Latin
Ancient Law
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.321
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Before pointing out the quarter in which we may hope to glean some information, scanty and uncertain at best, concerning the early history of proprietary right, I venture to state my opinion that the popular impression in reference to the part played by Occupancy in the first stages of civilization directly reverses the truth. Occupancy is the advised assumption of physical possession; and the notion that an act of this description confers a title to "res nullius," so far from being characteristic of very early societies, is in all probability the growth of a refined jurisprudence and of a settled condition of the laws. It is only when the rights of property have gained a sanction from long practical inviolability and when the vast majority of the objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship has been asserted. The sentiment in which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty of proprietary rights which distinguish the beginnings of civilization. Its true basis seems to be, not an instinctive bias towards the institution of Property, but a presumption arising out of the long continuance of that institution, that everything ought to have an owner. When possession is taken of a "res nullius," that is, of an object which is not, or has never been, reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally the subjects of an exclusive enjoyment, and that in the given case there is no one to invest with the right of property except the Occupant. The Occupant in short, becomes the owner, because all things are presumed to be somebody's property and because no one can be pointed out as having a better right than he to the proprietorship of this particular thing.