Page:Catholic Encyclopedia, volume 12.djvu/459

 PRESBYTERY

395

PRESCRIPTION

in. — Stephens, The Presbyterian Churches (Philadelphia, 1910); Roberts, The Presbyterian Handbook (.Philadelphm, 1911).

J. A. McHuGH.

Presbytery. — The part of the church reserved for the higher clergy was known in antiquity by various names, among them presbytcrium, because of its occu- pation during the hturgical functions by the priests at- tached to a church, arranged in a half-circle round the bishop. The presbytery was also known as apsis, exedra, concha, designations referring to its form; benia from the fact that it was elevated above the level of the nave and in consequence reached by a stairway of a few steps; trihuna because of its location and general resemblance to the tribunal in civil basil- icas whence the magistrates administered justice. These various names were, in the Middle Ages, mostly superseded by the term choir, which in turn yielded to the modern term sanctuary. The presbytery was separated from the rest of the church by rails {can- celli). Eusebius, in his dedication oration at Tyre (H. E., X, iv), describes this feature of the church and its objects: "the Holy of Holies, the altar", he ex- plains, was inclosed with wooden lattice-work, accu- rately wrought with artistic carving to render it *' inac- cessible to the multitude". In Constantinople, as ap- pears from the episode related by Theodoret in which the actors were Theodosius the Great and St. Ambrose, the emperor was accustomed to remain within the pre- cincts of the presbytery during the celebration of the liturgy, but in the West this was not permitted (Theo- doret, H. E., V, 17). The Council in Trullo (canon Ixix), following an ancient tradition, specifically ex- cepts the emperor from the general rule reserv- ing the presbytery to the clergy. From this strict prohibition relative to the laity the term adyta (inaccessible) came to be used of the presbytery. Presbyterium also denoted a body of priests taken collectively. In modern times the house of the clergy is frequently called the presbytery (presbylkre).

Bingham, Antiquities of the Christian Church, V, III, b. 8 (Ox- ford, 1855). Maurice M. Hassett.

Prescription (Lat. prce, before, and scribere, to write, in later legal Latin involving the idea of limitation) is a method created by law for acquiring ownership or ridding oneself of certain burdens on the fulfilment of fixed conditions. It is, therefore, either acquisitive or liberating, the former being frequently termed usucaption. Prescription has its origin in enactments of the civil law which have been con- firmed by the canon law and which so far as the principle underlying them is concerned are uni- versally acknowledged to be perfectly valid in con- science. Public good demands that provision should be made for security of title to property as well as for the prevention of litigation as much as possible. Hence the State, using its right of eminent domain, may for grave reasons of the common welfare trans- fer ownership from one individual to another or re- lease from lawful obligations. A person, therefore, who has under the proper conditions acquired real estate by prescription may retain it with a safe con- science even though the former owner were to appear and claim it.

Prescription, deriving its value from positive law, presupposes certain conditions in order to produce the effect attributed to it. Moralists are agreed that the object, the ownership of which is to pass, must be open to prescription. It must be something that may be made the subject matter of private barter and to which it is possible to gain a title recognized by both natural and positive law. Thus one could not secure dominion over a public highway on pretence that prescription had operated in his behalf. The reason is that the authority of the law cannot be invoked, without which the process falls.

2. The beneficiary must act in good faith. The

civil codes are not so exphcit in demanding this, but in conscience it is essential. This simply means that a man must be honestly convinced that what he has in his possession really belongs to him. The Fourth Lateran CouncU requires tliis in no uncertain terms. Prescription cannot legitimize theft or de- tention of property known to be that of another. It may be noted, however, that when the scope of the prescription is to free one from certain servitudes, and the attitude of him who profits by it need only be passive, then "good faith" is interpreted to mean that he should not hinder the other party exercising his right; he is not bound to warn him that prescrip- tion is running against him. This has its applica- tion in rural districts and with regard to such matters as the right to fish, to draw water, to pasture, and the like. Bad faith on the part of a decedent will prevent his immediate and sole heir from availing himself of prescription. The heir is then juridically one person with the deceased and must take over the latter's obligations. Consequently he can no more benefit by it than could his predecessor. In addition the good faith which is indispensable for prescription postulates in the posses.sor of a thing some sort of title to it. It need not be a true title because then there would be no need of prescription. It must have the semblance of a good title, such as the pur- chase of something which did not as a matter of fact belong to the seller, or at least there must be valid ground for supposing the existence of a title as in the case of things acquired by inheritance.

From the point of view of the law, prescription is unintelligible without the fact of possession, whether this last stand for the holding of some thing or the enjoyment of some right. Either way the possession referred to must be accompanied by a veritable proprietary state of mind and is not satisfied by fiduciary relations such as trusteeship or by those of deposit, rental, and the like. Theologians exact as necessary qualities of this possession that it should be peaceable, that is, not assailed by lawsuits, sure, uninterrupted, and open, that is, not clandestine. Much stress is laid on the fact of possession by the common law which regards it as the very foundation of prescription. Tenure of property, other requisites being verified, will confer a right by prescription not only to the land or buildings as the case may be but also to such income as may have been derived from them in the meantime.

The plea of prescription cannot be successfully ad- vanced unless it can be shown that possession has been had over a period of time stipulated by law. This space is different for different kinds of goods. The canon law allows prescription of movables on proof of possession for three years with at least a supposed title; without other title than that they have been held a long time, possession for thirty years is required. Against immovable ecclesiastical property prescription may be used only after possession for forty years, whilst a special provision demands an hundred years when the action lies against the Roman Church. The civil law in various countries exhibits such substantial differences in fixing this require- ment that there is no way to summarize it. In general a longer time is required for immovable than movable property. In the United States of America many of the States exact twenty years for immovables; in Maine forty years are necessary, whilst in others the time sinks to seven or even five years as in Cali- fornia. In England rights of common and all other profits from land become absolute and indefeasible after sixty years. The same is true of rights of way and easements in general after forty years. More- over, prescriptive rights may be extinguished and will be presumed to have lapsed when they have not been used for twenty years, or sometimes even less.

Slater, Manual of Moral Theology (New York, 1908) ; Taun-