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Page:Popular Science Monthly Volume 44.djvu/821

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A CHAPTER ON LEGAL DEVELOPMENT.

proceedings inherited from a remote past. As we proceed along these lines of observation we shall incidentally fall in with interesting evidence that much of the legal complexity which we are wont to ascribe to the dark and crooked casuistry of lawyers is in the nature of an inevitable survival of customs, methods, and institutions born of the excusable mental incapacity of our foremost fathers.

So plentiful in the history of our own land are the materials for a short study of this peculiarity of early thought and its sequences that recourse will be here had to these alone, although the subject is susceptible of similar though perhaps less striking illustration from the land law of the Romans, and indeed to some extent from almost any system of law, with reference to either real or personal property.

Lawyers of a later day have experienced no little difficulty in appreciating that Britton, St. Germain, and others of our earliest legal writers spoke advisedly when they defined a freehold interest in land (which bore to our early law the relation occupied in modern law by the word ownership) as meaning the "possession of the soil." Yet the accuracy of this definition at the date of its origin finds the most ample and varied attestation in our authentic legal history. The word "owner" was unknown to our early land law. That one who wrongfully dispossessed another of his land, succeeded to the estate or interest in the land, was one of the most deeply rooted doctrines of the common law from the time when the idea of an estate in lands was first conceived. The dispossessor acquired that which he could sell and transfer, and that which upon his death would descend to his heirs. On the other hand, the person dispossessed had nothing left which any one could buy or which in the event of his death his heirs could inherit. It was almost the middle of the present century before in England this ceased to be the law. The natural effect of this doctrine, as the reader will no doubt be prepared to believe, was to make the law of dispossession one of the most interesting and prolific branches of our earlier jurisprudence. It became directly and indirectly the subject matter of a surprisingly large proportion of judicial decisions, and of a correspondingly large part of the early legal commentaries, and, of course, continued to be expounded and developed in its detailed applications long after the disappearance of the mental and social conditions that gave it birth. Among the common-law applications of the rule were the following:

A wrongful usurper of the possession was considered to take in every case the entire title, or, in legal parlance, the fee, even though he disclaimed an intention to take more than a life estate, for it was said that he could not qualify his own wrong. If ap-