A CHAPTER ON LEGAL DEVELOPMENT. 803 



proceedings inherited from a remote past. As we proceed along 

 these lines of observation we shall incidentally fall in with inter- 

 esting 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 fore- 

 most 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 denned a freehold inter- 

 est 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 authen- 

 tic 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 propor- 

 tion of judicial decisions, and of a correspondingly large part of 

 the early legal commentaries, and, of course, continued to be ex- 

 pounded 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- 



