USA > Kentucky > History of Kentucky, Volume II > Part 14
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The unpopularity that the Federal courts had been steadily building up for themselves was greatly intensified by the attitude they assumed toward a system of laws that had been long forming concerning land tenure in the state. These laws were commonly known as occupying claimant laws, and their importance was so transcendent in the lives of the people for the first quarter of a century and more of the state's exist- ence that it is necessary to note conditions that produced them and their nature. The Virginia method of granting lands in Kentucky was so utterly devoid of system that she left a perfect maize of land claims for Kentucky to fight over and straighten out after she became a state.20 Settlers went out and located their lands wherever they saw fit, knowing not and taking little pains to find out whether some other person had preceded them. Markings were so indistinct and evanescent, and the system of recording grants so imperfect, that the same tracts and parts
17 North American Review, Vol. 24, p. 355.
18 Argus, July 13, 1825.
19 Niles' Register, Vol. 29, p. 219. See also Acts of Kentucky, 1826, p. 199.
20 See chapter 11 of this work. Virginia had passed a number of land laws for Kentucky before the latter became a state. The law of 1779 sought to bring as much exactness as possible to land surveys and claims. By this law the certifi- cates had to mention the cause of the claim, the number of acres sought, and to describe "as near as may be, the particular location," so that "other may be enabled, with certainty, to locate warrants on the adjacent residium." See Reports of Cases at Common Law and in Chancery Argued and Decided in the Court of Appeals of the Commonwealth of Kentucky During the Fall Term 1808 and Spring and Fall Terms 1809 (Frankfort, 1815), Edited by George M. Bibb, I, xvi; Robertson, Scrap Book, 273.
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of tracts overlapping were surveyed and entered many times. It was claimed that in one instance a tract of land was found that had thirteen separate locations on it.21 Francois Michaux, in his travels through the state in the early part of the nineteenth century, noted: "Of all the states in the Union it is that wherein the rights of an individual are most subject to contest. I did not stop at the house of one inhabitant who was persuaded of his own right but what seemed dubious of his neigh- bor's." He said: "The same lot has not only been measured several times by different surveyors, but more frequently it has been crossed by different lines, which distinguish particular parts of that lot from the lots adjacent, which, in return, are in the same situation with regard to those that are contiguous to them. *
* *22 This situation naturally brought about an inordinate amount of litigation. Kentucky became a lawyer's paradise, attracting many men of talent who might otherwise have remained east of the mountains. Letters similar to the following were being constantly received by the pioneer attorneys at law: "I wish to employ you in a suit against an Entry of 6,000 acres of land near the mouth of Clear Creek which interferes with a number of Claims of my Fathers. * *
* "' 23 It was often claimed that Virginia had actually granted warrants for more land than there actually was in the state.24
These conditions greatly retarded the development of the state ; many pioneers were turned away on account of this, and others who had set- tled on what they considered unlocated lands were either driven away through the constant fear of losing them or through actual dispossession. The parents of Abraham Lincoln moved over into Indiana, not because they did not like slavery (for little of that institution did they see in Hardin County), but rather on account of the uncertainty of land titles.25 For the same reason largely did the parents of Jefferson Davis leave Christian County for Mississippi. But the most interesting as well as most pathetic case, illustrative of many another Kentuckian, was that of Daniel Boone, a simple, honest man who was ignorant of how to acquire wealth "except from the chase, or by the regular fruits of honest industry." He was soon left without an acre of the vast empire he had helped to win, and as old age crept relentlessly upon him he was con- strained to beg for a place to lay his bones. He petitioned Congress to grant him 10,000 acres, and in a unique memorial to the Kentucky Legislature prayed it to further his case.
He recited his early hardships in exploring the Western country and vividly referred to his first sight of Kentucky. ** * Your me- morialist," he said, "proceeded alone to the heights which overlook this terrestrial paradise, from whence he descended into those fertile plains, which are unequalled on our earth. and lay the fairest claim to the de- scription of the garden of God." He immediately determined on a more thorough survey, "and, from its enchanting appearance, became inspired with the resolution not to suffer it longer to remain an unknown wilderness, tenanted only by wild beasts and visited casually by wander- ing savages; a spot which seemed to be pointed out by the finger of heaven to administer the choicest felicities to millions of human beings. He returned home and determined to risk his hopes and his little all of property in this delightful abode; delightful beyond the most sanguine wish of man, had no danger and hardship stood in the way of the golden fruit." He recounted his second visit to the region and his new hard-
21 Kentucky Gazette, Feb. 28, 1822.
22 Michaux, Travels to the West, 226, 227.
23 Breckinridge MSS. (1795). Lewis Craig to John Breckinridge, April 9, This collection of MSS. contains many such letters.
1795. 24 For instance, Robertson, Scrap Book, 273.
25 Nicolay and Hay, Works of Abraham Lincoln, VI, 26.
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ships: "Thus your memorialist for many months, a solitary wanderer and exile in a vast wilderness untrodden by the foot of civilized man ; surrounded by savages who thirsted for his blood-and hunted him like a wild beast. An overruling Providence, however, seemed to have watched over his life and preserved him to be the humble instrument in settling one of the fairest portions of the new world." He was beset by the savages and forced to return to the East. "But though his hopes seemed now about to close in forever; yet, under a belief that a benevo- lent Providence could never intend so fertile and desirable a country should remain a waste, he did not despair. He accordingly proceeded a third time to make the experiment, which he knew must succeed or prove his last." This time success came and Boonsborough was founded.
Thus had he labored and risked his life a thousand times to conquer this wonderful land-not for himself, but for others, "for out of this vast extent of country he is unable to call a single acre his own." He had not desire for great wealth; indeed, he knew not how to acquire it. "He intended to contribute everything in his power to the settlement of the new country, not to monopolize, but to share in common with others its advantages. Unacquainted with the niceties of law, he did not intend to locate lands for others, but to take up a reasonable portion of those which were good, for the use of himself and his posterity." But adver- sity pursued him. "The few lands he afterwards was enabled to locate were, through his ignorance, generally swallowed up, and lost by bet- ter claims."
Reduced to this condition "and still animated with the love of dis- coveries and adventure, about 1794 he passed over to the Spanish prov- ince of Upper Louisiana, under an assurance of the governor, who re- sided at St. Louis, that ample portions of land should be given to him and his family. And this provision appeared the more necessary to your memorialist, inasmuch as old age was fast advancing upon him, and he had scarcely where to lay his head." Here 10,000 acres were given him and he was honored with an office in the Spanish government. On account of a technicality he had failed to complete his title when the country came into the possession of the United States, and his claim, therefore, disallowed by the American commissioners. "Thus your me- morialist was left once more, at about the age of eighty, to be a wanderer in the world."
"Having no spot he can claim as his own, whereon to lay his bones, your memorialist has laid his case before Congress. He cannot but feel, so long as feeling remains, that he has a just claim upon his coun- try for land to live on, and to transmit to his children after him. He cannot help on an occasion like this to look toward Kentucky. From a small acorn she has become a mighty oak, furnishing shelter and support to upwards of 400,000 souls. Very different, indeed, is her appearance now from the time when your memorialist, with his little band, began first to fell the forest and construct their rude fortification at Boons- borough. But, however he has assisted at the birth; has watched over her infancy when she was like to be strangled by the savage serpent ; and can point to the spot where the savage lay in wait for his life; or from whence he was twice taken captive; can remember effecting by his escape the country's salvation-however he might claim something at her hands to make nature comfortable in her last decline, and to cast a cheering ray on the setting sun of life; in the hope that he might have it in his power to leave something to his posterity, that they might not say he had lived in vain; yet, as he is firmly conscious, that, however, he may have a claim upon the gratitude of the country he first settled, his services have not been confined to her, but are felt throughout the Union, and are likely to be still more so, his claim merits the regard of Congress.
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He therefore solicits your honorable body to extend to him your support and influence, in aid of his petition before Congress, praying for a grant of such quantity of land, in the said Territory of Upper Louisiana, as they may think right; trusting it will not be less than the said 10,000 acres, which remains plainly marked out and unappropriated, and your memorialist will ever pray." 26
The Legislature looked kindly upon the venerable old pioneer, re- calling his many eminent services in exploring and settling the country "from which great advantages have resulted, not only to this state, but to his country in general; and that from circumstances over which he had not control-he is now reduced to poverty, not having, so far as appears, an acre of land out of the vast territory he has been a great in- strument in peopling." "Believing also that it is as unjust as it is impolitic that useful enterprise and eminent services should go unrewarded by a government, wherein merit confers the only distinction, and having suf- ficient reason to believe that a grant of 10,000 acres of land, which he claims in Upper Louisiana, would have been confirmed to him by the Spanish government, had not the said territory passed by cession into the hands of the general government," the Legislature resolved that the state's delegation in Congress should exert their efforts to secure a grant of 10,000 acres for Boone.27 He was rewarded both by Congress and Kentucky.
Such was the life history of a man in which the complicated land laws of Kentucky had played so melancholy a part. Inheriting a tangled skein of land laws from Virginia, the new state pursued a policy for the remainder of her lands little less complicated in its results than the old Virginia laws. In 1795 the head right system was set up, whereby the head of a family might buy at a stated price 200 acres. This set into operation the endless stream of legislation concerning the Green River lands. In 1798, the "Seminary claims" saw the light. These were lands granted to the seminaries or academies in each country, and were soon to complicate the land system still more, as the school system was a failure. In 1810, the Tellico lands were ceded by the Indians in Eastern Kentucky and a different system of rules was adopted to govern this tract. A method of land sales was adopted in 1815, through warrants issued at scheduled prices, and known as "Treasury Warrants" or "Kentucky Land Office Warrants." In 1820, the so-called Jackson Purchase, west of the Tennessee River was parcelled out by another method, similar to the township system used by the Federal Government. In 1835, all vacant lands were turned over to the counties in which they lay, thus adding another complication for new counties were frequently being cut out of the old with vague and unsurveyed boundaries, which resulted in land being entered in both counties. The above laws did not exhaust the early land legislation. Numerous provisos, amendments, and time extensions, were ground out by every succeeding Legislature. There was no uniform land system for the state; each section had its different laws and rules of procedure-with the silent specter of Virginia claims always hanging over all the state.28
The state courts were in an almost impossible situation in the be- ginning in adjudicating the flood of land cases that poured in upon them.
26 Niles' Register, Vol. 4, pp. 36-38.
27 Niles' Register, Vol. 4, p. 38; Kentucky Gazette, Feb. 4, 1812; Butler, His- tory of Kentucky, 340-342.
28 Ayres, "Land Titles in Kentucky" in Proceedings of the Kentucky State Bar Association 1909, pp. 175-180. For the lands west of the Tennessee, Acts of Kentucky 1830, pp. 89, 90. Speculators early reared their heads in this region. A correspondent to the Kentucky Gazette, October 11, 1821, said, "if you would listen to speculators, you would believe this country to be mostly swamps, inter- mixed with impassable green-brier thickets, and O! horrible snakes at every step.
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There was no precedent, neither was there legal egress from many a labyrinth in which they soon found themselves lost. There was no solu- tion except through what might be termed judicial legislation, and for this, conditions were perfect. George M. Bibb, said, "For a time, un- fettered by precedent, undirected by rule, each decision was but a fact -- multiplication of facts gave precedents, and precedents have grown into doctrine." 29 John Marshall said of this great structure which the Ken- tucky courts had been building decision by decision: "It is impossible to say how many titles might be shaken by shaking the principle. The very extraordinary state of land titles in that country has compelled its judges in a series of decisions to rear up an artificial pile, from which no piece can be taken by hands not intimately acquainted with the building without endangering the structure and producing a mischief to those holding under it, the extent of which may not be perceived." 30
Judicial interpretations and legislation could not remedy wholly the confused tangle in land claiming and in its actual occupation. The call for positive legislation became insistent almost immediately. A person who had settled down on a tract of land, and expended years of labor in improving it, could scarcely be expected to look with equanimity on an absentee claimant who should appear and present a prior title. The House of Representatives, being much more susceptible to the will of the people, passed an occupying claimant law in 1794, only to see it killed by the more conservative Senate. On each succeeding year on until 1797, the House continued to insist on this law, with the Senate equally ob- durate. Finally on this date the first occupying claimant law went through the Legislature and was signed by the governor. The main features of the law were as follows: The occupant was given the full use of the land rent free during the period from the time when he first entered upon it until the claimant gave notice of suit for recovery. The claimant was charged with all the improvements which were valuable and lasting made by the occupant up to the time of the notice of the suit ; but the damage to the land through wastage and deterioration of the soil should be deducted from the amount which the claimant should pay for these improvements. Rent should start after the beginning of the suit and together with the profits should be deducted from the value of the improvements made since that time; but the claimant should not be held liable for these improvements beyond the total of rents and profits. If the value of all of the improvements was assessed at a greater amount than the value of the land, then the claimant might surrender the land to the occupant and demand payment for it.31
This law was, of course, designed directly for the benefit of the person occupying the land. If he should be dispossessed by a better title still his accumulations of buildings and other improvements must be paid for by the successful claimant. Perhaps, as a general rule, the absentee claimant should have had less consideration than the present occupant ; but in many instances the absentee claimant had good reasons for not having taken possession of his lands sooner. This law worked unjust hardships on them. Improvements were sometimes valued so high that the evicting claimant could not pay for them. Michaux said on this point, "One very remarkable thing is that many of the inhabitants find a guar- antee for these estates that are thus confused ; as the law, being always on the side of agriculture, enacts that all improvements shall be reim- bursed by the person who comes forward to declare himself the first
29 Reports of the Court of Appeals, 1808, 1809, I, xvi.
30 Quoted by Ayres, "Land Titles in Kentucky" in Proceedings of the Ken- tucky State Bar Association 1909, p. 175.
81 Green v. Biddle, 8 Wheaton 70; Marshall, History of Kentucky, II, 208- 212; McMaster, History of the People of the United States, V, 414, 415.
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possessor ; and as the estimation, on account of the high price of labor, is always made in favour of the cultivators, it follows that many people dare not claim their rights through fear of considerable indemnifications being awarded them, and of being in turn expelled by others, who might attack them at the moment when they least expected." 32 But the idea predominated that the person who had actually settled down on the land was an effective citizen, doing his part in building up the state, and that the claimant who came along later was most likely a speculator who might not be even a citizen of the state but rather a person who for his own good reasons had stayed away from Kentucky while the region was beset by the British and the Indians-and only now drifting back because the dangers were gone. Henry Clay clearly showed his sympathy for the occupants who had fought for their lands and their state: "Can it be reasonably supposed that the people of that district, after winning the country by conquest, under circumstances of privation, 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 interrupted, brightened only by the gleams of their own chivalric daring and valorous achievement ; that such a people would consent to clear up 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 improvements were mak- ing, had remained as latent as their rights." 33
Liberal as this law was for the occupant, still there was a constant demand for further concessions. It became so strong and insistent that a further law was passed on the subject in 1812. As to be expected this law went still further in satisfying the clamor of the occupants. The improvements now need be neither lasting nor valuable in order to be charged against the claimant; the wastage and deterioration of the soil was not to be deducted from the value of the improvements; and the improvements made from the first occupation on up to the final judgment had to be paid for by the evicting claimant with the permission of deducting the rents and profits accruing from the time of the notice of the suit.34 Various amendments were made to this law in almost every session of the Legislature for a number of years. By a supple- mentary law passed in 1819, the occupant could not be evicted by a claimant until his crops had been gathered; but if the crops took up very little of the land, then the successful claimant might assume immediate possession.35 By an act passed during the following year an innocent purchaser was placed on the same plane as the original occupying claim- ant would have been.36
It was only natural that these laws should be bitterly attacked by claimants who had not yet settled on their lands and who on making the attempt found them already occupied. It was bitterly charged, and with the possibility of some foundation of fact, that the occupying claim- ant laws had been passed in order to afford litigation for the lawyers. It was said that without the baleful effect of these laws the land disputes would have been settled long ago. "But this would not have suited the nest of locusts which have been devouring the land for thirty years past
82 Michaux, Travels to the West, 227, 228.
33 "A Remonstrance to the Congress of the United States on the Subject of the Decision of the Supreme Court of the United States on the Occupying Claim- ant Low of Kentucky," House Document, No. 69, 18 Congress, 1 Session, Feb. 9, 1824, p. 48.
34 Green v. Biddle, 8 Wheaton 73, 74; McMaster, History of the People of the United States, V, 415; Acts of Kentucky 1811, Innes MSS., Vol. 28.
85 Acts of Kentucky, 1818, p. 761.
86 Acts of Kentucky, 1820, pp. 150, 151.
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by making laws to encourage litigation, whereby they have accumulated large fortunes, instead of being like myself. A Ploughman." 37
The same "Ploughman" declared that the most fantastic values were placed on improvements: "Apple trees no bigger than a man's arm, ten dollars; fences, half rotten, at the full price of making rails and putting up; clearing at from ten to twenty dollars per acre; log houses nearly ready to tumble down, at more than a stone or a brick house could be erected-all these are called permanent improvements." 38 He said he had knowledge of a case in Scott County where a claimant was awarded his land but the appraised value of the improvements was more than the land was worth and in fact was more than the price the land and the improvements, themselves, would bring on the market. The claimant tried to pay the costs and give the land to the occupant. This was refused with the result that he had to appeal his case to the Court of Appeals to secure the right to give his land away. These laws were defended with equal vehemence: "They were, from the multiplicity of conflicting claims to the lands within the State, of vital interest to its prosperity and repose. They were demanded no less by justice than policy ; they secured the honest but deluded occupant, who believed him- self proprietor, because he had been the purchaser of the land which he occupied, from the loss of the labor of his life, in case of eviction by a paramount title, and they had the sanction of the example of Virginia." 39
A case was not long in arising. In the United States Circuit Court for Kentucky a person named Green sued Biddle for the possession of a tract of land. The constitutionality of the occupying claimant laws speedily arose and the court certified the case up directly to the Supreme Court for a decision. The case was argued during the February term of 1821, and a unanimous decision was handed down that the occupying claimant laws were unconstitutional because they violated the compact that had been entered into between Kentucky and Virginia when they separated preparatory to the former becoming a member of the Union. The third article of the compact was specifically cited : "That all private rights and interests of land within the said district, derived from the laws of Virginia, prior to such separation, shall remain valid and secure under the laws of the proposed state, and shall be determined by the laws now existing in this state." The effect. of the Kentucky laws was to make the claimant, Kentuckian, Virginian, or whoever he might be, pay for certain improvements that had been made on his land whether he wanted them or not. This was clearly a greater burden than the laws of Virginia at the date of separation required. It was no argu- ment to say that no rights to the land had been disturbed, that only the remedy had been affected. The changed remedy really impaired the right. "Whatever law, therefore, of Kentucky," the court said, "does narrow these rights and diminish these interests, is a violation of the compact, and is consequently unconstitutional." 40 The opinion of the court was delivered by Justice Story on March 5. Five days later Henry Clay, as a disinterested person advising the court (amicus curiae), moved for a rehearing, on account of the fact that the defense had not been repre- sented at all before the court, and that the interests of a large number of tenants were at stake. He believed that the court should not decide so important a case without first having heard the arguments for the de- fense.41 The court decided to grant a rehearing.
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