why may not any one seize upon such estate, as being become common; or, however, why may not the next heir consider it as his own, if there is any such heir? Certainly this might be done, if no positive law interposed to hinder both the next heir in succession from entering in his own right, and to hinder all other persons from seizing upon such things as would belong to an infant or ideot or madman, if they were capable of property. But then these laws do not interpose by a fiction, that infants or ideots or madmen, as parts of the human species, are capable of acquiring and holding property; they interpose by taking those things into their custody, or by guarding them for the benefit of him, who would be the owner of them, if he was capable of property. And thus all other persons are prevented from making any acquisition of them, not in virtue of any supposed exclusive right in him, but merely by the authority and prohibition of such law.

In the mean time the things are called his, not because they are so, but because the effect of the law in respect of all other persons is the same with the effect of an exclusive right in him. I say in respect of all other persons; for in respect of himself, the effect is not the same; an exclusive right of property either real or supposed would give him the power not only of keeping, but likewise of using or of alienating his goods; whereas the mere custody of the law, though it hinders others from seizing upon them, does not produce any such power in the person, for whom they are kept.

When things are thus kept for the benefit of infants, they are in the custody of the law, till those infants arrive at the use of reason, and then their property begins. When they are kept in the same manner for the benefit of madmen, the custody is precarious and temporary; for since madmen are frequently known to recover the use of their reason, and are therefore always deemed capable of recovering it, their property can be in the guardianship of the law only till this event happens; and since it is uncertain at what time it will happen, the custody of their property is precarious. But when things are kept for the benefit of ideots, the custody is perpetual, that is, it lasts as long as the ideot lives, because ideots are such, as never had and never can have the use of reason.

CHAPTER VIII.

OF PRESCRIPTION.

I. What Prescription is, and on what founded.—II. Why long possession is necessary to claim by prescription.-III. Why uninterrupted possession is necessary.-IV. Why honest possession is necessary. -V. Prescription extends to incorporeal things.-VI. Objection to the natural foundation of prescription.-VII. Some grounds to believe prescription to have been established by an universal consent.VIII. What length of time gives an equitable claim by prescription. -IX. Prescription holds against persons unborn.

I. PRESCRIPTION is a right to a thing acquired by what prescription long, honest, and uninterrupted possession; though be- is, and on what fore such possession some other person and not the sessor was the owner of it.

pos

founded.

This right in the possessor is founded upon the presumed dereliction of the proprietor. It is not indeed agreeable to the law of nature, that any moral effect, such for instance as the loss or the acquisition of a right, should follow upon the bare intention of the mind; but when the intention either of parting with, or of acquiring a right is sufficiently declared, it is natural, that such an intention should produce its effect. Now our intentions may be made known either by words or acts. We may, indeed, falsify in our words, or we may dissemble in our behaviour; it is possible, that we may say one thing, when we mean another, or that we may behave in such a manner as to deceive mankind, and make them believe our designs to be different from what they are. There is, therefore, no strict and necessary connection between our intentions, and the signs whereby we testify them. It must, however, be allowed, that our acts may be as certain marks of our intention, as our words; which is all we need contend for. Thus we may release a debtor, not only by a verbal declaration, but by delivering up or by cancelling his bond; and in like manner what we throw away is as plainly relinquished, as if we had declared our design to relinquish it in so many words.

The acts, by which we may notify our intentions, are either positive or negative; that is, our intentions may appear either from our actions or our omissions. When any thing is transacted, in which a man is concerned, if he is present at the time, and does not contradict it, the presumption from his silence is, that he consents to it. If goods are shipwrecked, or cattle have strayed, and the owner neither sends out to look for them, nor endeavours by any means to recover them, the most obvious construction of his neglect is, that he despairs of finding them, and disregards or gives up any claim, that he had to them. In like manner, if he suffers another to keep possession of his goods, without laying claim to them, when he both knows where they are, and is at liberty to claim them, this neglect is fairly presumed to be a mark of his intention to part with them; and when the owner has thus relin

⚫ Grot. Lib. II. Cap. VI. § I, II, III, IV, V.

Num. XXX. 4. 11.

quished them, they become the property of the possessor, as the first occupant of them.

tion.

It is necessary, however, to remember that in this, and in all other instances, where a man's neglect to claim is deemed a mark of his intention to relinquish his goods, it is requisite that his silence should not arise either from ignorance or from fear. If he does not claim his goods, either because he does not know what are his goods or who is in possession of them, or because he is under some restraint and is afraid to claim them; his silence in such circumstances can be no mark of his intention to part with them: such silence plainly arises from another cause, and therefore necessarily requires another construction. II. From what has been said it will appear, that preWhy long possession necessary to scription cannot proceed but upon long possession: not claim by prescrip- because length of time operates as an efficient cause to produce a right in the possessor; but because it is necessary in order to make the owner's silence a reasonable ground to presume that he intends to relinquish his property. If his neglect is of short continuance, it may be owing either to his ignorance or his fear: he might not know what things he had a right to, or he might not know who was in possession of them; or if he knew both these particulars, yet still he might be afraid to make his claim. But in the course of a long time, it is reasonable to imagine, that he might have come to the knowledge both of his claims and of the person who is in possession of what belongs to him, and that he might likewise by some means or other be able to remove his fears, or at least to find some opportunity of declaring his right without any danger. Length of time, therefore, determines his silence or neglect to be a mark of his intention to relinquish his right, as it affords a reasonable presumption, that such silence or neglect was not owing either to ignorance or to fear.

Why uninterrupt- III. Uninterrupted possession is plainly necessary to ed possession ne- give the possessor a right by prescription, because his cessary to claim by right depends upon the presumptive dereliction of the prescription. owner, and there can be no presumption of his having relinquished, where by any claim of his he has interrupted the possession.

scription.

IV. It is to be farther observed, that prescription canWhy honest possession necessary not proceed without honest possession. If the possessor to claim by pre- came dishonestly by the goods, though his possession is ever so long or ever so quiet, he acquires no claim to them. We may several ways become honestly possessed of what belongs to another man, without having any right to it, when we are first possessed of it. Suppose, for instance, that the thing has been given us by any one, who was not the true owner of it, though we thought he was; suppose we have purchased it of any one, who had obtained it by force or by fraud, without our knowing how he obtained it; or suppose we have found it, and have endeavoured without success to find out the true owner; in any of these cases our possession is honest, though the thing possessed is not our own. Where possession of a thing begins after such a manner as this, without any dishonesty in the possessor, and has been continued for a considerable length of time without being interrupted, it will give him a right to the thing. But if his possession was dishonest in the first instance, he can acquire no such right. All

dishonest possession implies, that some fraud or some violence was made use of in obtaining it. Where fraud is made use of, the owner is certainly ignorant of something, which he ought to know; and where violence is made use of, the owner is certainly in some fear. Now length of time affords only a presumption, that the ignorance or fear of the owner are removed; and consequently, since no presumption can prevail against a certainty, no length of time can so far take away the ignorance or the fear of the owner, in the case of dishonest possession, as to render his silence a sufficient sign of his intention to quit his claim. As his ignorance or his fear were certain at first, the same ignorance or the same fear must be supposed to continue till they are certainly removed. Length of time affords only a presumption, that they are removed. Therefore, length of time does not remove them sufficiently. But since as long as his silence is understood to arise either from ignorance or from fear, it cannot reasonably be looked upon as a sign of his intention to relinquish his right, and upon that account the right of the possessor cannot take place; it follows, that no possession, though for a great length of time and without interruption, can give a right by prescription, if it began dishonestly.

ex

V. When we say, that things may be acquired by Prescription prescription, we must be understood to mean, not only tends to incorpocorporeal, but likewise incorporeal things. Jurisdiction real things.

or sovereignty may be acquired in this manner, as well as land or moveable goods. Laws may be repealed, customs may be established into laws, civil constitutions of government may be altered, subjects may enlarge their privileges, governors may extend their prerogative, not only by express appointment or compact, but likewise by such a tacit agreement as this of prescription. But it is not necessary to enter into this matter now, because there will be a more proper opportunity, when we come to explain the law of nature, as it respects civil societies.

VI. The principle, upon which the claim of prescrip- Objection to the tion is founded, according to the law of nature, as far as natural foundation we have yet explained it, is only presumption or conjec- of prescription. ture. The owner of the thing, which the present possessor claims, is presumed to have quitted his right to it, merely because he has been silent about it, and has neglected to claim it for a long time. Mankind indeed might by common consent establish such a silence into a standing mark of an intention to relinquish, in the same manner as, by a like common consent, they have affixed a certain and determinate signification to words, which in themselves, without such consent and establishment, have no signification at all. But without an establishment or consent of this kind, the owner's silence alone, though of ever so long a continuance, would be too precarious a mark of his intention to relinquish his right for any certain and uniform claim of the possessor to be founded upon it. Mankind, as far as we can learn what their inclination is by constant experience, are generally disposed to keep what they have gotten, and not to relinquish it without good and sufficient reasons for so doing. Any neglect therefore to claim what is their own, if we would interpret it agreeably to the nature of mankind, as we learn from constant experience what that nature is, cannot well be looked upon as a

Grot. Lib. II. Cap. VI. § VIII.

mark of their intention to relinquish their right, unless some other good and sufficient reasons appear, why they should relinquish it: their general temper and inclination will rather lead us to suppose, that such neglect or silence may have been owing to ignorance or fear.

To support the right of prescription upon natural principles, it is sometimes explained in a different manner. This right is said not to take place, till a man has been in possession of the thing claimed for time immemorial, and that as no other proprietor can then appear, besides the present possessor, he alone is to be looked upon as the true proprietor; because a claimant, who does not appear, and a claimant, who does not exist, are in a moral view the same thing. Now if by time immemorial, is here meant such a length of time, that no memory can possibly go farther back, the possessor of the thing must, after such time immemorial, be undoubtedly the proprietor of it; but then he cannot well be said to have a right to it by prescription; because his right, upon this supposition, will not differ at all from a right by first occupancy. For certainly where there neither are nor can be any traces of any other owner, besides himself, he must necessarily be looked upon as the first owner. But if by time immemorial any time less than this is meant; if there are any traces of a former owner, though such former owner has not claimed for many years, it will be as difficult, upon this principle of possession for time immemorial, to make out the possessor's right to the thing so possessed, as upon any other, without having recourse to some positive establishment.

tion to have been

Some grounds to VII. The circumstances of mankind after the introbelieve prescrip- duction of property, and after possession had been long established by an lost by the old proprietor, and had long continued in universal law. some other person, would make such a claim as this of prescription, generally beneficial. For without such a claim, the difficulty of ascertaining the right of either party would be the occasion of endless disputes and of great hardships. Disputes arising, after possession on one side had been many years uninterrupted, could not easily be decided with fairness and honesty; because it would be difficult either for the successor or the other claimant to clear up their title. And it would be a hardship to turn the possessor out of what he had quietly enjoyed, till it was in a manner grown to his patrimony, especially since the former proprietor cannot in general be supposed to want it much, as he had been able to live so long without it, and to provide for himself by some other means. The usefulness of a claim is indeed no proof, that such claim has in fact been established. To prove this we must have recourse to the common opinion of mankind, as it appears in their constant practice. And since, when we look into their practice, we find, that not only such persons as are members of the same civil society, but those likewise, who belong to different communities, plead prescription against one another; nay, since we find that when one nation has been long possessed of what did formerly belong to some other nation, the possessor maintains his right to the thing by a like plea; and that such a plea, if it can be well supported, is generally allowed to be a good one; we have reason to conclude, that the claim of prescription has been introduced and established by a like common consent with that which introduced and established the claim of property. But because prescription is a sort of limitation or exception in the right of