1

This act

1st. "An act to reduce into one the several acts concerning mill dams, and other obstructions in water courses." has only fourteen sections, and five pages.

2d. "An act to reduce into one, the several acts concerning wills, the distribution of intestates' estate, and the duty of executors, and administrators." Fourteen pages and fifty-eight sections, comprehend this act: which like the preceding, has no repealing clause. Whether such acts simplify, or complicate, the legal code, can hardly be a question.

The following is an original--"An act making an additional compensation, to the secretary of state, and certain other officers of government."

This act declares that the salary of the secretary shall be two hundred pounds annually-and that there shall be allowed to the auditor, register, and treasurer, fifty pounds each annually, in addition to their present salaries.

"An act concerning occupying claimants of land." This is the title of an act, which 'passed the house of representatives in 1794, but was rejected in the senate then, and each succeeding year, till now. But the senate had undergone a change, by an election in the last year; by which it had been imbued with much of the popular feeling on this subject, and to that it now yielded its former opposition.

This act will be found in its preamble, to depict the state of the country as to conflicting claims to land; and the consequent occurrence to those who had settled and improved the land as their own, of being evicted from it, by the establishment of a better claim; but who nevertheless, being subject by the rules of law, to account for rents, and profits, were equally upon principles of equity, entitled to be paid for improvements put upon the soil. In fact, the two modes of proceeding, the one by ejectment, where the party out of possession had the elder legal title the other, by bill in chancery, where the occupant had the older patent, were in use. In the cases upon bills, if the chancellor decreed against the occupant, he ordered commissioners, to take an account of the rents and profits on the one side, and of the improvements on the other; and to state them in a report to the court, on which it decreed, according

to equity. But if the process was by declaration in ejectment, and judgment against the occupant, he was subject to be put out of possession--made account for rents and profits--and to get nothing for his improvements: unless indeed, he filed his bill with the chancellor, of whose jurisdiction there was much reason to doubt, in the then state of the law, and thus got an injunction, to stay the writ of possession, until the matter of rents, and improvements could be settled. This would be circuitous, dilatory, expensive, and troublesome. But could the court of chancery have entertained a bill of the kind supposed? One principal object of which was, to turn the trespasses (for such they were in the eye of the law) of the occupant, in rela tion to improvements, into equitable claims, or offsets, against the legal demand of the holder of the elder title, for rents, &c.: another object was, to reduce those legal demands into so many items of account to be adjusted by the chancellor, or his, commissioner. The jurisdiction might, as it has been suggèsted, well be doubted. When a party goes into chancery, in order to obtain relief, he is required to exhibit a demand on the defendant, if not founded on law, at least founded on equity, not inconsistent with law, or the lawful rights of the defendant. The only exceptions to this general rule, are founded on fraud, accident, or mistake: none of which appertain necessarily to the occupant of land, under a bad title. Yet according to the plain sense of such men as cultivate the soil; and according to the feeling, and understanding, of the country, as early as 1794, the man, who under a claim derived from the public records, settled and improved land, should another evict him by better right, was thought, accounting for injuries, to have a just claim for ameliorations; on these principles, to avoid multiplicity of suits, and to place the adjustment of the recip rocal claims of the parties on the same footing, whether the title was tried at law, or in chancery, was the bill under observation, framed and introduced into the house of representatives, in the year last alluded to; its subsequent history to the time of its becoming a law, and fourteen years' practice on it, without alteration, may be considered as evidence of its utility, and of C*

VOL. II.

its receiving the general approbation of the public. In fact, had it never been amended, it is believed, that the right in the legislature to pass it, never would have been questioned. Of course it never would have been declared unconstitutional, with that of 1812, which was substituted for it; and Kentucky would have escaped her present unpleasant dilemma, with the supreme court of the United States; who have pronounced her occupying claimant laws contrary to the compact of separation with Virginia; and therefore nullities. Far from admitting the correctness of this decision of the court, as from approving of the acts of 1812, and 1820, it is intended, in chronological order, to pay particular attention to each. It may suffice for the present to say, that the right of the legislature to pass the first act, was questioned coeval with its introduction into the house of representatives. James Hughes, Esq. a lawyer of eminence, and then a member, opposed to its passage, among other objections, alleged, that it was a violation of the compact of separation, which had been adopted as a part of the constitution; and which 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 which of course precluded all legislation on the subject.”

To this, it was replied by Mr. Marshall, who introduced the bill, "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 subjecting Jands 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 thre 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 de, rivation of claims to land, 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 adjusted, 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' right or interests in the land itself; but solely concerning its occupancy, and the mutual demands of rents on the one side, and for improvements 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 cannot be adjusted where the proceeding is at law; as in case of ejectment. Now the purpose of the bill, is to extend the principles of equity 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 in 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 decision was at law, or in chancery. Cannot the legislature do this? Can it not resolve by law, an equitable principle into a statutary provision? Then neither can it alter any part of the common law. Doctrines to which I cannot subscribe. But holding that the Jegislature can do all that the bill proposes to do that it is a proposition too plain to need further argument; and considering the objections of the gentleman answered, I am willing to submit the bill to the house." Which being done, there were eight votes against it; according to present recollection, the rest, a very abundant majority, in its favour.

An act of this legislature abridged the sovereign rights of the people, by forbidding them to choose for sheriff, any person

who has not obtained a quietus from the auditor of public accounts, for all taxes due while such person was sheriff. Alleging for cause, their frequent delinquencies: and no less evincing the utter futility of relying upon the people to correct at their elections, abuses in the administration, by a circumspect appliçation of their votes.

That such portion of the people as are duly qualified including always, a large majority of the community who are best qualified, should choose the legislature, is essential to republican government; that even this select majority, should choose the executive, judicial, and administrative officers, by no means follows; but the very reverse is demonstrable. From the nature of men, their usual want of information as to the requisite qualities and qualifications, which fit men for these different offices; from the injurious effects of sympathy, between those who are to execute the laws, and those upon whom they are to be executed: a sympathy ever existing between the electors, and the elected; often giving rise to partialities, and odious distinctions in the execution of the laws, always an individual concern; contrary to the making of them, always a general concern, which prevents similar ill effects, from the like kind. of sympathy between law makers and their constituents.

The same conclusion will be the result of an inquiry into the nature, and use of government; one of its objects is, to impress an idea of its power, and superiority, by means of the constitution and laws, over those who are to be governed; and this can only be done by its visible organs; who for that reason should not be the dependants, and humble servants of the governed: another object should be, after making this line of partition visible, to render it permanent. The utility of govern. ment is lost, when the governors and governed, are confounded. On one side, the laws are perverted, or lose their force; on the other, impunity for official negligence, takes the place of responsibility; and hence a general relaxation.

Consult the history of popular governments, and these inferences, and conclusions, will be confirmed.

But although we read of republics in ancient times, there were none which served as models for the late British colonies,