property, it is necessary to look a little farther than the bare establishment of such a right in order to see how we can reconcile it with the claim of property. And it is in this part of the question, that we have recourse to the principles already explained, to the presumption that he, who is silent for any great length of time and does not claim his right, is disposed to relinquish it.

VIII. It may perhaps, without some express appoint- What length of ment, be difficult to determine for what length of time time gives an equia person must be in possession of a thing, to give him a table claim by preclaim to it by prescription. The foundation of this claim, scription.

as we have already explained it, will show us, that the time must be long enough for presuming the former owner of the thing was not hindered from putting in his claim either by ignorance or by fear, but must have had frequent opportunities of knowing both what his right is, and who was in possession of it, and frequent opportunities likewise of releasing himself from any restraints, which might have forced him against his will to be silent as to his claim. Possession however for time immemorial, if the meaning of the words is rightly explained, seems to be the most equitable time of possession for acquiring a prescriptive right. The most obvious meaning of time immemorial is a time of such duration, that the memory of no man living can of itself, when unassisted by any external evidences, go back beyond it. A possession of no longer continuance than this would give a right by prescription too soon; because by the help of written evidences, the memory of man is assisted to go back into such periods of time, as have been long past; and such evidences will frequently show where the possession of the former owner ceased, and by what means the claimant by prescription got possession at first and continued it afterwards. But then on the other hand, if by possession for time immemorial we mean nothing less than so long a possession, that not only the unassisted memory of persons now living cannot go farther backwards, but likewise, that no written evidences, no memory assisted by the ordinary method of recording facts which are past, can make out any traces of any other proprietor, besides the present possessor; the claim of prescription would then be useless, and would not differ at all from the claim of first occupancy. For where would be the use of it, if there was no other claimant besides the present possessor? and what other claimant could there be, if there were no traces at all to be found of any right in any other person besides himself? He would upon this supposition have an indisputable title to the thing which he possesses, as the first occupant of it, because he appears to be the only owner that it ever had.

There is, however, a middle sense of time immemorial. If we understand it to mean so long a time, that though a former owner may be able to make out some sort of title, yet he cannot either by the memory of any person now living, or by any record of past facts, make out a clear and undoubted title to the thing in question; possession, for such a length of time as this, may fairly determine the thing to belong to the present possessor. A prescription gained by possession for a time thus limited, will be different, as it ought to be, from a right of first occupancy, and it will likewise be of benefit to mankind by deciding controversies, not easily to be decided otherwise, without taking place so soon as to be in danger of barring the claim of the true owner. Its use con

sists in barring a doubtful right; and its equity is preserved by a proper regard to all such rights as can be made out by the memory of man, when assisted by written evidences.

unborn.

IX. What we claim by prescription, or in consequence Prescription holds against persons of our having been possessed of it without interruption for time immemorial, must commonly have been in possession either of ourselves or our ancestors, for a longer time than the extent of any one person's life. So that prescription must most frequently be pleaded, not so much against the former owner as against his heirs. Now for great part of the time whilst this possession lasted, those heirs were not in being; they were not born when our own possession began, and possibly were not born, when our ancestor's possession had continued long enough to give a prescriptive right. *Shall we allow, therefore, that the claim of the ancestor, which was set aside by our long possession, will revive again in the person of the heir? If we allow this, prescription will be of little use; it will only serve to lay a dispute asleep for a while, but will suffer it to revive hereafter, when the question concerning the respective claims of the former owner and of the present possessor will have become more intricate, in proportion as we are farther removed from the original evidence, by which that dispute might have been settled. Shall we, therefore, on the other hand, affirm that a prescriptive right will bar the claim not only of him who first lost possession, but of them likewise, who are descended from him, and were not born at the time, when such prescription was going on and began to take place? Before we affirm this, we should consider by whose silence or neglect the right of property is lost. If it is lost by the silence of the heirs, who were unborn, a prescriptive right would have no foundation in reason, that might reconcile it with the notion of property. It is absurd to construe the silence of those, who were unborn, as a mark of their intention to relinquish their rights; because their silence will not only bear, but requires another construction; they were therefore silent and did not claim, because they were not born, and could not claim. But if we maintain, that they who were unborn, lost their right, not by their own silence or neglect, but by the silence or neglect of their ancestors; prescription against them seems to be founded in injustice; it is an injury to deprive them of what belongs to them, for the neglect of their ancestors, a neglect in which they were no way concerned.

What shall we say therefore? Shall we take away the benefit of prescription, by allowing that it does not hold good against the posterity of the former owner? or shall we, on the other hand, maintain, that it does hold good against his posterity as well as against himself, and so either make the claim absurd, by saying that the silence of his posterity, when they could not speak, is a mark of their intention to relinquish their right; or else shall we make it unjust by saying that they forfeit their right by the neglect of their ancestor? The truth is, that prescription holds good, not only against the ancestor, but against his posterity; not from their neglect, who were unborn, but from the neglect of those who went before them. And by taking this part, we have only the justice of such a claim by prescription to defend. It will be no very difficult

• Grot. Lib. II. Cap. VI. § IX.

matter to defend this part of the alternative, where inheritance has never been established; because the descendants of a man can have no injury done them in being kept out from inheriting what they had no right to inherit. But suppose a general right of inheritance to have been established; yet still the claim of prescription will stand clear of injustice. No injury can be done to a person, where no right is taken from him. But the posterity of a man, who loses his claim by the prescription of another, are not deprived of any right. Before they were born, they had no right at all; for as things, which are not in existence, have no natural qualities, so persons who are not in existence, have no moral qualities; and amongst other moral qualities they have no rights. If then the thing in question was lost by their ancestor before they were born, no right is taken from them by their being barred from claiming what he had so lost; because they have no right to inherit any thing from him, which is not his own at the time of his death; and whatever he has lost by long neglect, and another has acquired by long possession, has ceased to be his own. No injury was done to them, whilst the claim was acquiring; because then they had no right in the thing, if they were not in existence, and lost that right by their own silence, if they were in existence. And no injury is done to them by the possessor, after the claim is acquired, if he still keeps the thing, because it then belongs to him, and not to them; since they can have no pretence to inherit from their ancestor, what such ancestor himself had no right to at the time of his death.

CHAPTER IX.

OF THE OBLIGATIONS ARISING FROM PROPERTY.

1. Property of one man obliges others not to hinder him in enjoying what is his own.-II. The right of property produces an obligation to restitution.-III. The natural fruits or advantages of another's property are to be restored.-IV. Honest possessor not obliged to damage himself by restitution.-V. No obligation to restitution where the thing has perished.-VI. Obligation to restitution does not extend to all advantages made by the possessor.-VII. No obligation to restitution of fruits neglected.-VIII. Or where a thing given is given away again.-IX. Or to restore the overplus of price where a thing bought is sold again.-X. Restitution to be made without reimbursement.-XI. Goods to be restored and not returned to the

seller.

I. THE first and most obvious obligation, that we are Property of one under, towards any person upon account of his man obliges others proper- not to hinder him ty in a thing either moveable or immoveable, is to suf- in enjoying what fer him quietly to enjoy it, and to dispose of it, in what is his own. manner he pleases, without attempting by force or by take it from him, or in any respect to make it worse.

fraud, either to This obligation

plainly arises out of the notion of property; for his right to exclude us from meddling at all with a thing would have no effect, or would be in reality no right; if we, notwithstanding such right, were at liberty to take the thing away from him, or to hinder him in the use and enjoyment of it, or by any means to impair and waste it.

tution.

The right of pro- II. *As the right of property, which any person has perty produces an in a thing, obliges us not to take that thing from him disobligation to resti- honestly, so it obliges us to restore it to him, or not to keep it from him, when we have, even by any honest means, gotten it in our possession. When without any knowledge of the truth or any bad design on our part, a thing is given us, which belonged to some other person and not to the giver; when we purchase what some one else, and not the seller had a right in; when we find a thing, the owner of which is not known at the time of finding it; in such cases as those our possession of the thing is honest, till we have found out the proprietor; but as soon as we have found him, we are obliged, in virtue of his property, to restore the thing to him. For if we knowingly and designedly keep him out of what he has a right to, we do him the same harm, and consequently are guilty of the same injustice as if we had taken it from him.

The natural fruits

III. From this obligation to restore any person's proor advantages of perty, when it is in our hands, another obligation is deanother's property rived; an obligation to restore the natural fruits, proare to be restored. duce or advantages, which have arisen from it, whilst we were in possession of it; because the natural produce of a thing, and all the natural advantages arising from it belong as much to the proprietor, as the thing itself. But it will be necessary, in determining questions of this sort, to distinguish between the fruits which come from the thing itself, and those which are produced by the labour and at the expense of the occupier. The former are what I call its natural produce; and of these only we speak, when we maintain, that there is the same obligation to restore the fruits of a thing, as to restore the thing itself; for certainly my property in a thing can never give me a right to another person's labour. Suppose the thing possessed to be common field land, which produces nothing, unless it is manured, tilled and sowed; if the honest possessor has a crop of corn upon the ground, at the time of discovering the true owner; he would be under no obligation of restitution as to the corn; because it was produced by his labour and at his expense: the corn is not the natural produce of the thing, which the other has a right to. But if it was a meadow with a crop of grass upon it, the possessor could have no claim to the grass; it is part of the meadow itself, or is the natural produce of it, and consequently belongs to the owner of the thing, and is not due to the labour of the possessor. In like manner the young of cattle, as they are their natural fruit or produce, belong to the owner of the cattle, and are to be restored to him. If the sire belongs to one of the parties and the dam to the other, the young naturally belong to the owner of the dam, after a very small satisfaction is made to the owner of the sire. For though the sire contributed to the production of the young, yet numberless accidents might have happened, after his act was over, to hinder the production. His

* Grotius, Lib. II. Cap. X. § I, II.

owner, therefore, has no right to more than what the chance, that young would be produced, was worth, at the time of his act.

restitution.

IV. As the obligation to make restitution, which we Honest possessor have been speaking of, guards against any injury that not obliged to damight be done to the owner of a thing; so it is reason- mage himself by able, that such limitations should be fixed to this obligation, as will guard the honest possessor from suffering any injury. The general limitation is, that the possessor is not obliged to suffer any loss in what he has a right to, by making restitution. For since the owner's claim extends no farther than his property, the obligation of the possessor can extend no farther.

From hence it appears; First, that if the true owner cannot be put into possession without some expense, the honest possessor is not obliged to be at that expense; nor is he obliged to be at any more trouble in making restitution, than he is paid for; because the other has no more right to his labour than to his money.

Secondly, if the possessor has made any improvement in the thing, whilst he supposed it to be his own, he has a natural right to be paid for his labour and materials. Thus if he has built a house upon ground which he was honestly possessed of, the proprietor, as his claim reaches only to the ground, can have no natural right to the house, so as to hinder the other from pulling it down, unless he pays for the materials and workmanship.

Thirdly, though, as we have seen already, grass, whilst it is growing, is the natural produce of the land, yet if it has been cut and made into hay, the honest possessor's labour is joined to it, and he has, as in this instance, so in all others of the same sort, a natural right to be paid for his labour in collecting what is in itself the fruit of the thing possessed. But then this labour is all that he ought to be paid for; and however it might be urged, that the fruits would have been spoiled, and consequently would have been worth nothing, if he had not collected them; this will give him no right to the fruits themselves. For suppose, which is the strongest light the case can be put in, that the value of the labour is vastly greater than the value of the fruits; yet it cannot upon this account so overrule the claim of the proprietor, as to set it aside; since no satisfactory reason can be given, why, by joining a more valuable right of mine to a less valuable right of another man, the whole should be made my own.

ished.

V. Grotius under this head has explained some par- No obligation to ticular cases relating to the honest possessor's obligation restitution where to make restitution. Some of these cases have been con- the thing has persidered already; others do not belong to this head, and shall be considered in their proper places; the rest are these which follow: *First, if the goods, of whatever sort they are, and the natural fruits of them too, have so perished in the hands of the honest possessor, that no part of them remains, and no advantage has been made of them; he is under no obligation to make restitution merely because such goods and the fruits of them have passed through his hands. For since the proprietor's claim is a claim upon the thing only, and not upon the person, the obligation of the possessor extends only to the thing; and

Grot. Lib. II. Cap. X. § III.