8o2 THE POPULAR SCIENCE MONTHLY. 



AN ILLUSTRATIVE CHAPTER ON LEGAL DEVELOP- 

 MENT. 



By WILLIAM W. BILLSON. 



THE evidences are abundant that primitive man had no con- 

 ception 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 primi- 

 tive 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 sav^ed by prompt pursuit and immediate re- 

 capture. Even after the establishment of courts and the rein- 

 statement of dispossessed persons by their authority, the relief was 

 afforded, not upon any theory of subsisting ownership in the per- 

 son dispossessed, but by way of redress for the personal griev- 

 ance 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 exten- 

 sion 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 pos- 

 session, 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 pol- 

 ished 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 im- 

 pressive 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 



