Page:Harvard Law Review Volume 10.djvu/368

342 HARVARD LAW REVIEW. is natural enough to the Continental scholar; for in the law that he lives among he finds the hypothek (Jiypoth^que) — the modern representative of the neue sat^iing — scarcely to be distinguished from our ** lien," or sometimes even from a preferred claim in bank- ruptcy; the number oi privileges and hypotldqiies given by law on the entire estate, and the frequent practical identity in legal effect between those and the consensual hypothec, tend to obliterate the distinction in thought; and the historical assimilation of the two would thus a priori commend itself there as plausible. But to the Anglo-American lawyer the learning about mortgages and the learning about liens and execution and preferred claims are dis- tinctly separated in history and in thought ; and he makes a natural association, wanting on the Continent, between mortgages with and mortgages without creditor's possession. This natural relation which is found in the legal thought of the modern community that peculiarly represents in its law the continuity of Germanic tradi- tion will to us suggest a priori the plausibility of a wholly different view of the hypothec's history, which has been championed by Heusler and von Amira, — the view that it is historically of a piece with the generic wed (or satzimg') already described ; that it was simply a variety of that transaction, adapted to a special purpose ; that it bore the features and followed in the main the development of the wed; and that it had no connection with the peculiar expe- dient of judicial execution until fairly modern times. This view we may now consider ; first setting out the evidential marks of identity between the hypothec and the generic wed or satsung already ex- plained ; next, examining the raisoti d'etre of the former ; and then noticing its ultimate fate. I. The hypothec, or " neue satzung," as identical in purpose and features with the generic wed, saizimg, ved. a. In the first place, the name is identical ; this alone starts the probabiHties in favor of an identity of institution.^ They are en- 1 Satzen, versetzen (verb idea), and ved, wed, weddeschaft (the res idea), were the generic terms for both: Meibom, 36; Stobbe, Priv. 273; Amira I, 193, 216; II, §§22, 23. Unierpfand (perhaps a translation of subpigmis) and sitbpigmis (the Roman term) came to designate the hypothec form: Meibom, 36, 263; Neumann, 197; Heusler, II, 148. {Sicbpignus in modern German writers is often used to mean a pledge upon a pledge, or afterpfand, i. e. by a pledgee himself; but it did not mean this either in Roman or in Germanic law: Sohm, Lehre der Subpignus, I). Faustpfand, handhabendes pfafid, de- noting the pledgee's possession of personalty, were later phrases based on the false etymology (pugnus, fist) of the Roman pignus : Meibom, 37, Vorkummern or be- kummern (our English " encumber ") came to be, so far as anything was, the term for