of them.*Rapine or robbery is bearing off a moveable thing by violence, against the owner’s will, to make profit of it: And force is ejecting one violently out of his possession of an immoveable thing. <241>
SECTION CCCXXII
Indirectly by defrauding.
One is said to take away another’s possession indirectly, who by fraudulent words or deeds is the cause of his losing it; and this we call defraudation. Now since one is likewise hurt in this manner, but none ought to do to another what he would not have done to himself (§177); it is self-evident, that they are no less guilty than thiefs and robbers, who, by insidious words, cheat one out of his goods;* or by moving boundaries, using false weights and measures, and other such knavish practices, adventure to take off any thing from one’s estate.
SECTION CCCXXIII
What is another’s ought to be restored to him.
The last right which belongs to the lord of a thing, viz. the right of recovering it, must found <242> an obligation to restore what belongs to another to its owner. But hence we conclude, that every one, into whose hands any thing belonging to another comes without his fault, is obliged to take care that it be restored to its owner;* and therefore, that it ought not to be hid or concealed, but that public notice ought to be given of it, that the owner may have it again, upon making his right to it appear, Deut. xxii. 1. l. 43. §4. D. de furt. and that the possessor ought to be much more ready to restore it, if the author claim it, or publickly advertise his having lost it. But in both cases equity requires partly that the restitution should not be made at the expence of an honest possessor, and partly that he may not be made richer at another’s cost (§312). <243>
SECTION CCCXXIV
What if the true owner do not appear.
But if the true owner do not appear to claim a thing, it is understood to be no body’s, and therefore it justly falls to the honest possessor* (§241). And tho’ those who have assumed to themselves the direction of consciences, commonly exhort to give things to the poor when the owner of them does not appear; yet he cannot be called unjust, who, making use of his right, takes to himself a thing morally free from dominion. See Nic. Burgund. ad consu. Flandr. l. 2. n. 1.2
REMARKS on This Chapter
We have not had occasion for some time to add to our Author, or to make any remarks on his reasonings. And indeed the reason why I choose to translate this Author into our language, is because there is seldom any occasion to add to what he says, and almost never any ground of disputing against him, so orderly, clear, just and full, is his method of proceeding in this most useful of all sciences. But because usucapion and prescription are usually treated of at greater length by writers on the laws of nature and nations than our Author does; and because this is a proper occasion to explain a little upon the distinctions that are commonly made <244> by moralists about the dictates of the law of nature and right reason, or conformity to them, let me subjoin the following observations.
1. First of all, it is proper to observe the difference which the Roman law makes between prescription in general, and that kind of it which they distinguished by the name of usucapio. By usucapio they meant the manner of acquiring the property of things by the effect of time. And prescription had also the same meaning; but it signified moreover the manner of acquiring and losing all sorts of rights and actions, by the same effect of the time regulated by law. See l. un. C. de usucap. transf. & Inst. de usucap. and Domat’s civil law, in their natural order, T. 1. p. 485. But writers on the law of nature have now very seldom occasion to make use of the word usucapio; that of prescription being now common by usage, both to the manner of acquiring the property of things, and to that of acquiring and losing all sorts of rights by the effect of time. 2. The chief reasons assigned by the Roman law for the first introducing of property by prescription, are, as Pufendorff of the law of nature and nations hath observed, book 4. cap. 12. §5. “That in order to the avoiding of confusion, and cutting off disputes and quarrels, it is of great consequence to the public welfare, that the proprieties of things should be fixed and certain amongst the subjects, which would be impossible, should perpetual indulgence be allowed to the negligence of former owners, and should the new possessors be left in continual fear of losing what they held. (Ne scilicet quarundam rerum diu & fere semper incerta dominia essent, l. 1. ff. de usurp. & usucap.) Again, trade and commerce could not otherwise subsist in the world. For who would ever contract with another? who would ever make a purchase, if he could never be secured in the quiet possession of any thing conveyed to him? Nor would it be a sufficient remedy in this case, that if the thing should be thus challenged by a third party, the person from whom we receive it should be obliged to make it good; for after so long a course of time, thousands of accidents might render him incapable of giving us this satisfaction. And what grievous commotions must shake the commonwealth, if at so vast a distance of years, so many contracts were to be disannulled, so many successions were to be declared void, and so many possessors to be ejected? It was therefore judged sufficient to allow such a time, as large as in reason could be desired, during which the lawful proprietors might recover their own. But if through sloth and neglect they suffered it to slip, the Praetor might fairly reject their too late importunity. And tho’ it might so happen, that now and then a particular person lost his advantage of recovering his goods, utterly against his will and without his fault, only because he was unable to find out the possessor, yet the damage and inconvenience arising from that general statute to some few private men, is compensated by the benefit it affords to the public.” It was a judicious reflexion of Aratus of <245> Sicyon in Tully’s offices, l. 2. c. 23. “He did not think that possessions of fifty years should be disturbed, because in so long time many things in inheritances, purchases and portions, might be held without an injury to any.” 3. Now from the nature of property acquired by prescription, i.e. by the effect of time regulated by law, and the reasons upon which the utility, or rather necessity of it is founded, it is plain on the one hand, that whatever is not subject of commerce, cannot be the object of prescription, such as liberty; so prime, so essential a blessing; a blessing so much dearer than life, that none can ever be presumed so much as tacitely to have consented to be a slave! Liberty, a blessing, a right in the nature of things unalienable; or to renounce which is contrary to nature, and the will of the author of nature, who made all men free! Public places, goods belonging to the public, &c. So, on the other hand, whatever is the object of commerce may be the object of prescription, i.e. property in it may be acquired by the effect of time. As every man who is otherwise capable of acquiring dominion, is likewise capable of prescribing; so by this right of prescription we may acquire dominion over both sorts of things, moveable and immoveable, unless they are particularly excepted by the laws. But moveable things may pass into prescription sooner than immoveable, for this reason, that immoveables are judged a much greater loss than moveables; that they are not so frequently made the subject of commerce between man and man; that it is not so easy to acquire the possession of them, without knowing whether the party that conveys them be the true proprietor or the false; and consequently, that they are likely to occasion fewer controversies and suits. Plato’s rules for the prescription of moveables are these: “If a thing of this kind be used openly in the city, let it pass into prescription in one year; if in the country in five years: if it be used privately in the city, the prescription shall not be compleated in less than three years. If it be thus held with privacy in the country, the person that lost it shall have ten years allowed him to put in his claim, de leg. l. 12.”3 As for the prescription of immoveables, the constitution of Plato’s commonwealth was not acquainted with it. It is proper to observe here, that by the civil law prescription has not only respect to property; but it destroys other rights and actions when men are not careful to maintain them, and preserve the use of them during the time limited by the law. Thus a creditor loses his debt for having omitted to demand it within the time limited for prescription, and the debtor is discharged from it by the long silence of his creditor. Thus other rights are acquired by a long enjoyment, and are lost
