind, the right of the owner may, indeed, subsist, and be acknowledged, but it is impaired, and rendered insecure, according to the nature and extent of such restrictions. A right to land essentially implies a right to the profits accruing from it, since, without the latter, the former can be of no value. Thus, a devise of the profits of land, or even a grant of them, will pass a right to the land itself. Shep. Touch. 93 ; Co. Litt. 4 b. “ For what,” says Lord Coke, in this page, “ is the land, but the profits thereof.”

Thus stood the common law in Virginia, at the period before mentioned ;

If, then, such was the common and statute law of Virginia, in 1789, it only remains to inquire, whether any principle of equity was recognised by the courts of that state, which exempted the occupant of land from the payment of rents and profits to the real owner, who has successfully established his right to the land, either in a court of law or of equity ? No decision of the courts of that state was cited, or is recollected, which in the remotest degree sanctions such a principle. The case of Southall v. McKean, which was much relied upon by the counsel for the tenant, relates altogether to the subject of improvements, and decides no more than this : that if the equitable owner of land, who is conusant of his right to it, will stand by, and see another occupy and improve the property, without asserting his right to it, he shall not, in equity, enrich himself by the loss of another, which it was in his power to have prevented, but must be satisfied to recover the value of the land, independent of the improvements. The acquiescence of the owner, in the adverse possession of a person who he found engaged in making valuable improvements on the *property, was little short of a fraud, and justified the occupant in the conclusion, that the equitable claim which the owner asserted, had been abandoned. How different is the principle of this case from that which governs the same subject, by the act under consideration. By this, the principle is applicable to all cases, whether at law or in equity — whether the claimant knew or did not know of his rights, and of the improvements which were making on the land, and even after he had asserted his right by suit.

The rule of the English court of chancery, as laid down in 1 Madd. Ch. 72, is fully supported by the authorities to which he refers. It is, that equity allows an account of rents and profits, in all cases, from the time of the title accrued, provided that do not exceed six years, unless under special circumstances ; as where the defendant had no notice of the plaintiff’s title, nor had the deeds and writings in his custody, in which the plaintiff’s title appeared ; or where there has been laches in the plaintiff in not asserting his title; or where the plaintiff’s title appeared by deeds in a stranger’s custody ; in all which cases, and others similar to them in pi'inciple, the account is confined to the time of filing the bill. The language of Lord Hardwicke, in Dormer v. Fortescue (3 Atk. 128), which was the case of an infant plaintiff, is remarkably strong : “ Nothing,” he observes, “ can be

[*80 Nor is it understood by the court, that the principles of the act under consideration can be vindicated by the doctrines of the civil law, admitting, which we do not, that those doctrines were recognised by the laws of Virginia, or by the decisions of her courts. The exemption of the occupant, by that law, from an account for profits, is strictly confined to the ease of a bond, fide possessor, who not only supposes himself to be the true proprietor of the land, but who is ignorant that his title is contested by some other person claiming a better right to it. Most unquestionably, this character cannot be maintained, for a moment, after the occupant has notice of an adverse claim, especially, if that be followed up by a suit to recover the possession. After this, he becomes a maid fide possessor, and holds at his peril, and is liable to restore all the mesne profits, together with the land. (Just, lib. 2, tit. 1, § 35.) There is another material difference between the civil law and the provisions of this act, altogether favorable to the right of the successful claimant. By the former, the occupant is entitled only to those fruits or profits of the land which were produced by his own industry, and not even to those, unless they were consumed ; if they were realized, and contributed to enrich the occupant, *he is accountable for them to the real owner, as he is for all the natural fruits of the land. (See Just., the section above quoted ; Lord Karnes, b. 2, c. 1, p. 411, et seq.) Puffen-dorf, indeed (lib. 4, c. 7, § 3), lays it down in broad and general terms, that fruits of industry, as well as those of nature, belong to him who is master of the thing from which they flow. By the act in question, the occupant is not accountable for profits, from whatever source they may have been drawn, or however they may have been employed, which were received by him prior to the judgment of eviction.

But even these doctrines of the civil law, so much more favorable to the rights of the true owner of the land than the act under consideration, are not recognised by the common law of England. Whoever takes and holds the possession of land to which another has a better title, whether by dis-seisin, or under a grant from the disseisor, is liable to the true owner for the profits which he has received, of whatever nature they may be, and whether consumed by him or not; and the owner may even seize them, although removed from the land, as has already been shown by JOiford’s Oase. We are not aware of any common-law case, which recognises the distinction between a bond fide possessor, and one who holds maid fide, in relation to the subject of rents and profits ; and we understand Liford^s Case as fully proving, that the right of the true owner to the mesne profits, is equally valid against both. How far this distinction *is noticed in a court of equity has already been shown.

Upon the whole, then, we take it to be perfectly clear, that, according to the common law, the statute law of Virginia, the principles of equity, and even those of the civil law, the successful claimant of land is entitled to an account of the mesne profits received by the occupant, from some period

If this act of Kentucky renders the rights of claimants to lands, under Virginia, less valid and secure than they were under the laws of Virginia, by depriving them of the fruits of their land, during its occupation by another, its provisions, in regard to the value of the improvements put upon the land by the occupant, can, with still less reason, be vindicated. It is not alleged by any person, that such a claim was ever sanctioned by any law of Virginia, or by her courts of justice. The case of Southall v. McKean has already been noticed and commented upon. It is laid down, we admit, in Coulter's Case (5 Co. 30), that the disseisor, upon a recovery against him, may recoup the damages to the value of all that he has expended in amending the houses. (See also, Bro. tit. Damages, pi. 82, who cites 24 Edw. III. 50.) If any common-law decision has ever gone beyond the principle here laid down, we *have not been fortunate enough to meet Avith it. The doctrine of Coulter's Case is not dissimilar in principle from that which Lord Karnes considers to be the law of nature. His words are, “ it is a maxim suggested by nature, that reparations and meliorations bestowed upon a house, or on land, ought to defrayed out of the rents. By this maxim, we sustain no claim against the proprietor for meliorations, if the expense exceed not the rents levied by the bond fide possessor.” He cites Papinian, 1. 48, de rei vindications.

Taking it for granted, that the rule, as laid down in Coulter's Case, would be recognised as good law by the courts of Virginia, let us see in Avhat respects it differs from the act of Kentucky. That rule is, that meliorations of the property (which, necessarily, mean valuable and lasting improvements), made at the expense of the occupant of the land, shall be set off against the legal claim of the proprietor, for profits which have accrued to the occupant during his possession. But, by the act, the occupant is entitled to the value of the improvements, to whatever extent they may exceed that of the profits ; not on the ground of set-off against the profits, but as a substantive demand. For the account for improvements is carried down to the day of the judgment, although the occupant was for a great part of the time a maid fide possessor, against whom no more can be off set, but the rents and profits accrued after suit brought. Thus, it may happen, that the occupant, who may have enriched himself to any amount, by the natural, as well as the industrial, *products of land, to which he had no legal title (as by the sale of timber, coal, ore or the like), is accountable for no part of those profits but such as accrued after suit brought; and on the other hand, may demand full remuneration for all the improvements made upon the land, although they were placed there by means of those very profits, in violation of that maxim of equity, and of natural law, nemo debet locupletari aliena jactura. If the principle which this law asserts, has a precedent to warrant it, we can truly say, that we have not met it. But we feel the fullest confidence in saying, that it is not to be found in the laws of Virginia, or in the decisions of her courts.

But the act goes further than merely giving to the occupant a substantive claim against the owner of the land, for the value of the improvements,

If the act in question does not render the right of the true owner less valid and secure than it was under the laws of Virginia, then, an act, declaring, that no occupant should be evicted but upon the terms of his being paid the value, or double the value of the land, by the successful claimant, would not be chargeable with that consequence, since it cannot be denied, but that the principle of both laws would be the same. The objection to a law, on the ground of its impairing the obligation of a contract, can never depend upon the extent of the change which the law effects in it. Any deviation from its terms, by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance of those which are, however minute, or apparently immaterial, in their effect upon the contract of the parties, impairs its obligation. *Upon this principle it is, that if a creditor agree with his debtor to postpone the day of payment, or in any other way to change the terms of the contract, without the consent of the surety, the latter is discharged, although the change was for his advantage.

2. The only remaining question is, whether this act of 1812 is repugnant to the constitution of the United States, and can be declared void by this court, or by the circuit court from which this case comes by adjournment ? But, previous to the investigation of this question, it will be proper to relieve the case from some preliminary objections to the validity and construction of the compact itself. 1st. It was contended by the counsel for the tenant, that the compact was invalid in toto, because it was not made in conformity with the provisions of the constitution of the United States : and if not invalid to that extent, still, 2d. The clause of it applicable to the point in controversy, was so, inasmuch as it surrenders, according to the construction given to it by the opposite counsel, rights of sovereignty which are inalienable.

1st. The first objection is founded upon the allegation, that the compact was made without the consent of congress, contrary to the tenth section of

2d. The next objection, which is to the validity of the particular clause of the compact involved in this controversy, rests upon a principle, the correctness *of which remains to be proved. It is practically opposed by the theory of all limited governments, and especially of those which constitute this Union. The powers of legislation granted to the

Various objections were made to the literal construction of the compact, one only of which we deem it necessary particularly to notice. That was that if it be so construed as to deny to the legislature of Kentucky the right to pass the act in question, it will follow, that that state cannot pass laws to affect lands, the title to which was derived under Virginia, although the same should be wanted for public use. If such a consequence grows necessarily out of this provision of the compact, still we can perceive no reason why the assent to it by the people of Kentucky should not be binding on the legislature of that state. Nor can we perceive, why the admission of the conclusion *in volved in the argument should invalidate an express article of the compact, in relation to a quite different subject. The agreement, that the rights of claimants under Virginia should remain as valid and secure as they were under the laws of that state, contains a plain, intelligible proposition, about the meaning of which, it is impossible there can be two opinions. Can the government of Kentucky fly from this agreement, acceded to by the people in their sovereign capacity, because it involves a principle which might be inconvenient, or even pernicious to the state, in some other respect ? The court cannot perceive how this proposition could be maintained.

But the fact is, that the consequence drawn by counsel from a literal construction of this article of the compact, cannot be fairly deduced from the premises, because, by the common law of Virginia, if not by the universal law of all free governments, private property may be taken for public use, upon making to the individual a just compensation. Thev admission of this principle never has been imagined by any person, as rendering his right to property less valid and secure than it would be, were it excluded ; and, con sequently, it would be an unnatural and forced construction of this article of the compact, to say, that it included such a case.

We pass over the other observations of counsel upon the construction of this article, with the following remark : that where the words of a law, treaty or contract, have a plain and obvious meaning, all construction, in hostility with such meaning, *is excluded. This is a maxim of law, and a die-tate of common sense ; for were a different rule to be admitted, no man, however cautious and intelligent, could safely estimate the extent of his engagements, or rest on his own understanding of a law, until a judicial construction of those instruments had been obtained.

We now come to the consideration of the question, whether this court has authority to declare the act in question unconstitutional and void, upon the ground, that it impairs the obligation of the compact ? This is denied for the following reasons r It is insisted, in the first place, that this court has

Having thus endeavored to clear the question of these preliminary objections, we have only to add, by way of conclusion, that the duty, not ^ess *than the power of this court, as well as of every other court in the Union, to declare a law unconstitutional, which impairs the obligation of contracts, whoever may be the parties to them, is too clearly enjoyed by the constitution itself, and too firmly established by the decisions of this and other courts, to be now shaken ; and that those decisions entirely cover the present case. A slight effort to prove that a compact between two states is not a case within the meaning of the constitution, which speaks of contracts, was made by the counsel for the tenant, but was not much pressed. If we attend to the definition of a contract, which is the agreement of two or more parties, to do, or not to do, certain acts, it must be obvious, that the propositions offered, and agreed to by Virginia, being accepted and ratified by Kentucky, is a contract. In fact, the terms compact and contract are synonymous : and in Fletcher v. Peek, the chief justice defines a contract to be a compact between two or more parties. The principles laid down in that case are, that the constitution of the United States embraces all contracts, executed or executory, whether between individuals, or between a state and individuals ; and that a state has no more

It was said by the counsel for the tenant, that the validity of the above laws of Kentucky, have been maintained by an unvarying series of decisions of the courts of that state, and by the opinions and declarations of the other branches of her government. Not having had an opportunity of examining the reported cases of the Kentucky courts, we do not feel ourselves at liberty to admit or deny the first part of this assertion. We may be permitted, however, to observe, that the principles decided by the court of appeals of that state, in the case of Brown v. McMurray, a manuscript report of which was handed to the court, when this cause was argued, are in strict conformity with this opinion. As to the other branches of the government of that state, we need only observe, that whilst the legislature has maintained the opinion, most honestly, we believe, that the acts of 1797 and 1812 were consistent with the compact, the objections of the governor to the validity of the latter act, and the reasons assigned by him in their support, taken in connection with the above case, incline as strongly to suspect, that a great diversity of opinion prevails in that state, upon the question we have been examining. However this may be, we hold ourselves answerable to God, our consciences, and our country, to decide this question according to the dictates of our best judgment, be the consequences of the decision what they may. If we have ventured to entertain a wish as to the result of the investigation which *we have laboriously given to the case, it was, that it might be favorable to the validity of the laws ; our feelings being always on that side of the question, unless the objections to them are fairly and clearly made out.

The above is the opinion of a majority of the court. The opinion given upon the first question proposed by the circuit court, renders it unnecessary to notice the second question.

Whoever will candidly weigh the intrinsic difficulties which this case presents, must acknowledge, that the questions certified to this court, are among those on which any two minds may differ, without incurring the imputation of wilful or precipitate error. We are fortunate, in this instance, in being placed aloof from that unavoidable jealousy which awaits decisions founded on appeals from the exercise of state jurisdiction. This suit was originally instituted in the circuit court of the United States ; and the duty now imposed upon us is, to decide, according to the best judgment we can form, on the law of Kentucky. We sit, and adjudicate, in the present instance, in the capacity of judges of that state. I am bound to decide according to those principles which ought to govern the courts of that state when adjudicating between its own citizens.

The first of the two questions certified to this court is, whether the laws, well-known by the ^description of the occupying-claimant laws of Kentucky, are constitutional ? The laws known by that denomination are the acts passed the 27th of February 1797, and the 31st of January

The two acts differ as to the time from which damages and rents are to be estimated, but concur, 1st. In enjoining on the courts the substitution of commissioners, for a jury, in assessing damages. 2d. In converting the plaintiff’s right to a judgment, after having established his right to land, from an absolute, into a conditional right; and, 3d. Under some circumstances, in requiring, that judgment should be given for the defendant, and that the plaintiff, in lieu of land, should recover an assessed sum of money, or, rather, bonds to pay that sum, i. e., another right of action, if anything.

The second question certified is, on which of these two acts the court shall give judgment, and seems to have arisen out of an argument insisted on at the trial, that as the suit was instituted prior to the passage of the last act, it ought to be adjudicated under the first act, notwithstanding that the act of 1812 was in force when judgment was given.

*As the language of the first question is insufficiently general to embrace all that arise, either under the state, or United States constitution, much of the argument before this court turned upon the inquiry, whether the rights of the parties were affected by that article of the United States constitution which makes provision against the violation of contracts ? The general question I shall decline passing an opinion upon. I consider such an inquiry as a work of supererogation, until the benefit of that provision in the constitution shall be claimed, in an appeal from the decision of a court of the state. There is, however, one view of this point, presented by one of the gentlemen who appeared on behalf of the state, which cannot pass unnoticed. It was contended, that the constitution of Kentucky, in recognising the compact with Virginia, recognises it only as a compact; and therefore, that it acquires no more force under that constitution, than it had before; and that but for the constitution of Kentucky, questions arising under it were of mere diplomatic cognisance ; and were not, by the constitution, transmuted into subjects of judicial cognisance. I am constrained to entertain a different view of this subject; and, without passing an opinion on the legal effect of the compact, in its separate existence, upon individual rights, I must adopt the opinion, that when the people of Kentucky declared, that “ the compact with the state of Virginia, subject to such alterations as may be made therein, agreeably to the mode prescribed by the *said compact, shall be considered as part of this constitution,” they enacted it as a law for themselves, in all those parts in which it was previously obligatory on them as a contract; and made it a fundamental law, one which could only be repealed in the mode prescribed for altering that constitution. Had it been enacted in the ordinary form of legislation, notwithstanding the absurdity insisted on of enacting laws obligatory on Virginia, it is certain, that the maxim, utile per inutile non vitiatur, would have been applied to it, and it would have been enforced as a law of Kentucky, in every coui-t of justice sitting in judgment upon Kentucky rights. How much more so, when the people thought proper to give it the force and solemnity of a fundamental law.

To constitute the sovereign and independent state of Kentucky was, unquestionably, the leading object to the act of Virginia of the 18th of December 1'789. To exercise unlimited legislative power over the territory within her own limits, is one of the essential attributes of that sovereignty ; and every restraint in the exercise of this power, I consider as a restriction on the intended grant, and subject to a rigorous construction. On general principles, private property would have remained unaffected by the transfer of sovereignty ; but thenceforth would have continued subject, both as to right and remedy, to the legislative power of the state newly created. The argument for the plaintiff is, that the provision now under consideration goes beyond the recognition or enforcement of this principle, and restrains the state of Kentucky from any legislative act that can in any way impair, or incumber, or vary the beneficiary *interests which the grantees of land acquired under the laws of Virginia. Or, in other words, that it creates a peculiar tenure in the lands granted by Virginia, which exempts them from that extent of legislative action to which the residue of the state is unquestionably subjected. It must mean this, if it means anything. For, supposing all the grantees of lands, under the laws of Virginia, in actual possession of their respective premises, unless the lands thus reduced into possession be still under the supposed protection of this compact, neither could they have been at any time previous. The words of the compact, if they carry the immunity contended for beyond the period of separation, are equally operative to continue it ever after.

But where would this land us ? If the state of Kentucky had, by law, enacted, that the dower of a widow should extend to a life-estate in one-half of her husband’s lands, would the widow of a Virginian, whose husband died the day after, have lost the benefit of this law, because the laws of Virginia had given the wife an inchoate right in but one-third ? This would be cutting deep, indeed, into the sovereign powers of Kentucky, and would

But it is contended, that the clause of the compact under consideration, must have meant more *than what is implied in every cession of territory, or it was nugatory to have inserted it. I confess, I cannot discover the force of this argument. In the present case, it admits of two answers ; the one is to be found in the very peculiar nature of the land titles created by Virginia, and then floating over the state of Kentucky. Land they were not, and yet all the attributes of real estate were extended to them, and intended by the compact to be preserved to them, under the dominion of the new state. There was, then, something more than the ordinary rights of individuals in the ceded territory to be perpetuated, and enough to justify the insertion of such a provision as a necessary measure. But there is another answer to be found, in the ordinary practice of nations, in their treaties in which, from abundant caution, or, perhaps, diplomatic parade, many stipulations are inserted for the preservation of rights which no civilian would suppose could be affected by a change of sovereignty. Witness the frequent stipulations for the restoration of wrecked goods, or goods piratically taken ; witness also, the third article of the treaty ceding Louisiana, and the sixth article of that ceding Florida, both of which are intended to secure to the inhabitants of the ceded territory, rights which, under our civil institutions, could not be withheld from them.

But let us now reverse the picture, and inquire, whether this stipulation of the compact, or of the constitution, prescribed no limits to the legislative power of Kentucky over the ceded territory. Had the state of Kentucky, immediately after it was organized,* passsed a law, declaring, that wherever a plaintiff in ejectment, or in a writ of right, shall have established his right in law to recover, the jury shall value the premises claimed, and instead of judgment for the land, and the writ of possession, the plaintiff shall have his judgment for the value so assessed, and the ordinary process of law to recover a sum of money on judgment; who is there who would not have felt that this was a mere mockery of the compact, a violation of the first principles of private right, and of faith in contracts ? Tet such a law is, in degree, not in principle, variant from the occupying-claimant laws under consideration, and the same latitude of legislative power which will justify the one, would justify the other.

But again, on the other hand (and I acknowledge that I am groping my way through a labyrinth, trying to lay hold of sensible objects to guide me), who can doubt, that where private property had been wanted for national purposes, the legislature of Kentucky might have compelled the individual to convey it, for a value tendered, notwithstanding it was held under a grant from Virginia, and notwithstanding such a violation of private right had been even constitutionally forbidden by the state of Virginia ? Or who can doubt the power of Kentucky to regulate the course of descents, the forms of conveying, the power of devising, the nature and extent of liens, within her territorial limits ? For example, by the civil law, the workman who erects an e<üfioe, acquires a lien on both the building and the land it stands upon, *for payment of his bill. Why should not the

But suppose, that instead of imposing this complex mode of coming at the end proposed, the legislature of Kentucky had passed a law simply declaring, that the innocent improver of lands, without notice, should have his action to recover indemnity for his improvements, and a lien on the premises so improved, in preference to all other creditors ; I can see no principle on which such a law could be declared unconstitutional; nor anything that is to prevent the party from enforcing it in any court having competent jurisdiction. But the inconsistency which strikes every one in considering the laws as they now stand is, that one party should have a verdict, and another, finally, the judgment. That, eodem flatú, the plaintiff should be declared entitled to recover land, and yet not entitled to recover land.

After thus mooting the difficulties of this case, I am led to the opinion, that if we depart from the restricted construction of the article under consideration, we are left to float on a sea of uncertainty, as to the extent of the legislative power of Kentucky over the territory held under Virginia grants ; that if, obliged to elect between the assumed exercise, and the utter extinction of the power of Kentucky over the subject. It would *adopt the former ; that every question between those extremes, is one of expediency or displomacy, rather than of judicial cognisance, and not to be decided before this tribunal. If compelled to decide on the constitutionality of these laws, strictly speaking, I would say, that they in nowise impugn the force of the laws of Virginia, under which the titles of land-holders are derived, but operate to enforce a right acquired subse

The practice of the courts of the United States, that is, the remedy of parties therein, is subject to no other power than that of congress. By the act of T789, the practice of the respective state courts was adopted into the courts of the United States, with power to the respective courts, and to the supreme court, to make all necessary alterations. Whatever changes the practice of the respective states may have undergone since that time, that of the United States courts has continued uniform ; except so far as the respective courts have thought it advisable to adopt the changes introduced by the state legislatures. The district of Kentucky was established while it was yet a part of Virginia. (Judiciary Act, September 24th, 1789.) The practice of the state of Virginia, therefore, was made the practice of the United States courts in Kentucky. Now, according to the practice of Virginia, the plaintiff, here, upon making out his title, ought to have had a verdict and judgment in the usual form. Nor can I recognise the right of the state of Kentucky *to compel him, or to compel the courts of the United States, to pass through this subsequent process before a board of commissioners, and afterwards, to purchase his judgment in the mode prescribed by the state laws. I do not deny the right of the state to give the lien, and to give the action for improvements ; but I do deny the right to lay the courts of the United States under an obligation to withhold from a plaintiff the judgment to which, under the established practice of that court, he had entitled himself.

It may be argued, that the courts of the United States in Kentucky, have long acquiesced in a compliance with these laws, and thereby have adopted this course of proceeding into their own practice. This, I admit, is correct reasoning; for the court possessed the power of making rules of practice ;

It is, obviously, a leading object of these laws, to substitute a trial by a board of commissioners, for the trial by jury, as to mesne profits, damages and a quantum mei-uit. Without examining how far the legislative power of Kentucky is adequate *to this change in its own courts, I am perfectly satisfied, that it cannot be introduced by state authority into *- the courts of the United States. And I go farther : the judges of these courts have not power to make the change; for the constitution has too sedulously guarded the trial by jury (seventh article of Amendments); and the judiciary act of the United States both recognises the separation between common law and equity proceedings, and forbids that any court should blend and confound them.

These considerations lead me to the conclusion, that the defendant is not entitled to judgment, under either of the acts under consideration, even admitting them to be constitutional; but if, under either, certainly under that alone which has been adopted into the practice of the United States courts in Kentucky.

Cbbtiuicatb. — This cause came on to be heard, on the transcript of the record of the circuit court of the United States for the district of Kentucky, on certain questions upon which the opinions of the judges of the said circuit court were opposed, and which were certified to this court for their decision by the judges of the said circuit court, and was argued by counsel: On consideration whereof, it is the opinion of this court, that the act of the said state of Kentucky, of the 27th of February 1797, concerning occupying claimants of land, whilst it was in force, was repugnant to the constitution of the United *States, but that the same was repealed by the act of the 31st of January 1812, to amend the said act; and that the act last mentioned is also repugnant to the constitution of the United States.

The opinion given on the first question submitted to this court by the said circuit court, renders it unnecessary to notice the second question. All which is ordered to be certified to the said circuit court.