goods; but a certain class of goods have gone as heir-looms with the
land, and a certain description of interests in land have from
historical causes been ranked with personalty. This is not the only
instance in which English jurisprudence, standing apart from the main
current of legal modification, has reproduced phenomena of archaic
law.
I proceed to notice one or two more contrivances by which the ancient
trammels of proprietary right were more or less successfully relaxed,
premising that the scheme of this treatise only permits me to mention
those which are of great antiquity. On one of them in particular it is
necessary to dwell for a moment or two, because persons unacquainted
with the early history of law will not be easily persuaded that a
principle, of which modern jurisprudence has very slowly and with the
greatest difficulty obtained the recognition, was really familiar to
the very infancy of legal science. There is no principle in all law
which the moderns, in spite of its beneficial character, have been so
loath to adopt and to carry to its legitimate consequences as that
which was known to the Romans as Usucapion, and which has descended to
modern jurisprudence under the name of Prescription. It was a positive
rule of the oldest Roman law, a rule older than the Twelve Tables,
that commodities which had been uninterruptedly possessed for a
certain period became the property of the possessor. The period of
possession was exceedingly short--one or two years according to the
nature of the commodities--and in historical times Usucapion was only
allowed to operate when possession had commenced in a particular way;
but I think it likely that at a less advanced epoch possession was
converted into ownership under conditions even less severe than we
read of in our authorities. As I have said before, I am far from
asserting that the respect of men for _de facto_ possession is a
phenomenon which jurisprudence can account for by itself, but it is
very necessary to remark that primitive societies, in adopting the
principle of Usucapion, were not beset with any of the speculative
doubts and hesitations which have impeded its reception among the
moderns. Prescriptions were viewed by the modern lawyers, first with
repugnance, afterwards with reluctant approval. In several countries,
including our own, legislation long declined to advance beyond the
rude device of barring all actions based on a wrong which had been
suffered earlier than a fixed point of time in the past, generally the
first year of some preceding reign; nor was it till the middle ages
had finally closed, and James the First had ascended the throne of
England, that we obtained a true statute of limitation of a very
imperfect kind. This tardiness in copying one of the most famous
chapters of Roman law, which was no doubt constantly read by the
majority of European lawyers, the modern world owes to the influence
of the Canon Law. The ecclesiastical customs out of which the Canon
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