The daily union. [volume] (Washington [D.C.]) 1845-1857, 1851-02-01

original rule. il was cne year for movable and two
years Tor lmmoyeabe. But it operated most unjusty,
and was modified and repealed afterwards
This ancient law, the book, altered, that
Il required three years TO constitute title by prescrlp
uon OF things movable, and ten years for things lm.
movable, l the adverse party the country, and
twenty years, II absent out Of the country Now. sir,
il would seem 10 that before we ought TO adopt
principle OF this sort in an mponan, bill like This ought
to know, according TO the laws OF California, what
sntutes prescription rights between individuals |
fess 10 the gentleman from Missouri that am destitute
OF that information, and should be thankful 10 him IT.
upon the present OCCASION he would explain and show
us what these pescrpive rules between individuals
in California are, which he proposes apply be-
tween the government and individuals Is il one, it
ten, is it twenty years? know not see enough. how
ever In looking into Jusinian, to know that in Italy
these rules in reference 10 prescriptions have varied in
that country. know that the common law of prescrip
ton was "time from which the memory of man runneth
not to the contrary That the common-law idea of
prescription. But various State legislatures in this
have made various statutes OF limitation They have
difered-some fixing il at longer and some shorter
tmesome fixing the Limitation to years connect
ed with residence upon the land twenty years posses
sion without residence-some bringing down the mita
hon OF right TO one party, and some 10 another. Now
SIR as we are, in general terms, adopting rule OF pre-
scrpton it seems to me necessary TO have definite
Let us know precisely the length Of time which would
give right as against the government.
Mr. President will conclude by suggesting that the
section il stands really makes provision in regard
to this particular subject to great extent any pro-
vision ought to 80. The section, as i stands says
That the commissioners herein provided for, and the
any claim brourh, before them under the provisions Of This
act shall be governed by the treaty OF Guadalupe Hidago
the law Of nations the us usag and customs Of the g0U
ernnient from uhfch the claim is derived, NC.
Now it is manifest, il 10 me- from that express
sion, laws usages, and customs, that II there be any
law in California, or any law in New Mexico or Spain,
under which these titles 10 be set up are derived, ha,
would authorize possessory right for any limited time to
give complete title TO land it is provided for here
Whatever law under which these titles derived Sc
rIa thar,t hty
prescription, whether be by grant, whether be by pos
session for definite number OF years contradstn
guished from pre-empion- the memory OF man running
not to the conary-whaever it be, il it gives title
according to the laws of Spain, Mexico. California.
Why this section says shall be respected by the commits
sioners. And this relieves US, yon perceive from going
into the inquiry whether ten or twenty years shall
constitute the prescription necessary to confirm the title
as between individuals.
Now sir, | have these views upon the subject, and,
entertaining them cannot vote Tor the amendment un
less hear something further to show the proprety OF
applying it, 1t to the section already embraces
everything upon the subject that is necessary and that il
would be very dangerous to make the law between in
dvlduals, according TO the proposed amendment, the
law between the government and individuals There
is reason for this difference which ought 10 be respect
ed An individual is not in The habit of sleeping upon his
right He generally dilgen; and if some gets pos
session OF imnoveable estate that belongs TO him. the
promptings OF interest will induce him to be digent in
removing the who has of the property
No, SO IN regard to the government. What is every.
body's business all know has been said time of
nOUOdYS q
part Of the public domain, if it be irespassed upon and
possession taken of it, it is generally regarded
vdous for to OF the possessor or
to take any steps against him. We know how that APP
plies in the history OF our own country We therefore
perceive, regard to the action of the government is
nobodys business TO ous possessor In regard TO nd-
vdual possession however, there motives OF interest
which can operate upon man 10 make him act promptly
his rights. The difference therefore, is of such
palPable and striking kind that II has induced me TO
pause before consent 10 the proposition 10 put the
ernmen upon the same footing IN regard 10 prescription
which exists between individuals
Mr.. BERRlEN. Mr.. President desire 10 say but a
word two. The omission OF the provision IN relation
TO prescription, which was contained IN the several bills
which considered by the Judiciary Committee, was
the result of the debeauon OF that committee and was
sustained by unanimous voice, The committee pro-
ceeded upon the principle that had acquired this ter
nory under stipulation to protect the rights of private
property The law OF prescription, as between indlvd-
uas, which IT sought 10 Introduce into tins bill, was
not in conformity 10 the obligation OF the government as
stipulated by the treaty. nor did It conform to the action
of the government IN any previous territorial acquisition
The OF Mexico chose 10 rebel within the limits
of California and become citizens OF the United States
and they by that act entitled 10 protection in all
the rights which they would have had under the govern
ment IRON which they had derived their titles Becom
ing American citizens, they were entitled TO all the rights
which belong 10 other citizens OF the United States
Now, then, this law OF prescription between individual
and individual, which II is sought 10 introduce into this
bill, would have given 10 the citizens OF California
right which they would not have enjoyed under their own
government, If that government had continued over them
and it would have given them right which other cti
OF the United States did enjoy relates 10 titles
BY the civil law OF Spain and Mexico pre- scrpton
not be made against the government The very terms oil
individual prescription show its title 10 be inappcable
the government of the country Ten years actual
possession the presence OF adverse claimants twenty
the absence OF such adverse claimants and thirty
years under color without possession, would
give title by prescription II is obvious, therefore, that
from the very terms OF the sale by which prescription
provided for It could not apply TO the government Blu, all
writers upon the subject expressly say that prescription in
favor OF the individual against the government does
not exist Then, If this territory had remained the terri
tory OF the republic OF Mexico, the law OF prescription,
between individual and individual, could not have been
set up by these claimants All that stipulated for
that the rights which they had acquired nnder the gov
OF Mexico should be protected, notwithstanding
their transfer to the United States Well, then, If they
could be prescribed against the government If they
had remained Mexican citizens, ought they 10 be author
lied TO be prescribed agans, the United States having
recognise the principle which has been stated BY the
senator from kentucky that the United States, any
of the States, precluded in the statute OF lma-
top, unless it is expressly Otherwise provided Then,
States the claimants entitled to the benefit OF the law
of prescription between individuals and the govern
ment What asked for by this amendment is, that we
should give them something more than was stipulated by
the treay-somethiDg more American cluzens than
they could enjoy Mexican citizens, and something
more than we accord TO the citizens OF the United States
In this view of the subject the question was presented
to the Committee the judiciary, by them deliberately
considered. and by them unanimously decided.
But, MIR President, would ask what utility WILL then, |
result from the establishment Of such prncple--fron
an nnov alton upon the which have hereto
fore pursued BY the stpulatons OF the treaty. well
as by the principles of the law OF na,ons the rights OF
private property to be respected The decision OF the
Supreme Court of the United States analogous cases
in arising territories acquired from the govern
~ SpaIn ha.n hat in IL .n.l