[§ 3. Third way of acquiring Property: Prescription.]

Prescription is founded on the supposed attachment of the possessor to what he has long been possessed of, and the supposed detachment of affection in the old possessor to what has been long out of his possession. There are four things requisite to form a right by prescription. First, bona fides, for if a person be sensible that his right to a thing is bad, it is no injury to deprive him of it, and Edition: current; Page: [112] the indifferent spectator can easily go along with the depriving him of the possession. Second, iustus titulus, by which is not meant a title just in all respects, for this is of itself sufficient without anything else, but a iustus titulus signifies some reasonable foundation that the person has to think a thing his own, such as [a] charter of some kind. If he claims a right without any such title, no impartial spectator can enter into his sentiments. Third, uninterrupted possession is also necessary to prescription, for if the property have often been claimed of him, the former possessor has not derelinquished his right. Fourth, the time is only to be reckoned when there was a person to claim the property; and therefore the longest uninterrupted possession when the proprietor was a minor, a lunatic, or in banishment, can give no right.

A iustus titulus is a proof of bona fides, and bona fides is requisite to a iustus titulus. By the Roman law, bona fides was only required at the first taking possession, and, though afterwards you found a fault in your title, prescription took place. Nature has fixed no period for prescription, and accordingly it varies according to the stability of property in a country. At Rome, [im]moveables once prescribed in two years, but afterwards more was required1. In our country a feudal lord, who continually had claims upon his neighbour, could scarce be brought to admit any law of this nature. He was willing to revive a claim though as old as the days of Noah, and when at last they fixed on a period, they made it as long as possible, to wit, forty years. Among the Romans, it is to [be] observed, that if anyone’s possession was interrupted during the time required for prescription, by an enemy coming into the country, he had to begin anew again. By Edition: current; Page: [113] the English law nothing can interrupt prescription but a claim of the old possessor. Kings seldom ever allow their claims to prescribe1, at least they account no length of uninterrupted possession sufficient to do it. However, immemorial possession will ever carry this along with it.