Guest Essayist: Andrew Langer

Green v. Biddle: Clear Title and the Relationship of States to the Federal Government

The easy conveyance of clear title to real property is an essential element of both a stable and prosperous civil society. “Clearing” title by conveying “unappropriated” lands to a central government is one way that fledgling or developing nations spur exploration, settlement, and development of lands.  Such was the issue in the 1823 Supreme Court Case, Green v. Biddle, 21 US 1 (1823), wherein the conveyance of certain unappropriated lands from Virginia to the federal government resulted in confusion when much of that land was used to create the state of Kentucky.

In 1784, Virginia ceded title of the land that was eventually to become the state of Kentucky to the Federal government—land that had been a part of Virginia since England’s King James I had granted the patent for what would become the Virginia colony.  As would become the standard whenever territories were going to become states, the agreement between Virginia and the federal government under Article 4, Clause 1 of the Constitution enumerated that the title to all unappropriated lands (ie, lands still held by the public) would convey from Virginia to the federal government, and that the manner of the patents and titles to privately held lands would remain unchanged:

“That all private rights and interests of lands within the said district [of Kentucky] 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 problem, of course, is that different states can, and do, approach various elements of property ownership different, and Kentucky passed a series of laws setting out new elements for property claims when the disputes arose between titles that had been granted by the state of Virginia and then those that were granted by the state of Kentucky.

The heirs to a gentleman named John Green sued a man named Richard Biddle in order to enforce their claims to land.  The high court found that Kentucky’s acts had been unconstitutional—that Virginia was well within its powers to negotiate that titles remain unchanged when the land was conveyed to the federal government for management and disposition.

In his seminal work, The Mystery of Capital, Peruvian scholar and economist, Hernando DeSoto goes into great detail as to the essential nature of clear title in the stability and prosperity of a fledgling society.  In fact, his research has concluded that one can draw a direct relationship between the clarity and security of a nation’s property laws and that nation’s economic prosperity and political stability.  As DeSoto points out, for instance, Haiti, despite massive international attention and interference remains a nation mired in poverty and political turmoil—and that this is in no small measure due to the fact that it takes a dozen or more years, on average, to acquire a parcel of private property, with more than one hundred separate steps involved and no guarantee that the courts will protect one’s claim.

If one cannot invest in one’s own property, if one doesn’t have a reasonable expectation to either own or hold onto their property, what reason is there for that person to invest in their own (or their nation’s) political or economic future, as DeSoto explains.

DeSoto spends a great deal of time discussing the mechanisms that made America’s successful westward expansion possible—and a major part of this was the clearance of title to the federal government for unappropriated public lands, and the recognition that titles would remain in force once a territory (or former colony) became a state.  This stability encouraged people to press westward, to invest in the improvements on their own property.  Absent such stability, no such expansion would have been possible.

Virginia, itself, had (and continues to have) unique property laws, which figured into the dispute between Green and Biddle.  Unlike most states, for instance, in which landowners adjacent to navigable bodies of water only have title to the “mean high water mark” for their land (more on this in the essay regarding Willson v Black Bird Creek), with the water being “owned” by the federal government and the beds under the water owned by the state governments, under many royal charters to land granted by King James I (and his successors) the landowners themselves retained ownership and title to stream beds and the waters therein.

Undoubtedly, when Kentucky became a state, it wanted to assert jurisdiction over the same aspects of property ownership that many of its sister states (save Virginia) retained.  And this gave rise to the very kinds of conflicts at issue in Green v. Biddle.  But thankfully, the Supreme Court recognized that shifting the aspects of ownership in a post-hoc basis would have created chaos among land-owners, and that Virginia was well-within its powers to specify that titles would remain constant once real property was conveyed to the federal government for the creation of a new state.

Presumably Professor DeSoto would agree, and the history of westward expansion seems to confirm it.

Green v. Biddle (1823) Supreme Court decision:

Andrew Langer is President of the Institute for Liberty and a Senior Fellow with Constituting America

3 replies
  1. Barb Zack
    Barb Zack says:

    How America became America.. I did not know any of this. Enjoying this unknown part of United States History!

  2. Publius Senex Dassault
    Publius Senex Dassault says:

    Very interesting. Thank you for not only explaining the case and decision, but also the research by Professor Desoto. I had never thought about it, but once explained it is perfectly logical that countries without clear property laws do not and cannot prosper.

    Makes one ponder the recent SCOTUS decision in Connecticut to expand Eminent Domain to not only cover items such as roads, but also seize land and homes from owners and give it commercial developers to build shopping centers and malls. A decision that is as despicable and spurious today as the day it was announced.


  3. Jami Duvall, M. A.
    Jami Duvall, M. A. says:

    It is incorrect to say that Hernando de Soto would have approved of this interpretation. He says that the solutions were always political rather than legal. He cites the Green v. Biddle case to show that Kentucky was correct and it is well known the the Supreme Court itself was forced to retract the decision. “Kentucky had a still sharper grievance in the decision in Green vs. Biddle, 8 Wheaton, 1, which invalidated a policy she had been pursuing for nearly a quarter of a century with reference to squatters’ holdings . . . . he [Justice Marshall] had roused Kentucky’s wrath by the pedantic and, as the Court itself was presently forced to admit, unworkable decision in Green vs. Biddle.” Edward S. Corwin. John Marshall and the Constitution: A Chronicle of the Supreme Court. ed. A. Johnson. Yale University Press. 1919; Oxford University Press. 1920. cap. 7. Kentucky refused to abide by this terrible decision, and was followed in this by at least 35 other states in the West.

    I am glad people are still talking about de Soto’s very important book.

    With all best wishes,

    Jami Duvall, M. A.
    Big Bone, Kentucky
    Nec ossa solum, sed etiam sanguinem


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