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Page:Popular Science Monthly Volume 44.djvu/820

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802
THE POPULAR SCIENCE MONTHLY.

AN ILLUSTRATIVE CHAPTER ON LEGAL DEVELOPMENT.
By WILLIAM W. BILLSON.

THE evidences are abundant that primitive man had no conception of ownership as distinguished from or as subsisting independently of possession. He recognized, no doubt, that one in possession of an object had a right to defend and maintain his advantageous position. If, however, the possession were lost, whether by accident, violence, or theft, the result, in the primitive judgment, was the permanent extinguishment of all relation between the object possessed and its former possessor, unless there was an immediate reseizure; somewhat as now one's claim upon wild animals, birds, or bees in his possession is forever lost by their escape, unless saved by prompt pursuit and immediate recapture. Even after the establishment of courts and the reinstatement of dispossessed persons by their authority, the relief was afforded, not upon any theory of subsisting ownership in the person dispossessed, but by way of redress for the personal grievance which he was perceived to have suffered—as now, even in the acknowledged absence of proprietary rights, we justify a person in recovering an eligible position in a street or other public place from which he has been rudely crowded by another. The legal protection of property is, historically considered, a mere extension of the protection afforded by law to the person, every wrong having been originally thought of as in the nature of a personal injustice only. The conception of ownership, instead of being the cause or historical basis of remedies for the recovery of possession, is in fact the tardy outgrowth of impressions produced upon the mind by the habitual application of those remedies as a mode of relief against injuries long regarded as purely personal.

It might be supposed that if men were ever unacquainted with the idea of ownership apart from possession it must have been in such prehistoric ages as now scarcely to admit of verification. On the contrary, no circumstance in history, perhaps, has been more prolific of legal doctrine. No finer instance can be found of that strange gift of immortality, by virtue of which the crudest of barbaric notions may live, eternal in their effects, in the polished doctrines of the most refined systems of law; no more instructive example of the evolution of the most abstruse legal refinements from the simplest germs of thought; no more impressive exhibition of the enormous inherent difficulties of legal progress, which arise from the fact that the advanced ideas of later generations, can from the nature of the case, take effect only through an adaptation of the rude and intractable forms and