Page:EB1911 - Volume 22.djvu/310

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.
296
PRESCRIPTION


apoplexy on the 4th of February 18 58 foretold the end, though he persevered with the preparation of the third volume of Philip II. for the press, and with the emendation and annotation of his Conquest of M exico. On the morning of the 27th of January 1859 a second attack occurred, and he died in the afternoon of the same day in his sixty-third year.

As an historian Prescott stands in the direct line of literary descent from Robertson, whose influence is clearly discernible both in his method and style. But, while Robertson was in some measure the initiator of a movement, Prescott came to his task when the range of information was incomparably wider and when progress in sociologic theory had thrown innumerable convergent lights upon the progress of events. He worked, therefore, upon more assured ground; his sifting of authorities was more thorough and his method less restricted. At the same time he cannot be classed as in the highest sense a philosophic historian. His power lies chiefly in the clear grasp of fact, in selection and synthesis, in the vivid narration of incident. For extended analysis he had small liking and faculty; his critical insight is limited in range, and he confines himself almost wholly to the concrete elements of history. When he does venture upon more abstract criticism his standards are often commonplace and superficial, and the world scheme to which he relates events is less profound than the thought of his time altogether warranted. Moreover, the authorities on Whom he relied have had to be corrected since in many points of detail in the light of later archaeological research. If these things, however, indicate Prescott's deficiencies from the point of view of ideal history, few historians have had in a higher degree that artistic feeling in the broad arrangement of materials which ensures popular interest. The course of his narrative is unperplexed by doubtful or insoluble problems. The painting is filled in with primary colours and with a free hand; and any sense of crudity which may be awakened by close inspection is compensated by the vigour and massive effectiveness of the whole. Prescott's works in 16 vols. were edited by J. F. Kirk in 1870-1874. His Life was written by George Ticknor (1864; revised 1875). There are later lives by R. Ogden (1904) and H. T. Peck (1905). PRESCRIPTION, in the broadest sense, the acquisition or extinction of rights by lapse of time. The term is derived from the praescriplio of Roman law, originally a matter of procedure, a clause inserted before the formula on behalf of either the plaintiff or, in early times, the defendant, limiting the question at issue. It was so called from its preceding the formula.1 One of the defendant's praesoriptioues was lougi temporis or lougae possession is praescriptio (afterwards superseded by the exceplio), limiting the question to the fact of possession without interruption by the defendant for a certain time. It seems to have been introduced by the praetor to meet cases affecting aliens or lands out of Italy where the usucapio of the civil law (the original means of curing a defect of title by lapse of time) could not apply. The time of acquisition by usucapio was fixed by the Twelve Tables at one year for movables and two years for immovable. Praescriplio thus constituted a kind of praetorian usucapio. In the time of Iustinian usucapio and praescriptio (called also lougi lemporis possession), as far as they affected the acquisition of ownership, differed only in name, usucapio being looked at from the point of view of property, praescriplio from the point of view of pleading. By the legislation of Iustinian movables were acquired by three years' possession, immovable by ten years' possession where the parties had their domicile in the same province (inter praesentes), twenty years' possession where they were domiciled in different provinces (inter abseutes). Servitudes could not be acquired by usuoapio proper, but were said to be acquired by quasi usucapio, probably in the same time as suificed to give a title to immovable. There was also a lougissimi lemporis possession of thirty years, applicable to both movables and immovable, and requiring nothing but bona fides on the part of the possessor. Where the right sought to be established was claimed against the Church, a still longer period of forty years (at one time a hundred) was necessary. Immemorial prescription was required in a few cases of a public character, as roads.” Praescriplio was also the term applied to lapse of time as barring actions upon contracts or torts under various provisions corresponding to the English Statutes of Limitation. The prescription of Roman law (and of modern systems based upon it) is thus both acquisitive and extinctive. It looks either 1 “ Praescriptiones autem appellatas esse ab eo quod ante formula praescribuntur ” (Gajus iv. § 132).

2 “ Viae vicinales, quarum memoria non extat ” (Dig. xlm. 7, 3). to the length of time during which the defendant has been in possession, or to the length of time during which the plaintiff has been out of possession. In English law the latter kind of prescription is called limitation. The tendency of law is to substitute a definite for an indefinite period of prescription. In English ~law prescription is used in a comparatively narrow sense. It is acquisitive only, and is very limited in its application. A title by prescription can be made only to incorporeal hereditaments -that is, in legal language, hereditaments that are or have been append ant or appurtenant to corporeal hereditaments-and to certain exemptions and privileges! The rights claimable by prescription for the most part consist of rights in alieuo solo. The most important are advowsons, tithes, commons, ways, watercourses, lights, offices, dignities, franchises, pensions, annuities and rents. Land or movables cannot be claimed by prescription. The foundation of prescription is the presumption of law that a person found in undisturbed enjoyment of a right did not come into possession by an unlawful act (see Williams, Rights of Common, 3). In the English courts this presumption was, perhaps still is, based upon the fiction of a lost grant, viz. that there had been a grant of the hereditament by a person capable of granting it to a person capable of taking it, and that the grant had been lost. The jury were instructed to find the loss of a once existing grant in whose existence no one really believed. The enjoyment of the right must have been from a time whereof the memory of man runneth not to the contrary. The period of legal memory was after a time necessarily fixed for purposes of convenience at a certain date. The date adopted varied at first with the time during which the demand ant in a writ of right must have proved seisin in himself or his ancestors. After one or two previous enactments the date was finally fixed by the Statute of Westminster the First (3 Edw. I. c. 39) at the reign of Richard I., which was interpreted to mean the first year of the reign of Richard I. (1189). The inconvenience of this remote date, as time WCI1iL on, led to the gradual growth of a rule of evidence that proof of enjoyment for twenty years was prima facie evidence of enjoyment from time imrnemorial. But evidence of the beginning of the enjoyment at however remotea date, if subsequent to I Richard I., was sufficient to destroy the claim. This is still the law with respect to claims not falling within the Prescription Act, mostly rights in gross-that is, where there is no dominant or servient tenement, e.g. a right to a pew or to a several fishery in gross. The twenty years' rule was of comparatively late introduction; it does not seem to have been known in the time of Elizabeth, and was perhaps introduced in analogy to the Statute of Limitations, 2I ]ac. I. c. 16. With respect to claims of profits ti prendre and easements a change was made by the Prescription Act 1832 (extended to Ireland by an act of 1858, but not to Scotland). By that act claims to rights of common and other profits ti. preudre are not to be defeated after thirty years' enjoyment by any person claiming right thereto without interruption for thirty years by showing only the commencement of the right, and after sixty years' enjoyment the right is absolute and indefeasible unless had by consent or agreement by deed or writing (§ 1). In claims of rights of way or other easements the periods are twenty years and forty years respectively (§ 2). The before-mentioned periods are to be deemed those next before suits, and nothing is to be deemed to be an interruption unless acquiesced in for one year (§ 4). In pleading, the enjoyment as of right may be alleged during the period mentioned in the act, and without claiming in the name or right of the owner of the fee (§ 5). No presumption is to be made in favour of a right exercised for a less period (§ 6). The time during which a person otherwise capable of resisting a claim is an infant, idiot, non compo.: menlis, feme covert, or tenant for life, or during which an action or suit has been pending until abated by the death of a party, is to be excluded in the computation of the periods unless where the right or claim is declared to be absolute and indefeasible (§ 7). An act to define the period of prescription for a modus decimandi, or an exemption from tithes by composition, was passed the same year. The Prescription Act is only supplemented to the common law, so that a claim may be based upon the act or, in the alternative, upon the common law. Nor does the act alter the conditions necessary at common law for a good claim by prescription. The claim under the statute must be one which may be lawfully made at common law. The principal rules upon the subject are these. (I) The title is founded upon actual usage. The amount of actual usage and the evidence necessary to prove it vary according to the kind of claim. (2) The enjoyment must (exce t in the case of light) be as of right-that is to say, peaceable, openfy used, and not by licence. (3) The prescription must be certain and reasonable. Inhabitants cannot, however, claim by prescription, as they are an uncertain and fluctuating body, unless under a grant from the Crown, which constitutes them a corporation for the purposes of the grant. (4) The prescription must be alleged in a que estate or in a man and his ancestors. Prescription in a 3 Prescription seems at one time to have borne a wider meaning. A claim by prescription to land is mentioned in 32 Hen. VIII. c. 2. And it seems that tenants in common may still make title to land by prescription (Littleton's Teuures, § 310).