" The foundation of usueapion is the rule of the Twelve Tables, that he who possesses a thing one or two years becomes the owner. In this case bare possession, independent of all right, is the foundation of property, which possession must indeed have originated in a particular 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 froin every other legal relation, on which usucapion, and consequently the Acquisition of ownership, depends.
" Possessorial interdicts are the second effect of possession, And their relation to possession 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 iu this : they presuppose an act which in its form is illegal.* Now since possessorial interdicts are founded on such acts es 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 lila property (vhndicatlo), It is a matter of perfect indilh'erenco in what way the other party has obtained possession 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 Inter dict, by which the missio in possessionem ' is protected : this interdict is not a posaessorial interdict, for the missed' itself gives no pos session, but it gives a right to detention, 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 account 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 the possession, the possessor protects himself by meanie of the interdicts. l'osaession is the condition of these inter dicts, and In this case, as in the case of usucapion, it is the condition of rights generally.
"Most writers take quite a .different view of the matter, and con sider every violation of possession as a violation of a legal right, and possession consequently as a right of itself, namely, presumptive ownership, and possessorial plaints as provisional vindieations. This last, which is the practical 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 con flicting opinions. The formal act of illegality above mentioned 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 bo 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 ownership, as a presumed ownership; hut this view of the matter only extends to the establish ment of the rule of law in general, and not to the legal reason for any ]articular case of possession. This legal reason is founded rather in the protection against the formal injury, and accordingly possessorial interdicts have a completely obligatory character, and can never bo viewed as provisional vindications.' The special object of Savigny's essay may be collected from these passages. The legal principles here developed are applicable to every system of jurisprudence. There must,alWays be a distinction between the right to possess, which is a legal consequence of ownership, and the right of possession, which is independent of all ownership. The owner of a thing may not have the possession, hut 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 con sequences of his possession ; that is, he is legally entitled to be pro tected against forcible ejection or iraudulent deprivation ; his title to a continuance of his possession is good against all persons who cannot establish their right to the thing, and this continued possession may, according to the rules of positive law in each country, become the foundation of ownership. It may be that the acquisition of possession may also be the acquisition of ownership, or that the acquisition of possession may be essential to the acquisition of ownership. Thus, in the ease of occupation , the taking possession of that which has no owner, or the acquisition of the possession, is the acquisition of the ownership. 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 ownership. In these examples, ownership and possession are acquired at the same time, and there is no right that belongs to the possessor as possessor : his rights are those of owner. But the form and mode of the acqui sition 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 jnristical possession has reference to usucapion and interdicts, and that the foundation of both is a common notion of pristical possession, Savigny proceeds to deter, mine the material conditions of this notion.