Latin
Ancient Law
Roman Law and Society, Useful Links to Roman Law Materials. 2.1.351
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The influence of Courts of Law and of their procedure upon Property has been most extensive, but the subject is too large for the dimensions of this treatise, and would carry us further down the course of legal history than is consistent with its scheme. It is desirable, however, to mention, that to this influence we must attribute the importance of the distinction between Property and Possession --not, indeed, the distinction itself, which (in the language of an eminent English civilian) is the same thing as the distinction between the legal right to act upon a thing and the physical power to do so --but the extraordinary importance which the distinction has obtained in the philosophy of law. Few educated persons are so little versed in legal literature as not to have heard that the language of the Roman jurisconsults on the subject of Possession long occasioned the greatest possible perplexity, and that the genius of Savigny is supposed to have chiefly proved itself by the solution which he discovered for the enigma. Possession, in fact, when employed by the Roman lawyers, appears to have contracted a shade of meaning not easily accounted for. The word, as appears from its etymology; must have originally denoted physical contact or physical contact resumeable at pleasure; but, as actually used without any qualifying epithet, it signifies not simply physical detention, but physical detention coupled with the intention to hold the thing detained as one's own. Savigny, following Niebuhr, perceived that for this anomaly there could only be a historical origin. He pointed out that the Patrician burghers of Rome, who had become tenants of the greatest part of the public domain at nominal rents, were, in the view of the old Roman law, mere possessors, but then they were possessors intending to keep their land against all comers. They, in truth, put forward a claim almost identical with that which has recently been advanced in England by the lessees of Church lands. Admitting that in theory they were the tenants-at-will of the state, they contended that time and undisturbed enjoyment had ripened their holding into a species of ownership, and that it would be unjust to eject them for the purpose of redistributing the domain. The association of this claim with the Patrician tenancies, permanently influenced the sense of "possession." Meanwhile the only legal remedies of which the tenants could avail themselves, if ejected or threatened with disturbance, were the Possessory Interdicts, summary processes of Roman law which were either expressly devised by the Praetor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right. It came, therefore, to be understood that everybody who possessed property as his own had the power of demanding the Interdicts, and, by a system of highly artificial pleading, the Interdictal process was molded into a shape fitted for the trial of conflicting claims to a disputed possession. Then commenced a movement which, as Mr John Austin pointed out, exactly reproduced itself in English law. Proprietors, domini, began to prefer the simpler forms or speedier course of the Interdict to the lagging and intricate formalities of the Real Action, and for the purpose of availing themselves of the possessory remedy fell back upon the possession which was supposed to be involved in their proprietorship. The liberty conceded to persons who were not true Possessors, but Owners, to vindicate their rights by possessory remedies, though it may have been at first a boon, had ultimately the effect of seriously deteriorating both English and Roman jurisprudence. The Roman law owes to it those subtleties on the subject of Possession which have done so much to discredit it, while English law, after the actions which it appropriated to the recovery of real property had fallen into the most hopeless confusion, got rid at last of the whole tangled mass by a heroic remedy. No one can doubt that the virtual abolition of the English real actions which took place nearly thirty years since was a pubic benefit, but still persons sensitive to the harmonies of jurisprudence will lament that, instead of cleansing, improving, and simplifying the true proprietary actions, we sacrificed them all to the possessory action of ejectment, thus basing our whole system of land recovery upon a legal fiction.