by the owner, to defend or obtain possession of his 1823. property?

The language of the seventh article cannot, in our judgment, be so construed. The word title does not occur in it. It declares, in the most explicit terms, that all private rights and interests of lands, derived from the laws of Virginia, shall remain valid and secure under the laws of Kentucky, and shall be determined by the laws then existing in Virginia. It plainly imports, therefore, that these rights and interests, as to their nature and extent, shall be exclusively determined by the laws of Virginia, and that their security and validity shall not be in any way impaired by the laws of Kentucky. Whatever law, therefore, of Kentucky, does narrow these rights and diminish these interests, is a violation of the compact, and is consequently unconstitutional.

The only question, therefore, is, whether the acts of 1797 and 1812 have this effect. It is undeniable that no acts of a similar character were in 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 from 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.

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1823. 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 favour 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 favour of the successful party, a like judgment and proceedings are to be had in his favour. 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 favour against such party for such estimated value of the lands, &c. 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

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and improvements; and also of the value of such 1823. 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 act then proceeds to declare, that the occupant shall not be evicted or dispossessed by a writ of possession, until the report of the commissioners is made, and judgment rendered, or bonds executed in pursuance of the act.

From this summary of the principal provisions of the acts of 1797 and 1812, it is apparent that they materially impair the rights and interests of the rightful owner in the land itself. They are parts of a system, the object of which is to compel the rightful owner to relinquish his lands, or pay for all lasting improvements made upon them, without his consent or default; and in many cases

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1823. those improvements may greatly exceed the original cost and value of the lands in his hands. judgment can be executed, and no possession obtained for the lands, unless upon the terms of complying with the requisitions of the acts. They, therefore, in effect, create a direct and permanent lien upon the lands for the value of all lasting improvements made upon them; without the payment of which, the possession and enjoyment of the lands cannot be, acquired. It requires no reasoning to show, that such laws necessarily diminish the beneficial interests of the rightful owner in the lands. Under the laws of Virginia no such burthen was imposed on the owner. He had a right to sue for, recover, and enjoy them, without any such deductions or payments.

The seventh article of the compact meant to secure all private rights and interests derived from the laws of Virginia, as valid and secure under the laws of Kentucky, as they were under the then existing laws of Virginia. To make those rights and interests so valid and secure, it is essential to preserve the beneficial proprietary interest of the rightful owner, in the same state in which they were, by the laws of Virginia, at the time of the separation. If the legislature of Kentucky had declared by law, that no person should recover lands in this predicament, unless upon payment, by the owner, of a moiety, or of the whole of their value, it would be obvious that the former rights and interests of the owner would be completely extinguished pro tanto. If it had further provided, that he should be compelled to sell the same at

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one half or one third of their value, or compelled 1823. to sell, without his own consent, at a price to be fixed by others, it would hardly be doubted that such laws were a violation of the compact. These cases may seem strong; but they differ not in the nature, but in the degree only of the wrong inflicted on the innocent owner. He is no more bound by the laws of Virginia to pay for improvements, which he has not authorized, which he may not want, or which he may deem useless, than he is to pay a sum to a stranger for the liberty of possessing and using his own property, according to the rights and interests secured to him by those laws. It is no answer, that the acts of Kentucky, now in question, are regulations of the remedy, and not of the right to lands. If those acts so change the nature and extent of existing remedies, as materially to impair the rights and interests of the owner, they are just as much a violation of the compact, as if they directly overturned his rights and interests.

It is the unanimous opinion of the Court, that the acts of 1797 and 1812, are a violation of the seventh article of the compact with Virginia, and therefore are unconstitutional. This opinion renders it unnecessary to give any opinion on the second question certified to us from the Circuit Court."

Mr. Clay, (as amicus curia,) moved for a re- March 12th, hearing in the cause, upon the ground that it in

a Present Mr. Chief Justice MARSHALL, and Justices JOHNSON, LIVINGSTON, TODD, DUVALL, and STORY.

VOL. VIII.

1821.