was an action of ejectment. Court below directed the jury to find a special verdict, upon which a judgment was entered for the defendant.

Two questions are presented by the record; first, whether the plaintiff's action is not barred by the Statute of Limitations; and, second, the constitutionality of the act of March 26,1856, entitled “ an act for the protection of actual settlers, and to quiet land-titles in this state,"so far as the same requires a party, recovering possession of lands in an action of ejectment, to pay the defendant the value of his improvements. On the trial of the cause, the defendant set up possession for five years, under claim of an adverse title.

In the case of Billings v. Harvey & Tibbetts, decided at the October Term, 1856, we had occasion to examine the sixth section of the act of April, 1855, limiting the time of commencing actions for the recovery of real estate to five years, and we then held, that the act of 1855 repealed the sixth section of the act of 1850, and that the time only commenced to run from the date of the last act. How, the first act was passed on the twenty-second of April, 1850, and the last one on the eleventh of April, 1855. The time commenced to run, under the first statute, from the date of its passage, and the full measure of five years had not expired, on the repeal of the old law, by eleven days; so that the bar had not occurred before the repeal of the statute.

The learned counsel for the respondent, however, contend that the decision referred to cannot affect this case; that the amendment could not have a retrospective action, or divest rights which had become fixed and vested under the old law.

The error of this argument, as we conceive, consists in a misapprehension of the true object of the Statute of Limitations. These statutes have been properly denominated statutes of repose, because the law, for the purpose of preventing litigation, has wisely determined that there should be some period affixed, beyond which a party ought not be allowed to assert stale demands, and that the presumption of payment or of title ought to *4 arise after he had neglected to assert his right for a certain length of time.

Much learning has been exhausted upon this subject by the Courts of England and the United States, the result of which may be thus briefly stated: That statutes of limitation are designed to affect the remedy, and not the right, or contract; that they do not enter into the contract as ajpart of the law thereof; and that it would be inconsistent flrith sound morality and wise legislation, to suppose that it was evep intended, that when a party gave his obligation to pay a 'particular debt, he was presumed to have had in his mind a particular period of time, beyond which, if he protracted his obligation, his liability would cease. If it be true, (and there can be no doubt of the correctness of this proposition,) that these statutes only affect the remedy, and do not destroy the right, then it follows, as a necessary consequence, that' the Legislature may, by a repeal of the act, revive the right which has not been extinguished, but has been in abeyance for want of a remedy to assert it. There may be some apparently contradictory decisions, but they will be found, on examination, to result from the particular phraseology of the laws under which they arise.

The cases cited from Louisiana and Texas, arose under the doctrine of prescription, which obtained in those States, and which differs materially from statutes of limitation. Prescription is defined by civilians to be a “ right by which a mere possessor acquires the property of a thing which he possesses by the continuance of his possession during the time fixed by law. The prescription by which debts are released, is a peremptory and perpetual bar to every species of action, real or personal, when the creditor has been silent for a certain time without urging his claim.” So that the difference between statutes of limitation, as they are known to Courts of common law, and the law of prescription, consists in this : That the one confers a right, and the other takes away a remedy. This difference has led to the adoption of different rules in the computation of time, where the old law has been repealed, and a new one enacted; and the Supreme Court of Louisiana, following the decision of the Court of Cassation in France, has held, in the case of Goddard’s Heirs v. Urguharb, 6th La. Rep., “ that where the law is changed after the prescription begins to run, the time which elapsed under the law preceding the alteration, is to be computed according to that law, and that which follows is to be computed according to the new law, and the time acquired under the old law is to be added to that acquired under the new law, in the proportion that each time bears to the term required by the old and new laws.”

In the case of Gautiers v. Franklin, the Supreme Court of Texas has gone further, and held, that where the old law had been repealed, and a new one enacted one year after such repeal, *5 the time elapsing between the two acts migh^also be computed. This decision does not recommend itself in any manner to our approbation, and could not be maintained, onprinciple, in any respectable Court in the United States. The case of Ross et al. v. Duval, 13 Pet., is not in point. There, the statute had run the full time. The question was, whether the United Stateq Courts should enforce the statute of the State. After the statute had been running for seven years, it was adopted by process act of Congress, and it was made the duty of the United States Courts to enforce it. The opinion of the Judge, who delivered the decision of the Court upon the rule as to the computation of time, may be regarded as mere dictum, and is not sustained by reason or authority. See The Trustees, etc., v. Chamberlain et ah, 14 Illinois Rep., 495, and Gillman v. Cutts, 3 Foster N. H., 376.

Having thus, as we conceive, successfully demonstrated that acts of limitation affect the remedy, and not the right, and that they have no retrospect beyond their passage, we will proceed to consider the second proposition involved in this case.

This question is not free from embarrassment, not on account’ of any doubts we have upon the subject, treating it as purely a legal question, but because it has heretofore entered largely into the polities of this State, and become a most fruitful source of private animosity, and public discord. In addition to this, the reports of many of the States of this Union are filled with decisions seemingly sustaining the constitutionality of such a law, while, in fact, those decisions, for the most part, were predicated upon local statutes, which differ, toto ccelo, from the one now under investigation.

It has been contended that the act of 1855 violates that provision of the Federal Constitution which prohibits the State from passing laws impairing the obligations of contracts; that such contracts may be express or implied, executed or executory, and that there is, as between a State and its citizens, an implied contract for the protection of rights and property, antecedently ac-1 quired.

We are not disposed to give much weight to this argument. We think it springs from a misconception of the true relation that exists between the State and Federal governments; that the State governments have the exclusive right to regulate their own internal or domestic affairs, except when they have exjiressly parted with the power; that all questions of property are within the jurisdiction of the respective States, and that the individual members thereof, in forming a government, are not to be considered as contractors with the government thereby ordained, in the sense in which that term is employed in the Constitution of the United States. It is but fair to suppose that individuals who sacrifice, or part with, a portion of their natural rights for *6 the common good' of all, have just reason to believe that the rights reserved will be respected or maintained inviolate, but this agreement is a sócial compact, and not stricti juris a contract.

Whether a Legislature can pass laws which would operate to \ divest these reserved rights, and which would be obnoxious to ' the plainest principles of justice and morality, is a question upon which there is much diversity of opinion, and which we propose to examine in connection with the case before us. Suffice it to say, that so far as it is sought to bring this law within the scope of the constitutional inhibition of the United States, we know of no decisions which would support the proposition, except those made by the Supreme Court of Tennessee, and we cannot give our sanction to the reasoning of those cases.

It is, however, contended, that the act of the Legislature violates the provisions of the treaty of Guadalupe Hidalgo. By reference to the ninth article of that instrument, it will be observed that the United States only undertakes to maintain Mexican citizens in their rights of property, etc., until the admission of the territory as a State, after which period it was well understood that they must hold their property in subordination to the Constitution and laws of said State. If this treaty, or if the Constitution of the United States, could be held to apply to laws like the present, it is apparent that the rule must be extended further, and that all legislation touching the property, or affecting the rights of the citizen, might be successfully attacked, and that State sovereignty would become, in point of fact, but another name for State imbecility.

Having premised, thus far, with regard to the act, so far as it is supposed to conflict with the Federal Constitution, we come now to inquire whether it can be upheld under the Constitution of this State. Section first of Article I of the Constitution of California, declares that “ all men are by nature free and independent, and have certain inalienable rights, amongst which are u those of enjoying and defending life and liberty, acquiring postsession, protecting property, and pursuing and obtaining safety and happiness.” This principal is as old as the Magna Charta. It lies at the foundation of every constitutional government, and is necessary to the existence of civil liberty and free institutions. It was not lightly incorporated into the Constitution of this State as one of those political dogmas designed to tickle the popular ear, and conveying no substantial meaning or idea; but as one of those fundamental principles of enlightened government, without a rigorous observance of which there could be neither liberty nor safety to the citizen.

If, then, one of the primary objects of government is to enableX the citizen to acquire, possess, and defend property, and this) right has been guarantied by the Constitution, how can it be impaired by legislation ? It will not be denied that the Legis *7 lature possesses uncontrolledpower over the subject of the remedy or process of her Courts, but when the remedy is so altered as to affect the right, then it becomes a question, how far such legislation is legitimate, the only question of difficulty being, in many cases, to draw the line of demarkation between the right of property and the remedy. A right to land, in its broadest sense, implies a right to the possession, and the profits accruing therefrom, since without the latter the former can be of no value. Thus, a devise of the profits of land, or even a grant of them, will pass a right to the land itself. Shep. Touch., 93; Coke on Lit., 4 B. “ For what,” says Lord Coke, “ is land, but the profits thereof?” At common law, the owner of the soil held to an indefinite extent both upwards and downwards, (“ cujus est solum, ejus est usque ad cmlum,” is the maxim of the law—2 Black., p. 8,) and every erection or improvement upon the soil became at once a part of the freehold, which could not be removed by the intruder, who became, in fact, liable as a trespasser, no matter what was the value of his improvements. So that where a party recovered in an action of ejectment, he was entitled not only to the improvements that had been made on his land, but had also his action for mesne profits.

It may, however, be contended, that the statute under consideration follows the rule adopted by Courts of Chancery, and that the principles of equity jurisprudence on this subject are the same as those embodied in the act. This suggestion is ably answered by Judge Whyte, in the case of Helson v. Allen and Harris, 1 Yerger, which was a case arising under a similar statute to that of this State.

See also the case of Green v. Biddle, 8 Wheaton, before cited.

*9 Aside from the exceptions enumerated in the foregoing decisions, which all proceed upon the doctrine of-agsensable ignorance on the part of the occupant, or culpable..silence diTTohe parTof the real owner, it will be hard to find any plausible reason why the owner of land should be charged with the value of improvements, neither authorized nor desired by him.

Again, say the Supreme Court of the United States, in 4 Peters, 110 , “ There is no moral obligation which should compel a man to pay for improvements on his own lands, which he never authorized, and which originated in a tort.” Having thus established the proposition that, both at law and equity, the lawful owner who has been dispossessed of land is entitled, upon a recovery, both to the profits and the improvements that have been made thereon, and such having been the law of this State, since the adoption of the Constitution down to the passage of the act of 1856, let us examine how far it trenches upon the principles of natural justice, and the provisions of the Constitution.

The act does not discriminate between an innocent and a tortious possession. It is not an attempt to avoid a circuity of action, by providing for an equitable adjustment of the whole subject in one suit; it applies as well to the trespasser who has made unlawful and violent entry upon the lands of another, as to him who has used diligence to ascertain his neighbor’s right, and whose conduct has been marked by good faith and fair dealing. It applies as well to past as future cases. That which, before, was mine, is by this act taken from me, either in whole or in part, for if I refuse to pay for the improvements which were put upon my land by a mere trespasser, and which were mine by the law, before the passage of the statute, I lose not only the improvements, but the land itself, and that which is mine today, may be taken from me to-morrow, by any intruder who wishes to enter upon it.

“ Uothing can be more clear, upon principles of law and reason, than that a law which denies to the owner of land, a reme *10 dy to recover the/possession of it, when withheld by any person, however innocently, he may have obtained it; or to recover the profits received from it by the occupant; or which clogs his recovery of such possession and profits, by conditions and restrictions tending to diminish the value and amount of the thing recovered, impairs his right to, and interest in, the property. If there be no remedy to recover the possession, the law necessarily prespines a want of right to it. If the remedy afforded be qualified /and restrained, by conditions of any kind, the right of the owner may indeed subsist, and be acknowledged, but it is impaired, and rendered insecure, according to the nature and extent of such restrictions.” 8 Wheaton, 75 .

Such legislation is repugnant to the plainest principles of morality and justice, and is violative of the spirit and letter of our Constitution. It divests vested rights, attempts to take the property acquired by the honest industry of one man, and confer it upon another, who shows no meritorious claim in himself.

It has been erroneously supposed, by many, that the Legislature of a State might do any act, except what was expressly prohibited by the Constitution. _Whether there is any rifada—. ^.tion upon legislative power, irrespective oí the Constitution.Aa_a question upon wine'll ethical and political writers" ¿ave differed. Many of the .ancient writers have based this claim of omnipotence upon the doctrine of the absolute and sacred character of sovereignty, assuming that princes bear rule by divine right, and not by virtue of the expressed or tacit consent of the governed. Some contend that the very existence of government • depends upon the supreme power being lodged in some branch of the government, from which there is no appeal, and, if laws are passed which are immoral, or violate the principles of natural justice, the subject is bound to obey them. Others contend that there are boundaries set to the exercise of the supreme sov-g ereign power of the State, that it is limited in its exercise by® the great and fundamental principles of the social compactffl which is founded in consent, express or implied; that it shall b called into existence for the great ends which that compact was designed to secure, and, hence, it cannot be converted into such an unlimited power, as to defeat the end which mankind had in view, when they entered into the social compact.

Among the advocates of the former system are Paley and Burke, and of the latter, Yattel and Locke. Locke contends “ that the great end of man’s entering into society being the enjoyment of property in peace and safety, and the great instrument and means of that being the laws established in that society, the first and fundamental positive law is the establishing of the legislative power; the first and fundamental natural law which is to govern the Legislature itself, is the preservation of the society, and so far as consistent with public good, every *11 person in it. While on the one hand, he concedes the doctrine that the legislative power is not only the supreme power of the commonwealth, but sacred and unalterable in the hands where the community have placed it, the edict of any, in what form soever conceived, or by what power soever backed, cannot have the force and obligation of a law without the sanction of the Legislature, which the public has chosen and appointed, and in whom the legislative power is invested by the consent of those for whom they are to legislate; on the other hand,he contends that though the legislative be the supreme power, it cannot possibly be absolutely arbitrary over the lives and fortunes of the people. For, it being but the joint power of every member of society, given up to that person or assembly which is the legislative, it can be no more than those persons had in a state of nature before they entered into society, and gave up their natural rights to the community; for nobody can transfer to another more power than he has in himself, and nobody has an absolute, arbitrary power over himself or over any other, to destroy his own life, or to take away the life or property of another. A man cannot subject himself to the arbitrary power of another, and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law gave him for the preservation of himself and the rest of mankind, this is all that he doth or can give to the commonwealth, and by it to the legislative power; so that the Legislature can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subject. Thus, the law of nature stands as an eternal rule to all men, binding upon legislatures as well as others. The fundamental law of nature being the preservation of mankind, no human sanction can be valid or good against it. That the legislative or supreme authority cannot assume to itself a power to rule by temporary arbitrary decrees; but is bound to dispense justice, and to decide the rights of the subject, by promulgated standing laws, and known authorized judges. To avoid the inconveniences which disorder men’s property in a state of nature, they unite in societies. The object of this union is, that they may have the united strength of the whole to secure and defend their property, and may have standing rules to bound it, by which every one may know what is his. It is to this end men give up their natural powers to society, which puts the legislative powers into such hands as they think fit with this trust; that they shall be governed by declared laws. Absolute -arbitrary powers, or governing without settled standing laws, can neither of them, consist with the ends of society and government ; and men would not quit the freedom of a state of nature, *12 and tie themselves up under a government, were it not to pre" serve their lives, liberty, and fortunes, by stated rules of right and property. It cannot be supposed that they should intend, had they the power to do so, to give any one or more an absolute, arbitrary power over their persons and estates. For this were to put themselves in a worse condition than a state of nature, wherein they had the liberty to defend their rights against the injuries of others, and were upon equal terms; whereas, by supposing that they have given up themselves to the absolute, arbitrary power of the legislator, they have disarmed themselves, and armed him to make a prey of them when he pleases. The supreme power cannot take from any man his property without his own consent, for the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires that the people should have property and be protected in it, without which they must be supposed to lose by entering into society, the very thing which was the end and design of the social compact to secure, and for the attainment of which they entered into it. If this position be true, it was fallacious to think that the supreme or legislative power of any commonwealth can do what it will, irrespective of the principles of natural justice, or dispose of the estates of the subjects arbitrarily, or divest vested rights at pleasure.”

In England, the doctrine of parliamentary omnipotence has often been asserted; but, notwithstanding the declaration of Lord Coke, “ that the power and jurisdiction of Parliament is so transcendental and absolute, that it cannot be controlled or confined, either for person, or cause, within any bounds,” it has been doubted by learned judges, whether an act which contravened the principles of natural justice could be upheld, and whether Parliament could make a man a judge in his own case. This doctrine has undergone some modification in England.

Whatever doubt may have formerly existed on this subject, the question has been settled, by an overwhelming weight of authority, in this country, that the spirit of free institutions is at war with such a principle.

In the case of Taylor v. Porter, 4 Hill, Judge Bronson, one of the ablest judges that has ever adorned the bench of this or any other country, after admitting the right to take private property for public use, held “ that there was no provision in the Constitution that just compensation Should be made to the owner, when his property is taken for private purposes. If the power exists to take the property of one man, and transfer it to another, it may be exercised without any reference to compensation. The power of making bargains for individuals has not been delegated to any branch of the government, and if the title of A can be, without his fault, transferred to B, it may as well be done without, as with consideration. This view of the question was sufficient to put them on inquiring where can the power be found to pass such a law as that under which the defendant attempted to justify ? It is not to be presumed that such a power exists, and those who set it up, should tell us where it may be found. Under our form of government, the Legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people; like other departments of government, it can only exercise such powers as have been delegated to it, and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the state, who transcends his jurisdiction, are utterly void.”

Where then shall we find a delegation of power to take the property of A and give it to B, either with or without compensation ?

Only one clause in the Constitution can be cited in support of the power, and that is the first section of the first article, where the people have declared that “the legislative power of the state shall be vested in a Senate and Assembly.” He admitted that the two houses, subject only to the qualified negative of the Governor, possessed all “the legislative power of the State;” but the question immediately presents itself, what is “legislative power,” and how far does it extend ? Does it reach the life, liberty, or property of the citizen, who is not charged with trans *14 gression of the laws, and where the sacrifice is not demanded by a just regard for the public welfare. The security of life, liberty, and property, lies at the very foundation of the social compact ; and to say that this grant of “ legislative pow'er ” includes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating one of the great ends for which governments were established. If there was not one word of qualification in the whole instrument, he should fee-1 great difficulty in bringing his mind to the conclusion that the clause under consideration had clothed the Legislature with despotic qjower; such is the extent of their authority, if they can take the property of A, either with or without compensation, and give it to B. “The legislative power pf the State does not reach to such an unwarrantable extent. Meither life, liberty, nor property, except when forfeited by crime, or when the latter is taken for public use, falls within the scope of this power.” -

In the case of Wilkinson v. S'idlm, 2 Peters, Judge Story says, “that government can scarcely ye deemed free where the rights of property are left solely dependent on the legislative body, without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred.” And Judge Mills, in Fisher v. Cockrell, 5 Monroe, says: “ It is so repugnant to the moral sense of every correct man, that the Legislature should delude, or intend to entice, the individuals of a community, by presenting to them rights against other individuals, under prescribed rules, and after the pursuit is undertaken and drawn to a close, at great expense, to snatch away the right and leave the pursuer to pay the cost of the pursuit, that it might be argued, and with some plausibility, that such a delegation of power was not within the terms of the compact, that it is a right never ceded to any department of the government by the people when. they gave the delegated powers which they have conferred by the Constitution.”

Other authorities might be cited to the same effect, but they are so numerous that it would require a volume to contain them. Having, as we think, satisfactorily established the doctrine, that the Legislature cannot pass a law divesting vested rights, we ^apprehend no difficulty in maintaining the proposition, that the Wt under advisement has this effect; and if a law which imposes upon a party, as a condition of the recovery of his property, payment for the improvements which were his already, or denies him the rents and profits of the land, can be upheld, then an act which divests the right entirely could be maintained, as we see no difference in the principle between taking a part and taking the whole.

Our attention has been called to numerous cases decided by *15 the tribunals of other States. We have examined them all, and without referring to them especially, believe that we are warranted in saying that there is no case to be found like the present; that the laws upon which those decisions were made provided alone for the case of a party who had entered innocently upon lands, believing he had a good title; that in some of these eases no constitutional objection was urged; that in many, it was not claimed that the law had a retrospective action; and that in none was it held that the Legislature could authorize one man to intrude upon the lands of another, or offer a premium to fraud and violence. The object of all the statutes which we have seen on this subject, was to allow the defendant the benefit of his equities in an action of ejectment, instead of driving him to a Court of Chancery.

The policy of most of the States has been to encourage settlejlment in good faith upon vacant lands as a means of developing (’agricultural interests, and the wisdom of that policy has manifested itself in the rapid growth of the West and South-west.

However desirable such a policy may be, and however necessary to the interest of this State, it ought not to be encouraged or maintained when founded in wrong and injustice to her citizens. It is a law as immutable as those of nature, that States and nations, like individuals, are bound to obey the principles of natural justice in all their dealings with their subjects and others, and while a seeming temporary prosperity may follow the infractions of this rule, the day of retribution must come as certainly as effect follows cause.

It has become common in our Courts to denounce titles similar to the one under which the plaintiff claims, and it is useless to disguise the fact, that they are unpopular with the people at large, owing, probably, to the circumstance that many grants have been forged for the purpose of covering improvements made in good faith; but this prejudice should be confined to such fraudulent grants, and ought not to be extended to all alike. The decisions of this Court prior to the decision of the Fremont case by the Supreme Court of the United States, have prevented the holders of bona fide titles from commencing suits for the recovery of their property, and it would be a great wrong to hold that they had lost their rights for not doing what the law had previously hold they could not do. In the present case, there is no pretence of fraud. The early pioneers of California, who encountered so many dangers and privations in settling this country and d eveloping its wealth and resources; who have laid the foundation of a new empire, and opened to the world a new :faid of wealth and enterprise, would have cause to complain of matice, and to denounce the fairness and policy of a government which took from them the honest acquisitions of toil and danger *16 to enrich, needy adventurers, upon the shallow pretext of policy, and under the false assumption of legislative omnipotence.

Judgment reversed, and new trial ordered.