There is an aphorism of Savigny which has been sometimes thought to
countenance a view of the origin of property somewhat similar to the
theories epitomised by Blackstone. The great German jurist has laid
down that all Property is founded on Adverse Possession ripened by
Prescription. It is only with respect to Roman law that Savigny makes
this statement, and before it can fully be appreciated much labour
must be expended in explaining and defining the expressions employed.
His meaning will, however, be indicated with sufficient accuracy if we
consider him to assert that, how far soever we carry our inquiry into
the ideas of property received among the Romans, however closely we
approach in tracing them to the infancy of law, we can get no farther
than a conception of ownership involving the three elements in the
canon--Possession, Adverseness of Possession, that is a holding not
permissive or subordinate, but exclusive against the world, and
Prescription, or a period of time during which the Adverse Possession
has uninterruptedly continued. It is exceedingly probable that this
maxim might be enunciated with more generality than was allowed to it
by its author, and that no sound or safe conclusion can be looked for
from investigations into any system of laws which are pushed farther
back than the point at which these combined ideas constitute the
notion of proprietary right. Meantime, so far from bearing out the
popular theory of the origin of property, Savigny's canon is
particularly valuable as directing our attention to its weakest point.
In the view of Blackstone and those whom he follows, it was the mode
of assuming the exclusive enjoyment which mysteriously affected the
minds of the fathers of our race. But the mystery does not reside
here. It is not wonderful that property began in adverse possession.
It is not surprising that the first proprietor should have been the
strong man armed who kept his goods in peace. But why it was that
lapse of time created a sentiment of respect for his possession--which
is the exact source of the universal reverence of mankind for that
which has for a long period _de facto_ existed--are questions really
deserving the profoundest examination, but lying far beyond the
boundary of our present inquiries.
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