Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

VOLUME 3, CHAPTER 17
Of Title by Prescription

A THIRD method of acquiring real property by purchase is that by prescription; as when a man can show no other title to what he claims, than that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries.1 At present therefore I shall only, first, distinguish between custom, strictly taken, and prescription; and then show, what sort of things may be prescribed for.

AND, first, the distinction between custom and prescription is this; that custom is properly a local usage, and not annexed to any person; such as, a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal usage; as, that Sempronius, and his ancestors, or those whose estate he has, have used time out of mind to have such an advantage or privilege.2 As for example: if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation; (which is held3 to be a lawful usage) this is strictly a custom, for it is applied to the place in general, and not to any particular persons: but if the tenant, who is seized of the manor of Dale in fee, alleges that he and his ancestors, or all those whose estate he has in the said manor, have used time out of mind to have common of pasture in such a close, this is properly called a prescription; for this is a usage annexed to the person of the owner of this estate. All prescription must be either in a man and his ancestors, or in a man and those whose estate he has;4 which last is called prescribing in a que estate. And formerly a man might, by the common law, have prescribed for a right which had been enjoyed by his ancestors of predecessors at any distance of time, though his or their enjoyment of it had been suspended5 for an indefinite series of years. But by the statute of limitations, 32 Hen. VIII. C.2. it is enacted, that no person shall make any prescription by the seizin or profession has been within threescore years next before such prescription, unless such seizin or profession has been within threescore years next before such prescription made.6

Secondly, as to the several species of things which may, or may not, be prescribed for: we may in the first place, observe, that nothing but incorporeal hereditaments can be claimed by prescription; as a right way, a common, etc; but that no prescription can give a title to lands, and other corporeal substances, of which more certain evidence may be had.7 For no man can be said to prescribe, that he and his ancestors have immemorially used to hold the castle of Arundel: for this is clearly another sort of title; a title by corporal seizin and inheritance, which is more permanent, and therefore more capable of proof, than that of prescription. But, as to a right of way, a common, or the like, a man may be allowed to prescribe; for of these there is no corporal seizin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but immemorial usage. 2. A prescription must always be laid in him that is tenant of the fee. A tenant for life, for years, at will, or a copyholder, cannot prescribe, by reason of the imbecility of their estates.8For, as prescription is usage beyond time of memory, it is absurd that they should pretend to prescribe, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord’s estate, and the tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple; and must plead, that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demised the said manor, with its appurtenances, to him the said tenant for life. 3. A prescription cannot be for a thing which cannot be raised by grant. For the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed. Thus a lord of a manor cannot prescribe to raise a tax or toll upon strangers; for, as such claim could never have been good by any grant, it shall not be good by any grant, it shall not be good by prescription9 4. A fourth rule is, that what is to arise by matter of record cannot be prescribed for, but must be claimed by grant, entered on
record: such as for instance, the royal franchises of deodands, felons’ goods, and the like. These, not being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, the forfeiture itself cannot be claimed by any inferior title. But the franchises of treasure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from private contingencies, and not from any matter of record.10 5. Among things incorporeal, which may be claimed by prescription, a distinction must be made with regard to the manner of prescribing; that is, whether a man shall prescribes in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate, (that is, in himself and those whose estate he holds) nothing is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands; for it would be absurd to claim any thing as the consequence, or appendix, of an estate, with which the thing claimed has no connection: but, if he prescribes in himself and his ancestors, he may prescribe for any thing whatsoever that lies in grant; not only things that are appurtenant, but also such as may be in gross.11 Therefore a man may prescribe, that he, and those whose estate he has in the manor of Dale, have used to hold the advowson of Dale, as appendant to that manor: but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross, he must prescribe in a que estate for a common appurtenant to a manor; but, if he would prescribe for a common in gross he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates pained by prescription ane not, of course, descendible to the heirs general, like other purchased estates, but are an exception to the rule, For, properly speaking, the
prescription is rather to be considered as an evidence of a former acquisition, than as a acquisition de novo: and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. But, if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase: for every accessory follows the nature of its principal.


Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    See Vol. I. pag. 75, etc.
     2.    Co. Litt. 113.
     3.    I Lev. 176.
     4.    4 Rep. 32.
     5.    Co Litt. 113.
     6.    This title, of prescription, was well known in the Roman law by the name of usucapio; (Ff. 41.3.3.) so called, because a man, that gains a title by prescription, may be said usu rem capere.
     7.    Dr & St. dial. I. c. 8. Finch. 132.
     8.    Rep. 31, 32.
     9.    I Ventr. 387.
   10.    Co. Litt.114
   11.    Litt.§ 183.Finch. L.104.