• 208 . — sl- 



it, not because they and their ancestors or predecessors have long 

 enjoyed it, as in the case of prescription, but simply because the 

 custom of local law gives it to them, without any referrence to the 

 length of their enjoyment. In the case of prescription, long usage 

 gives title to an individual ; in the case of custom, long usage 

 establishes the custom, and it is the custom, become law, which 

 gives title to a class of persons in a locality, and gives it to them 

 at once. The two tilings are essentially different, but there is a 

 sufficient similarity or analogy between them — usage being an 

 element common to both — to account for their being occasionally 

 confounded ; and I think it plain, from the history of the land 

 tenure of Malacca, that it was in the sense of " custom " that the 

 term " prescription " was used in the Act of 1839. 



It is well known that by the old Malay law or custom of 

 Malacca, while the Sovereign was the owner of the soil, every man 

 had nevertheless the right to clear and occupy all forest and waste 

 land, subject to the payment, to the Sovereign, of one-tenth of the 

 produce of the land so taken. The trees which he planted, the 

 houses which he built, and the remaining nine-tenths of the pro- 

 duce, were his property, which he could sell, or mortgage, or hand 

 down to his children. If lie abandoned the paddy land or fruit 

 trees for three years, or his gambier or pepper plantations for a 

 year, his rights ceased, and all reverted to the Sovereign. If, 

 without deserting the land, he left it uncultivated longer than was 

 usual or necessary, he was liable to ejectment. See Mr. NcivboUVs 

 Work on the Straits of Malacca, vol. I, 100. It is clear that rights 

 thus acquired are not prescriptive, in the technical sense of the 

 term, but customary. They are acquired as soon as the land is 

 occupied and reclaimed, and the title requires no lapse of time to 

 perfect it. 



It was contended by the Solicitor-General that such a custom 

 was unreasonable and therefore invalid ; but if such an objection 

 could now be raised after its long recognition, as I shall presently 

 show, I should not hesitate to hold that the custom w r as not only 

 reasonable, but very well suited to any country like this, where the 

 population is thin and the uncleared land is superabundant and of 

 no value. It must be for the advantage of the State to attract 

 settlers to lands which are worthless as forest and swamp, and thus 

 to increase at oncethe population and the wealth of the country. 

 A similar custom or law prevails in Sumatra. (Marsden's Sumatra, 

 22 i.) In Java, every Javanese has the right to occupy uncleared 

 land, paying for it by giving the State his personal labour on road- 

 making or similar public work, one day in five, or now, under the 



