Page:Catholic Encyclopedia, volume 12.djvu/460

 PRESENCE

396

PRESENCE

TON. The Law of the Church (London, 1906): Sabe-tti, Com- pendium theol. moral. (Ratiabon, 1902) ; Ballerini, Opus Ihiul. morale (Prato, 1S99). JOSEPH F. DelANY.

In Civil Jurisprudence. — Prescription "in some form and under some name" is said to have existed as a part of tiie municipal law of every civilized na- tion, except the Jewish [Angell, "A treatise on the limitations of actions" (Boston, 1876), .5; Broom, "A selection of legal maxims" (London, 1911), 690; Domat, "The Civil law in its natural order", tr. Strahan (Boston, 1850), sections 2183, 2184], and Devas, "PoUtical Economy" (London, 1901), 491, remarks that "the doctrine of pre.scription in econom- ics as well as in politics is essential to social wel- fare." It is in accord with public policy that o^mer- ship of things which the law coiLsiders capable of ownership (Broom, op. cit., 279) should not remain forever uncertain, and that litigation should not be immortal, litigants themselves being mortal (Voet, cited on title page, Brown, "The law of limitation as to real property," London, 1869), and their muni- ments of title perishable (Angell, op. cit., 2). In the old Roman law usucapio (rem usu capio) was the process by which a Roman citizen's possession of a corporeal thing during a length of time defined by law "ripened . . . into full ownership" (dominium) ["The Institutes of Justinian", tr. Sandars (London, 1898), II, tit. VI; Pothier, "Pandecta; Justinianeffi", XLI, tit. Ill, 1, 11]. "Fundus", remarks Cicero (Oratio pro Coecina, 26), "a palre relinqui potest, at tisucapio fundi, hoc est, finis solicitudini-s ac periculi litiuin, non a patre relinquitur sed a kgibus", the land is derived from the ancestor, but its quiet enjoyment from usucaption. This method of as- surance of title was not open to foreigners (peregrini) ; nor could it be apphed to pro^-incial land {solum provinciale), for in such land Roman law recognized no right of ownership, but right of possession only. To supply these defects there was provided under the empire, in favour of foreigners and of possessors of provincial land during a defined time, a written formula of defence or exception, otherwise called a prcEscriplio, the longi temporis or long(S possessionis prcescriptio. Taken alone, the word prirscriplio simply signified a formula available to defendants in a legal action for the purpose of limiting its inquiry ("The Institutes of Justinian", Introduction, sect. 104), and possession remained no more than a de- fence until a law of Justinian allowed a right of action founded on possession for thirty years [Girard, "Manuel elemontau-e de droit romain" (Paris, 1901), 300, 2981, the longissimi temporis possessio [Leage, "Roman Private Law" (London, 1906), 142].

The operation of usueapio w;is subject to some re- strictions similar to those of canon law prescription. A purchaser in good faith and for full value from a thief would not, by usucaption, acquire ownership in the thing stolen, nor would ownership thus accrue to one who acquired possession, knowing that the thing really belonged to another (Leage, op. cit., 135, 136). iMor could property be gained by usucapio or right of possession by prcescriptio, in a thing taken by violence (Girard, op. cit., 298; cf. as to prcescriptio, 299, note 3). The law of Justinian just referred to conferred ownership on a possessor in good faith, but only if no vdolence had been used (Leage, op. cit., 142). "Length of time", remarks Domat, "does not secure unjust possessors from the guilt of sin, . . . on the contrary, their long possession is only a con- tinuance of their injustice." But this authority on the modern civil law holds that "ci\-il policy does not permit that possessors be molested after a long pos- session, or that they be obliged to make good their titles or even to declare the origin of their possession. For the pretext of incjuiring after unjust po.ssc.ssors would disturb the peace and ijuiet of just and lawful possessors" (note to section 2209).

In English law the term prescription is applied to rights only which are defined to be incorporeal here- ditaments, such as a right of way or a common or an advowson. "No prescription", remarks Blackstone, "can give a title to lands and other corporeal sub- stances of which more certain evidence may be had" (Commentaries, II, 264, 266; III, 250).

According to English law if a legal beginning be possible {English Law Reports, 17 Appeal cases (1SS2), 648; Brown, op. cit., 139], it will be presumed from use during the defined time, such length of use estab- lishing a conclusive presumption that even a person whose use had commenced wrongfully has procured a legal title [Broom, op. cit., 689; Lightwood, "A treatise on possession of land" (London, 1894), 153]. But this presumption only holds against a person who is deemed capable of asserting his rights and who is not under legal disability; for contra non valentem agere nulla curril prcescriptio (Broom, op. cit., 696). Against those unable to act the maxim rigilantihus non dormien- iibus jura subveniunt — the law assists those who are vigilant, not those who sleep over their rights — does not apply [ibid., 689; Wood, "A treatise on the limitation of actions" (Boston, 1901), 416, 417]. The use neces- sary to gain right by prescription must not only be long, but "n-ithout force, without secrecy, as of right and without interruption" (Wood, op. cit., 418, note), "nee pi, nee clam nee precario" ("The Institutes of Justinian", II, tit. iii).

Lfntil, as to most instances, altered by modern statutes, the period required to make a prescription good by English law was "time whereof the memory of man runneth not to the contrarj-", and the law deemed memory to run as far back at least as the commencement of the reign of Richard I (a. d. 1189) [Stephen, "New Commentaries on the Laws of England" (London, 1908), I, 468,_ 470; Hor- wood, "Year Books of the reign of King Edward the First" (London, 1866), 136, 426]. In this re- quirement of time, prescription and that other im- memorial right known as custom were alike. But prescription differs from custom in being personal, while custom is local and for many persons, "generally as an undefined class but of a particular locality" (Brown, op. cit., 213). The English law term for the acquiring of title to land by long possession and claim is adverse possession. In England, during the early Norman period, the discretion of the judges regulated the time within which possessors of land might be disturbed in their possession. Afterwartla by various statutes the dates of certain important events, such as the return of King John from Ireland, the coronation of Henry III, or, similarly to prescrij)- tion, the commencement of the reign of Richard I, limited the commencement of various actions to recover land (Lightwood, op. cit., 154, 155). The earliest statute defining a certain number of years as a limitation to an action affecting land was a statute of 32 Henry S [Carson, "Real property statutes" (London, 1902), 124]. Possession of land neces- sarj' to gain title by adverse possession must be "so open, notorious and important as to operate aa a notice to all parties that it is under a claim of right"; the possessor "must possess, use and occupy the land as owner and as an o-mier would do," not as would a mere trespasser (Wood. op. cit., 583, 584). Charles W. Sloane.

Presence, Real. See Eucharist.

Presence of God. — Doctrinal. — All sohd devotion and devotional practices must be founded upon the truths of faith, and these truths must be borne in mind when treating of the presence of God from an asceti- cal and devotional point of view. First, it is of faith that Ood is present by His Essence everywhere and in all things by reason of His Immensity. (Creed of St. Athanasius; Council of Lateran, c. "Firmiter"; Vati-