in consequence of the lapse of time? Sometimes the loss
of evidence is referred to, but that is a secondary matter. Sometimes
the desirability of peace, but why is peace more desirable after twenty
years than before? It is increasingly likely to come without the aid of
legislation. Sometimes it is said that, if a man neglects to enforce
his rights, he cannot complain if, after a while, the law follows his
example. Now if this is all that can be said about it, you probably will
decide a case I am going to put, for the plaintiff; if you take the view
which I shall suggest, you possibly will decide it for the defendant. A
man is sued for trespass upon land, and justifies under a right of
way. He proves that he has used the way openly and adversely for twenty
years, but it turns out that the plaintiff had granted a license to a
person whom he reasonably supposed to be the defendant's agent, although
not so in fact, and therefore had assumed that the use of the way was
permissive, in which case no right would be gained. Has the defendant
gained a right or not? If his gaining it stands on the fault and
neglect of the landowner in the ordinary sense, as seems commonly to be
supposed, there has been no such neglect, and the right of way has not
been acquired. But if I were the defendant's counsel, I should suggest
that the foundation of the acquisition of rights by lapse of time is to
be looked for in the position of the person who gains them, not in that
of the loser. Sir Henry Maine has made it fashionable to connect the
archaic notion of property with prescription. But the connection is
further back than the first recorded history. It is in the nature of
man's mind. A thing which you have enjoyed and used as your own for a
long time, whether property or an opinion, takes root in your being and
cannot be torn away without your resenting the act and trying to
defend yourself, however you came by it. The law can ask no better
justification than the deepest instincts of man. It is only by way of
reply to the suggestion that you are disappointing the former owner,
that you refer to his neglect having allowed the gradual dissociation
between himself and what he claims, and the gradual association of it
with another. If he knows that another is doing acts which on their face
show that he is on the way toward establishing such an association, I
should argue that in justice to that other he was bound at his peril to
find out whether t