USA > Kentucky > A history of the commonwealth of Kentucky > Part 25
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37
260
HISTORY OF KENTUCKY.
principles of buying and selling, which govern private property. These should, for the public good, have governed the manage- ment of the valuable domain, now almost entirely alienated from the state. The act of this year began the career of an- nual indulgence or relief, which was trod through all the mazes of legislative quackery ;* in January, 1798, an act of indulgence, or in other words, the Green river bill passed; in November session, 1798, the whole debt was divided into four equal annual instalments at lawful interest, except the debts of those who claimed under the first act on this subject, which were required to be paid in six months. This act was amended in 1799, and in eleven days afterwards it received a supplementary act: in 1800 another act of indulgence passed, and nine days after was amended. By a third act of this session, nine years were given to the purchasers of the public lands, and the interest was re- duced to five per cent .; in addition to this, every person over eighteen years of age, might acquire a right to four hundred acres, at twenty dollars per hundred acres, to include his settle- ment, which was to be made before his claim could be allowed. The county courts were then vested with the power of granting the claims, instead of the more cumbrous and less expeditious commissioners. The responsibility was now less than ever; fictitious purchasers were as acceptable as real, and the com- monwealth was again all agog with land jobbing. Now acts of relief were prayed against the mistakes of the county courts; till after the usual annual protractions of the land debt, its payment was, in 1806, divided into twelve annual instalments of principal and interest; the first instalment to be paid on or before the Ist of December, 1906. Nor ought the commonwealth to be un- grateful that any time was appointed for the payment of this old unconscionable debt of a great land holder, against its poor pri- vate purchasers. Indeed it would seem matter of public admi- ration and gratitude, that the debtors of the commonwealth con- descended to promise either principal or interest, on this side of eternity.
This' strain of remark is certainly indulged in no unfriendly + See Marshall 2-178, for a full analysis of this system
.
261
HISTORY OF KENTUCKY.
feeling to the southwestern section of the state, now so honor- able and flourishing a portion of the commonwealth; but solely with a faint hope of exposing the mischievous and corrupting tendency of legislation, when it transcends the boundaries of experience, and the eternal principles of political justice. The injury to the government, though gross in the waste of its treas- - ures, was inconsiderable, when compared to the corruption of public morals and the derangement of regular, efficient industry, by these land bounties and distributions. They kindled the same deleterious speculative, spirit, which the rise of stocks or any other powerful temptations to the avaricious passions of society, have ever occasioned. They would produce the same effects in any community, that they did in Kentucky, with those who rushed from other states to enjoy her misjudged wastefulness. Had this great landed estate been sold out upon any reasonable conformity to current value, tested as in the sales of the United States' lands, by public competition, the disposition would have been uncensurable. True it is, large accessions . were made to the productive population of one portion of the state, and as large transfers from other parts of the common- wealth; but this increase might have been effected more soundly and more productively to the state, by less hurried and hot-bed measures. In this last arrangement. Mr. John Pope lent the efficient aid of his excellent mind, in these healing measures, which immediately procured something like $200,000 from the small purchasers; and in a few years the payments amounted to $700,000. Thus has been terminated a mischievous floating interest, ready to be attached to any project which could enlist friends sufficient to effect its own favourite and paramount policy of relief; and the counsels of the commonwealth were relieved from the odious incubus of a debtor interest, too great to be controled; and yet not large enough to maintain an indepen- dent footing. During this session discontent began to show itself with the constitution of Kentucky; in consequence of which a bill was brought into the legislature for taking the sense of the people on the question of calling a convention to revise the constitution. The immediate occasion of this dissatisfaction
262
HISTORY OF KENTUCKY.
had arisen out of the rejection by the Senate of a bill respecting occupying claimants of land, which had passed the House of Representatives at the preceding session. This measure had attracted the public affections, which were now manifested by petitions from several parts of the State in its favor. The aris- tocratic character of the senatorial organization and the re- moteness of their choice from the people, their appointment of the electors themselves, as members of the Senate, and the fil- ling of their own vacancies, were exciting public dislike.
A remarkable bill passed the Senate for selling the public lands, south of Green river, to Elisha J. Hall and company, for two hundred and fifty thousand dollars, to be paid in short instalments; it was, however, rejected in the House of Repre- sentatives, by a vote of nineteen to thirteen, to the great emolument of the commonwealth, in a pecuniary point of view.
At this session, the Auditor, Treasurer, and Secretary of State were required to live at the seat of government. An addition to their salaries, raising them to $600 each, and also one of $333} to the Governor, making his salary $1333}, were made this session. The pay of the members of assembly was also raised from one dollar to one dollar and a half a day. This may be viewed as pretty conclusive proof of the general rise of prices in the country; and as no artificial substitutes for money then existed in this part of the country, it must be attributed to the depreciation of money in the general markets of the United States; and the consequent apprecia- tion of all the articles of living. In the ensuing May, 1796, a general election was held for electors of Governor, and Se- nate, as well as for members of the House of Representatives. At this election, James Garrard and Benjamin Logan were considered as candidates; the former of whom was chosen as successor to Isaac Shelby. By this gentleman Harry Toul- min was appointed Secretary. There is something liberal and honorable in a gentleman, who had been a follower of Dr. J. Priestly, in England, and a minister of the Unitarian sect of Christians, becoming Secretary of State in Kentucky,
263
HISTORY OF KENTUCKY.
without public resentment. The same gentleman was afterwards appointed a United States' Judge in the territory of Alabama. So dignified an appointment of a foreign gentleman, either implies no little indifference, or great liberality cf principle in the public feelings of the western country. No gentleman could more richly have deserved the latter, than the one in question. He was the author of a respectable digest of the laws of Kentucky, strongly marked by a discriminating and cultivated mind.
The opening speech of the new Governor, at the November session, "congratulated the State upon the condition of peace, procured by the directions and exertions of the federal gov- ernment, as the instrument of a wise and gracious Provi- dence. Add to this, the increase of population; the exten- sion of the settlements to the extremities of our territorics; the flourishing state of agriculture; the increase of improve- ments; the establishment of manufactures; a year of the greatest plenty, in succession to one of the greatest scarcity, with the hopeful prospects opening to agricultural industry and commercial enterprise, by means of the late treaty with Spain, which has opened the navigation of the Mississippi, and a port at Orleans for us; objects long and ardently de- sired."
In addition to these views, so cordial and honorable to the federal government, and by no means common in the public proceedings of Kentucky; the Governor invited the atten- tion of the legislature to the amelioration of the criminal code, the state of the revenue laws. The Green river set- tlers are said to have paid $13,333 into the public treasury, and that the Auditor's statements exhibited a balance of more than $36,6661 in favor of the public. Six new counties were created this session; and considerable and laborious attempts at simplifying and digesting the laws by new statutory enact- ments. During this session was passed, "an act establishing the court of Appeals;" This, although approved by the Gov- ernor, and which, according to the precedents established in repealing the County Court and Quarter Session system, and
264
HISTORY OF KENTUCKY.
choosing new officers, ought to have led to a new appointment of judges in the Supreme Court. Nothing was, however, done under the law, in regard to the commissions or offices of the judges. Whether the attempt to commission new judges of this high court, would have been likely to have kindled the fierce blaze, which a similar measure has so awfully done, in more recent times; the author is not sufficiently acquainted with the temper and spirit of the times to express an opinion.
He cannot bring his own mind to discriminate between the duration of the offices or the tenure of the judges, in any of the courts; they all hold alike by the tenure of good be- havior; they are all personally appointed by the intervention of a statute, which must prescribe their number, fix their com- pensation, attach the requisite officers, and in fine, equal- ly give all the courts efficiency and life. Where then is the ground of discrimination in the constitution? How is one court more created by the constitution than another? If there cannot, in the nature of things, be more than one Supreme Court, still the constitutional mandate. does not fix the num- ber of the court, and does not bring the court into exist- ence, without the same legislative operation in regard to the highest as well as the lowest court in the commonwealth. If then the judges of the former would not constitutionally follow the fate of their offices, neither did the County Court magistrates, the judges of Oyer and 'Terminer, the district judges, nor the circuit judges. The constitutional mantle covers all with the same privilege of continuance in office; it privileges all, or none.
The expediency of this legislative interference, particularly with the Supreme Court, the author is free to abandon, as utterly indefensible, consistent with impartial and unsuspected justice, which forms a palladium against oppression of all sorts, checked by the spirit of a free legislature, and that of a moral and cultivated people.
In order to connect the affairs of Kentucky with the general government of the Union, it is necessary to remark, that, on General Washington's declining a third canvass for the Pres-
1 :
1
265
HISTORY OF KENTUCKY.
idency, in his affectionate valedictory to his countrymen, charged with the profoundest and most affectionate wisdom, the public mind principally fluctuated between John Adams, the Vice President, and Thomas Jefferson, the late Secretary of State; both able and distinguished patriotic statesmen of the revolution. On counting the electoral votes, it was found, that a majority of three votes was in favor of John Adams, as President of the United States, for four years from the fourth of March, 1797; and the next greatest number of votes being in favor of Thomas Jefferson, he become, under the original constitution, Vice President of the United States.
Embalmed as these great statesmen now are, in the affec- tionate regards of their admiring countrymen, they were look- ed upon at the times which are describing, as the respective chiefs of the two violent parties into which the people of the United States were so intemperately and illiberally divided; and which were known at the time as the Federalists and Democrats or Republicans. The former appellation had ori -. ginated in the support of the federal union of the States, which was most soundly believed to require the additional energies contained in the new constitution of 1789. The name had, however, by a natural transition, been applied to the friends of the measures adopted to put the new system into efficient operation. The titles of their antagonists had been changed from the former term of anti-federalists, which had ceased to be descriptive of the measures or the wishes of the party; it now denoted the opponents of the elder Adams. It is, however, due to the character of our countrymen, as after- wards eloquently expressed by Mr. Jefferson, to say, they were all federalists, they were all republicans, that is, in the general sense of the terms, independent of their tempo- rary and party meaning. The great overwhelming mass the nation were equally friends to the union of the States, and to the popular, or democratic character of the government. so far as the term can properly be applied to our representative democracy. The denomination of republican, then, it must never be forgotten, was equally applicable to both the great Z
266
HISTORY OF KENTUCKY.
parties of the times, however they might differ in degree, and in the details of administering so popular a government, as that of the United States, under its worst possible operation.
It was during this session, that a measure was successfully revived, which had annually passed the House of Representa- tives since 1794, and which had as invariably been negatived in the Senate: it was an "act concerning occupying claimants of land." No branch of our legislation, or of our judicial administration is more complicated or more intimately con- nected with the dearest interests of the commonwealth, than that concerning occupying claimants of land. It concerns the deepest feelings of the human heart, for the freehold, cultivated and adorned as the last resting place of the laborer, and as the reward of some affectionate partner, or beloved offspring of that connection, when the cares of this life are no more. To these ties which fasten so firmly to the human heart, and which bind every people to the soil on which they live, and from whose bo- som they derive their daily support, there were peculiar sources of endearment in the case of the people of Kentucky. They had risked their lives in the wilderness; they had lived in the constant apprehension of the rifle or tomahawk of the Indian; they had lived without bread and without salt, much less the innumerable comforts of civilized life; they had, many of them, lost the dearest friends of their life in the gallant struggle which they had maintained with the aborigines; all this they had suffered to obtain landed property; and now, when amidst a cloud of legal perplexities, new even to the subtle priesthood of the law, they were about to lose the fruit of their perils and their labors, could any people avoid feeling this painful condition to the very bottom of their hearts? Such were the feelings of the people of Kentucky, when they found the elder patents of Virginia claimants, brought against the actual settlers, and improvers under a junior patent.
The author is not unaware, that he is entering into a subject, which has divided the highest tribunals of the law; and even the bar of Kentucky, so justly celebrated for its acumen on this novel subject of adjudication, under all the
-
267
HISTORY OF KENTUCKY.
peculiarities of the land law of Virginia. Nor can the rea- der be more admirably introduced to this complex portion of our legal history, than by the following delineation drawn by the hand of a master in the petition submitted to the Supreme Court of the United States, for a review of the case of Green vs. Biddle .*
What, then, is in popular language the nature of the dis- pute between the occupying, and non-occupying claimants of lands in Kentucky? This question can only be answered, by entering into the nature of our land titles, or interests more properly speaking, before they were consummated into titles, or complete rights in fee simple. "By the land law of Virginia, passed in 1779, for the settlement and sale of the unappropriated lands of the commonwealth, any person holding a warrant for any quantity of land belonging to the commonwealth, might enter in the surveyors' books, the boundaries of such lands as he wanted to acquire previous to any survey: but he was required "to direct the location thereof so specially and precisely, as that others may be enabled with certainty to locate warrants on the adjacent residuum." In addition to this description of claim, origi- nating in the commonwealth's warrant, was another impor- tant class of persons, who claimed rights of settlement or pre-emption, as described under the history of the land law in its appropriate year. These claimants were required to obtain certificates from the commissioners appointed for that purpose, as has been mentioned, naming the cause of the claim, the number of acres, and "describing as near as may be the particular location." Under these brief texts, has arisen a system of judicial legislation, fraught with subtlety and perplexity; aggravated by the licence and multiplicity of surveys by which the territory of Kentucky, in the emphatic language of judge Rowan's petition to the Supreme court was "encumbered and cursed with a triple layer of adversary claims." Under this inheritance of liti- gation and uncertainty, was the land to lie idle because no
* Judge Rowan concurred in by Mr. Clay. 8 vol. Wheaton's Reports.
268
HISTORY OF KENTUCKY.
man could ascertain his precise legal right, unless issued by the land commissioners? Should the blood which had been so gallantly spilled, the heroic effort which had been so nobly made, be all in vain, because the land was vexed with an uncertainty of titles? After expelling the Indians, the for- ests had to be felled, the wilderness was to be tamed and subdued under the hand of civilized man. But who could in safety exert this labor; who would risk the prime of his life in cultivating and improving the soil, if notwithstanding the solemn deed of the government in his hands, the patent of the State, he was liable to be turned off the land, the State had covenanted to be his; and deprived of all the fruit of his cares and his toil? It would have been equiv- clent to a sentence of perpetual waste, or of subordinate tenacy on the lands of Kentucky. Can it reasonably "be supposed" in the breathing language of the petition quo- ted above, "that the people of that district, after winning the country by conquest, under circumstances of privations, hardships and gloom, of which a true narrative would, on account of their peculiarity, seem more like romance, than history-a gloom not indeed uninterrupted; but when inter- rupted, brightened only by the gleams of their own chi- valric daring and valorous achievment, that such a people would consent to clear up the grounds, erect houses, build barns, plant orchards, and make meadows for the sole con- venience of those, who had latent rights, and who during the war, and while the improvements were making, had remained as latent as their rights?"
To avoid these mischievous consequences the legislature of Kentucky early perceived the necessity of interposing its guardian authority between the honest bona fide occupant of the land, by virtue of a younger patent, and the non- occupying patentee of elder date. This was done by a bill introduced this session by Mr. Humphrey Marshall, provi- ding* "that the occupant of land from which he is evicted, or deprived by better title, shall be excused from the pay-
+ Wheaton's Reports, Green vs. Biddle. "
1
269
HISTORY OF KENTUCKY.
ment of rents and profits accrued, prior to actual notice of the adverse title, provided his possession was peaceable, and he shows a plain and connected title in law or equity deduced from some record. It moreover enacted, that the successful claimant should be 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 de- ducting from the amount, the damages, which the land has sustained by waste or deterioration of the soil by cultiva- tion. If the improvements exceeded the value of the land in its unimproved state, the claimant shall be allowed the privilege of conveying the land to the occupant and re- ceiving in return the assessed value of it without the im- provements, and thus protect himself against a judgment and execution for the value of the improvements. If he should decline doing this, the successful claimant was to recover possession of his land; but should then pay the estimated value of the improvements, and also lose the rents and profits accrued before notice of his claim. As to improvements made and profits accrued after notice of the adverse title, the amount of the one shall be deducted from that of the other, and the balance added to, or subtracted from the estimated value of the improvements made before such no- tice, as the nature of the case may require." It is provided by a subsequent clause, "that in no case, shall the suc- cessful claimant be obliged to pay for improvements made after notice, more than is equal to the rents and the pro- fits."
Such is the nature of the great remedial statutes of Ken tucky, intended to protect the agricultural industry of the State from the distressing uncertainty which had attached to its land titles, growing out of the mischievous system of selling claims to land before its boundaries had been surveyed and identified. This statute of peace and honest compensation, was opposed on its introduction into the legislature by Mr. James Hughes, a learned and highly reputable lawyer, then a member of the House of Representatives, from the county of
Z
.
270
HISTORY OF KENTUCKY
Fayette. He early took the ground, that it was a violation of the compact of separation with Virginia, and which having declared that the rights and interests of lands derived from the laws of Virginia, should be decided by the laws in force when the compact was made; and this of course, precluded all legislation on the subject." To this it was replied by Mr. Marshall, "that, upon the gentleman's principles, the compact had been already violated, by passing the act of November, 1792, allowing further time to appoint agents for surveying lands, &c .; that indeed, it might be doubted if the law subject- ing lands to execution for the payment of debts, was not also a violation of the constitution; for there certainly was no such law of Virginia at the date of the compact; and that it did as certainly affect private rights and interests of lands derived from the laws of Virginia. Nay, our revenue laws go to the same description of rights and interests; they are acts of the Kentucky legislature; yet their constitutionality has not been questioned. That indeed, if the doctrines of the gentleman from Fayette were correct, Kentucky had excluded herself by compact, from legislating on the subject of her lands claimed under the Virginia laws; then the only laws of origin and derivation of claims to lands known in the country. But he has mistaken both the character of the bill and the nature of the compact. The latter, it is true, confines the decisions on conflicting claims, derived from the laws of Virginia, prior to the separation, to the laws in force at the time of making the compact; while the former, supposing the right to be so ad- justed, steps in to adjust not a matter of right or interest, existing prior to the separation; nor at all concerning the origin or derivation of the parties' rights or interests in the land itself; but solely concerning its occupancy, and the mutual demands of rents made on the one side, and for im- provements made on the land, on the other. Demands which may now be settled and adjusted by the Chancellor, where the suit is in chancery for the title, which gives him jurisdiction of the incidents with the principal matter; but which it is understood, can not be adjusted where the proceeding is at
- ---
271
HISTORY OF KENTUCKY.
law-as in case of ejectments. Now, the purpose of the bill is, to extend the principles to the eviction by ejectment; and without exposing the occupant to be turned out of possession unremunerated for improving the land, and subject to be sued for rents, or driven to a doubtful suit at chancery; at once to afford him a plain, safe, and expeditious mode of adjusting these matters, in the court where the judgment of eviction has been pronounced; and by the same uniform process, whether the de- cision was at law or in chancery. Can not the legislature do this? Can it not resolve by law, an equitable principle into a statutory provision? Then neither can it alter any part of the common law. Doctrines to which I can not subscribe." This measure, whose importance has induced the above abstract of remarks in the legislature of that day, passed both Houses; in the House of Representatives there were but eight votes against its becoming a law. This measure of beneficent policy was acquiesced in and apparently approved by all parties. But unfortunately, in 1812, this law was further altered by enact- ing, that "the claimant may avoid the payment of the value of improvements, (whether valuable and lasting or not,) by relin- quishing the land to the occupant, and be paid its estimated value, in its improved state." Thus, if the claimant elect to pay for the value of the improvements, he is to give bond and security to pay the same, with interest, at different instalments. If he fail to do this, or if the value of the improvements ex- ceeds three-fourths of the unimproved lands, 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 value of the land, if unimproved, by instalments with interest. But, if the claimant is not willing to pay for the improvements, and they should exceed three-fourths of the value of the unimproved land, the occupant is obliged to give bond and security, to pay the assessed value of the land, with interest; which if he fail to do, judgment is to be extended against him for such value, the claimant releasing his right to the land, and giving bond and security to warrant the title. If
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.