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lished for securing that protection, none perhaps are more important to, or exercise a more beneficial influence on, the order of society, the security of property, and, through these, the happiness of its members, than those laws fixing a limit to the times within which those rights, when either violated or neglected, are to be asserted. These laws are the great security to people in their rights and possessions; without them no person could scarcely call any thing his own, nor be safe against claims that were not heard of perhaps for hundreds of years,

. . and as they are a necessary remedy for ascertaining men's rights, so they are founded on natural equity. The presumption is, that one who possesses for a long course of time, possesses by a just right, and that the old proprietor was duly denuded. And that one who ceases to make use of his right for a long term of years has renounced it, or that there was nothing truly due to him, and the law has rendered this, Præsumptio juris et de jure. These laws, in general, are founded in the nature of things, and conducive to the peace of mankind (a). In truth, the principle of legalizing possession, after a certain length of enjoyment, is the principle on which all property ultimately rests (6).

“ 'Tis the prerogative of Time, to make

Whate'er he touches precious."

Universality of this law.

Time, that old common arbitrator, the old justice, however, as such, says Grotius (c), has no power to produce anything, and nothing is done by time, though everything be done in time. But says Pufendorf(d),

no one can deny but that the consent of all nations, to which they were moved by the care of the common peace, might be able to assign some moral efficacy to

(a) 2 M‘Douall, Inst. Laws of Scotland, 182, 183,

(b) Per Lord Denman, 3 Gale

& D. 443.

(C) B. ii. c. iv, s. 1.
(d) B. iv. c. xii. s. 7.

the course of years, at least so far as that in process of time some certain presumptions and favours, on the side of persons in possession, should be granted to defend and confirm their right, though attributed to other causes than the bare time itself.

For though pure natural reason, and the agreement of all the world, do not fix any one point of time as the necessary condition of obtaining a future right, yet they might allow this effect to a space of very considerable extent and latitude.”

. And, after noticing the opinions of others as to the origin of this law, adds—“amongst these different opinions this seems to be clear and evident, that as the propriety of things was introduced out of a regard to the common peace, so it flows as a consequence from the same principle, that they who have been let into the possession of anything upon a fair and honest presumption, should, at length, be secured in the enjoyment of it; and that others should not be allowed to raise perpetual suits and quarrels about their title” (e). The same writer considers prescription as a corollary of property, and, by consequence, on property being first introduced, as being agreed upon by general consent for the sake of the public peace. Hence, in every civilized community, law of this nature, in a greater or less degree, has been established. “ It has been found," as has been eloquently said, “ in every part of the world, and in every civilized age.


It was familiar to the old tribunals of Athens-it was an important part of the imperial jurisprudence-it was spread wherever the imperial power extended—it was recognized throughout Europe; and after the French revolution, when the French law was being reconstructed in the Code Napoleon, there appeared this principle of prescription. Go east or west you find it recognized. You find it

(e) Puf. B. iv. c. xii. s. 9.

recognized in tribunals beyond the Mississippi. Go to countries which never heard the name of Justinian, and into which no translation of the Pandects has ever found its way, and there you will find the principle recognized and established as a sacred principle of legislation. The Hindoos even acknowledge it as a principle of legislation. And as to our own country, this principle was introduced into our law when first our law existed. It is found in the Statute of Merton, one of the first of our written acts, an act standing in the statute book next to the Great Charter and the Forest Charter, and the principle has been carried on and extended, and the law has been made more stringent by a succession of great legislators and great statesmen down to our own time. We have seen it advancing nearer and nearer to its full perfection, and we have found that where there were particular parts left unguarded great oppression and gross evil have been the result.

And when I look at a principle such as this—when I see it in the legislation of every

civilized country—when I find that there is a perfect agreement between it and the great body of laws framed by our ancestors, and forming part of the Great Charter —when I find it in the time of Justinian, under the imperial authority, among the Greeks, and among the pundits of Benares—how is it possible for me not to believe that some universal sense of a great good and a great evil has led men, by perfectly distinct paths, to one and the same conclusion ? Is it not perfectly clear that this principle of prescription is absolutely essential to the institution of property itself, that it rests on all the grounds on which property itself rests, and that if you take it away you produce the same kind of evil which is produced by a general confiscation ? Suppose you had no Statute of Limitations, so that any man amongst us might be liable to be sued on a bill

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of exchange accepted by his grandfather in 1760; or suppose you imagine the case of a man, in possession of an estate occupying a manor-house which has been held by his grandfather and his great-grandfather before him, being turned out of that possession because some old will or deed, made in the time of Charles the First, has been discovered in some forgotten chest or cranny -should we not exclaim that it would be better to live under the rule of a Turkish pacha, and should we not all feel that the enforcement of an obsolete right was nothing less than an infliction of the foulest of wrongs? Should we not all feel that this extreme rigour of the law, without a limitation of time, would be nothing less than a grave systematic and methodical robbery?" (f) In short, take from time his charters, his customary rights, his sweet benefit, and chaos, social and political, follows.

Prescription, says Grotius(9), is established by mu- Established nicipal law. Id quod nostrum est sine facto nostro ad by municipal

, alium transferri non potest. What is ours cannot be transferred to another without our act(h), says the Roman Law. This maxim of that law is given by a late writer (i) as a maxim of natural law, but is plainly one of municipal law only, for the very terms of the maxim imply the existence of the institution of property, and therefore civil society. Municipal law, upon grounds of policy, deprives men of their property and transfers it to others by lapse of time and duration of adverse possession, because they have abandoned it, not willingly, but through error, ignorance or negligence. Sed jus civile vigilantibus scriptum est; and assuming that a limitation of time, within which men may assert their rights, is expedient and necessary, the rule of Paulus

(f) Mr., afterwards Lord Macaulay, in debate in the House of Commons on the Dissenters' Chapel Bill.

(9) B. ii. c. iv. s. 6.
(h) Dig. 50, 17, 11.
(i) Bow. Com. on C. L. 110.

The length of the time,

applies,-Propter privatorum commodum non debet communi utilitate prejudicari,—and prescription is established ne rerum dominia in incerto essent, and because it is useful for the commonwealth that there should be some limit to litigation. It follows that though prescription is not without a foundation in natural law, it is in truth a mode of acquiring by municipal law (i).

Some maintain (j) prescription to proceed from civil and positive law, upon the strength of this argument, that in case a man hath not originally obtained a right on some other bottom, the bare length of time can give none, as being destitute of all power to produce any effect; for though every thing, say they, is done in time, yet time itself can do nothing: and then adds— as to the reason here proposed, thus much, indeed, is certain, that it depends wholly on the determination of positive law why prescription should be rather completed at the tenth or twentieth year, for instance, than at the ninth or the sixteenth.

The Roman law, “ the fruit of the researches of the most learned men, the collective wisdom of ages” (k), is the source from which most of the nations of Europe have drawn the materials in framing their laws on this subject. And although that law forms no rule, binding in itself, upon the subjects of these realms; yet, in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived, if it proves to be supported by that law (1).

In this country prescription is partly by the common law, and partly by legislative enactment. By prescription properly so called, that is, at common law (m), after an uninterrupted enjoyment of certain things incorporeal

The Roman law the source.

In England
partly by the
common law
and partly
by statute.


(i) Bow. Com. on C. L. 110.
() Puf. B. iv. c. xii. s. 7.
(k) Per Tindal, C. J., 12 Mee.

& W. 353.

(1) Ib.
(m) Co. Litt. 113 a, et seq.

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