"ture. The first proprietor deserted his possession, lost his "affection to it, whereby, as to all real effects, the case " comes to be the same as if it had never been his. Ano"ther person is suffered peaceably and honestly to take up "the deserted possession: he has no reason to be suspi"cious of this, more than of any other vacant spot of

661

ground. His affection grows to the subject as his own "property; it becomes as strong as he had bought it, nay, "we may suppose he actually bought it, or obtained it by "some other the most indisputed title. If the law there"after take it from him, it takes it from a man who cannot help thinking it unjustly tore from him, and who is thereby made a real sufferer, to be given to another whose pre"tensions are quite worn out by course of time, and who

66

is thus made locupletior aliena jactura. It can never be " in the law of nature to indulge such hardships. It will "be granted to be perfectly agreeable to human nature, "that a man indulge his affection in such acquisition. At "first, indeed, it is reasonable to have some doubts; these "must wear off necessarily by the course of time, till at the "long run, the possessor acquires the most solid affection. "to, and security in, the thing as his own. After so good a "foundation built in human nature, it never can be agree"able to the laws of that nature, to overturn such a founda“tion, by wresting the property from him; which were in other words to say, that nature dictates to be secure, and -❝insecure at the same time.

4

"The

CHAP. II.

BOOK I.

66

"The matter comes here in one word, the longer a man

possesses bonâ fide, the greater is his security in the thing, "and affection to it, till at length both become extremé. "The laws of nature ought to protect every possessor in "reasonable security and affection, which are of nature's growth, and not prefer him who has neither security nor "affection. And thus, by the law of nature, a long conti"nued bonâ fide possession, is a good title for acquiring property."

66

66

We may allow to this reasoning the praise of ingenuity, but it will not bear a strict examination. The conclusion is evidently drawn from false principles; and the argument contains more than one error in its premises. The feeling of affection is here made the criterion of property: whereas constant experience shews us, that there may be the strongest affection where there is no property, and, on the contrary, a very weak feeling or none, of affection, where the right of property is indisputable. Were affection a title of property, it would prove the better right to be in the robber, who risked his life to demonstrate his affection to his neighbour's purse, than in the latter, who parted with it to avoid his personal danger. The man who, having lost a jewel, ceases after some time to seek for it, does not by so ceasing give any evidence that he voluntarily relinquishes it, from having lost his affection to it. It is against his will, and with regret, that he feels himself compelled to abandon the search. He loses

not

not the desire, but the hope of finding it; and he quits the pursuit, only as choosing the least of two evils, the loss of his jewel; in preference to the loss of his time and labour in a hopeless exertion, On the other hand, the finder of the jewel, whatever may be his affection, which we may grant to be extremely strong, can never acquire the right of property, while he wants that bona fides which is essential to that right: but the finder can never have that bona fides; for a costly gem, bearing evidence of property, is never to be presumed res nullius. The same may be said of a piece of ground, which never can be presumed to be res nullius in a civilized country. Should it be said that the heir of the finder or the occupier, who knew not the mode of acquisition, may have that bona fides; the answer is, his bona fides is founded on a presumption, namely, of purchase or of gift in the person of his ancestor; but every presumption must yield to truth, and when the right owner appears, the presumption is at an end. What then, it may be asked, is the foundation of a prescriptive title? Plainly this, which Grotius, Puffendorff, and all the jurists have assigned; and which even Mr Home himself involuntarily resorts to in his subsequent reasoning, though unwilling to allow it its due place as a principle *: It is expedient for the good order of society, that a long continued possession should not be disturbed on slight pre

tences:

CHAP. II.

* "As from the nature of the thing, titles to property are extremely un

"certain, it is the interest of mankind, that they be keeped secure against "after-reckonings of this nature."-Essay on Prescription, p. 105.

BOOK I.

tences: and that claim must be presumed a slight one, which, in a long period of time, has never been moved: the direct evidence of property may have perished through neglect or natural decay, and false evidence might easily be substituted in its stead. It is political expedience, therefore, which is the foundation of prescription; and prescription can no otherwise be said to be consonant to the law of nature, than as it is agreeable to that law, that the best precautions should be taken to ensure the good order and peace of society.

But although in the foregoing Essay the author may have erred in speculating abstractly on the origin and foundation of prescription, the doctrine itself is handled in a masterly manner in all its principal branches. Its partial coincidence with the Roman Usucapio, and the points in which it differs, are distinctly noted; and the most material positions are illustrated by examples from the recorded judgments of the Court.

These Essays* procured to their author the character of a profound and scientific lawyer; and from the period of their publication, we find Mr Home engaged in most of the causes of importance which occurred in the Court of Session.

CHAP.

* The substance of the Essay, entitled, Beneficium cedendarum actionum, was afterwards inserted by the author into his work, entitled, Principles of Equity; and the other three Essays were republished, in an amended form, in his Elucidations respecting the Law of Scotland.

CHAPTER III.

Mr Home's social turn, and early friends.-Colonel Forrester. -Hamilton of Bangour.-Authors of the Edinburgh Miscellany.-Earl of Findlater.-Oswald of Dunikeir.—Letters from him to Mr Home.-David Hume.-Letters from him. -Dr Butler.

CHAP. III.

Mr Home's social turn

friends.

MR HOME, in every period of his life, was fond of social intercourse; and, with all his ardour of study, and variety of literary and professional occupations, a considerable portion and early of his time was devoted to the enjoyments of society, in a numerous and respectable circle of acquaintance. In his earlier days, the warmth of his affections, a happy flow of animal spirits, which disposed him to enter keenly into every innocent frolic, and a great power of animated and sprightly conversation, made his acquaintance be eagerly courted by the gay young men of fashion, who acquired some consequence in their own esteem, from being the friends and companions of a man of science and a philosopher: Nor can we doubt the beneficial effect of such a pat

VOL. I.

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tern