Page:Stryker's American Register and Magazine, Volume 6, 1851.djvu/72

66 by the Judiciary Committee, was the result of the deliberation of that committee, and was sustained by a unanimous voice. The committee proceeded upon the principle that we had acquired this territory under a stipulation to protect the rights of private property. The law of prescription, as between individuals, which it was sought to introduce into this bill, was not in conformity to 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 citizens of Mexico chose to rebel within the limits of California, and become citizens of the United States, and they were by that act entitled to our protection in all the rights which they would have had under the government from which they had derived their titles. Becoming American citizens, they were entitled to all the rights which belong to other citizens of the United States. Now, then, this law of prescription between individual and individual, which it is sought to introduce into this bill, would have given to the citizens of California a right which they would not have enjoyed under their own government, if that government had continued over them, and it would have given them a right which other citizens of the United States did not enjoy, as it relates to titles. By the civil law of Spain and Mexico, prescriptions cannot be made against the government. The very terms of individual prescription show its title to be inapplicable as against the government of the country. Ten years' actual possession in the presence of adverse claimants, twenty years in the absence of such adverse claimants, and thirty years' possession under color without possession, would give a title by prescription. It is obvious, therefore, that from the very terms of the sale by which prescription is provided for, it could not apply to the government. But all writers upon the subject expressly say, that prescription in favor of the individual, as against the government, does not exist. Then, if this territory had remained the territory of the republic of Mexico, the law of prescription, as between individual and individual, could not have been set up by these claimants. All that was stipulated for was that the rights which they had acquired under the government of Mexico should be protected, notwithstanding their transfer to the United States."

Mr. Underwood of Kentucky remarked, that if he apprehended the amendment aright, it was the introduction of a new principle, to make the same limitation as applies to individual cases, apply as between citizens and the government.

"Heretofore the doctrine of common law was that prescription did not run against the king, unless it may be in his individual capacity, as contra-distinguished from his political capacity. That