第82章

I proceed to notice one or two more contrivances by which theancient trammels of proprietary right were more or lesssuccessfully relaxed, premising that the scheme of this treatiseonly permits me to mention those which are of great antiquity. Onone of them in particular it is necessary to dwell for a momentor two, because persons unacquainted with the early history oflaw will not be easily persuaded that a principle, of whichmodern jurisprudence has very slowly and with the greatestdifficulty obtained the recognition, was really familiar to thevery infancy of legal science. There is no principle in all lawwhich the moderns, in spite of its beneficial character, havebeen so loath to adopt and to carry to its legitimateconsequences as that which was known to the Romans as Usucapion,and which has descended to modern jurisprudence under the name ofPrescription. It was a positive rule of the oldest Roman law, arule older than the Twelve Tables, that commodities which hadbeen uninterruptedly possessed for a certain period became theproperty of the possessor. The period of possession wasexceedingly short one or two years according to the nature of thecommodities and in historical times Usucapion was only allowed tooperate when possession had commenced in a particular way; but Ithink it likely that at a less advanced epoch possession wasconverted into ownership under conditions even less severe thanwe read of in our authorities. As I have said before, I am farfrom asserting that the respect of men for de facto possession isa phenomenon which jurisprudence can account for by itself, butit is very necessary to remark that primitive societies, inadopting the principle of Usucapion, were not beset with any ofthe speculative doubts and hesitations which have impeded itsreception among the moderns. Prescriptions were viewed by themodern lawyers, first with repugnance, afterwards with reluctantapproval. In several countries, including our own, legislationlong declined to advance beyond the rude device of barring allactions based on a wrong which had been suffered earlier than afixed point of time in the past, generally the first year of somepreceding reign; nor was it till the middle ages had finallyclosed, and James the First had ascended the throne of England,that we obtained a true statute of limitation of a very imperfectkind. This tardiness in copying one of the most famous chaptersof Roman law, which was no doubt constantly read by the majorityof European lawyers, the modern world owes to the influence ofthe Canon Law. The ecclesiastical customs out of which the CanonLaw grew, concerned as they were with sacred or quasi-sacredinterests, very naturally regarded the privileges which theyconferred as incapable of being lost through disuse howeverprolonged; and in accordance with this view, the spiritualjurisprudence, when afterwards consolidated, was distinguished bya marked leaning against Prescriptions. It was the fate of theCanon Law when held up by the clerical lawyers as a pattern tosecular legislation, to have a peculiar influence on firstprinciples. It gave to the bodies of custom which were formedthroughout Europe far fewer express rules than did the Roman law,but then it seems to have communicated a bias to professionalopinion on a surprising number of fundamental points, and thetendencies thus produced progressively gained strength as eachsystem was developed. One of the dispositions it produced was adisrelish for Prescriptions; but I do not know that thisprejudice would have operated as powerfully as it has done, if ithad not fallen in with the doctrine of the scholastic jurists ofthe realist sect, who taught that, whatever turn actuallegislation might take, a right, how long soever neglected, wasin point of fact indestructible. The remains of this state offeeling still exist. Wherever the philosophy of law is earnestlydiscussed, questions respecting the speculative basis ofPrescription are always hotly disputed; and it is still a pointof the greatest interest in France and Germany, whether a personwho has been out of possession for a series of years is deprivedof his ownership as a penalty for his neglect, or loses itthrough the summary interposition of the law in its desire tohave afinis litium. But no such scruples troubled the mind ofearly Roman society. Their ancient usages directly took away theownership of everybody who had been out of possession, undercertain circumstances, during one or two year. What was the exacttenor of the rule of Usucapion in its earliest shape, it is noteasy to say; but, taken with the limitations which we findattending it in the books, it was a most useful security againstthe mischiefs of a too cumbrous system of conveyance. In order tohave the benefit of Usucapion, it was necessary that the adversepossession should have begun in good faith, that is, with beliefon the part of the possessor that he was lawfully acquiring theproperty, and it was farther required that the commodity shouldhave been transferred to him by some mode of alienation which,however unequal to conferring a complete title in the particularcase, was at least recognised by the law. In the case thereforeof a Mancipation, however slovenly the performance might havebeen, yet if it had been carried so far as to involve a Traditionor Delivery, the vice of the title would be cured by Usucapion intwo years at most. I know nothing in the practice of the Romanswhich testifies so strongly to their legal genius as the usewhich they made of Usucapion. The difficulties which beset themwere nearly the same with those which embarrassed and stillembarrass the lawyers of England. Owing to the complexity oftheir system, which as yet they had neither the courage nor thepower to reconstruct, actual right was constantly gettingdivorced from technical right, the equitable ownership from thelegal. But Usucapion, as manipulated by the jurisconsults,supplied a self-acting machinery, by which the defects of titlesto property were always in course of being cured, and by whichthe ownerships that were temporarily separated were again rapidlycemented together with the briefest possible delay. Usucapion didnot lose its advantages till the reforms of Justinian. But assoon as law and equity had been completely fused, and whenMancipation ceased to be the Roman conveyance, there was nofurther necessity for the ancient contrivance, and Usucapion,with its periods of time considerably lengthened, became thePrescription which has at length been adopted by nearly allsystems of modern law.