And if the legislature cannot confiscate property or rights, neither can it authorize individuals to assume at their option powers of police, which they may exercise in the condemnation and sale of property offending against their regulations, or for the satisfaction of their charges for services and expenses in its management and control, rendered without the consent of its owners.1 And a stat

property of rebels, and for other purposes," was held to be unconstitutional, because it attempted to authorize the confiscation of the property of citizens as a punishment for treason and other crimes, without due process of law, by proceedings in rem, in any district in which the property might be, without presentment and indictment by a grand-jury, without arrest or summons of the owner, and upon such evidence of his guilt as would be proof of any fact in admiralty or revenue cases. And the act being thus void, Congress had no power to prohibit the State courts from giving to the owners the relief they would be entitled to by State laws. See also Rison v. Farr, 24 Ark. 161; and Hodgson v. Millward, 3 Grant's Cas. 406.

1 The log-driving and booming corporations, which were authorized to be formed under a general law in Michigan, were empowered, whenever logs or lumber were put into navigable streams without adequate force and means provided for preventing obstructions, to take charge of the same, and cause it to be run, driven, boomed, &c., at the owner's expense, and it gave them a lien on the same to satisfy all just and reasonable charges, with power to sell the property for those charges and for the expenses of sale, on notice, either served personally on the owner, or posted as therein provided. In Ames v. Port Huron Log-Driving and Booming Co., 11 Mich. 147, it was held that the power which this law assumed to confer was in the nature of a public office; and Campbell, J., says: "It is difficult to perceive by what process a public office can be obtained or exercised without either election or appointment. The powers of government are parcelled out by the constitution, which certainly contemplates some official responsibility. Every officer not expressly exempted is required to take an oath of office as a preliminary to discharging his duties. It is absurd to suppose that any official power can exist in any person by his own assumption, or by the employment of some other private person; and still more so to recognize in such an assumption a power of depriving individuals of their property. And it is plain that the exercise of such a power is an act in its nature public, and not private. The case, however, involves more than the assumption of control. The corporation, or rather its various agents, must of necessity determine when the case arises justifying interference; and having assumed possession, it assesses its own charges; and having assessed them, proceeds to sell the property seized to pay them, with the added expenses of such sale. These proceedings are all ex parte, and are all proceedings in invitum. Their validity must therefore be determined by the rules applicable to such cases. Except in those cases where proceedings to collect the public revenue may stand upon a peculiar footing of their own, it is an inflexible principle of constitutional right that no person can legally be divested of his property without remuneration, or against his will, unless he is allowed a hearing before an impartial tribunal, where he may contest the claim set up against him, and be

ute which authorizes a party to seize the property of another, without process or warrant, and to sell it without notification to the owner, for the mere punishment of a private trespass, and to enforce a penalty against the owner, is unwarranted and void.1

Limitation Laws.

In this connection it may be proper to speak of limitation laws, which sometimes result in depriving a person altogether of his property, and yet are in strict conformity with the law of the land, allowed to meet it on the law and the facts. When his property is wanted in specie for public purposes, there are methods assured to him whereby its value can be ascertained. Where a debt or penalty or forfeiture may be set up against him, the determination of his liability becomes a judicial question; and all judicial functions are required by the constitution to be exercised by courts of justice, or judicial officers regularly chosen. He can only be reached through the forms of law upon a regular hearing, unless he has by contract referred the matter to another mode of determination."

1 A statute of New York authorized any person to take into his custody and possession any animal which might be trespassing upon his lands, and give notice of the seizure to a justice or commissioner of highways of the town, who should proceed to sell the animal after posting notice. From the proceeds of the sale, the officer was to retain his fees, pay the person taking up the animal fifty cents, and also compensation for keeping it, and the balance to the owner if he should claim it within a year. In Rockwell v. Nearing, 35 N. Y. 307, 308, Porter, J., says of this statute: "The legislature has no authority either to deprive the citizen of his property for other than public purposes, or to authorize its seizure without process or warrant, by persons other than the owner, for the mere punishment of a private trespass. So far as the act in question relates to animals trespassing on the premises of the captor, the proceedings it authorizes have not even the mocking semblance of due process of law. The seizure may be privately made; the party making it is permitted to conceal the property on his own premises; he is protected, though the trespass was due to his own connivance or neglect; he is permitted to take what does not belong to him without notice to the owner, though that owner is near and known; he is allowed to sell, through the intervention of an officer, and without even the form of judicial proceedings, an animal in which he has no interest by way either of title, mortgage, pledge, or lien; and all to the end that he may receive compensation for detaining it without the consent of the owner, and a fee of fifty cents for his services as an informer. He levies without process, condemns without proof, and sells without execution." And he distinguishes these proceedings from those in distraining cattle damage feasant, which are always remedial, and under which the party was authorized to detain the property in pledge for the payment of his damages. See also opinion by Morgan, J., in same case, p. 314-317, and the opinions of the several judges in Wynehamer v. People, 13 N. Y. 395, 419, 434, and 468.

and quite unobjectionable in principle.1 A limitation law fixes upon a reasonable time within which a party is allowed to bring suit to recover his rights, and, if he fails to do so, establishes a legal presumption against him that he has no rights in the premises. It is a statute of repose. Every government is bound in good faith to furnish its citizens all needful legal remedies; 2 but it is not bound to keep its courts open indefinitely for one who neglects or refuses to apply for redress until it may fairly be presumed that the means by which the other party might disprove the claim are lost in the lapse of time.3

When the period prescribed by statute has already run, so as to extinguish a claim which one might have made to property in the possession of another, the title to the property, irrespective of the original right, will be regarded as vested in the possessor, so as to entitle him to the same protection that the owner is entitled to in other cases. A subsequent repeal of the limitation law could not be given a retroactive effect, so as to disturb this title.1 "The right being gone, of course the remedy fell with it; and as there could be no remedy without a corresponding right, it was useless for the legislature to restore the former, so long as it was prohibited by the constitution from interfering or meddling with the latter." 5

All limitation laws, however, must proceed upon the idea that the party, by lapse of time and omissions on his part, has forfeited his right to assert his title in the law. Where they relate to

That they should receive a favorable construction, see Leffingwell v. Warren, 2 Black, 599; Bell v. Morrison, 1 Pet. 360.

Call v. Hagger, 8 Mass. 430.

Stearns v. Gittings, 23 Ill. 387; Beal v. Nason, 2 Shep. 344; Bell v. Morrison, 1 Pet. 360.

* Brent v. Chapman, 5 Cranch, 358; Newby's Admrs. v. Blakey, 3 H. & M. 57; Parish v. Eager, 15 Wis. 532; Bagg's Appeal, 43 Penn. St. 512; Leffingwell v. Warren, 2 Black, 599. But see Swichard v. Bailey, 3 Kansas, 507.

* Knox v. Cleveland, 13 Wis. 249; Sprecker v. Wakelee, 11 Wis. 432; Hill v. Kricke, 11 Wis. 442; McKinney v. Springer, 8 Blackf. 506; Stipp v. Brown, 2 Ind. 647; Wires v. Farr, 25 Vt. 41; Davis v. Minor, 1 How. (Miss.) 183; Holden v. James, 11 Mass. 396; Lewis v. Webb, 3 Greenl. 326; Woart v. Winnick, 3 N. H. 473; Martin v. Martin, 35 Ala. 560; Briggs v. Hubbard, 19 Vt. 86; Thompson v. Caldwell, 3 Lit. 137; Wright v. Oakley, 5 Met. 400; Couch v. McKee, 1 Eng. 495; Atkinson v. Dunlap, 50 Me. 111.

• Stearns v. Gittings, 23 Ill. 389, per Walker, J.; Sturgis v. Crowninshield, 4 Wheat. 207, per Marshall, Ch. J.; Pearce v. Patton, 7 B. Monr. 162; Griffin v. McKenzie, 7 Geo. 163.

1

property, it seems not to be essential that the adverse claimant should be in actual possession; but one who is himself in the legal enjoyment of his property cannot have his rights forfeited to another by failure to bring suit against that other within a time specified, to test the validity of a claim which the latter may make, but has yet taken no steps to enforce. It was therefore held that a statute which, after the lapse of five years, made a tax deed conclusive evidence of a good title, could not be valid as a limitation law against the original owner in possession of the land. Limitation laws cannot compel a resort to legal proceedings by one who is already in the complete enjoyment of all he claims.2

All statutes of limitations, also, must proceed on the idea that the party has had opportunity to try his right in the courts. A statute which should bar the existing right of claimants without affording this opportunity, after the time when the statute should take effect, would not be a statute of limitations, but an unlawful attempt to extinguish rights, whatever it might purport to be by its terms. It is essential that they allow a reasonable time after they are passed for the commencement of suits upon existing causes of action; though what shall be considered a reasonable time must be determined by the legislature, into the wisdom of

1 Stearns v. Gittings, 23 Ill. 389; Hill v. Kricke, 11 Wis. 442.

2 Groesbeck v. Seeley, 13 Mich. 329. In Case v. Dean, 16 Mich. 12, it was held that this statute could not be enforced as a limitation law in favor of the holder of the tax title in possession, inasmuch as it did not proceed on the idea of limiting the right to bring suit, but by a conclusive rule of evidence sought to pass over the property to the tax claimant in all cases. The case of Leffingwell v. Warren, Black, 599, is contra. That case purports to be based on Hill v. Kricke, 11 Wis. 442; but there the holder of the original title was not in possession, and it was only held not necessary for the holder of the tax title to be in possession in order to claim the benefit of the statute; ejectment against a claimant being permitted by law when the lands were unoccupied. This circumthat the person whose right is to be extinguished is not in possession — seems to us very important. How can a man be justly held guilty of laches in not asserting claims to property when he already possesses and enjoys the property? The maxim should apply here, "That which was originally void does not by mere lapse of time become valid."

stance

Price v. Hopkin, 13 Mich. 318; Call v. Hagger, 8 Mass. 423; Proprietors, &c. v. Laboree, 2 Greenl. 294; Society, &c. v. Wheeler, 2 Gall. 141; Blackford v. Peltier, 1 Blackf. 36; Thornton v. Turner, 11 Minn. 339; Berry v. Ramsdell, 4 Met. (Ky.) 292. In the last case, it was held that a statute which only allowed thirty days in which to bring action on an existing demand, was unreasonable and void. See also Auld v. Butcher 2 Kansas, 135.

whose decision in establishing a legal bar it does not pertain to the jurisdiction of the courts to inquire.1

Alterations in the Rules of Evidence.

It appears also that a right to be governed by existing rules of " evidence is not a vested right. These rules pertain to the remedies which the State gives to its citizens, and are not regarded as entering into or constituting a part of a contract, or as being of the essence of a right. They are therefore at all times subject to modification and control by the legislature, like other rules affecting the remedy;2 and the changes which are enacted may be made applicable to existing causes of action, even in those States where retrospective laws are forbidden. For the law as changed would only prescribe rules for presenting the evidence in legal controversies in the future, and it could not therefore be called retrospective, even though some of the subjects upon which it will act were in existence before. It has therefore been held in New Hampshire, that a statute which removed the disqualification of interest, and allowed parties to suits to testify, was not objectionable as applied to existing causes of action. So of a statute which modifies the common-law rule excluding parol evidence to vary the terms of a written contract. So of a statute making the protest of a promissory note evidence of the facts therein stated.5 These and the like cases will sufficiently illustrate the general rule, that the whole subject is under the control of the legislature, which prescribes such rules for the determination, as well of existing as of future rights, as in its judgment will most completely subserve the ends of justice.

1 Stearns v. Gittings, 23 Ill. 387; Call v. Hagger, 8 Mass. 430; Price v. Hopkin, 13 Mich. 318. But see Berry v. Ramsdell, 4 Met. (Ky.) 292.

Kendall v. Kingston, 5 Mass. 533; Ogden v. Saunders, 12 Wheat. 349; Per Marshall, Ch. J.; Fales v. Wadsworth, 23 Me. 533; Karney v. Paisley, 13 Iowa, 89; Commonwealth v. Williams, 6 Gray, 1; Hickox v. Tallman, 38 Barb. 608. Rich v. Flanders, 39 N. H. 323. A very full and satisfactory examination of the whole subject will be found in this case.

Gibbs v. Gale, 7 Md. 76.

Fales v. Wadsworth, 23 Me. 553.

• Per Marshall, Ch. J., in Ogden v. Saunders, 12 Wheat. 249; Webb v. Den, 17 How. 577; Delaplaine v. Cook, 7 Wis. 54; Kendall v. Kingston, 5 Mass. 534; Fowler v. Chatterton, 6 Bing. 258.