第83章

I pass by with brief mention another expedient having thesame object with the last, which, though it did not immediatelymake its appearance in English legal history, was of immemorialantiquity in Roman law. such indeed is its apparent age that someGerman civilians, not sufficiently aware of the light thrown onthe subject by the analogies of English law, have thought it evenolder than the Mancipation. I speak of the Cessio in Jure, acollusive recovery, in a Court of law of property sought to beconveyed. The plaintiff claimed the subject of this proceedingwith the ordinary forms of a litigation; the defendant madedefault; and the commodity was of course adjudged to theplaintiff. I need scarcely remind the English lawyer that thisexpedient suggested itself to our forefathers, and produced thosefamous Fines and Recoveries which did so much to undo theharshest trammels of the feudal land-law. The Roman and Englishcontrivances have very much in common and illustrate each othermost instructively, but there is this difference between them,that the object of the English lawyers was to removecomplications already introduced into the title, while the Romanjurisconsults sought to prevent them by substituting a mode oftransfer necessarily unimpeachable for one which too oftenmiscarried. The device is, in fact, one which suggests itself assoon as Courts of Law are in steady operation, but arenevertheless still under the empire of primitive notions. In anadvanced state of legal opinion, tribunals regard collusivelitigation as an abuse of their procedure; but there has alwaysbeen a time when, if their forms were scrupulously complied with,they never dreamed of looking further.

The influence of Courts of Law and of their procedure uponProperty has been most extensive, but the subject is too largefor the dimensions of this treatise, and would carry us furtherdown the course of legal history than is consistent with itsscheme. It is desirable, however, to mention, that to thisinfluence we must attribute the importance of the distinctionbetween Property and Possession -- not, indeed, the distinctionitself, which (in the language of an eminent English civilian) isthe same thing as the distinction between the legal right to actupon a thing and the physical power to do so -- but theextraordinary importance which the distinction has obtained inthe philosophy of law. Few educated persons are so little versedin legal literature as not to have heard that the language of the1

the greatest possible perplexity, and that the genius of Savignyis supposed to have chiefly proved itself by the solution whichhe discovered for the enigma. Possession, in fact, when employedby the Roman lawyers, appears to have contracted a shade ofmeaning not easily accounted for. The word, as appears from itsetymology; must have originally denoted physical contact orphysical contact resumeable at pleasure; but, as actually usedwithout any qualifying epithet, it signifies not simply physicaldetention, but physical detention coupled with the intention tohold the thing detained as one's own. Savigny, following Niebuhr,perceived that for this anomaly there could only be a historicalorigin. He pointed out that the Patrician burghers of Rome, whohad become tenants of the greatest part of the public domain atnominal rents, were, in the view of the old Roman law, merepossessors, but then they were possessors intending to keep theirland against all comers. They, in truth, put forward a claimalmost identical with that which has recently been advanced inEngland by the lessees of Church lands. Admitting that in theorythey were the tenants-at-will of the state, they contended thattime and undisturbed enjoyment had ripened their holding into aspecies of ownership, and that it would be unjust to eject themfor the purpose of redistributing the domain. The association ofthis claim with the Patrician tenancies, permanently influencedthe sense of "possession." Meanwhile the only legal remedies ofwhich the tenants could avail themselves, if ejected orthreatened with disturbance, were the Possessory Interdicts,summary processes of Roman law which were either expresslydevised by the Praetor for their protection, or else, accordingto another theory, had in older times been employed for theprovisional maintenance of possessions pending the settlement ofquestions of legal right. It came, therefore, to be understoodthat everybody who possessed property as his own had the power ofdemanding the Interdicts, and, by a system of highly artificialpleading, the Interdictal process was moulded into a shape fittedfor the trial of conflicting claims to a disputed possession.