"The foundation of usncapion is the rule of the Twelve Tables, that he who possesses a thing one or two years be comes the owner. In this case bare pos. session, independent of all right, is the foundation of property, which possession must indeed have originated in a particu lar way, in order to have such effect ; but still it is a bare fact, without any other right than what such effect gives to it. Accordingly it is possession itself, distinct from every other legal relation, on which nsucapion, and consequently the acquisition of ownership, depends.
" Possessorial interdicts are the second effect of possession, and their relation to is this : possession of itself being no legal relation, the disturbance of possession is no violation of a legal right, and it can only become so by the circumstance of its being at the same time a violation of a legal right. But if the disturbance of possession is effected by force, such force is a violation of right, since every forcible act is illegal, and such illegal act is the very thing which it is the object of an interdict to remedy. All possessorial interdicts then agree in this: they presuppose an act which in its form is illegal.• "Now since possessorial interdicts are founded on such acts as in their form are illegal, it is clear why possession, independent of all regard to its own rightfulness, may be the foundation of rights. When the owner claims a thing as his property (vindicatio), it is a matter of perfect indifference in what way the other party has obtained posses sion of it, since the owner has the right to exclude every other person from the possession of it. The case is the same with respect to the interdict, by which the 'missio in possessionem ' is pro tected : this interdict is not a possessorial interdict, for the missio' itself gives no possession, but it gives a right to de tention, and this right is made effective in the same way as in the case of property. On the other hand, he who has the bare possession of a thing has not on that ac count any right to the detention, but he has a right to require from all the world that no force shall be used against him. If, however, force is used and directed against his possession, the possessor pro tects himself by means of the interdicts. Possession is the condition of these in terdicts, and in this case, as in the ease of usucapion, it is the condition of rights generally.
"Most writers take quite a different view of the matter, and consider every violation of possession as a viola tion of a legal right, and posses sion consequently as a right of itself, namely, presumptive ownership, and possessorial plaints Us provisonal vindi cations. This last, which is the practi cal part of this opinion, is completely confuted in a subsequent part of this treatise; but it is proper to show here how far such a view is true, as this may be a means of reconciling conflicting opinions. The formal act of illegality above men tioned is not to be so understood, as if possessorial interdicts were a necessary consequence of the independent juristical character of force, and obviously sprung out of it. This consequence of force, namely, that possession of the thing must be restored to the person who has been ejected, without regard to the question whether or not he has any right to the thing, is rather simply a positive rule of law. Now, if we ask for the reason of
this kind of protection being given against force, that is, why the ejected party should recover the possession to which he may possibly have no title, it may be replied, that the reason is the general presumption that the possessor may be the owner. So far then we may view possession as a shadow of owner ship, as a presumed ownership ; but this view of the matter only extends to the establishment of the rule of law in general, and not to the legal reason for any particular case of possession. This legal reason is founded rather in the pro tection against the formal injury, and ac cordingly possessorial interdicts have a completely obligatory character, and can never be viewed as provisional vindica tions." The special object of Saviguy's essay may be collected from these passages. The legal principles here developed are applicable to every system of jurispru dence. There must always be a distino tion between the right to possess, which is a legal consequence of ownership, and the right of possession, which is hide.
pendent of all ownership. The owner of a thing may not have the possession, but he has a right to the possession, which he must prosecute by legal means. The possessor of a thing, simply as such, has rights which are the consequences of his possession ; that is, he is legally entitled to be protected against forcible ejection or fraudulent deprivation ; his title to a continuance of his possession is good against all persons who cannot establish their right to the thing, and this con tinued possession may, according to the rules of positive law in each country, be come the foundation of ownership. It may be that the acquisition of possession may also be the acquisition of owner ship, or that the acquisition of possession may be essential to the acquisition of ownership. Thus, in the case of occupa tion, the taking possession of that which has no owner, or the acquisition of the possession, is the acquisition of the own ership. Also, when a thing is delivered by the owner to another, to have as his own, the acquisition of the possession is the acquisition of the ownership. In these examples, ownership aud posses sion are acquired at the same time, and there is no right that belongs to the pos sessor as possessor; his rights are those of owner. But the form and mode of the acquisition of the possession, viewed by itself as distinct from the acquisition of the ownership, will also be applicable to the cases of possession when possession only is acquired. For possession of itself is a bare fact, though it has legal consequences; and being a bare fact, its existence is independent of all rules of the civil law or of the jus gentium, as to the acquisition and loss of rights. (Savigny, p. 25.) Having shown that in the Roman law all juristical possession has reference to usucapion and interdicts, and that the foundation of both is a common notion of juristical possession, Savigny pro ceeds to determine the material condi tions of this notion.