Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

Thus the Roman law which sharply distinguishes ownership from possession and requires a plaintiff seeking to recover land to prove his title, and does not for practical purposes recognise degrees ofownership, presents a picture very different from that offered by our law at any stage in its development. No doubt there were in our early law real actions in the Roman sense, actions in which the plaintiff had to allege and prove ownership of some sort: the proceedings based on a writ of right.2 But in general when our old lawyers speak of real actions they mean actions in which the plaintiff seeks to recover the thing itself, and not merely compensation for a breach of right, and such actions need not be real actions in the Roman sense at all.3 And the writs of right were unpopular by reason of their technicality, their strange modes of proof, and their uncertainty. Other forms took their place, and what was left of them practically disappeared in the seventeenth century when the fictitious ejectment was invented and John Doe made his first appearance.4 But, apart from this, and long before, a welter of remedies had been invented which provided us with a system utterly unlike the Roman. Apart from the complications introduced by the notion of tenure and its varieties, which we shall not consider, they are dominated by the important conception of seisin. It would be beyond the writers' competence to discuss this conception and its history.^ We are told that 'Seisin is possession'.6 And there are a mass of actions, novel

1See Buckland, Elementary Principles of Roman Private Law, p. 64; J. C. Naber, Mnemosyne, 1929, pp. 177 sqq.

2P. and M. ii. p. 62; Holdsworth, ii. p. 261; Jenks, Short History of

4Holdsworth, vii. pp. 9-19; Jenks, cit. 5th ed. pp. 177 sqq.

5Maitland, 'The Mystery of Seisin', 'The Beatitude of Seisin' in

Collected Papers, i. pp. 358 sqq., 407 sqq.; P. and M. ii. pp. 29 sqq.

6P. and M. ii. p. 29.

There are no longer in our law any forms of action, but every action which is in practice an action for the recovery of personalty seems to be an action in tort or contract based on possession or the right to possess. The plaintiff need not assert ownership, though often no doubt he must prove facts which amount to proof of ownership, or at any rate to evidence of it, in order to justify his claim. But any possession is good against a trespasser and there are different degrees of right to possess, so that all the plaintiff has to prove is that he has a better right to possess than the defendant has; in fact the old principle of maius ius is still in full operation.1 It is permissible to quote, in support of the proposition that in our law it is always a question of maius ius, two passages. Pollock and Wright2 say: 'In the language of the modern authorities "possession is a good title*', nothing less, "against all but the true owner ".' Ajid the late Professor Kenny, in his Cases on the Law of Tort, in a rubric to Graham v. Peafi sums up the law on the matter as being that' Mere possession gives the possessor a right of action against all who disturb it without having some better right than his'.4 An article by Professor GoodhartS shows how conflicting are the language of the books and the cases on questions of possession, but it is mainly on the question what is possession. It is broadly true to say that our Courts deal with rights to possess where the Roman Courts dealt with ownership. Our normal actions for the recovery of land or goods are based upon right of possession and not upon ownership, though it must not be overlooked that since 1883 the

pp. 195 sqq. (reprinted in Essays in Jurisprudence and the Common Law, ch. iv).

Courts have the power to make a declaration of right or title, even when no question of the right to possession is raised and no substantive or ancillary relief is sought.1

If it be asked how it was that the Romans insisted on title, or in the one case of the bona fide possessor, titulus^ i.e. prima facie title, and retained real actions to the end, the answer seems to be that it was infinitely easier for a Roman to prove a good title than it is with us. Indeed it is not easy to see how it could have been done at all in the great majority of cases till recent times. No length of title could prove that it was good to begin with. In the law as it was before the statute 32 Hen. VIII, c. 2, there was * scarce any limitation at all',2 and this statute and others which followed it set up long periods of time the expiry of which, without creating a title in the defendant, might bar the plaintiff and required him to prove not title but some kind of seisin within the prescribed period. This is far short of title, for there might have been other and adverse seisins within the prescribed period. All that he proved was that he had an older and therefore a better seisin than that of the defendant. He proved a relative title, or at best, a state of facts which made it unlikely that there was any better title. He could not prove more.3 But in Rome usucapio was a positive root of title, with nothing relative about it: it gave absolute ownership. And the periods, one year for moveables and two for land, were extremely short. Anyone acquiring in any of the ordinary ways, if he was not owner at once, became owner in a very short time and could prove it very simply. When at an uncertain date it became possible to add his predecessor's time the matter was simpler still.4 How it worked under the law of

the thing must not have been stolen it is not easy to say. In any case it did not apply to land. See further, pp. 76 sq., 120-122, post.

Justinian when the two years had become ten or twenty according to circumstances it is difficult to say. Probably the system became rather unworkable, and it is not wholly insignificant that we are informed by a recent writer1 that some modern systems based on the Roman law have found it necessary to abandon the 'absolute* notion of the Romans and regularly proceed on the lines of maius ius.

In both systems it is difficult to find a satisfactory theory of possession, especially with regard to moveables. Indeed possession illustrates well the casuistic, empirical method which is common to the Roman and the English lawyer. If a conception is workable, they do not much mind whether it is logical or not. Neither system ever worked out an adequate theory of possession, and, in the course of the development of each, views upon possession underwent considerable change. Both recognise a mental element {animus) and a physical element {corpus) and both shrink from defining these elements. In both, a man who takes wrongfully can have possession, with the striking difference that in Rome the claim of right could not be raised in the possessory proceedings and the person entitled was driven to an independent action,.while, with us, except in the very earliest times * the English law has always had the good sense to allow title to be set up in defence to a possessory action1.2

Perhaps the two systems differ most in the choice of persons to whom possession is attributed. They concur in allowing only what we call 'custody' {possessio naturplis in at least the later Roman law), and not possession, to the servant, though the English rule has not always been so3

1 Cornil, Bulletin de PAcadimie Royale de Belgique,. 1931 (Lettres), pp. 178 sqq.

2Holmes, The Common Law, p. 210; cf. Maitland, Collected Papers, i. p. 426.

3Pollock and Wright, Possession in the Common Law, p. 9.

particular problems. Perhaps too the picture changed somewhat in the course of time.

However the two pictures are essentially different. A totally false impression will be gained if one starts from the assumption that both laws are trying to do the same thing with varying degrees of success. Although the two conceptions overlap to a very great extent, they have really very different functions.

The possession that starts with a unilateral taking, by thief, finder or squatter, is doubtless very much the same in both systems, and even where they diverge, they are giving more or less imperfect answers to the same question. However, their attitudes towards acquisition of possession by agreement between a transferor and a transferee are quite different, as will be seen at once from a consideration of bailment. In English law the bailee is always a possessor, though sometimes a bailor may possess as well.1 A lessee, likewise, possesses, though for certain purposes the lessor also possesses. Thus the essential notion underlying the concept of possession is that of actual control, irrespective of title. So strong is this notion that even a servant, who in general only has custody for his master, the actual possessor, has possession attributed to him if goods are entrusted to him by a third party for transmission to his master; and there is always a strong tendency to attribute possession to him wherever it is markedly convenient for practical purposes. Why the servant is normally refused possession is an unsolved problem. He usually had possession down to the seventeenth century.2 However, he is normally refused possession by those modern codes, such as the German,3 which in principle give possession to all actual

1Thus a bailor at will can bring an action for trespass to goods.

2See Year Book 21 Hen. VII, Hil., fol. 14, pi. 21; Co. 3 Inst., 108; Hale, Pleas of the Crown, 56; Com. Digest, Justices, O. 6.

3B.G.B.5855.

74 LAW OF PROPERTY

and therefore as one who is, and will remain, owner, unless the plaintiff can oust him by proof of his title. All of this is quite alien to English law. English law does not think of the possessor as a defendant in a real action, but as a plaintiff in an action of trespass.

The difference can perhaps be even better expressed in another way. English law thinks of any person who can be observed as controlling a thing as a possessor, unless he falls within some very narrow class. Roman law does not think of possession in terms of the continuing relationship but concentrates its attention on the acquisition and loss of possession. It regards possession merely as something which has arisen from the taking of possession, and which has not been terminated through loss of that possession; and the taking of possession is essentially an appropriation of the thing. It is difficult to define so fundamental a notion as appropriation in terms of other less fundamental notions, but some suggestion of its meaning can be given if one says that a person appropriates who consciously assumes the practical and 'economic* advantages of ownership, irrespective of title. If he is a thief or squatter he has no belief in the existence of a title—which indeed probably does not exist at all—but even if he is acquiring from someone else, although property will not pass without title, the possession will pass irrespective of whether the transferor had title or not. After this explanation, it is probably safe to define Roman possession as being, in principle, the practical and economic aspect of ownership.

All this is, of course, very obvious if one is thinking of possession as something that will ripen into ownership by usucapion. For it is well known that it is essential to this kind of possession that it shall have started with a iusta causa^ or iustus titulus. A person cannot begin to usucape unless he has done all that in him lies to become owner. This is not quite true of the possession which is protected