CHAPTER VIII

THE EARLY HISTORY OF PROPERTY

The Roman Institutional Treatises, after giving their definition of

the various forms and modifications of ownership, proceed to discuss

the Natural Modes of Acquiring Property. Those who are unfamiliar with

the history of jurisprudence are not likely to look upon these

"natural modes" of acquisition as possessing, at first sight, either

much speculative or much practical interest. The wild animal which is

snared or killed by the hunter, the soil which is added to our field

by the imperceptible deposits of a river, the tree which strikes its

roots into our ground, are each said by the Roman lawyers to be

acquired by us _naturally_. The older jurisconsults had doubtless

observed that such acquisitions were universally sanctioned by the

usages of the little societies around them, and thus the lawyers of a

later age, finding them classed in the ancient Jus Gentium, and

perceiving them to be of the simplest description, allotted them a

place among the ordinances of Nature. The dignity with which they were

invested has gone on increasing in modern times till it is quite out

of proportion to their original importance. Theory has made them its

favourite food, and has enabled them to exercise the most serious

influence on practice.

It will be necessary for us to attend to one only among these "natural

modes of acquisition," Occupatio or Occupancy. Occupancy is the

advisedly taking possession of that which at the moment is the

property of no man, with the view (adds the technical definition) of

acquiring property in it for yourself. The objects which the Roman

lawyers called _res nullius_--things which have not or have never had

an owner--can only be ascertained by enumerating them. Among things

which _never had_ an owner are wild animals, fishes, wild fowl, jewels

disinterred for the first time, and lands newly discovered or never

before cultivated. Among things which _have not_ an owner are

moveables which have been abandoned, lands which have been deserted,

and (an anomalous but most formidable item) the property of an enemy.

In all these objects the full rights of dominion were acquired by the

_Occupant_ who first took possession of them with the intention of

keeping them as his own--an intention which, in certain cases, had to

be manifested by specific acts. It is not difficult, I think, to

understand the universality which caused the practice of Occupancy to

be placed by one generation of Roman lawyers in the Law common to all

Nations, and the simplicity which occasioned its being attributed by

another to the Law of Nature. But for its fortunes in modern legal

history we are less prepared by _a priori_ considerations. The Roman

principle of Occupancy, and the rules into which the jurisconsults

expanded it, are the source of all modern International Law on the

subject of Capture in War and of the acquisition of sovereign rights

in newly discovered countries. They have also supplied a theory of the

Origin of Property, which is at once the popular theory, and the

theory which, in one form or another, is acquiesced in by the great

majority of speculative jurists.

I have said that the Roman principle of Occupancy has determined the

tenor of that chapter of International Law which is concerned with

Capture in War. The Law of Warlike Capture derives its rules from the

assumption that communities are remitted to a state of nature by the

outbreak of hostilities, and that, in the artificial natural condition

thus produced, the institution of private property falls into abeyance

so far as concerns the belligerents. As the later writers on the Law

of Nature have always been anxious to maintain that private property

was in some sense sanctioned by the system which they were expounding,

the hypothesis that an enemy's property is _res nullius_ has seemed to

them perverse and shocking, and they are careful to stigmatise it as a

mere fiction of jurisprudence. But, as soon as the Law of Nature is

traced to its source in the Jus Gentium, we see at once how the goods

of an enemy came to be looked upon as nobody's property, and therefore

as capable of being acquired by the first occupant. The idea would

occur spontaneously to persons practising the ancient forms of

Warfare, when victory dissolved the organisation of the conquering

army and dismissed the soldiers to indiscriminate plunder. It is

probable, however, that originally it was only moveable property which

was thus permitted to be acquired by the Captor. We know on

independent authority that a very different rule prevailed in ancient

Italy as to the acquisition of ownership in the soil of a conquered

country, and we may therefore suspect that the application of the

principle of occupancy to land (always a matter of difficulty) dates

from the period when the Jus Gentium was becoming the Code of Nature,

and that it is the result of a generalisation effected by the

jurisconsults of the golden age. Their dogmas on the point are

preserved in the Pandects of Justinian, and amount to an unqualified

assertion that enemy's property of every sort is _res nullius_ to the

other belligerent, and that Occupancy, by which the Captor makes them

his own, is an institution of Natural Law. The rules which

International jurisprudence derives from these positions have

sometimes been stigmatised as needlessly indulgent to the ferocity and

cupidity of combatants, but the charge has been made, I think, by

persons who are unacquainted with the history of wars, and who are

consequently ignorant how great an exploit it is to command obedience

for a rule of any kind. The Roman principle of Occupancy, when it was

admitted into the modern law of Capture in War, drew with it a number

of subordinate canons, limiting and giving precision to its operation,

and if the contests which have been waged since the treatise of

Grotius became an authority, are compared with those of an earlier

date, it will be seen that, as soon as the Roman maxims were received,

Warfare instantly assumed a more tolerable complexion. If the Roman

law of Occupancy is to be taxed with having had pernicious influence

on any part of the modern Law of Nations, there is another chapter in

it which may be said, with some reason, to have been injuriously

affected. In applying to the discovery of new countries the same

principles which the Romans had applied to the finding of a jewel, the

Publicists forced into their service a doctrine altogether unequal to

the task expected from it. Elevated into extreme importance by the

discoveries of the great navigators of the fifteenth and sixteenth

centuries, it raised more disputes than it solved. The greatest

uncertainty was very shortly found to exist on the very two points on

which certainty was most required, the extent of the territory which

was acquired for his sovereign by the discoverer, and the nature of

the acts which were necessary to complete the _adprehensio_ or

assumption of sovereign possession. Moreover, the principle

itself, conferring as it did such enormous advantages as the

consequence of a piece of good luck, was instinctively mutinied

against by some of the most adventurous nations in Europe, the Dutch,

the English, and the Portuguese. Our own countrymen, without expressly

denying the rule of International Law, never did, in practice, admit

the claim of the Spaniards to engross the whole of America south of

the Gulf of Mexico, or that of the King of France to monopolise the

valleys of the Ohio and the Mississippi. From the accession of

Elizabeth to the accession of Charles the Second, it cannot be said

that there was at any time thorough peace in the American waters, and

the encroachments of the New England Colonists on the territory of the

French King continued for almost a century longer. Bentham was so

struck with the confusion attending the application of the legal

principle, that he went out of his way to eulogise the famous Bull of

Pope Alexander the Sixth, dividing the undiscovered countries of the

world between the Spaniards and Portuguese by a line drawn one hundred

leagues West of the Azores; and, grotesque as his praises may appear

at first sight, it may be doubted whether the arrangement of Pope

Alexander is absurder in principle than the rule of Public law, which

gave half a continent to the monarch whose servants had fulfilled the

conditions required by Roman jurisprudence for the acquisition of

property in a valuable object which could be covered by the hand.

To all who pursue the inquiries which are the subject of this volume,

Occupancy is pre-eminently interesting on the score of the service it

has been made to perform for speculative jurisprudence, in furnishing

a supposed explanation of the origin of private property. It was once

universally believed that the proceeding implied in Occupancy was

identical with the process by which the earth and its fruits, which

were at first in common, became the allowed property of individuals.

The course of thought which led to this assumption is not difficult to

understand, if we seize the shade of difference which separates the

ancient from the modern conception of Natural Law. The Roman lawyers

had laid down that Occupancy was one of the Natural modes of acquiring

property, and they undoubtedly believed that, were mankind living

under the institutions of Nature, Occupancy would be one of their

practices. How far they persuaded themselves that such a condition of

the race had ever existed, is a point, as I have already stated, which

their language leaves in much uncertainty; but they certainly do seem

to have made the conjecture, which has at all times possessed much

plausibility, that the institution of property was not so old as the

existence of mankind. Modern jurisprudence, accepting all their dogmas

without reservation, went far beyond them in the eager curiosity with

which it dwelt on the supposed state of Nature. Since then it had

received the position that the earth and its fruits were once _res

nullius_, and since its peculiar view of Nature led it to assume

without hesitation that the human race had actually practised the

Occupancy of _res nullius_ long before the organisation of civil

societies, the inference immediately suggested itself that Occupancy

was the process by which the "no man's goods" of the primitive world

became the private property of individuals in the world of history. It

would be wearisome to enumerate the jurists who have subscribed to

this theory in one shape or another, and it is the less necessary to

attempt it because Blackstone, who is always a faithful index of the

average opinions of his day, has summed them up in his 2nd book and

1st chapter.

"The earth," he writes, "and all things therein were the general

property of mankind from the immediate gift of the Creator. Not that

the communion of goods seems ever to have been applicable, even in the

earliest ages, to aught but the substance of the thing; nor could be

extended to the use of it. For, by the law of nature and reason he who

first began to use it acquired therein a kind of transient property

that lasted so long as he was using it, and no longer; or to speak

with greater precision, the right of possession continued for the same

time only that the act of possession lasted. Thus the ground was in

common, and no part was the permanent property of any man in

particular; yet whoever was in the occupation of any determined spot

of it, for rest, for shade, or the like, acquired for the time a sort

of ownership, from which it would have been unjust and contrary to the

law of nature to have driven him by force, but the instant that he

quitted the use of occupation of it, another might seize it without

injustice." He then proceeds to argue that "when mankind increased in

number, it became necessary to entertain conceptions of more permanent

dominion, and to appropriate to individuals not the immediate use

only, but the very substance of the thing to be used."

Some ambiguities of expression in this passage lead to the suspicion

that Blackstone did not quite understand the meaning of the

proposition which he found in his authorities, that property in the

earth's surface was first acquired, under the law of Nature, by the

_occupant_; but the limitation which designedly or through

misapprehension he has imposed on the theory brings it into a form

which it has not infrequently assumed. Many writers more famous than

Blackstone for precision of language have laid down that, in the

beginning of things, Occupancy first gave a right against the world to

an exclusive but temporary enjoyment, and that afterwards this right,

while it remained exclusive, became perpetual. Their object in so

stating their theory was to reconcile the doctrine that in the state

of Nature _res nullius_ became property through Occupancy, with the

inference which they drew from the Scriptural history that the

Patriarchs did not at first permanently appropriate the soil which had

been grazed over by their flocks and herds.

The only criticism which could be directly applied to the theory of

Blackstone would consist in inquiring whether the circumstances which

make up his picture of a primitive society are more or less probable

than other incidents which could be imagined with equal readiness.

Pursuing this method of examination, we might fairly ask whether the

man who had _occupied_ (Blackstone evidently uses this word with its

ordinary English meaning) a particular spot of ground for rest or

shade would be permitted to retain it without disturbance. The chances

surely are that his right to possession would be exactly coextensive

with his power to keep it, and that he would be constantly liable to

disturbance by the first comer who coveted the spot and thought

himself strong enough to drive away the possessor. But the truth is

that all such cavil at these positions is perfectly idle from the very

baselessness of the positions themselves. What mankind did in the

primitive state may not be a hopeless subject of inquiry, but of their

motives for doing it it is impossible to know anything. These sketches

of the plight of human beings in the first ages of the world are

effected by first supposing mankind to be divested of a great part

of the circumstances by which they are now surrounded, and by

then assuming that, in the condition thus imagined, they would

preserve the same sentiments and prejudices by which they are now

actuated,--although, in fact, these sentiments may have been created

and engendered by those very circumstances of which, by the

hypothesis, they are to be stripped.

There is an aphorism of Savigny which has been sometimes thought to

countenance a view of the origin of property somewhat similar to the

theories epitomised by Blackstone. The great German jurist has laid

down that all Property is founded on Adverse Possession ripened by

Prescription. It is only with respect to Roman law that Savigny makes

this statement, and before it can fully be appreciated much labour

must be expended in explaining and defining the expressions employed.

His meaning will, however, be indicated with sufficient accuracy if we

consider him to assert that, how far soever we carry our inquiry into

the ideas of property received among the Romans, however closely we

approach in tracing them to the infancy of law, we can get no farther

than a conception of ownership involving the three elements in the

canon--Possession, Adverseness of Possession, that is a holding not

permissive or subordinate, but exclusive against the world, and

Prescription, or a period of time during which the Adverse Possession

has uninterruptedly continued. It is exceedingly probable that this

maxim might be enunciated with more generality than was allowed to it

by its author, and that no sound or safe conclusion can be looked for

from investigations into any system of laws which are pushed farther

back than the point at which these combined ideas constitute the

notion of proprietary right. Meantime, so far from bearing out the

popular theory of the origin of property, Savigny's canon is

particularly valuable as directing our attention to its weakest point.

In the view of Blackstone and those whom he follows, it was the mode

of assuming the exclusive enjoyment which mysteriously affected the

minds of the fathers of our race. But the mystery does not reside

here. It is not wonderful that property began in adverse possession.

It is not surprising that the first proprietor should have been the

strong man armed who kept his goods in peace. But why it was that

lapse of time created a sentiment of respect for his possession--which

is the exact source of the universal reverence of mankind for that

which has for a long period _de facto_ existed--are questions really

deserving the profoundest examination, but lying far beyond the

boundary of our present inquiries.

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 civilisation 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 civilisation.

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.

Even were there no other objection to the descriptions of mankind in

their natural state which we have been discussing, there is one

particular in which they are fatally at variance with the authentic

evidence possessed by us. It will be observed that the acts and

motives which these theories suppose are the acts and motives of

Individuals. It is each Individual who for himself subscribes the

Social Compact. It is some shifting sandbank in which the grains are

Individual men, that according to the theory of Hobbes is hardened

into the social rock by the wholesome discipline of force. It is an

Individual who, in the picture drawn by Blackstone, "is in the

occupation of a determined spot of ground for rest, for shade, or the

like." The vice is one which necessarily afflicts all the theories

descended from the Natural Law of the Romans, which differed

principally from their Civil Law in the account which it took of

Individuals, and which has rendered precisely its greatest service to

civilisation in enfranchising the individual from the authority of

archaic society. But Ancient Law, it must again be repeated, knows

next to nothing of Individuals. It is concerned not with Individuals,

but with Families, not with single human beings, but groups. Even when

the law of the State has succeeded in permeating the small circles of

kindred into which it had originally no means of penetrating, the view

it takes of Individuals is curiously different from that taken by

jurisprudence in its maturest stage. The life of each citizen is not

regarded as limited by birth and death; it is but a continuation of

the existence of his forefathers, and it will be prolonged in the

existence of his descendants.

The Roman distinction between the Law of Persons and the Law of

Things, which though extremely convenient is entirely artificial, has

evidently done much to divert inquiry on the subject before us from

the true direction. The lessons learned in discussing the Jus

Personarum have been forgotten where the Jus Rerum is reached, and

Property, Contract, and Delict, have been considered as if no hints

concerning their original nature were to be gained from the facts

ascertained respecting the original condition of Persons. The futility

of this method would be manifest if a system of pure archaic law could

be brought before us, and if the experiment could be tried of applying

to it the Roman classifications. It would soon be seen that the

separation of the Law of Persons from that of Things has no meaning in

the infancy of law, that the rules belonging to the two departments

are inextricably mingled together, and that the distinctions of the

later jurists are appropriate only to the later jurisprudence. From

what has been said in the earlier portions of this treatise, it will

be gathered that there is a strong _a priori_ improbability of our

obtaining any clue to the early history of property, if we confine our

notice to the proprietary rights of individuals. It is more than

likely that joint-ownership, and not separate ownership, is the really

archaic institution, and that the forms of property which will afford

us instruction will be those which are associated with the rights of

families and of groups of kindred. The Roman jurisprudence will not

here assist in enlightening us, for it is exactly the Roman

jurisprudence which, transformed by the theory of Natural Law, has

bequeathed to the moderns the impression that individual ownership is

the normal state of proprietary right, and that ownership in common by

groups of men is only the exception to a general rule. There is,

however, one community which will always be carefully examined by the

inquirer who is in quest of any lost institution of primeval society.

How far soever any such institution may have undergone change among

the branch of the Indo-European family which has been settled for ages

in India, it will seldom be found to have entirely cast aside the

shell in which it was originally reared. It happens that, among the

Hindoos, we do find a form of ownership which ought at once to rivet

our attention from its exactly fitting in with the ideas which our

studies in the Law of Persons would lead us to entertain respecting

the original condition of property. The Village Community of India is

at once an organised patriarchal society and an assemblage of

co-proprietors. The personal relations to each other of the men who

compose it are indistinguishably confounded with their proprietary

rights, and to the attempts of English functionaries to separate the

two may be assigned some of the most formidable miscarriages of

Anglo-Indian administration. The Village Community is known to be of

immense antiquity. In whatever direction research has been pushed into

Indian history, general or local, it has always found the Community in

existence at the farthest point of its progress. A great number of

intelligent and observant writers, most of whom had no theory of any

sort to support concerning its nature and origin, agree in considering

it the least destructible institution of a society which never

willingly surrenders any one of its usages to innovation. Conquests

and revolutions seem to have swept over it without disturbing or

displacing it, and the most beneficent systems of government in India

have always been those which have recognised it as the basis of

administration.

The mature Roman law, and modern jurisprudence following in its wake,

look upon co-ownership as an exceptional and momentary condition of

the rights of property. This view is clearly indicated in the maxim

which obtains universally in Western Europe, _Nemo in communione

potest invitus detineri_ ("No one can be kept in co-proprietorship

against his will"). But in India this order of ideas is reversed, and

it may be said that separate proprietorship is always on its way to

become proprietorship in common. The process has been adverted to

already. As soon as a son is born, he acquires a vested interest in

his father's substance, and on attaining years of discretion he is

even, in certain contingencies, permitted by the letter of the law to

call for a partition of the family estate. As a fact, however, a

division rarely takes place even at the death of the father, and the

property constantly remains undivided for several generations, though

every member of every generation has a legal right to an undivided

share in it. The domain thus held in common is sometimes administered

by an elected manager, but more generally, and in some provinces

always, it is managed by the eldest agnate, by the eldest

representative of the eldest line of the stock. Such an assemblage of

joint proprietors, a body of kindred holding a domain in common, is

the simplest form of an Indian Village Community, but the Community is

more than a brotherhood of relatives and more than an association of

partners. It is an organised society, and besides providing for the

management of the common fund, it seldom fails to provide, by a

complete staff of functionaries, for internal government, for police,

for the administration of justice, and for the apportionment of taxes

and public duties.

The process which I have described as that under which a Village

Community is formed, may be regarded as typical. Yet it is not to be

supposed that every Village Community in India drew together in so

simple a manner. Although, in the North of India, the archives, as I

am informed, almost invariably show that the Community was founded by

a single assemblage of blood-relations, they also supply information

that men of alien extraction have always, from time to time, been

engrafted on it, and a mere purchaser of a share may generally, under

certain conditions, be admitted to the brotherhood. In the South of

the Peninsula there are often Communities which appear to have sprung

not from one but from two or more families; and there are some whose

composition is known to be entirely artificial; indeed, the occasional

aggregation of men of different castes in the same society is fatal to

the hypothesis of a common descent. Yet in all these brotherhoods

either the tradition is preserved, or the assumption made, of an

original common parentage. Mountstuart Elphinstone, who writes more

particularly of the Southern Village Communities, observes of them

(_History of India_, i. 126): "The popular notion is that the Village

landholders are all descended from one or more individuals who settled

the village; and that the only exceptions are formed by persons who

have derived their rights by purchase or otherwise from members of the

original stock. The supposition is confirmed by the fact that, to this

day, there are only single families of landholders in small villages

and not many in large ones; but each has branched out into so many

members that it is not uncommon for the whole agricultural labour to

be done by the landholders, without the aid either of tenants or of

labourers. The rights of the landholders are theirs collectively and,

though they almost always have a more or less perfect partition of

them, they never have an entire separation. A landholder, for

instance, can sell or mortgage his rights; but he must first have the

consent of the Village, and the purchaser steps exactly into his place

and takes up all his obligations. If a family becomes extinct, its

share returns to the common stock."

Some considerations which have been offered in the fifth chapter of

this volume will assist the reader, I trust, in appreciating the

significance of Elphinstone's language. No institution of the

primitive world is likely to have been preserved to our day, unless it

has acquired an elasticity foreign to its original nature through some

vivifying legal fiction. The Village Community then is not necessarily

an assemblage of blood-relations, but it is _either_ such an

assemblage _or_ a body of co-proprietors formed on the model of an

association of kinsmen. The type with which it should be compared is

evidently not the Roman Family, but the Roman Gens or House. The Gens

was also a group on the model of the family; it was the family

extended by a variety of fictions of which the exact nature was lost

in antiquity. In historical times, its leading characteristics were

the very two which Elphinstone remarks in the Village Community. There

was always the assumption of a common origin, an assumption sometimes

notoriously at variance with fact; and, to repeat the historian's

words, "if a family became extinct, its share returned to the common

stock." In old Roman law, unclaimed inheritances escheated to the

Gentiles. It is further suspected by all who have examined their

history that the Communities, like the Gentes, have been very

generally adulterated by the admission of strangers, but the exact

mode of absorption cannot now be ascertained. At present, they are

recruited, as Elphinstone tells us, by the admission of purchasers,

with the consent of the brotherhood. The acquisition of the adopted

member is, however, of the nature of a universal succession; together

with the share he has bought, he succeeds to the liabilities which the

vendor had incurred towards the aggregate group. He is an Emptor

Familiae, and inherits the legal clothing of the person whose place he

begins to fill. The consent of the whole brotherhood required for his

admission may remind us of the consent which the Comitia Curiata, the

Parliament of that larger brotherhood of self-styled kinsmen, the

ancient Roman commonwealth, so strenuously insisted on as essential to

the legalisation of an Adoption or the confirmation of a Will.

The tokens of an extreme antiquity are discoverable in almost every

single feature of the Indian Village Communities. We have so many

independent reasons for suspecting that the infancy of law is

distinguished by the prevalence of co-ownership by the intermixture of

personal with proprietary rights, and by the confusion of public with

private duties, that we should be justified in deducing many important

conclusions from our observation of these proprietary brotherhoods,

even if no similarly compounded societies could be detected in any

other part of the world. It happens, however, that much earnest

curiosity has been very recently attracted to a similar set of

phenomena in those parts of Europe which have been most slightly

affected by the feudal transformation of property, and which in many

important particulars have as close an affinity with the Eastern as

with the Western world. The researches of M. de Haxthausen, M.

Tengoborski, and others, have shown us that the Russian villages are

not fortuitous assemblages of men, nor are they unions founded on

contract; they are naturally organised communities like those of

India. It is true that these villages are always in theory the

patrimony of some noble proprietor and the peasants have within

historical times been converted into the predial, and to a great

extent into the personal, serfs of the seignior. But the pressure of

this superior ownership has never crushed the ancient organisation of

the village, and it is probable that the enactment of the Czar of

Russia, who is supposed to have introduced serfdom, was really

intended to prevent the peasants from abandoning that co-operation

without which the old social order could not long be maintained. In

the assumption of an agnatic connection between the villagers, in the

blending of personal rights with privileges of ownership, and in a

variety of spontaneous provisions for internal administration, the

Russian Village appears to be a nearly exact repetition of the Indian

Community; but there is one important difference which we note with

the greatest interest. The co-owners of an Indian village, though

their property is blended, have their rights distinct, and this

separation of rights is complete and continues indefinitely. The

severance of rights is also theoretically complete in a Russian

village, but there it is only temporary. After the expiration of a

given, but not in all cases of the same, period separate ownerships

are extinguished, the land of the village is thrown into a mass, and

then it is re-distributed among the families composing the community,

according to their number. This repartition having been effected, the

rights of families and of individuals are again allowed to branch out

into various lines, which they continue to follow till another period

of division comes round. An even more curious variation from this type

of ownership occurs in some of those countries which long formed a

debateable land between the Turkish empire and the possessions of the

House of Austria. In Servia, in Croatia, and the Austrian Sclavonia,

the villages are also brotherhoods of persons who are at once

co-owners and kinsmen; but there the internal arrangements of the

community differ from those adverted to in the last two examples. The

substance of the common property is in this case neither divided in

practice nor considered in theory as divisible, but the entire land is

cultivated by the combined labour of all the villagers, and the

produce is annually distributed among the households, sometimes

according to their supposed wants, sometimes according to rules which

give to particular persons a fixed share of the usufruct. All these

practices are traced by the jurists of the East of Europe to a

principle which is asserted to be found in the earliest Sclavonian

laws, the principle that the property of families cannot be divided

for a perpetuity.

The great interest of these phenomena in an inquiry like the present

arises from the light they throw on the development of distinct

proprietary rights _inside_ the groups by which property seems to have

been originally held. We have the strongest reason for thinking that

property once belonged not to individuals nor even to isolated

families, but to larger societies composed on the patriarchal model;

but the mode of transition from ancient to modern ownerships, obscure

at best, would have been infinitely obscurer if several

distinguishable forms of Village Communities had not been discovered

and examined. It is worth while to attend to the varieties of internal

arrangement within the patriarchal groups which are, or were till

recently, observable among races of Indo-European blood. The chiefs of

the ruder Highland clans used, it is said, to dole out food to the

heads of the households under their jurisdiction at the very shortest

intervals, and sometimes day by day. A periodical distribution is also

made to the Sclavonian villagers of the Austrian and Turkish provinces

by the elders of their body, but then it is a distribution once for

all of the total produce of the year. In the Russian villages,

however, the substance of the property ceases to be looked upon as

indivisible, and separate proprietary claims are allowed freely to

grow up, but then the progress of separation is peremptorily arrested

after it has continued a certain time. In India, not only is there no

indivisibility of the common fund, but separate proprietorship in

parts of it may be indefinitely prolonged and may branch out into any

number of derivative ownerships, the _de facto_ partition of the stock

being, however, checked by inveterate usage, and by the rule against

the admission of strangers without the consent of the brotherhood. It

is not of course intended to insist that these different forms of the

Village Community represent distinct stages in a process of

transmutation which has been everywhere accomplished in the same

manner. But, though the evidence does not warrant our going so far as

this, it renders less presumptuous the conjecture that private

property, in the shape in which we know it, was chiefly formed by the

gradual disentanglement of the separate rights of individuals

from the blended rights of a community. Our studies in the Law of

Persons seemed to show us the Family expanding into the Agnatic group

of kinsmen, then the Agnatic group dissolving into separate

households; lastly the household supplanted by the individual; and it

is now suggested that each step in the change corresponds to an

analogous alteration in the nature of Ownership. If there be any truth

in the suggestion, it is to be observed that it materially affects the

problem which theorists on the origin of Property have generally

proposed to themselves. The question--perhaps an insoluble one--which

they have mostly agitated is, what were the motives which first

induced men to respect each other's possessions? It may still be put,

without much hope of finding an answer to it, in the form of any

inquiry into the reasons which led one composite group to keep aloof

from the domain of another. But, if it be true that far the most

important passage in the history of Private Property is its gradual

elimination from the co-ownership of kinsmen, then the great point of

inquiry is identical with that which lies on the threshold of all

historical law--what were the motives which originally prompted men to

hold together in the family union? To such a question, Jurisprudence,

unassisted by other sciences, is not competent to give a reply. The

fact can only be noted.

The undivided state of property in ancient societies is consistent

with a peculiar sharpness of division, which shows itself as soon as

any single share is completely separated from the patrimony of the

group. This phenomenon springs, doubtless, from the circumstance that

the property is supposed to become the domain of a new group, so that

any dealing with it, in its divided state, is a transaction between

two highly complex bodies. I have already compared Ancient Law to

Modern International Law, in respect of the size and complexity of the

corporate associations, whose rights and duties it settles. As the

contracts and conveyances known to ancient law are contracts and

conveyances to which not single individuals, but organised companies

of men, are parties, they are in the highest degree ceremonious; they

require a variety of symbolical acts and words intended to impress the

business on the memory of all who take part in it; and they demand the

presence of an inordinate number of witnesses. From these

peculiarities, and others allied to them, springs the universally

unmalleable character of the ancient forms of property. Sometimes the

patrimony of the family is absolutely inalienable, as was the case

with the Sclavonians, and still oftener, though alienations may not be

entirely illegitimate, they are virtually impracticable, as among most

of the Germanic tribes, from the necessity of having the consent of a

large number of persons to the transfer. Where these impediments do

not exist, or can be surmounted, the act of conveyance itself is

generally burdened with a perfect load of ceremony, in which not one

iota can be safely neglected. Ancient law uniformly refuses to

dispense with a single gesture, however grotesque; with a single

syllable, however its meaning may have been forgotten; with a single

witness, however superfluous may be his testimony. The entire

solemnities must be scrupulously completed by persons legally entitled

to take part in them, or else the conveyance is null, and the seller

is re-established in the rights of which he had vainly attempted to

divest himself.

These various obstacles to the free circulation of the objects of use

and enjoyment, begin of course to make themselves felt as soon as

society has acquired even a slight degree of activity, and the

expedients by which advancing communities endeavour to overcome them

form the staple of the history of Property. Of such expedients there

is one which takes precedence of the rest from its antiquity and

universality. The idea seems to have spontaneously suggested itself to

a great number of early societies, to classify property into kinds.

One kind or sort of property is placed on a lower footing of dignity

than the others, but at the same time is relieved from the fetters

which antiquity has imposed on them. Subsequently, the superior

convenience of the rules governing the transfer and descent of the

lower order of property becomes generally recognised, and by a gradual

course of innovation the plasticity of the less dignified class of

valuable objects is communicated to the classes which stand

conventionally higher. The history of Roman Property Law is the

history of the assimilation of Res Mancipi to Res Nec Mancipi. The

history of Property on the European Continent is the history of the

subversion of the feudalised law of land by the Romanised law of

moveables; and, though the history of ownership in England is not

nearly completed, it is visibly the law of personalty which threatens

to absorb and annihilate the law of realty.

The only _natural_ classification of the objects of enjoyment, the

only classification which corresponds with an essential difference in

the subject-matter, is that which divides them into Moveables and

Immoveables. Familiar as is this classification to jurisprudence, it

was very slowly developed by Roman law, from which we inherit it, and

was only finally adopted by it in its latest stage. The

classifications of Ancient Law have sometimes a superficial

resemblance to this. They occasionally divide property into

categories, and place immoveables in one of them; but then it is found

that they either class along with immoveables a number of objects

which have no sort of relation with them, or else divorce them from

various rights to which they have a close affinity. Thus, the Res

Mancipi of Roman Law included not only land, but slaves, horses, and

oxen. Scottish law ranks with land a certain class of securities, and

Hindoo law associates it with slaves. English law, on the other hand,

parts leases of land for years from other interests in the soil, and

joins them to personalty under the name of chattels real. Moreover,

the classifications of Ancient Law are classifications implying

superiority and inferiority; while the distinction between moveables

and immoveables, so long at least as it was confined to Roman

jurisprudence, carried with it no suggestion whatever of a difference

in dignity. The Res Mancipi, however, did certainly at first enjoy a

precedence over the Res Nec Mancipi, as did heritable property in

Scotland and realty in England, over the personalty to which they were

opposed. The lawyers of all systems have spared no pains in striving

to refer these classifications to some intelligible principle; but the

reasons of the severance must ever be vainly sought for in the

philosophy of law: they belong not to its philosophy, but to its

history. The explanation which appears to cover the greatest number of

instances is, that the objects of enjoyment honoured above the rest

were the forms of property known first and earliest to each particular

community, and dignified therefore emphatically with the designation

of _Property_. On the other hand, the articles not enumerated among

the favoured objects seem to have been placed on a lower standing,

because the knowledge of their value was posterior to the epoch at

which the catalogue of superior property was settled. They were at

first unknown, rare, limited in their uses, or else regarded as mere

appendages to the privileged objects. Thus, though the Roman Res

Mancipi included a number of moveable articles of great value, still

the most costly jewels were never allowed to take rank as Res Mancipi,

because they were unknown to the early Romans. In the same way

chattels real in England are said to have been degraded to the footing

of personalty, from the infrequency and valuelessness of such estates

under the feudal land-law. But the grand point of interest is, the

continued degradation of these commodities when their importance had

increased and their number had multiplied. Why were they not

successively included among the favoured objects of enjoyment? One

reason is found in the stubbornness with which Ancient Law adheres to

its classifications. It is a characteristic both of uneducated minds

and of early societies, that they are little able to conceive a

general rule apart from the particular applications of it with which

they are practically familiar. They cannot dissociate a general term

or maxim from the special examples which meet them in daily

experience; and in this way the designation covering the best-known

forms of property is denied to articles which exactly resemble them in

being objects of enjoyment and subjects of right. But to these

influences, which exert peculiar force in a subject-matter so stable

as that of law, are afterwards added others more consistent with

progress in enlightenment and in the conceptions of general

expediency. Courts and lawyers become at last alive to the

inconvenience of the embarrassing formalities required for the

transfer, recovery, or devolution of the favoured commodities, and

grow unwilling to fetter the newer descriptions of property with the

technical trammels which characterised the infancy of law. Hence

arises a disposition to keep these last on a lower grade in the

arrangements of Jurisprudence, and to permit their transfer by simpler

processes than those which, in archaic conveyances, serve as

stumbling-blocks to good faith and stepping-stones to fraud. We are

perhaps in some danger of underrating the inconveniences of the

ancient modes of transfer. Our instruments of conveyance are written,

so that their language, well pondered by the professional draftsman,

is rarely defective in accuracy. But an ancient conveyance was not

written, but _acted_. Gestures and words took the place of written

technical phraseology, and any formula mispronounced, or symbolical

act omitted, would have vitiated the proceeding as fatally as a

material mistake in stating the uses or setting out the remainders

would, two hundred years ago, have vitiated an English deed. Indeed,

the mischiefs of the archaic ceremonial are even thus only half

stated. So long as elaborate conveyances, written or acted, are

required for the alienation of _land_ alone, the chances of mistake

are not considerable in the transfer of a description of property

which is seldom got rid of with much precipitation. But the higher

class of property in the ancient world comprised not only land but

several of the commonest and several of the most valuable moveables.

When once the wheels of society had begun to move quickly, there must

have been immense inconvenience in demanding a highly intricate form

of transfer for a horse or an ox, or for the most costly chattel of

the old world--the Slave. Such commodities must have been constantly

and even ordinarily conveyed with incomplete forms, and held,

therefore, under imperfect titles.

The Res Mancipi of old Roman law were land--in historical times, land

on Italian soil,--slaves and beasts of burden, such as horses and

oxen. It is impossible to doubt that the objects which make up the

class are the instruments of agricultural labour, the commodities of

first consequence to a primitive people. Such commodities were at

first, I imagine, called emphatically Things or Property, and the mode

of conveyance by which they were transferred was called a Mancipium or

Mancipation; but it was not probably till much later that they

received the distinctive appellation of Res Mancipi, "Things which

require a Mancipation." By their side there may have existed or grown

up a class of objects, for which it was not worth while to insist upon

the full ceremony of Mancipation. It would be enough if, in

transferring these last from owner to owner, a part only of the

ordinary formalities were proceeded with, namely, that actual

delivery, physical transfer, or _tradition_, which is the most obvious

index of a change of proprietorship. Such commodities were the Res Nec

Mancipi of the ancient jurisprudence, "things which did not require a

Mancipation," little prized probably at first, and not often passed

from one group of proprietors to another, While, however, the list of

the Res Mancipi was irrevocably closed; that of the Res Nec Mancipi

admitted of indefinite expansion; and hence every fresh conquest of

man over material nature added an item to the Res Nec Mancipi, or

effected an improvement in those already recognised. Insensibly,

therefore, they mounted to an equality with the Res Mancipi, and the

impression of an intrinsic inferiority being thus dissipated, men

began to observe the manifold advantages of the simple formality which

accompanied their transfer over the more intricate and more venerable

ceremonial. Two of the agents of legal amelioration, Fictions and

Equity, were assiduously employed by the Roman lawyers to give the

practical effects of a Mancipation to a Tradition: and, though Roman

legislators long shrank from enacting that the right of property in a

Res Mancipi should be immediately transferred by bare delivery of the

article, yet even this step was at last ventured upon by Justinian, in

whose jurisprudence the difference between Res Mancipi and Res Nec

Mancipi disappears, and Tradition or Delivery becomes the one great

conveyance known to the law. The marked preference which the Roman

lawyers very early gave to Tradition caused them to assign it a place

in their theory which has helped to blind their modern disciples to

its true history. It was classed among the "natural" modes of

acquisition, both because it was generally practised among the Italian

tribes, and because it was a process which attained its object by the

simplest mechanism. If the expressions of the jurisconsults be

pressed, they undoubtedly imply that Tradition, which belongs to the

Law Natural, is more ancient than Mancipation, which is an institution

of Civil Society; and this, I need not say, is the exact reverse of

the truth.

The distinction between Res Mancipi and Res Nec Mancipi is the type of

a class of distinctions to which civilisation is much indebted,

distinctions which run through the whole mass of commodities, placing

a few of them in a class by themselves, and relegating the others to a

lower category. The inferior kinds of property are first, from disdain

and disregard, released from the perplexed ceremonies in which

primitive law delights, and thus afterwards, in another state of

intellectual progress, the simple methods of transfer and recovery

which have been allowed to come into use serve as a model which

condemns by its convenience and simplicity the cumbrous solemnities

inherited from ancient days. But, in some societies, the trammels in

which Property is tied up are much too complicated and stringent to be

relaxed in so easy a manner. Whenever male children have been born to

a Hindoo, the law of India, as I have stated, gives them all an

interest in his property, and makes their consent a necessary

condition of its alienation. In the same spirit, the general usage of

the old Germanic peoples--it is remarkable that the Anglo-Saxon

customs seem to have been an exception--forbade alienations without

the consent of the male children; and the primitive law of the

Sclavonians even prohibited them altogether. It is evident that such

impediments as these cannot be overcome by a distinction between kinds

of property, inasmuch as the difficulty extends to commodities of all

sorts; and accordingly, Ancient Law, when once launched on a course of

improvement, encounters them with a distinction of another character,

a distinction classifying property, not according to its nature but

according to its origin. In India, where there are traces of both

systems of classification, the one which we are considering is

exemplified in the difference which Hindoo law establishes between

Inheritances and Acquisitions. The inherited property of the father is

shared by the children as soon as they are born; but according to the

custom of most provinces, the acquisitions made by him during his

lifetime are wholly his own, and can be transferred by him at

pleasure. A similar distinction was not unknown to Roman law, in which

the earliest innovation on the Parental Powers took the form of a

permission given to the son to keep for himself whatever he might have

acquired in military service. But the most extensive use ever made of

this mode of classification appears to have been among the Germans. I

have repeatedly stated that the _allod_, though not inalienable, was

commonly transferable with the greatest difficulty; and moreover, it

descended exclusively to the agnatic kindred. Hence an extraordinary

variety of distinctions came to be recognised, all intended to

diminish the inconveniences inseparable from allodial property. The

_wehrgeld_, for example, or composition for the homicide of a

relative, which occupies so large a space in German jurisprudence,

formed no part of the family domain, and descended according to rules

of succession altogether different. Similarly, the _reipus_, or fine

leviable on the re-marriage of a widow, did not enter into the

_allod_ of the person to whom it was paid, and followed a line of

devolution in which the privileges of the agnates were neglected. The

law, too, as among the Hindoos, distinguished the Acquisitions of the

chief of the household from his Inherited property, and permitted him

to deal with them under much more liberal conditions. Classifications

of the other sort were also admitted, and the familiar distinction

drawn between land and moveables; but moveable property was divided

into several subordinate categories, to each of which different rules

applied. This exuberance of classification, which may strike us as

strange in so rude a people as the German conquerors of the Empire, is

doubtless to be explained by the presence in their systems of a

considerable element of Roman law, absorbed by them during their long

sojourn on the confines of the Roman dominion. It is not difficult to

trace a great number of the rules governing the transfer and

devolution of the commodities which lay outside the _allod_, to their

source in Roman jurisprudence, from which they were probably borrowed

at widely distant epochs, and in fragmentary importations. How far the

obstacles to the free circulation of property were surmounted by such

contrivances, we have not the means even of conjecturing, for the

distinctions adverted to have no modern history. As I before

explained, the allodial form of property was entirely lost in the

feudal, and when the consolidation of feudalism was once completed,

there was practically but one distinction left standing of all those

which had been known to the western world--the distinction between

land and goods, immoveables and moveables. Externally this distinction

was the same with that which Roman law had finally accepted, but the

law of the middle ages differed from that of Rome in distinctly

considering immoveable property to be more dignified than moveable.

Yet this one sample is enough to show the importance of the class of

expedients to which it belongs. In all the countries governed by

systems based on the French codes, that is, through much the greatest

part of the Continent of Europe, the law of moveables, which was

always Roman law, has superseded and annulled the feudal law of land.

England is the only country of importance in which this transmutation,

though it has gone some way, is not nearly accomplished. Our own, too,

it may be added, is the only considerable European country in which

the separation of moveables from immoveables has been somewhat

disturbed by the same influences which caused the ancient

classifications to depart from the only one which is countenanced by

nature. In the main, the English distinction has been between land and

goods; but a certain class of goods have gone as heir-looms with the

land, and a certain description of interests in land have from

historical causes been ranked with personalty. This is not the only

instance in which English jurisprudence, standing apart from the main

current of legal modification, has reproduced phenomena of archaic

law.

I proceed to notice one or two more contrivances by which the ancient

trammels of proprietary right were more or less successfully relaxed,

premising that the scheme of this treatise only permits me to mention

those which are of great antiquity. On one of them in particular it is

necessary to dwell for a moment or two, because persons unacquainted

with the early history of law will not be easily persuaded that a

principle, of which modern jurisprudence has very slowly and with the

greatest difficulty obtained the recognition, was really familiar to

the very infancy of legal science. There is no principle in all law

which the moderns, in spite of its beneficial character, have been so

loath to adopt and to carry to its legitimate consequences as that

which was known to the Romans as Usucapion, and which has descended to

modern jurisprudence under the name of Prescription. It was a positive

rule of the oldest Roman law, a rule older than the Twelve Tables,

that commodities which had been uninterruptedly possessed for a

certain period became the property of the possessor. The period of

possession was exceedingly short--one or two years according to the

nature of the commodities--and in historical times Usucapion was only

allowed to operate when possession had commenced in a particular way;

but I think it likely that at a less advanced epoch possession was

converted into ownership under conditions even less severe than we

read of in our authorities. As I have said before, I am far from

asserting that the respect of men for _de facto_ possession is a

phenomenon which jurisprudence can account for by itself, but it is

very necessary to remark that primitive societies, in adopting the

principle of Usucapion, were not beset with any of the speculative

doubts and hesitations which have impeded its reception among the

moderns. Prescriptions were viewed by the modern lawyers, first with

repugnance, afterwards with reluctant approval. In several countries,

including our own, legislation long declined to advance beyond the

rude device of barring all actions based on a wrong which had been

suffered earlier than a fixed point of time in the past, generally the

first year of some preceding reign; nor was it till the middle ages

had finally closed, and James the First had ascended the throne of

England, that we obtained a true statute of limitation of a very

imperfect kind. This tardiness in copying one of the most famous

chapters of Roman law, which was no doubt constantly read by the

majority of European lawyers, the modern world owes to the influence

of the Canon Law. The ecclesiastical customs out of which the Canon

Law grew, concerned as they were with sacred or quasi-sacred

interests, very naturally regarded the privileges which they conferred

as incapable of being lost through disuse however prolonged; and in

accordance with this view, the spiritual jurisprudence, when

afterwards consolidated, was distinguished by a marked leaning against

Prescriptions. It was the fate of the Canon Law, when held up by the

clerical lawyers as a pattern to secular legislation, to have a

peculiar influence on first principles. It gave to the bodies of

custom which were formed throughout Europe far fewer express rules

than did the Roman law, but then it seems to have communicated a bias

to professional opinion on a surprising number of fundamental points,

and the tendencies thus produced progressively gained strength as each

system was developed. One of the dispositions it produced was a

disrelish for Prescriptions; but I do not know that this prejudice

would have operated as powerfully as it has done, if it had not fallen

in with the doctrine of the scholastic jurists of the realist sect,

who taught that, whatever turn actual legislation might take, a

_right_, how long soever neglected, was in point of fact

indestructible. The remains of this state of feeling still exist.

Wherever the philosophy of law is earnestly discussed, questions

respecting the speculative basis of Prescription are always hotly

disputed; and it is still a point of the greatest interest in France

and Germany, whether a person who has been out of possession for a

series of years is deprived of his ownership as a penalty for his

neglect, or loses it through the summary interposition of the law in

its desire to have a _finis litium_. But no such scruples troubled the

mind of early Roman society. Their ancient usages directly took away

the ownership of everybody who had been out of possession, under

certain circumstances, during one or two years. What was the exact

tenor of the rule of Usucapion in its earliest shape, it is not easy

to say; but, taken with the limitations which we find attending it in

the books, it was a most useful security against the mischiefs of a

too cumbrous system of conveyance. In order to have the benefit of

Usucapion, it was necessary that the adverse possession should have

begun in good faith, that is, with belief on the part of the possessor

that he was lawfully acquiring the property, and it was farther

required that the commodity should have been transferred to him by

some mode of alienation which, however unequal to conferring a

complete title in the particular case, was at least recognised by the

law. In the case therefore of a Mancipation, however slovenly the

performance might have been, yet if it had been carried so far as to

involve a Tradition or Delivery, the vice of the title would be cured

by Usucapion in two years at most. I know nothing in the practice of

the Romans which testifies so strongly to their legal genius as the

use which they made of Usucapion. The difficulties which beset them

were nearly the same with those which embarrassed and still embarrass

the lawyers of England. Owing to the complexity of their system, which

as yet they had neither the courage nor the power to reconstruct,

actual right was constantly getting divorced from technical right, the

equitable ownership from the legal. But Usucapion, as manipulated by

the jurisconsults, supplied a self-acting machinery, by which the

defects of titles to property were always in course of being cured,

and by which the ownerships that were temporarily separated were again

rapidly cemented together with the briefest possible delay. Usucapion

did not lose its advantages till the reforms of Justinian. But as soon

as law and equity had been completely fused, and when Mancipation

ceased to be the Roman conveyance, there was no further necessity for

the ancient contrivance, and Usucapion, with its periods of time

considerably lengthened, became the Prescription which has at length

been adopted by nearly all systems of modern law.

I pass by with brief mention another expedient having the same object

with the last, which, though it did not immediately make its

appearance in English legal history, was of immemorial antiquity in

Roman law; such indeed is its apparent age that some German civilians,

not sufficiently aware of the light thrown on the subject by the

analogies of English law, have thought it even older than the

Mancipation. I speak of the Cessio in Jure, a collusive recovery, in a

Court of law, of property sought to be conveyed. The plaintiff claimed

the subject of this proceeding with the ordinary forms of a

litigation; the defendant made default; and the commodity was of

course adjudged to the plaintiff. I need scarcely remind the English

lawyer that this expedient suggested itself to our forefathers, and

produced those famous Fines and Recoveries which did so much to undo

the harshest trammels of the feudal land-law. The Roman and English

contrivances have very much in common and illustrate each other most

instructively, but there is this difference between them, that the

object of the English lawyers was to remove complications already

introduced into the title, while the Roman jurisconsults sought to

prevent them by substituting a mode of transfer necessarily

unimpeachable for one which too often miscarried. The device is, in

fact, one which suggests itself as soon as Courts of Law are in steady

operation, but are nevertheless still under the empire of primitive

notions. In an advanced state of legal opinion, tribunals regard

collusive litigation as an abuse of their procedure; but there has

always been 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 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 moulded 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 public 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.

Legal tribunals have also powerfully assisted to shape and modify

conceptions of proprietary right by means of the distinction between

Law and Equity, which always makes its first appearance as a

distinction between jurisdictions. Equitable property in England is

simply property held under the jurisdiction of the Court of Chancery.

At Rome, the Praetor's Edict introduced its novel principles in the

guise of a promise that under certain circumstances a particular

action or a particular plea would be granted; and, accordingly, the

property _in bonis_, or Equitable Property, of Roman law was property

exclusively protected by remedies which had their source in the Edict.

The mechanism by which equitable rights were saved from being

overridden by the claims of the legal owner was somewhat different in

the two systems. With us their independence is secured by the

Injunction of the Court of Chancery. Since however Law and Equity,

while not as yet consolidated, were administered under the Roman

system by the same Court, nothing like the Injunction was required,

and the Magistrate took the simpler course of refusing to grant to the

Civil Law Owner those actions and pleas by which alone he could obtain

the property that belonged in equity to another. But the practical

operation of both systems was nearly the same. Both, by means of a

distinction in procedure, were able to preserve new forms of property

in a sort of provisional existence, until the time should come when

they were recognised by the whole law. In this way, the Roman Praetor

gave an immediate right of property to the person who had acquired a

Res Mancipi by mere delivery, without waiting for the ripening of

Usucapion. Similarly he in time recognised an ownership in the

Mortgagee who had at first been a mere "bailee" or depositary, and in

the Emphyteuta, or tenant of land which was subject to a fixed

perpetual rent. Following a parallel line of progress, the English

Court of Chancery created a special proprietorship for the Mortgagor,

for the Cestui que Trust, for the Married Woman who had the advantage

of a particular kind of settlement, and for the Purchaser who had not

yet acquired a complete legal ownership. All these are examples in

which forms of proprietory right, distinctly new, were recognised and

preserved. But indirectly Property has been affected in a thousand

ways by equity both in England and at Rome. Into whatever corner of

jurisprudence its authors pushed the powerful instrument in their

command, they were sure to meet, and touch, and more or less

materially modify the law of property. When in the preceding pages I

have spoken of certain ancient legal distinctions and expedients as

having powerfully affected the history of ownership, I must be

understood to mean that the greatest part of their influence has

arisen from the hints and suggestions of improvement infused by them

into the mental atmosphere which was breathed by the fabricators of

equitable systems.

But to describe the influence of Equity on Ownership would be to write

its history down to our own days. I have alluded to it principally

because several esteemed contemporary writers have thought that in the

Roman severance of Equitable from Legal property we have the clue to

that difference in the conception of Ownership, which apparently

distinguishes the law of the middle ages from the law of the Roman

Empire. The leading characteristic of the feudal conception is its

recognition of a double proprietorship, the superior ownership of the

lord of the fief co-existing with the inferior property or estate of

the tenant. Now, this duplication of proprietary right looks, it is

urged, extremely like a generalised form of the Roman distribution of

rights over property into _Quiritarian_ or legal, and (to use a word

of late origin) _Bonitarian_ or equitable. Gaius himself

observes upon the splitting of _dominion_ into two parts as a

singularity of Roman law, and expressly contrasts it with the entire

or allodial ownership to which other nations were accustomed.

Justinian, it is true, re-consolidated dominion into one, but then it

was the partially reformed system of the Western Empire, and not

Justinian's jurisprudence, with which the barbarians were in contact

during so many centuries. While they remained poised on the edge of

the Empire, it may well be that they learned this distinction, which

afterwards bore remarkable fruit. In favour of this theory, it must at

all events be admitted that the element of Roman law in the various

bodies of barbarian custom has been very imperfectly examined. The

erroneous or insufficient theories which have served to explain

Feudalism resemble each other in their tendency to draw off attention

from this particular ingredient in its texture. The older

investigators, who have been mostly followed in this country, attached

an exclusive importance to the circumstances of the turbulent period

during which the Feudal system grew to maturity; and in later times a

new source of error has been added to those already existing, in that

pride of nationality which has led German writers to exaggerate the

completeness of the social fabric which their forefathers had built up

before their appearance in the Roman world. One or two English

inquirers who looked in the right quarter for the foundations of the

feudal system, failed nevertheless to conduct their investigations to

any satisfactory result, either from searching too exclusively for

analogies in the compilations of Justinian, or from confining their

attention to the compendia of Roman law which are found appended to

some of the extant barbarian codes. But, if Roman jurisprudence had

any influence on the barbarous societies, it had probably produced the

greatest part of its effects before the legislation of Justinian, and

before the preparation of these compendia. It was not the reformed and

purified jurisprudence of Justinian, but the undigested system which

prevailed in the Western Empire, and which the Eastern _Corpus Juris_

never succeeded in displacing, that I conceive to have clothed with

flesh and muscle the scanty skeleton of barbarous usage. The change

must be supposed to have taken place before the Germanic tribes had

distinctly appropriated, as conquerors, any portion of the Roman

dominions, and therefore long before Germanic monarchs had ordered

breviaries of Roman law to be drawn up for the use of their Roman

subjects. The necessity for some such hypothesis will be felt by

everybody who can appreciate the difference between archaic and

developed law. Rude as are the _Leges Barbarorum_ which remain to us,

they are not rude enough to satisfy the theory of their purely

barbarous origin; nor have we any reason for believing that we have

received, in written records, more than a fraction of the fixed rules

which were practised among themselves by the members of the conquering

tribes. If we can once persuade ourselves that a considerable element

of debased Roman law already existed in the barbarian systems, we

shall have done something to remove a grave difficulty. The German law

of the conquerors and the Roman law of their subjects would not have

combined if they had not possessed more affinity for each other than

refined jurisprudence has usually for the customs of savages. It is

extremely likely that the codes of the barbarians, archaic as they

seem, are only a compound of true primitive usage with half-understood

Roman rules, and that it was the foreign ingredient which enabled them

to coalesce with a Roman jurisprudence that had already receded

somewhat from the comparative finish which it had acquired under the

Western Emperors.

But, though all this must be allowed, there are several considerations

which render it unlikely that the feudal form of ownership was

directly suggested by the Roman duplication of domainial rights. The

distinction between legal and equitable property strikes one as a

subtlety little likely to be appreciated by barbarians; and, moreover,

it can scarcely be understood unless Courts of Law are contemplated in

regular operation. But the strongest reason against this theory is the

existence in Roman Law of a form of property--a creation of Equity, it

is true--which supplies a much simpler explanation of the transition

from one set of ideas to the other. This is the Emphyteusis, upon

which the Fief of the middle ages has often been fathered, though

without much knowledge of the exact share which it had in bringing

feudal ownership into the world. The truth is that the Emphyteusis,

not probably as yet known by its Greek designation, marks one stage in

a current of ideas which led ultimately to feudalism. The first

mention in Roman history of estates larger than could be farmed by a

Paterfamilias, with his household of sons and slaves, occurs when we

come to the holdings of the Roman patricians. These great proprietors

appear to have had no idea of any system of farming by free tenants.

Their _latifundia_ seem to have been universally cultivated by

slave-gangs, under bailiffs who were themselves slaves or freedmen;

and the only organisation attempted appears to have consisted in

dividing the inferior slaves into small bodies, and making them the

_peculium_ of the better and trustier sort, who thus acquired a kind

of interest in the efficiency of their labour. This system was,

however, especially disadvantageous to one class of estated

proprietors, the Municipalities. Functionaries in Italy were changed

with the rapidity which often surprises us in the administration of

Rome herself; so that the superintendence of a large landed domain by

an Italian corporation must have been excessively imperfect.

Accordingly, we are told that with the municipalities began the

practice of letting out _agri vectigules_, that is, of leasing land

for a perpetuity to a free tenant, at a fixed rent, and under certain

conditions. The plan was afterwards extensively imitated by individual

proprietors, and the tenant, whose relation to the owner had

originally been determined by his contract, was subsequently

recognised by the Praetor as having himself a qualified proprietorship,

which in time became known as an Emphyteusis. From this point the

history of tenure parts into two branches. In the course of that long

period during which our records of the Roman Empire are most

incomplete, the slave-gangs of the great Roman families became

transformed into the _coloni_, whose origin and situation constitute

one of the obscurest questions in all history. We may suspect that

they were formed partly by the elevation of the slaves, and partly by

the degradation of the free farmers; and that they prove the richer

classes of the Roman Empire to have become aware of the increased

value which landed property obtains when the cultivator had an

interest in the produce of the land. We know that their servitude was

predial; that it wanted many of the characteristics of absolute

slavery, and that they acquitted their service to the landlord in

rendering to him a fixed portion of the annual crop. We know further

that they survived all the mutations of society in the ancient and

modern worlds. Though included in the lower courses of the feudal

structure, they continued in many countries to render to the landlord

precisely the same dues which they had paid to the Roman _dominus_,

and from a particular class among them, the _coloni medietarii_ who

reserved half the produce for the owner, are descended the _metayer_

tenantry, who still conduct the cultivation of the soil in almost all

the South of Europe. On the other hand, the Emphyteusis, if we may so

interpret the allusions to it in the _Corpus Juris_, became a

favourite and beneficial modification of property; and it may be

conjectured that wherever free farmers existed, it was this tenure

which regulated their interest in the land. The Praetor, as has been

said, treated the Emphyteuta as a true proprietor. When ejected, he

was allowed to reinstate himself by a Real Action, the distinctive

badge of proprietory right, and he was protected from disturbance by

the author of his lease so long as the _canon_, or quit-rent, was

punctually paid. But at the same time it must not be supposed that the

ownership of the author of the lease was either extinct or dormant. It

was kept alive by a power of re-entry on nonpayment of the rent, a

right of pre-emption in case of sale, and a certain control over the

mode of cultivation. We have, therefore, in the Emphyteusis a striking

example of the double ownership which characterised feudal property,

and one, moreover, which is much simpler and much more easily imitated

than the juxtaposition of legal and equitable rights. The history of

the Roman tenure does not end, however, at this point. We have clear

evidence that between the great fortresses which, disposed along the

line of the Rhine and Danube, long secured the frontier of the Empire

against its barbarian neighbours, there extended a succession of

strips of land, the _agri limitrophi_, which were occupied by veteran

soldiers of the Roman army on the terms of an Emphyteusis. There was a

double ownership. The Roman State was landlord of the soil, but the

soldiers cultivated it without disturbance so long as they held

themselves ready to be called out for military service whenever the

state of the border should require it. In fact, a sort of

garrison-duty, under a system closely resembling that of the military

colonies on the Austro-Turkish border, had taken the place of the

quit-rent which was the service of the ordinary Emphyteuta. It seems

impossible to doubt that this was the precedent copied by the

barbarian monarchs who founded feudalism. It had been within their

view for some hundred years, and many of the veterans who guarded the

border were, it is to be remembered, themselves of barbarian

extraction, who probably spoke the Germanic tongues. Not only does the

proximity of so easily followed a model explain whence the Frankish

and Lombard Sovereigns got the idea of securing the military service

of their followers by granting away portions of their public domain;

but it perhaps explains the tendency which immediately showed itself

in the Benefices to become hereditary, for an Emphyteusis, though

capable of being moulded to the terms of the original contract,

nevertheless descended as a general rule to the heirs of the grantee.

It is true that the holder of a benefice, and more recently the lord

of one of those fiefs into which the benefices were transformed,

appears to have owed certain services which were not likely to have

been rendered by the military colonist, and were certainly not

rendered by the Emphyteuta. The duty of respect and gratitude to the

feudal superior, the obligation to assist in endowing his daughter and

equipping his son, the liability to his guardianship in minority, and

many other similar incidents of tenure, must have been literally

borrowed from the relations of Patron and Freedman under Roman law,

that is, of quondam-master and quondam-slave. But then it is known

that the earliest beneficiaries were the personal companions of the

sovereign, and it is indisputable that this position, brilliant as it

seems, was at first attended by some shade of servile debasement. The

person who ministered to the Sovereign in his Court had given up

something of that absolute personal freedom which was the proudest

privilege of the allodial proprietor.