USA > Kentucky > A history of the commonwealth of Kentucky > Part 26
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the value of the improvements does not exceed three-fourths of the value of the unimproved lands, then the occupant is not bound, (as he is in the former case,) to give bond and security to pay the value of the land; but he may claim a judgment for the value of his improvements; or take the land, giving bond and security, as before mentioned, to pay its estimated value.
The exemption of the occupant from the payment of the rents and profits, extends to all such as accrued during his occupancy, before judgment rendered against him in the first instance; but such as accrue after such judgment, for a term not exceeding five years, as also waste and damage, committed by the occu- pant after suit brought, are to be deducted from the value of the improvements, or the court may render judgment for them against the occupant. The amount of such damages, rents, profits and waste, and also the value of the improvements, and of the land, without the improvements, are to be ascertained by commissioners, to be appointed by the court, and who act under oath." Under this law "it was made the interest of the party in possession under a bad claim, to postpone and put off a final decision, as long as possible; which the rents of the land ena- bled him to do. There was no saving of the rents to those who had commenced suits under the former law, which entitled them to rents if successful, as an offset to improvements made on the land." "The necessity of paying for all improvements, how- ever useless they might be, or of surrendering the title to the land at its woodland price," was deemed a great grievance under this new form of the law. These complaints led to the famous suit of Green against Biddle, in the Circuit court of Kentucky, which upon a division of opinion between the judges, produced a reference to the Supreme court of the United States, for its opinion upon the constitutionality of the above re- cited acts of Kentucky, concerning occupying claimants. Both the parties claimed under patents from Virginia, prior to the separation of Kentucky from the parent State. The court in February, 1821, decided against the constitutionality of these acts, "as a violation of the 7th article of the compact with Vir-
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ginia. On the application of Mr. Henry Clay, as amicus curia, that the certificate to the Circuit court should be withheld, the case was continued to the next term for argument. In the en- suing session of the legislature, this subject excited deep and fixed attention; and was particularly brought before that body by the Governor. The matter was submitted to a committee, of which that honest and distinguished statesman, John Pope, was chairman, who drew up a dignified and cogent view of this con- troversy, so deeply interesting to Kentucky. In this report, it was maintained, that "the plain and common sense meaning" of the terms private rights and interests of land, used in the com- pact, "as it has been understood by the parties, and the people generally, is, that those rights and interests of land, derived from the laws of Virginia, should be valid and secure under Kentucky; and that the laws of Virginia were to furnish the rule" for their decisions. Such has been the construction given to this article of the compact, by the courts here. "The word right is applied in the land law, to both imperfect and complete title. Settlement rights and pre-emption rights are mentioned; and in the provision respecting caveats, the word right is used in reference to a title by entry or patent, because either will authorize a caveat. The words right and title, in common par- lance, in statutes and in law writers, are often used as synony- mous terms. There is no foundation for supposing, that the parties to the compact, meant by rights and interests, any thing different and distinct from titles. A patent from a State, or the general government, is a contract, which the government can neither revoke nor impair, according to the decision of the Su- preme court, in the case of Peck against Fletcher. A patent is a contract for title, so far as the grantor has it, and for all that use and enjoyment, which is incident to the ownership of property, subject always to those burdens and to that policy, which the welfare of the government which protects it, may impose. The compact with Virginia, and the compact with every patentee, are in effect the same, and the occupying claimant laws of Kentucky, if unconstitutional for their viola- tion and impairing the value of the Virginia patent, are equally
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unconstitutional for impairing the patents of Kentucky." "It should be remembered that every citizen of a social community is identified with its general welfare, and whatever burdens, that demands, may be rightfully imposed, unless interdicted by some constitutional limitation of power." Another view of this subject presents much force; that the decision of the Supreme court of the United States, is in direct opposition to the Su- preme court of Kentucky, upon a question of its own local con- stitution, which in all comity, and by virtue of the case of Col- der and wife against Bull, appertains exclusively to the local tribunal. In consequence of this report, the legislature came to resolutions affirming the constitutionality and importance of the occupying claimant laws, appointing commissioners to open a communication with Virginia, concerning the meaning and execution of the compact between that State and Kentucky, and finally requesting the said commissioners, to oppose before the Supreme court, any attempt to declare void the laws in question. By virtue of these resolutions, Messrs. Clay and Bibb were appointed commissioners, to execute this important trust. They appeared before the legislature of Virginia, as well as the Supreme court, and argued the constitutional and pactional character of the Kentucky occupying claimant laws, with what effect will hereafter be seen.
It ought to be mentioned in connexion with this part of the subject, that at the session of 1-21-2, Virginia had deputed Watkins Leigh, Esq., as her commissioner to wait on the legis- lature of Kentucky, and invite legislative provisions for certain military claims arising out of the revolution; if that should not be granted, then to ask of the legislature the organization of a board of commissioners, in conformity with the compact between the two States, for the purpose of deciding all matters in contro- versy between them. To the latter proposition, Kentucky ac- ceeded, and on the 5th of June, 1-22. Messrs. Clay and Leigh, on the part of the two States, entered into an agreement for organizing a board of commissioners according to certain con- tingent articles; reserving to their respective States, the right of ratifying or rejecting them. 'This ratification was, however,
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refused by the Senate of Virginia, after it had been fully ex- tended by this Commonwealth, and Jacob Burnet, Esq., of Ohio, and Hugh L. White, Esq., of Tennessee, had been appointed commissioners under the convention upon her part. A result, to say the least, little to be expected from a negotiation, soli- cited by Virginia herself, when a friendly negotiation might have saved the people of Kentucky, the distress and apprehen- sion so extensively felt on the subject of these favorite measures of peace, and honest compensation for labor, expended under the faith of the very acts and records of Virginia. After the argument of Messrs. Clay and Bibb, in opposition to Messrs. Hardin and Montgomery, before the Supreme court of the United States, their judgment was held up till after they had learned that Virginia had refused to organize the commission contemplated by the compact. This high tribunal then, by the opinion of judges Washington, Duval and Story, judge Johnson dissentient, judge Marshall not sitting, judge Livingston lying ill, as well as judge Todd, decided against the constitutionality of both the occupying claimant laws of 1797 and 1812. The main argument of the court seems to be, that the acts in question conflicted with the provision of the constitution of the United States, which prohibits any State from passing any act impairing the obligation of contracts. This reason, with all the deference due to this exalted and most able court, whose learning, wisdom and purity have shed judicial glory around the republic, and conferred new honors on the great profession from which they have sprung, is utterly dissented from by repeated decisions of the Supreme appellate* court of this state, and not held any more as law in Kentucky Now, than before the decision in the case of Green against Biddle. Our court of Appeals say,t "that we should consider ourselves bound by the decisions of the Supreme court of the United States, settling a construction of the constitution or laws of the United States, in cases where it possesses revising jurisdiction over the decisions of this court, we shall not pretend to controvert." But " the case of Green against Biddle was decided by three only of the seven judges,
. Sec Pirtle's Digest, vol. 1 -- 162-3. t Monroe's Reports, 58, Bodley va. Gaither.
.
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who compose the Supreme court of the United States; and being the opinion of less than a majority of the judges, cannot be considered as having settled any constitutional principle. It would not, we apprehend, be considered conclusive in any subsequent case that may be brought before it." At the same time the court intimated that it did not intend to admit the binding force of that opinion of the Supreme court, if it had been the unanimous opinion of all the judges composing that court.
There are circumstances connected with the decision of the Supreme court of the United States, in the case of Green against Biddle, which demand the animadversion of every patriot, and are due to the rights and dignity of Kentucky. Upon the ratifi- cation of the convention between Messrs. Clay and Leigh, the legislature of Kentucky appointed Henry Clay, Esq., and judge Rowan, in 1822, to attend as counsel before the tribunal to be organized in conformity to the above mentioned convention. These gentlemen, upon learning the decision of the Supreme court, determined to make one more struggle for the dearest interests of the enterprising and unfortunate pioneers of Ken- tucky, by a petition for a reconsideration. Accordingly, a com- prehensive and able argument was drawn up by judge Rowan alone, owing to the other engagements of Mr. Clay, richly im- bued with the ardent eloquence adorning that gentleman, and which received the commendations of his eminent colleague. When judge Rowan attempted to read this petition, on behalf of one of the high parties to this confederacy,* "the court would not hear it read; and it was with great apparent reluctance that judges Washington and Duval agreed to take and read it in their chamber. Judge Story would not assent even to that measure. Judge Johnson was throughout favorable to the application. It was on a subsequent morning overruled."
On the application, judge Washington observed to judge Rowan, that every deliberation had been bestowed un this subject, the pride of Kentucky had been heard on it, and no new views could be presented. This, it must be observed,
+ Judge Rowan's letter to Gov. Adair.
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is too supercilious a spirit to be indulged, on questions in- volving the constitutionality of the laws of the States; which of all others are so calculated to convulse the confederacy to death. Not that it is meant to disparage the wholesome jurisdiction of this high court, the Areopagus of the republic; but it is intended to advocate profound caution in discharging so invidious, and yet so indispensable a controling power over the great political bodies, which compose our federal system. Too much delicacy and conciliation of manner, can scarcely be exhibited in executing these high prerogatives. Under the influence of such opinions, would not the petition of Kentucky, (for so that of her counsel must be considered,) have been readily heard and examined; and if the opinion of the court had been held up, (supposing it unaltered on a subject so peculiarly local,) it would have lost no weight by its age; and it would certainly have gained much in the graces of an ardent people, whose fields and fire-sides were involved in its operation.
The author may not refrain from enriching his pages with some extracts from this petition, so ungraciously received by the Supreme court of the United States, yet marked with intense investigation, and animated by a profound zeal for the interests of Kentucky.
"Can it be supposed, or presumed, reasonably, that the Dis- trict of Kentucky, engaged, at the date of the compact, in its tenth years' war with the savages, that occupied the wilderness, on its southern, western and northern frontier, itself almost a wilderness-a war which had not intermitted during all that time, and had been unusually sanguinary, with its settlements sparse, and scattered, weak from the paucity and dispersed state of its population. Not knowing certainly when the war would terminate; or with what farther ravages, its progress might be marked. Situated, from three to five hundred miles. from any efficient source of assistance. Constrained to rely upon its own strength, and resources. Its territory encum- bered and cursed with a triple layer of adversary claims. Can it be supposed, that a district thus situated; conscious that it 2 .1
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needed the strength of increased population, not only to sus- tain it in the war in which it was engaged; but to reduce its wilderness land to a state of cultivation, and thereby fur- nish the resources necessary to sustain the new government, would in the very process of its formation, surrender the power, so indispensably necessary, if not to its very existence, certainly to its well being and prosperity? It needed the power to furnish incentives to emigration and to industry ; to silence as speedily, as it could be justly done, the litigation in relation to its lands, which threatened its repose. Can it be presumed, it is again asked, to have consented to part with those powers, which, if they were not essential to its sovereignty, were in- dispensably so to its condition ?
"It remained, when the Indians should have been conquered, to subdue the forests of the wilderness. Can it be reasonably supposed, that the people of that district, after winning the country by conquest, under circumstances of privation, hard- ship, 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 interrupted, bright- ened only by the gleams of their own chivalric daring, and valorous achievement; that such a people would consent to clear up the grounds, erect houses, build barns, plant orchards and make meadows, for the sole convenience of those who had latent rights, and who, during the war, and while the improve- ments were making, had remained as latent as their rights?
"The conduct of the State of Kentucky, whatever may have been said of it by the misguided or the unprincipled, has been high-minded, liberal and indulgent towards non-resident claim- ants of lands in that State. She indulged them from year to year, for six years, to make their surveys, and from year to year, for twenty years, to return plats and certificates of sur- vey to the Register's office. She repealed her laws against champerty so early as the year 1798, in the mistaken view of furnishing to them increased facilities of disposing of their claims; and in all her laws for the appropriation of vacant lands, she declared that every survey or patent which might
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be obtained under those laws, should be absolutely void, so far as it should interfere with a survey made in virtue of a right derived from Virginia."
The mischievous operation of this decision of the land titles of Kentucky, has been arrested by two causes; neither of which, was anticipated at the time it was given by the Su- preme court. The first has been the refusal of the Appellate court of Kentucky* to be bound by an opinion of the Supreme court of the United States. not concurred in by a majority of the whole court. The second has been the subsequent determination of the Supreme court, unanimously affirming the constitutionality of the act of Kentucky, limiting the commencement of actions against actual settlers, within seven years from its passage; and its consistency with the compact between Virginia and Kentucky. This additional quieting measure was passed on the 9th of February, 1809, and its constitutionality was affirmed in 1831, in the case of | Hawkins et. al. vs. Barneys' lessees. Thus has the poison and the cure proceeded from the same source, though the forfeiture of the land itself, would seem, to one uninitiated in the mysteries of the law, a much more fearful violation of the obligation of the contract, contained in a patent for land; than the subjection of that same land to a salvage, or per centage for actual im- provements, made upon it, in as good faith, as that which gave the elder patent. Less than this, could not well be said on a subject connecting itself with the sacred freehold, the Dii Penates of the State.
* Littell's Laws, iv. 56. * Peters' Report, 5.
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CHAPTER XVI.
Convention-Emancipation of Slaves-Henry Clay-Penitentiary Code -- Alien and Sedition Laws-Nullification Resolutions of Kentucky in 1798-1799 -- Abjuration of this doctrine in 1EX-Constitution of ISU-State of Legislation-Trade-Election of Mr. Jexterson as President of the United States-Judiciary Repeal-Repeal of the Internal Taxes-Insurance Company.
During the year 1797, a partial and irregular vote was taken on the question of calling a convention to revise the Constitution. By this, the whole number of voters was repre- sented as "nine thousand eight hundred and fourteen, and that of this number, five thousand four hundred and forty-six were for a convention. Of the twenty-one counties, then existing in the State, at the time of the general election in May, 1797, there were five which made no return of those who voted at the election." A bill for taking the sense of the people on the assembling of a convention, fell, in the Senate, by a small majority. This measure, like most political topics, is said to have gathered strength by agitation.
The aristocratic constitution of the Senate, formerly hinted at, became a free topic of public animadversion-its remote ness from the choice of the people; though not more so than that of the President and Vice President of the United States is, at this moment, under the federal constitution; yet it was highly odious to the people.
The emancipation of slaves, presented another matter of ferment and uneasiness. On this delicate point, Mr. Clay, who had only come to the State in 1797, took the fearless part of advocating a gradual emancipation of slaves, which his noble spirit has ever dictated. It was the precursor of that illustrious career which he has so honorably rim, in supporting the wise and pure charities of the "Colonization Society." Such are said to have been the principal points of agitation among the people; still no decisive popular vote could be obtained on the question, at the August election in 1798. The result, as before, left several counties unrepresented on the matter; seven out of twenty-four of them, did not vote on
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the question at all, and the total presented, eleven thousand eight hundred and fifty three in favor of the convention, and eight thousand eight hundred and four against it. A law, however, passed this session, for calling a convention on the 22d July, 1799.
A memorable change in our criminal code was effected during the session of 1797-98; it was the abolition of the punishment of death, for any offence but that of murder in the first degree. This species of crime was defined to consist in "murder, which shall be perpetrated by means of poison, or by lying-in-wait, or by any other kind of wilful, deliberate and premeditated killing; or which shall be committed in the per- petration, or attempt to perpetrate any arson, rape, robbery, or burglary." Other kinds of homicide were to be punished with confinement in the penitentiary, for not less than five, nor more than eighteen years. Other offences were made punishable by similar alleviations.
But while there can be no doubt, that the spirit, in which this great revolution in our criminal code originated, was one of the purest benevolence; one that has engaged the minds and hearts of some of the warmest friends of social order, and moral improvement, the Beccarias and the Howards of society; yet there are considerations for the security of the innocent and injured, who become the victims of lawless passions, which have been too much lost sight of in some of our penitentiary systems. Punishment for crime may be made so tolerable under the influence of a false and per- verted humanity, as to neglect the violated rights of society. Feeling for the effects brought upon criminals by their inor- dinate passions, may be carried so far as to lose sight of the just claims of the innocent. In another point of view, peniten- tiaries, according to their management, have in many instances, been schools of vice, and sources of augmented corruption, instead of institutions of reform; either by their physical or moral influences. Tested by any of the principles, which have received the sanction of the wisest friends of ameliorated legislation on criminal punishments, the author fears the
2 A *
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penitentiary of Kentucky will be found to be far short of practicable perfection.
On these points of interesting law, the friends of humanity have been not a little divided. One portion attaching the importance of this species of punishment to solitary confine- ment exclusively, with or without work; the other to a system of rigid, silent labor, but without solitary confinement. The models of these respective systems are to be found in the Eastern Penitentiary of Philadelphia, for the first system, and the Sing-Sing establishment in the State of New-York, for the other .*
In the year 1798, an agitation took place, which has scarcely ever been equalled in Kentucky, produced by the passage of two acts of Congress, familiarly known as the alien and sedition laws. The sentiments of Kentucky were never more unanimous than in the condemnation of these measures. The Governor, in his first communication to the legislature, after their passage, called the attention to these measures of that body, by "telling them that they had vested the President with high and dangerous powers, and intrenched on the prerogatives of the individual States, have created an uncommon agitation of mind in different parts of the Union, and particularly among the citizens of this commonwealth.' The alien law authorized the President of the United States "to order all such aliens as he shall judge dangerous to the peace and safety of the United States. or shall have reason- able ground to suspect are concerned in treasonable or secret machinations against the government thereof, to depart out of the territory of the United States." By another section the President was authorized to "grant license to any alien to remain within the United States for such time as he shall judge proper, and at such place as he may designate." In addition to these high and arbitrary powers over aliens,
* The reader, who fels a curiosity to investtente the great moral problems, will find them most ably and impartially discussed in the "R port of Missrs. G. De Beaumont and A. De Toqueville, on the Penitentiary system of the Limited States, to the govern- ment of France." It is translated by the learned and sagacious Leber, the editor of the Encyclopedia Americana; accompanied by notes in the usual full and philosophical manner of this learned German, who has honored our country by adopting it. Phil- adelphia, 1833.
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whose nations were at peace with the United States; powers so calculated to arouse the jealousies of a people attached to their liberties, it was likewise enacted, that should any alien return, who had been ordered out of the United States, by the President, "unless by his permission, he shall be imprisoned so long as in the opinion of the President, the public safety may require."
The sedition law was still more odious than this measure; it attempted to protect the official conduct of the different branches of the government of the United States, from that free and unrestrained discussion, alone worthy of a people canvassing the public conduct of their agents. This object it effected by holding any person answerable, by fine and imprisonment, "who should print, utter, or publish any false. scandalous and malicious writing against the government of the United States, the President of the United States, or either House of Congress, with intent to defame" "either of them," or "excite against either of them the hatred of the good people of the United States." The great objection to this measure is, not its subjecting malicious falsities to punishment; but its . subjection of opinion, however honestly entertained, to fine and imprisonment.
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