1823.

Green

V.

Biddle.

March 8th, 9th, 10th, and 11th, 1822.

volved the rights and claims of numerous occu-
pants 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 vi-
cious system of location under the land law of
Virginia, an indemnity for their expenses and la-
bour bestowed upon lands of which they had been
the bona fidei possessors and improvers, and
which were reclaimed by the true owners.
He
stated, that the rights and interests of those claim-
ants would be irrevocably determined by this de-
cision of the Court, the tenant in the present
cause having permitted it to be brought to a hear-
ing without appearing by his 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 ques-
tions stated, should be withheld, and the cause
continued to the next term for argument.
Motion granted.

Mr. 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.

Green

V.

Biddle.

1. He denied that this Court was bound by the 1823. 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 cognizance 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 before 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." But various

a 1 Bl. Comm. 160-162.

Green

V.

Biddle.

1823. 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.

2. He stated that the second point would be maintained by establishing two propositions. First, that the legislative acts in question are repugnant to the terms of the compact of 1789, between the States of Virginia and Kentucky, which is made a fundamental article of the constitution of Kentucky. Second, that the acts are repugnant to that constitution, in depriving the demandant of the trial by jury.

The terms used in the compact, "rights and interests of land," import something more than a mere formal title. A right of property necessarily includes the right to recover the possession, to enter, to enjoy the rents and profits, and to continue to possess undisturbed by others." 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 at the time the compact was made.

a Jac. Law Dic. tit.

8 Rep. Altham's case.

Right, 536. Co. Litt. s. 445. 447. Plowd. 478

As to the word "interest," it might have been in-
serted 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
sion of the evidence of title.

posses

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." 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 the Court of Chancery

a 1 Virg. Rev. Cod. 33.

1823.

Green

V.

Biddle.

1823.

Green

V.

Biddle.

has interfered, may be reduced to the following classes (1) Where the party came into equity in order to disembarrass 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, bona fide made. In the first and second classes, the account for mesne profit has been taken from the time of bringing the suit only, because the plaintiff had improperly lain by with his title. But where that fact does not appear, the account is always carried back to the time the title accrued." There is no case where a bill has been filed by the occupant, claiming the value of his improvements against the right owner. The cases where it has been allowed, are where the title and an account of rents and profits constituted the matter of the complainant's bill, and where the defendant resisted the relief sought, by setting up some colour of title in himself, with a

a 2 Vern. 724. 1 Atk. 524-526. 2 Atk. 83. 283. 3 Atk. 130-134. 2 P. Wms. 645, 616. 1 Madd. Chanc. 73–75. 1 Wash. 329.