Prescription "in some form and under some name" is said to have existed as a part of the municipal law of every civilized nation, except the Jewish [Angell, "A treatise on the limitations of actions" (Boston, 1876), 5; Broom, "A selection of legal maxims" (London, 1911), 690; Domat, "The Civil law in its natural order", tr. Strahan (Boston, 1850), sections 2183, 2184], and Devas, "Political Economy" (London, 1901), 491, remarks that "the doctrine of prescription in economics as well as in politics is essential to social welfare." It is in accord with public policy that ownership of things which the law considers capable of ownership (Broom, op. cit., 279) should not remain forever uncertain, and that litigation should not be immortal, litigants themselves being mortal (Voet, cited on title page, Brown, "The law of limitation as to real property," London, 1869), and their muniments of title perishable (Angell, op. cit., 2). In the old Roman law usucapio ( rem usu capio ) was the process by which a Roman citizen's possession of a corporeal thing during a length of time defined by law "ripened . . . into full ownership" ( dominium ) ["The Institutes of Justinian ", tr. Sandars (London, 1898), II, tit. VI; Pothier, "Pandectæ Justinianeæ", XLI, tit. III, 1, 11]. " Fundus ", remarks Cicero (Oratio pro Cæcina, 26), " a patre relinqui potest, at usucapio fundi, hoc est, finis solicitudinis ac periculi litium, non a patre relinquitur sed a legibus ", the land is derived from the ancestor, but its quiet enjoyment from usucaption. This method of assurance of title was not open to foreigners ( peregrini ); nor could it be applied to provincial land ( solum provinciale ), for in such land Roman law recognized no right of ownership, but right of possession only. To supply these defects there was provided under the empire, in favour of foreigners and of possessors of provincial land during a defined time, a written formula of defence or exception, otherwise called a prœscriptio , the longi temporis or longœ possessionis prœscriptio . Taken alone, the word prœscriptio simply signified a formula available to defendants in a legal action for the purpose of limiting its inquiry ("The Institutes of Justinian ", Introduction, sect. 104), and possession remained no more than a defence until a law of Justinian allowed a right of action founded on possession for thirty years [Girard, "Manuel élémentaire de droit romain" (Paris, 1901), 300, 298], the longissimi temporis possessio [Leage, "Roman Private Law" (London, 1906), 142].
The operation of usucapio was subject to some restrictions similar to those of canon law prescription. A purchaser in good faith and for full value from a thief would not, by usucaption, acquire ownership in the thing stolen, nor would ownership thus accrue to one who acquired possession, knowing that the thing really belonged to another (Leage, op. cit., 135, 136). Nor could property be gained by usucapio or right of possession by prœscriptio , in a thing taken by violence (Girard, op. cit., 298; cf. as to prœscriptio , 299, note 3). The law of Justinian just referred to conferred ownership on a possessor in good faith , but only if no violence had been used (Leage, op. cit., 142). "Length of time ", remarks Domat, "does not secure unjust, possessors from the guilt of sin, . . . on the contrary, their long possession is only a continuance of their injustice." But this authority on the modern civil law holds that "civil policy does not permit that possessors be molested after a long possession, or that they be obliged to make good their titles or even to declare the origin of their possession. For the pretext of inquiring after unjust possessors would disturb the peace and quiet of just and lawful possessors" (note to section 2209).
In English law the term prescription is applied to rights only which are defined to be incorporeal hereditaments, such as a right of way or a common or an advowson. "No prescription", remarks Blackstone, "can give a title to lands and other corporeal substances of which more certain evidence may be had" (Commentaries, II, 264, 266; III, 250).
According to English law if a legal beginning be possible [English Law Reports, 17 Appeal cases (1882), 648; Brown, op. cit., 139], it will be presumed from use during the defined time, such length of use establishing a conclusive presumption that even a person whose use had commenced wrongfully has procured a legal title [Broom, op. cit., 689; Lightwood, "A treatise on possession of land" (London, 1894), 153]. But this presumption only holds against a person who is deemed capable of asserting his rights and who is not under legal disability; for contra non valentem agere nulla currit prœscriptio (Broom, op. cit., 696). Against those unable to act the maxim vigilantibus non dormientibus jura subveniunt — the law assists those who are vigilant, not those who sleep over their rights — does not apply [ibid., 689; Wood, "A treatise on the limitation of actions" (Boston, 1901), 416, 417]. The use necessary to gain right by prescription must not only be long, but "without force, without secrecy, as of right and without interruption" (Wood, op. cit., 418, note), " nec vi, nec clam nec precario " ("The Institutes of Justinian ", II, tit. iii).
Until, as to most instances, altered by modern statutes, the period required to make a prescription good by English law was "time whereof the memory of man runneth not to the contrary", and the law deemed memory to run as far back at least as the commencement of the reign of Richard I ( A. D. 1189) [Stephen, "New Commentaries on the Laws of England" (London, 1908), I, 468, 470; Horwood, "Year Books of the reign of King Edward the First" (London, 1866), 136, 426]. In this requirement of time, prescription and that other immemorial right known as custom were alike. But prescription differs from custom in being personal, while custom is local and for many persons, "generally as an undefined class but of a particular locality" (Brown, op. cit., 213). The English law term for the acquiring of title to land by long possession and claim is adverse possession. In England, during the early Norman period, the discretion of the judges regulated the time within which possessors of land might be disturbed in their possession. Afterwards by various statutes the dates of certain important events, such as the return of King John from Ireland, the coronation of Henry III, or, similarly to prescription, the commencement of the reign of Richard I, limited the commencement of various actions to recover land (Lightwood, op. cit., 154, 155). The earliest statute defining a certain number of years as a limitation to an action affecting land was a statute of 32 Henry 8 [Carson, "Real property statutes" (London, 1902), 124]. Possession of land necessary to gain title by adverse possession must be "so open, notorious and important as to operate as a notice to all parties that it is under a claim of right "; the possessor "must possess, use and occupy the land as owner and as an owner would do," not as would a mere trespasser (Wood, op. cit., 583, 584).
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