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for a certain time, an absolute title to them is given to the persons who have had such enjoyment. By legisdative prescription, or, as distinguished from prescription at common law, time of limitation (n), certain times, chiefly in relation to things corporeal, are prescribed, within which the persons, who when those times commenced were the rightful owners of such things, must assert their rights thereto, and after which times the persons in possession may suppose themselves to be in peaceable possession of the property, and capable of transmitting it without any apprehension of the title being impugned by litigation in respect of transactions which occurred at a distant period, when evidence in support of their own title may be most difficult to obtain (o).
The Object of Prescription.
Men commonly lose their rights, not by a deliberate How rights abandonment of them, but by negligence, or through are lost. error or ignorance. Sometimes their conduct is regarded as a tacit admission of their having no right. When, says Grotius (p), any one, knowing his property to be in the hands of another, permits a long period of time to elapse without claiming it, there is good ground for believing that he neglected to assert his claim because he no longer considered the thing as his property, unless there be other reasons excluding that inference. The Roman law said, with equal force and brevity, videtur alienare qui patitur usucapi (9).
(n) Co. Lift. 114 b, 115.a. (0) 3 Kay & J. 352.
(p) B. ii. c. ix. s.'5.
Length of enjoyment evidence of title,
It might at first sight be considered, that the duration of wrong ought not to give it a sanction, and that the long-suffering of injury should be no bar to the obtaining of right when demanded. But human affairs must be conducted on other principles. It is found to be of the greatest importance to promote peace, by affixing a period to the right of disturbing possession. Experience teaches us that, owing to the perishable nature of all evidence, the truth on any question of fact cannot be ascertained after a considerable lapse of time. The temptation to produce false evidence grows with the difficulty of detecting it; and at last, long possession affords the proof, the most safely to be relied upon, of the right of property. Independently of the question of right, the disturbance of property after long enjoyment is mischievous. It is accordingly found both reasonable and useful that enjoyment for a certain period of time against all claimants should be considered conclusive evidence of title. This period should be so fixed as to give ample opportunity to assert just rights, and yet not to countenance claims which have been long dormant (p). When property has been long in the possession of a family, has passed to children and grandchildren, and they, unconscious of any defect of title, have formed their habits and plans of life according to the income that the property produces, it would be cruel to deprive them of it. The members of the family from which it came, never having enjoyed it, suffer but little from its loss (9). Still, with a natural prejudice in favour of their own claims, or supposed claims, and unable to realize the beneficial influence and effect of laws protecting from disturbance such long possession, but looking to only the naked fact of their own expectations having been cut off, even where they may be at once
- and should not be disturbed.
(p) Real Property Commissioners' 1st Rep. 39.
(2) 1 Knapp, 227.
vague and remote, or barely possible, they would, in utter disregard of all such considerations as those suggested on behalf of the possessors, struggle to deprive them of the property. Happily, however, as well for those suffering, under the circumstances supposed, any such loss, as for the possessors of the property, this wise and beneficial law disregards those prejudices and expectations, protects the possessors, and thus secures the
repose and the common weal of society. In Manby v. Bewicke(r), a compromise had been made Manby, v.
Bericke. seventy-five years before, under which the ancestors of the plaintiff, whose only means of establishing their case were of a very doubtful character, acquired, on very slender evidence, and long enjoyed, a large benefit, and Wood, V.-C., said that no principle of morality or of justice required that such a contract, fairly and honourably entered into on both sides, should be rescinded, and that the plaintiff had been very unfortunate in attempting to set up claims of such a very stale character, after a contract had been thus concluded, and without any
shadow of pretence for casting imputations on persons long since in their graves, which can hardly rest with them, but which must affect the character of every one who has been concerned from that time to the present in the preparation of deeds, assurances, wills and other documents under which this property has been dealt with. “So far from feeling," he also said, “ that this is a case in which the statute has operated as any hardship to the claimant who fails in his litigation, I think it is just one of the cases which shows how beneficial this statute is, and how undesirable it is, even for claimants themselves, that they should nurture these strange and vague expectations eighty or ninety years after the supposed right which they claim first accrued, and when they find themselves, by the
(r) 3 K. & J. 342, 374.
Prescriptionmatter of policy.
To remove doubt and suspense,
prodigality of those who have preceded them, deprived of the fruits reaped by their ancestors from the compromise of a litigation concerning such supposed rights; and that they should set up these stale and antiquated demands and attempt to establish them in a manner so utterly reckless as in this case, by charging wholesale fraud of the grossest and most revolting character.”
“ Prescription is a thing of policy,” said Wayne, J.(s), “growing out of the experience of its necessity; and the time after which actions or suits shall be barred has been, from a remote antiquity, fixed by every nation, in virtue of that sovereignty by which it exercises its legislation for all persons and property within its jurisdiction."
The principal aim and design of the law concerning prescription, says Pufendorf, are not to punish men's defaults in asserting their rights, but to provide that the State be not disturbed by uncertain titles and by properties in constant doubt and suspense (t). Fundamentum et ratio præscriptionis est partim, quod negligentia domini merito puniatur, partim quod reipublicæ intersit, ne lites sint æterna, neque
dominia rerum semper incerta maneant (u). Ne lites, as Voet, J., felicitously says (x), immortales essent, dum litigantes mortales sint. The primary object of this law is public utility, by preserving the quiet and repose of the State, and it accomplishes this preservation by preventing the rearing up of claims at great distances of time when evidences are lost (y); for the law has no other end but repose, and was ordained to put a stop to contention and to make peace (z), and also by preventing those innumerable perjuries which might ensue, if a man were allowed
(8) 13 Curt. Am. Rep. 173.
(6) Heinecc. by Hoepfner, S.
(r) B. v. tit. 1, s. 53.
to bring an action for an injury committed at any distance of time (a).
Upon every principle of sound policy, questions that by quieting have long been suffered to remain at rest ought not to
possession, be agitated. It is not the policy of the law to receive favourably claims that will disturb a possession enjoyed adversely for a long period. If a man be not reasonably diligent, what right has he to complain of the situation in which the law puts him ? The quiet of the kingdom will be better preserved by not encouraging these stale demands (6); and, even where the claimant may be affected by personal disability, is more to be regarded than the private convenience of any particular person, whether he be an infant, or of unsound mind, or in other degree (c). It is true, says Pufendorf, that by a person's being denied to sue for recovery of his property, when he hath long neglected it, he suffers some loss or damage (d). But it is better that the negligent owner, who has omitted to assert his right within the prescribed period, should lose his right than that an opening should be given to interminable Litigation, exposing parties to be harassed by stale demands after the witnesses of the facts are dead and the evidence of the title lost. No hardship follows, except upon those who have slept over their rights in entire disregard of the provisions of a public act of the legislature (e). And such hardship is no other than is incident to every statute of limitations, which necessarily renders irrecoverable some demands which could otherwise be recovered-a hardship, if it be one, which is the very object of every such act to create (f). The individual hardship will, upon the whole, be less by withholding from one who has neglected the right, and never yet possessed, than to take away from the
(a) 3 Com. 308.
(c) 10 CI. & Fin. 333.