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110 HEPBURN'S CASE.
and technicalities peculiar to the course of this court, and nothing
more, were to be put aside. But it is asked on the part of the
petitioner, in reference to the statute of limitations and the lapse
of years relied on as a defence on behalf of the state; why this
shew of justice and liberality, if the technical presumption arising
from the lapse of time, of which the Legislature were fully advised,
was to be relied on as a bar ?
But as I have said upon a former occasion, in this, as in all
other cases, it must strike every one, that the lapse of years cannot
fail to give rise to an unanswerable presumption against the va-
lidity of an antiquated claim of any kind, however much it may
have been originally a favourite of the law, as in cases of dower or
the like. I cannot think it a reasonable demand on the court, to
give parties the advantage of a stale and antiquated claim, to
suffer them to make the court the depository of their slumbering
rights; and then to come and revive them, when, from lapse of
time, it is become utterly impossible to ascend to the whole justice
of the case. There is surely a principle of limitation in the
administration of every system of jurisprudence, to be derived out
of the nature of things, which does entitle the court to avail itself
of the universal maxim, vigilantibus non dormientibus subveniunt
leges, (d) The maxims which refer to descents, discontinuances,
non-claims, and collateral warranties, are only the wise arts and
inventions of the law, to quiet possessions and strengthen the
rights of property, (e) And in England it has been generally
thought, that sixty years, the limitation to writs of right, is too
long a time for titles to remain in dubio; and it has often been
lamented there, by eminent lawyers, that the period had not been
shortened. (f)
It is true that a mere formal plea of the statute of limitations
has been, in some cases, said by courts of common law, not to be
a plea to the merits. But a reliance upon the presumption arising
from a great lapse of time has never been considered in Chancery
as a defence of the same rigid and technical character. The sta-
tute of limitations, in equity as at law, must always be pleaded or
specially relied on as a defence; but a presumption founded on
a long lapse of time is a defence, which has always been allowed
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(d) The Rebecca, 5 Rob. Adm. Rep. 104.—(e) Dudley v. Dudley, Prec. Cha.
249.(f) Gilb. Exeu. 12; Charlwood v. Morgan, 1 New Rep. 66; Stackhouse v.
Barnston, 10 Ves. 469.
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