the course of a river. The Roman lawyers hid down various Rules according to which they assigned this land to the Proprietors of the adjacent banks. More modern writers give it to the State*.

151. In like manner, the Law determines what length of time of undisturbed possession or enjoyment of things is to be considered as conferring the Right of Property. In the early Roman Law this mode of acquiring the Right of Property is termed Usucapio. Gaiust says, "Usucapio mobilium quidem rerum anno completur; fundi vero et ædium biennio; et ita Cap. XII. tabularum cautum est." And he gives the reason for this: "Quod ideo receptum videtur ne rerum dominia diutius in incerto essent: cum sufficerit domino ad inquirendam rem suam anni aut biennii spatium." But this refers to the formalities of the Roman Law in its early stages. The more general term for this mode of acquiring a Right by lapse of time was Præscriptio, or Temporis Præscriptio. This is regulated by various laws; for instance§: "Præscriptione bona fide possidentes adversus præsentes annorum decem, absentes autem viginti muniuntur." In the English Law, Prescription is made a valid source of Right by the Statutes of Limitation, that is, Acts of Parliament which limit the time within which actions for Wrongs may be brought. The period of unquestioned possession which establishes a Right is in different cases, sixty, fifty, thirty and twenty years||: And the Commentators state that the reason of these

*Grot. B. et P. II. 8. 8.

+ Gaius, 11. 42.

Id. I. 44. Prescription in moveables is established by a year's possession; in land and house by two years. Which seems to have been made the rule in order that the ownership of property might not be longer uncertain. For one or two years was time sufficient for the owner to ascertain his property. § Cod. VIII. 35. 7.

Blackstone, III. 307. The last Statute of Limitations assigns twenty years as the period for land; and various periods from six years downwards are fixed as to personal actions.

Statutes of Limitations is to preserve the peace of the kingdom, and to prevent the frauds which might ensue, if a man were allowed to bring an action for any injury committed at any distance of time. To this effect, they quote the maxim of the jurists*: "Interest reipublicæ ut sit firis litium.”

152. Besides the ownership of a thing, by which a person is entitled to use it, there are cases in which a person is recognized as the owner by law, and yet bound to give to another the advantage of the use of a property. Property so committed to a person is called in Latin, fidei commissum, in English, a Trust: the person to whom it is committed is fidei commissarius, a Trustee. A Trustee possesses and administers property for the benefit of others; generally, on certain conditions and according to certain rules.

153. The Right of Moveables generally implies a Right of Alienation; that is, of transferring them to another, by Gift, Sale, or Barter. The Right to Immoveables does not so universally imply a Right of Alienation; for the Dominium Eminens (144) of the State or the Sovereign may come in, and may prohibit or limit such a transfer. Thus a Feudal Tenant could not alienate his Fee to another Person. The Fee must be granted by the Lord only.

154. Again; the State regulates, by special Laws and Customs, the Succession of Property; that is, the disposal of a man's property after his death, whether moveable or immoveable. It determines whether he shall have the power of disposing of the whole, or of part, by his Will and Testament. And if the man die intestate, the Law determines in what manner his property shall be assigned to the members of his family, or to other persons. In some States, as in ancient Rome, the property was equally divided

* It is for the public good that there be an end to lawsuits.

among the children; in others, as in England, there is a Law of Primogeniture, by which a larger portion, or the whole so far as landed property is concerned), is given to the eldest son. Such differences depend upon the different views of the relations of Families, and their Property, to the State, which prevail in different times and Countries.

155. To give, or alienate Property, some external act is requisite; for we are now speaking of Laws which deal with external acts. The Law must define what Act, (including words in the term Acts) shall constitute giving or alienating. It must determine, for instance, whether Words of Transfer be sufficient for this purpose; and if so, with what publicity they must be uttered, in order to be valid; or whether some Act of Delivery be also requisite. The latter was the case in the Roman and in the English Law; at least in the most formal kinds of transfer.

Also an Act of Acceptance on the other part is requisite; for it would be intolerable that a person should, without my consent, have the power of giving me what might be in the highest degree burdensome or troublesome; as if he were to give me a wild beast. And the act of acceptance must also be defined by Law.

156. Questions have been discussed among Jurists as to the Rule which is to be followed when the Right of Property comes in conflict with the Needs of Personal Safety. For instance; When, in a ship, the common stock of provisions fails, is it allowable for the Passengers to use that which belongs to one of them in spite of his will? When a fire is raging in a town, is it allowable, in order to stop it, to pull down a house without consent of the owner? When a ship runs foul of the cables of other ships, is it allowable for the captain to cut these cables if his ship cannot otherwise be extricated?

In such cases, it has been decided by the Roman

Law, and its Commentators, that the Right of Property must give way. Necessity, they say*, overrules all Laws. But this is to be required only in extreme cases, and when all other courses fail. To which is added, by most Jurists, that when it is possible, restitution is to be made for the damage committed. A like Rule is recognized in the English Lawt.

It has been held by some English Lawyers, that a starving man may justifiably take food; but others deny that such necessity gives a Right; inasmuch as the poor are otherwise provided for by Law‡.

157.

CHAPTER IV.

THE RIGHTS OF CONTRACT.

A

We have already (50) spoken of the ne cessity of mutual understanding and mutual dependence among men; and the consequent necessity of the fulfilment of Promises, as one of the principal bonds of Society. The necessity of depending upon assurances made by other men, gives birth to a Right in the person to whom the assurances are made. person has, under due conditions, a Right to the fulfilment of a promise. The Law realizes this Right, and must therefore define the conditions. The mutual assurances, which the Law undertakes to enforce, are called Contracts. In the language of the Roman Law, the Judge is made to say§, "Pacta Conventa quæ

* Grot. II. 2. 6. 4. + Bl. Iv. 32.

+ Kent's Commentaries, 11. 338.

§ Dig. 11. 14, 17. I will enforce Pacts and Contracts which are made in conformity with the Laws, the Decrees of the People and of the Senate, the edicts of the Emperor, in good faith, and with no fraudulent design.

neque dolo malo, neque adversus leges, plebiscita, Senatus consulta, edicta Principum, neque quo fraus cui rerum fiat, facta erunt, servabo."

158. The Law, which enforces Contracts, must determine what Promises are valid Contracts. To show the necessity of recurring to actual Law on this subject, we may remark how vague, arbitrary, and inconvenient are the maxims on this point, which Jurists have attempted to draw from the nature of the case. Thus it has been asserted*, that of the three ways of speaking of the future: I intend to give you : I shall give you: I promise you: the two former do not give a Right to the person addressed; but the third does. It is evident that this distinction is as arbitrary as any merely legal one can be: and if such rules are arbitrary, they must be established as a matter of fact, not of reasoning: that is, they must be established by actual Laws.

159. But according to the Roman Law, even the last formula, I promise you, did not convey a Right. It was called a bare Promise, Nudum Pactum; as not being clothed with the circumstances of mutual advantage and formal act, which are requisite to a valid engagement.

In thus refusing to recognize a bare Promise as creating a Right, the Law proceeds with a due regard to the gravity of Rights. Relations so important must be brought into being only by acts of a calm and deliberate kind. If a verbal promise, however hasty, informal, and destitute of reasonable motive, were to be sanctioned as creating a Right, the Law must carry into effect the most extravagant proposals of gamesters; as for instance, when a man stakes the whole of his fortune on the turn of a die: for the meaning of such an act is, "I promise to give you so much, if the cast is so." But the Law, whose pur

* Grot. B. et P. II. 11. 2.