sable? 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." What is the opposing claim, which is of such validity as, prima facie, to convert the occupant into a malæ fidei possessor? 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 All grants are by record, and the patent can only be repealed by matter of record.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 regular inquisition is indispensable. Until the grant of the Commonwealth is annulled, a person claiming and holding under it, cannot be considered as a mala fidei 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 cases of conflicting titles under grants, and have never been extended to protect a mala fidei possession." 2. The general principle of equity is settled by a series of decisions, both in England and in this country. A leading case on this subject, is that of the Duke of Bolton v. Deane. There the a 1 Bibb's Rep. Preface. b 1 Marsh. Kentucky Rep. 443. 2 Marsh. 214. 3 Bibb's Rep. 298. 4 Bibb's Rep. 461. 1 Marsh. 246, 247. c Finch's Prec. in Ch. 516. VOL. VIII. 1823. Green V. Biddle. 1823. Green V. .Biddle. 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." And wherever there has been any default or laches on the part of the true owner in asserting his title, the account is restrained to the filing of the bill. So, where a man suffers another to build on his ground, without setting up a right till afterwards, a Court of equity will compel the owner to permit the builder to enjoy it quietly. The same principle has been recognised by our own Courts, and is also to be found among the maxims of the Roman law." 3. As to the compact of 1789, between Virginia and Kentu ky, 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. a 3 Eq. Cas. Abr. 588. tit. Mesne Profits. 1 Atk. 526. b Dormer v. Fortescue, 3 P. Wms., 136. c East Ind. Company v. Vincent, 2 Atk. 83. d Southall v. M'Kean, 1 Wash. 336. 2 Domat's Civ. Law, 432. Strahan's Translation. Kaimes' Eq. 189. 1st Ed. 270. 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, 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." So, also, this Court has solemnly sanctioned the act of Kentucky, giving further time for surveys; as well as 1823. Green v. Biddle. 1823. Green V. Biddle. the statute of limitations of that State; and the act concerning champerty and maintenance." b 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 unfavourable circumstances. Here, though it is acknowledged that the titles are to be decided according to the laws of Virginia, existing at the epoch of the compact, a new proprietary interest has grown up since, not foreseen nor provided for. The possessor in good faith has covered the face of the country with his own property, the fruits of his toil and industry, which it is not just that the owner of the unimproved land should take from him, without an indemnity. Again how can this Court interfere, after the settled decisions of the local Courts has confirmed the validity of these laws, and thus disturb the rules of property which have been firmly established; and that too in a case where the parties on both sides, really interested in the controversy, are citizens of the same State? The subject is not within the jurisdiction of the Court, either as to the character of the parties really interested, or a 2 Wheat. Rep. 324. 1 Wheat. Rep. 292. sent case. Green V. Biddle. as to the subject matter of the controversy. The 1823. jurisdiction originally given by the constitution has been defined and limited by the judiciary act, and is not co-extensive with what might have been granted by Congress under the constitution." 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 preThat 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 a United States v. Bevans, 3 Wheat. Rep. 336. 387. 390. United States v. Wiltberger, 5 Wheat. Rep. 93. |