Property Terms and usucaption and imprescriptible and imprescriptibility and prescription and quiritarian and bonitarian

If there is one subject seemingly intended by the gods to drive a person crazy, it is the historical study of property law in the West. Of course, every law school student who studies property law and every Ph. D. who studies history is exempt from this torment because they don't take the time to study the history of terms and the concepts behind them that really defined the nature of human interaction for centuries in the West. Law students and professors only need to know the current instruments of property transfer, recording and ownership; Ph.D.'s generally focus on problems much more tractable. I don't know how far this study will go; I may only be able to croak out a mini-essay or two, but there are a few things that should be set straight before I return to my study of gems or to my normal life, whatever that is.*

[*Well, I need to introduce you into my thought process leading to this and the next two essays. I think this footnote will be very long. Originally I was going to write a "More Words" essay on "imprescriptible" and "imprescriptibility." I love the sound of the words. When you say them, it is almost like you are becoming a wave of the sea that will soon crash on the shore. And, when you realize that "imprescriptible" means "inalienable," you are thrown immediately into the world of the Declaration of Independence and large realms of personal freedoms for which people fight revolutions. Thus, when I woke up this morning with imprescriptible on my mind, I wanted my heart to soar with big words and broad categories. I imagined myself on the stage at a podium, with thousands of upturned faces yearning for my words, and I wanted to tell them that something they had, something about them--perhaps their hopes and longings, their rights, their loves--was imprescriptible. I wanted to tell them about the "imprescriptibility" of their hopes and say that no "physician" can "prescribe them away." Even though no one can "take" them away, we often "give" them up. Thus, I would have ended the talk with a great flourish. "Don't give your hopes away. Consider them imprescriptible; cherish their imprescriptibility. Maintain them through thick and thin. Find others who will share your hopes. Burnish them. Make them share the adamantine [I think I will get to this word, soon, too. It comes from gemology.] luster of the hardest diamond." Then, as everyone says today..."yada yada yada." Thus, my heart was ablaze with thoughts of things that we are tempted to give away but that we ought to treat as if there were inalienable or imprescriptible.

But then, as I was shaving or sweeping the floor, I realized that I would have to "get behind" imprescriptible. I knew that "prescription" lay behind it; I knew that "prescription" was a term from the common law of property, and I even knew that it was a species of adverse possession, even though it wasn't crystal clear in my mind how prescription and adverse possession relate. I thought that adverse possession was the activity and prescription was the result, so that you might claim a land by adverse possession by having lived there for several years but the right that matures or the end result of the process is prescription. But, I wasn't sure of it. Thus, I had to check the "authorities."

It is often the case that when you consult the authorities your life, which might have had the semblance of order and meaningfulness previously, truly falls apart, because the authorities are seemingly lurching around in impenetrable darkness too. So, I consulted Blackstone, who has an entire chapter (2.17) on "Title by Prescription." I read the chapter twice and got some good insight, but then Blackstone doesn't tell me the history of the term nor does he clearly explain how prescription even works in England, though his distinction between custom and prescription is helpful So, then I looked at Maine, whose classic work on Ancient Law (1861) in chapter 8 talks about Blackstone's imprecision and confusion, a confusion shared by the great German jurist of the historical school Savigny.

So, I decided that I needed to go back further, to the fontes as Langdell would call them, and try to at least identify some of the important terms in the history of Roman law that need to be deciphered before we really understand the full nature of prescription at common law. I felt as if I was an official at an athletic contest who tells people "time out" and then sorts out terms before resuming the "game." Now, let's resume.]

Conclusion--A Few Important Terms

Thus, I saw that I would have to say a few things about the following terms--in the next mini-essay. I would need to turn to the Roman law distinction between the Quiritarian and Bonitarian rights; between res mancipi and res nec mancipi, to the way that usucaption was utilized in Roman law, to the termination of these concepts in Justinian's Code of 535 and to the apparent (though this is shadowy) rediscovery of the terms or the concept of prescription in English common law. Go to the next essay to see my limited knowledge, few discoveries, and questions.