it has very little concern with equality of property, and frugality in living, or the varieties of soil and climate.a

Every person is entitled to be protected in the enjoyment of his property, not only from invasions of it by individuals, but from all unequal and undue assessment on the part of government. It is not sufficient that no tax or imposition can be imposed upon the citizens, but by their representatives in the legislature. The citizens are entitled to require, that the legislature itself shall cause all public taxation to be fair and equal in proportion to the value of property, so that no one class of individuals, and no one species of property, may be unequally or unduly assessed.

A just and perfect system of taxation is still a desideratum in civil government, and there are constantly existing well

a The sumptuary laws of ancient Rome had their origin in the twelve tables, which controlled the wastefulness of prodigals, and unnecessary expenditure at funerals. The appetite for luxury increased with dominion and riches, and sumptuary laws were from time to time enacted, from the 566th year of the city down to the time of the emperors, restraining, by severe checks, luxury and extravagance in dress, furniture and food. They were absurdly and idly renewed by the most extravagant and dissipated rulers; by such conquerors as Sylla, Julius Cæsar, and Augustus The history of those sumptuary laws is given in Aulus Gellius. b 2. c. 24. See, also, Suet. J. Cæsar, s. 43.

During the middle ages, the English, French, and other governments, were, equally with the ancient Romans, accustomed to limit, by positive laws, the extent of private expenses, entertainments and dress. Some traces of these sumptuary laws existed in France and Sweden as late as the beginning of the last century. Hallam on the Middle Ages, vol. ii. 287. Cotteau's View of Sweden. The statute of 10 Edw. III. entitled, statutum de cibariis utendis, was the most absurd that ever was enacted. It prescribed the number of dishes for dinner and supper, and the quality of the dishes. Dr. Adam Smith, in his Wealth of Nations, justly considers it to be an act of the highest impertinence and presumption, for kings and rulers to pretend to watch over the economy and expenditure of private persons.

founded complaints, that one species of property is made tò sustain an unequal, and, consequently, an unjust pressure of the public burthens. The strongest instance in this state, and probably in others, of this inequality, is the assessments of taxes upon wild and unproductive lands; and the oppression upon this description of real property has been so great as to diminish exceedingly its value. This property is assessed in each town, by assessors residing in each town, and whose interest it is to exaggerate the value of such property, in order to throw as great a share as possible of the taxes to be raised within the town upon the nonresident proprietor. The wild land, which the owner finds it impossible to settle, or even to sell, without great sacrifice, and which produces no revenue, is assessed, not only for such charges as may be deemed directly beneficial to the land, such as making and repairing roads and bridges, but for all the wants and purposes of the inhabitants. It is made auxiliary to the maintenance of the poor, and the destruction of wild animals; and the inhabitants of each town have been left to judge, in their discretion, of the extent of their wants. Such a power vested in the inhabitants of each town, of raising money for their own use, on the property of others, has produced, in many instances, very great abuses and injustice. It has corrupted the morals of the people, and led to the plunder of the property of non-resident landholders. This was carried to such enormous extent in the county of Franklin, as to awaken the attention of the legislature, and to induce them to institute a special commission, to inquire into the frauds and abuses committed under this power, and also to withdraw entirely from the inhabitants of new towns, the power raising money by assessments upon property, for the destruction of noxious animals. The ordinance of Congress, of the 13th of July, 1787,6 passed for the government of the

of

a L. N. Y. sess. 45. ch. 26 sec. 9. 10.-Ch. 126.

b Journals of the Confederation Congress, vol. xii. p. 58.

north western territory, anticipated this propensity to abuse of power, and undertook to guard against it, by the provision that in no case should any legislature within that territory tax the lands of non-resident proprietors higher than those of residents. There is a similar provision in the constitution of Missouri, and one still broader in that of the state of Illinois. It is declared, generally, in that of the latter state, that the mode of levying a tax shall be by valuation, so that every person should pay a tax in proportion to the value of his property in possession.

This duty of protecting every man's property, by means of just laws, promptly, uniformly, and impartially administered, is one of the strongest and most interesting of obligations on the part of government, and frequently it is found to be the most difficult in the performance. Mr. Humea looked upon the whole apparatus of government, as having ultimately no other object or purpose but the distribution of justice. The appetite for property is so keen, and the blessings of it are so palpable, and so impressive, that the passion to acquire is incessantly busy and active. Every man is striving to better his condition; and in the constant struggles, and jealous collisions, between men of property and men of no property, the one to acquire, and the other to preserve, and between debtor and creditor, the one to exact, and the other to evade or postpone payment, it is to be expected, especially in popular governments, and under the influence of the sympathy which the poor and the unfortunate naturally excite, that the impartial course of justice, and the severe duties of the lawgiver, should, in some degree, be disturbed. One of the objects of the constitution of the United States, was to establish justice; and this it has done by the admirable distribution of its powers, and the checks which it has placed on the local legislation of the states. These checks have

a Essays, vol. i. 35.

already, in their operation, essentially contributed to the protection of the rights of property.

Government is bound to assist the rightful owner of property, in the recovery of the possession of it, when it has been unjustly lost. Of this duty there is no question. But if the possessor of land took possession in good faith, and in the mistaken belief that he had acquired a title from the rightful owner, and makes beneficial improvements upon the land, it has been a point of much discussion, whether the rightful owner, on recovery, was bound to refund to him the value of those improvements. This was the question in the case of Green v. Biddle,a which was largely discussed in the Supreme Court of the United States, and which had excited a good deal of interest in the state of Kentucky. The decision in that case, was founded upon the compact between the states of Virginia and Kentucky, made in 1789, relative to lands in Kentucky, and therefore it does not touch the question I have suggested. The inquiry becomes interesting, how far a general statute provision of that kind is consistent with a due regard to the rights of property. The Kentucky act declared that the bona fide possessor of land should be paid, by the successful claimant, for his improvements, and that the claimant must pay them, or elect to relinquish the land to the occupant, on being paid its estimated value in its unimproved state.

By the English law, and the common law of this country, the owner recovers his land by ejectment, without being subjected to the condition of paying for the improvements which may have been made upon the land. The improvements are considered as annexed to the freehold, and pass with the recovery. Every possessor makes such improve ments at his peril. But if the owner be obliged to resort to Chancery for assistance, in the recovery of the rents and profits, Lord Hardwicke once intimated, in Dormer v. For

a 8 Wheaton, 1.

b Frear v. Hardenbergli, 5 Johns. Rep. 272:

tescue,a that the rule of the civil law, which is stronger than the English law, would be adopted, and consequently the bona fidei possessor would be entitled to deduct the amount of his expenses for lasting and valuable improvements, from the amount to be paid, by way of damages, for the rents and profits. The same intimation was given in the Court of Errors, in this state, in Murray v. Gouverneur ; and that in the equitable action at law, for the mesne profits, the defendant might have the value of his improvements deducted by way of set off. These were extra-judicial dicta; and there is no adjudged case, professing to be grounded upon common law principles, and declaring that the occupant of land was, without any special contract, entitled to payment for bis improvements, as against the true owner, when the latter was not chargeable with having intentionally laid by and concealed his title. We have a statute in this state relative to lands, in what was formerly called the military tract, which declares, that the settler on those lands, under colour of a bona fide purchase, should not be devested of his possession or recovery, by the real owner, until the former had been paid the value of his improvements made on the land, after deducting thereout a reasonable compensation to the owner for the use and occupation of the land. This act is as broad, and liable to the same objections that have been made against the Kentucky statute. There are similar statute provisions in Massachusetts and New-Hampshire. So far as the act in the latter state was retrospective, and extended to past improvements made before it was passed, it has been adjudged in the Circuit Court of the United States for the District of New-Hampshire to be unconstitutional; inasmuch as it devested the real owner of a vested title to

a 3 Atk. 134.

b 2 Johns. Cases, 441.

c L. N. Y. April 8th, 1813, ch. 80.

d Jones v. Carter, 12 Mass. Rep. 314. Withington v. Corey, 2 No H. Rep. 115.