Roman Law.— Early Roman law made a distinction between res mancipie and other things. With the former were classed immo bilia, corresponding in a general way with what he calls real property, though the term was more comprehensive, extending not only over lands tenements and hereditaments, furniture, fixtures and everything that could be consid ered as part of an estate, including some slaves (glebemen) and other chattels. Res mancipite were considered a more dignified kind of prop thy than mere merchandise, and could be trans ferred only by mancipium, a ceremonial form of contract, at the execution of which many witnesses representative of interests in the sub ject-matter of the bargain were required to be present. The absence of one of these, the mis pronunciation of a ceremonial word or the omission of a gesture made the contract a nullity. Ceremonial impediments and the tram mels of collectivism are incompatible with the rapid exchange of commodities. Rome is now gmi• erally believol to have been in its origin an Etruscan trading post, established in the midst of an agricultural Latin community. The power of the merchant or tradesman to dispose of his merchandise in his sole right has to be recognized if commerce is to be successfully conducted. Possession must be assumed to give, and a transfer without formalities suffice to pass, title. The rules applicable to articles of commerce brought to port by Greek and Punic traders, or manufactured in Rome, by plebian artificers, were presently applied also to the products of patrician Roman farmers, and, ultimately, to yes niancipie without distinction. Possession, or dominium, was defined by the Ro man lawyers with great precision, the jus pos sessiosos being quite the most important part of the Roman law of property; nor are their reasonings mere speculative niceties. Posses sion, as the saying still goes, is nine points of the law, and, as Bentham remarks, ain defense of his possessions a man may lawfully strike, wound or kill, if need beg To constitute pos session or dcaninium two elements are required, the ability to take and the will to hold. The desire to have a bird in the bush does not give possession to one who is unable to catch it; the power to seize a stray cow does not make one a possessor who has not the least intention of exercising his power. These corporeal and mental constituents of the act of possession are designated corpus and animus domini.
One may have possession of a thing, dom inions, without being in actual contact. A soldier is in possession of his rifle lying within reach; the purchaser of goods in storage is in possession when he holds the key to the ware house where they are stored; an heir is in pos session of the entire estate, though he may have entered only on a part of it or merely viewed it from a distance. The essence of possession is the power to exclude others. A man is in possession of things left at his domicile, though they have not been touched by him nor by any one in his behalf ; but not of a treasure buried on his grounds unless he may have dug for it and actually found it. The distinction is reasonable, though rather fine. One is in more complete control of one's house and its contents than of one's fields and what is hidden therein, and one may be forestalled by another in lifting a treas ure. It should be remembered that these defini tions have reference to dominium as a juristic fact and not to the rightfulness of the posses sion. The will to control, animus domini, is manifested in perfection by those only who rightly or wrongly recognize no superior or parallel right in any other person to possess the thing held. The intention of a servant, who resists the taking of property entrusted to him by his master, is merely to protect it from vio lence, without any assertion of right over the same on his own behalf. So also, where the intention to hold or dispose of an object is • limited by the distinct recognition of the out standing rights of another—as in the case of a tenancy or bailment—the Roman law regards the holder as lacking the animus do mini, i.e., the intention to act as owner to the complete exclusion of everybody else. The difference between the Roman and Teutonic and English laws in this respect is not so great in fact as it seems, however. The interdicts provided great* remedies for the protection of possessory rights, analogous to actions of replevin or suits in ejectment, of which only possessors could avail themselves; bailees and lessees having no rights in rem had to take recourse to personal actions to redress their injuries. Even to this rule the Roman law made import ant exceptions. A non-contractual tenant, tenets: precario, a ground-renter for a long term of unimproved agricultural land, emphy teusis, the holder of a pledge, and a sequester (receiver or trustee) could resist dispossession by actions in rem, Loss of the power to ex clude or of the will to control, of course, makes an end of possession or dominium. A temporary interruption of use or occupancy, however, is not a relinquishment of the pos sessory right. One who regularly pastures his cattle on a certain meadow during the summer does not abandon his use because he does not graze there in the winter also; nor may one who leaves his possessions in charge of a steward and goes abroad be presumed to sur render his power of control. Neither does fail ure to exercise the will to possess and to ex clude others terminate a dominium, when the failure is due to a legal disability— the pos sessor being a minor or a lunatic, for instance.
Ownership, proprietas. is a further develop ment and amplification of the right cif posses sion. Indeed dominium or exclusive posses sion implied ownership. But one may own a thing, though one have no actual control over the same— while property may be denuded of every attribute that gave it value and owner ship therein still persist. In this condition the Roman law designates it nude proprietas. The right of ownership includes the right to possess, and an owner out of possession obtains restitution in virtue of the jut vindicandi. Ownership has been defined as (complete dominion over a thing? The owner of prop erty has the right of disposal; he may sell it or give it away, and he may destroy it. But the owner's rights are limited by other rights. No man may use his own in a manner in jurious to others, and all property is held subject to the right of the State to tax or take for public purposes, or to restrict the uses to which it may be put by the owner. The tcom pick) dominion of the owner, moreover, is diminished by servitudes and co-ownership, and the right to possess is suspended by letting or hiring, deposits, pledge, mortgage, etc. Ownership
is extinguished by conveyance, gift or bequest, by long-continued adverse possession and by the death of -the owner. Ownership may be deriva tive or original. It is derivative when acquired by purchase, gift or inheritance. Original ownership is established by occupatio, accessio, specificatso, or usucapio. Occupatio (literally, laying hold of) applies to ownerless things, res nultius, in which class the Roman law places wild animals, treasure buried by one in a stranger's land and derelicts — the fatter in cluding all the property, whether public or private, of enemies, which was conceived to have no legal owner and to be subject there" fore to capture. Accessio signifies an addition to property through no action of the owner as by the planting of a tree or the building of a house on one's land by another person. Accessio includes alluvio, the gradual deposit of soil by the sea or a running stream, and avulsio the sudden accretion of soil torn from another's property by a freshet or landslide. Specificatio refers to property that comes into being when one works material belonging to another into something new and different (nova species). A sculptor owns the statue he has carved, irrespective of the ownership of the marble. Even more obviously, a work of literature is the property of the author, not of the owner of the paper on which the manu script is written. One who works up material for hire, or whose work is not creative in the same sense as an artist's, does not become a proprietor by specificatio. A tailor does not own the coat made from cloth furnished by his customer. Neither does the speciefactor become the owner when the material he has worked up can be restored to its original con dition. Good faith, of course, is a pre-condition to the establishment of ownership by specifica tion. Usucapio, the taking of a thing to one's own and exclusive use, is indistinguishable from what is known to English law as adverse possession, except that the periods of prescrip tion in Roman law are shorter—one year for movables and two years for immovables. Ac cording to Roman law the right to possess can exist in such completeness as to constitute a dominium in only one person at a time. Partial or conditional possession of a thing does not make it property of the possessor in the juristic sense of the word. Ordinary leases create merely a contractual relation, not a proprietory right ; and things lost by, or stolen from, a bailee are recoverable in a procceeding in rem only by the owner. Property in land includes not only the surface but the mineral wealth contained therein to any depth beneath Medieval and Modern Law.— Teutonic custom distinguished less sharply than Roman law between ownership and inferior possessory rights. Delivery regularly passed title to movables. In some instances a bailee had the right of action, for a recovery of property to the exclusion of the owner. Possession was regarded as equivalent to ownership, except with respect to things lost or stolen, though a lender or pledgor had the reversion or equity of redemption, of course. The distinctions be tween rights in movable and immovable prop erty, which had almost become obliterated in the Roman system, was reasserted and broadened in the leges barbaroum. Rights in land could only be acquired by in heritance or by uinvestiture,x' and the transfer thereof was restricted, not only by the interests of the ruling classes, but by the rules of family community. The distinction became still more marked by the establishment all over Europe of the system of feudal tenures. This system gave paramount ownership, domis ium eminens to the sovereign, in the first instance, and secondarily to the baronial and manorial lords — and made the pos session and use of land dependent upon the performance of military and other public, or quasi-public duties or, in the ease of peasant leases, upon the rendering of customary services to the lord. Tenures (even peasant holdings in Germany) became hereditary, but the right of alienation was late in obtaining recognition. The eminent domain of the sovereign or lord gradually lost the character of a nroperty right and became a governmental power, while the use and posses sion, dominate; utile, slowly developed into ownership. The hereditary peasant leases have been converted into full proprietorship by modern legislation. The reservation of forests to, and the control of hunting and fishing by, the feudal lords were the foundations for the exercise of similar powers by the modern State. Wild animals, when objects of sport, could be hunted and taken only by those authorized or licensed to do so and the sovereign prince claimed as his own many things regarded by the Roman law as res muffins and subject to private capture and appropriation— for example, aban doned land, treasure trove, wrecks, flotsam and enemy property. The right to minerals under ground was separated from the owner ship of the superficies, and mining privileges could be exercised only under license from the overlord, which was usually given to the first finder in consideration of a share of the profits. Nearly all these rights and the royalties— literally the king's fees — derived from them have passed into modern law as rights and revenues of the State. In modern European legislation the distinction of movables from immovables is nominally preserved, but has long since been obscured by the practical uni formity of the rules governing the right to hold, dispose of or inherit property, irre spective of its mobilityor immobility. All i property to which there is no one entitled to legal possession belongs, or escheats, to the State. The Code Napoleon awards tresor (treasure trove) to the finder and so does the Civil Code of Germany. The Roman rules of °accession)) and °specification) have been generally accepted, though stress is laid in some modern codes upon the relative value of the nova species produced and the material out of which it has been fashioned. Such modern law terms as do twine, Eigenthum and property define rights identical with those defined by dominant. and proprietas, their Roman equivalents, except that modern law regards some forms of qualified possession as proprietory in character. The most advanced view of modern European jurists is that which regards possession as not a right, but a °social function,) the recognition and protection whereof by the State is con ditioned upon the exercise of the privilege (or function) of ownership to the greatest possible advantage of the community as a whole. The Swiss Code declares the misuse of property to be unlawful.