session, animus, has ceased to exist. (2) On the other hand, if, though the principal no longer has detention, his representative has, the Possession is not terminated: 'si quis me vi deiecerit, meos non deiecerit. . . . per eos retineo possessionem' Dig. 43. 16. 1. 45: nor is it lost even by cessation of the representative's Detention, unless Detention becomes physically impossible, or Possession is assumed by some one else. (3) For the representative to convert his own Detention into Possession, there must be either traditio brevi manu (contrarius animus on the part of the principal), or (Dig. 41. 2. 3. 18) some contrectatio on the other's part amounting to furtum. (4) Misdealing by the agent (i. e. conveyance or abandonment) does not terminate the Possession unless another party directly assumes it. (5) Mere termination of the relation of principal and agent does not, in itself, extinguish the Possession, Dig. 41. 2. 38; ib. 25. I; ib. 40. I.

A question which has been much discussed is why Possession, apart from bona fides and title, came to be treated as a right, and protected by legal remedies. To this Savigny answers, that the violation of Possession, being in itself no wrong, can originally have been redressed only because it went hand in hand with some violation of an actual right, and that full justice could not have been done in the matter of this latter violation, unless at the same time the Possession were protected. All the possessory interdicts, he says, presuppose some wrongful act. In cases of violent dispossession this is obvious; but even where there is no violence the idea is the same; e.g. in the application of the interdict de precario there is the wrongful act of abusing another person's good nature: cf. Holland's Jurisprudence, p. 130. Ihering (Über den Grund des Besitzesschutzes) thinks that Possession was protected originally in the interest of the owner, in order to relieve him of the onus of proving his proprietary title, and that the protection came necessarily to be extended to possessors who were not owners; but if this were true, a possessor would never be protected against an owner, and the relief imagined would be afforded not to the possessor as such, but only to him whose possession was wrongfully infringed1. On the historical question, in what connection the necessity of legal protection was first felt, Savigny adopts the theory of Niebuhr, that possessory interdicts were originally devised in order to guard the interest of the individual

1

Ihering's theory does not seem at present to meet with much support: see Wächter, Pandekten, note to § 122: Windscheid, Lehrbuch, § 148, note 6.

citizen in the ager publicus, which the State permitted him to occupy and enjoy, and were subsequently extended to the Possession of private property, moveable and immoveable. In support of this it is pointed out that possessio and possidere are very uniformly used to technically denote this kind of occupation, and that the interdicts. recuperandae possessionis relate only to immoveables; other arguments are derived from the known facts of precarium and emphyteusis (Savigny, Possession, § 12 a). A different view is taken by Puchta, who connects the earliest protection of Possession with the primitive form of Real Action. In this, both plaintiff and defendant were, until decision of the suit, regarded by the law as equally entitled to the dominium. It was necessary, however, that one of them should be magisterially instated in the possession of the disputed property pending litigation, and we learn from Gaius (iv. 16) how such interim possession was awarded. Having been magisterially awarded, it must also be magisterially protected, and this was done by an interdict; a remedy which came subsequently to be used for the protection of all Possession, independently of a pending suit.

Dr. Hunter (Roman Law, 1st ed. pp. 195-222) believes that Possessio entirely changed its meaning in the course of Roman legal history. In origin he connects it with the technical incapacity of aliens to own property iure civili rather than with the occupation of ager publicus, and maintains that it properly means Equitable or Gentile ownership. When, after the edict of Caracalla, all subjects of the Empire practically became cives, its functions, in this connection, were exhausted, and it 'came to have precisely the same meaning that it has in every system of law; it is a temporary separation between the person exercising rights and the person invested by law with rights.'

There is no evidence of this change of meaning, and nothing to show that the Roman lawyer's idea of Possessio differed in the time of Justinian from what it had been in that of Cicero, or that he conceived Possession as otherwise than the very antipodes of dominium ('nihil commune habet possessio cum proprietate' Dig. 41. 2. 12. I : ib. 52. pr.: cf. Dig. 43. 17. 1 2, cited on p. 337 supr.); or, finally, that the 'gentile' ownership of the alien (p. 201 supr.) was specially protected by interdicts; he recovered his property, not by an interdict, but by a real action, fictitia or utilis perhaps, but still a remedy which recognised his proprietorship. On the other hand, as all Possession, whether iusta or iniusta, whether bona fide or mala fide,

was protected by interdicts, to dwell upon the close resemblance, the almost complete material identity, between many cases of bona fide Possession, and Equitable ownership, as Dr. Hunter does, is not to the point. The actio Publiciana was open to any possessor whose Possession could ripen by usucapio into ownership; and if he could bring it with effect against not only third persons but the technically Quiritarian owner as well (as where the owner of a res mancipi delivers it to some one else with the intention of passing the property, Dig. 44. 4. 4. 32) his interest was more than Possession; it was inchoate or Bonitarian ownership, or, adopting an expression of Mr. Poste's, we may say that the ius in rem, and the interdictpossession are distinct though concurrent. The fallacy of arguing that, because many cases of (bona fide) Possession are equivalent to Bonitarian ownership, therefore (all) Possession is equivalent to Equitable ownership, is obvious. In the law of Justinian the case in which the plaintiff in an actio Publiciana could prevail against any and every defendant has disappeared with the abolition of the distinction between res mancipi and nec mancipi. It can now be brought by one who has acquired possession in good faith (Dig. 6. 2. 7. 11-17: 9. 4. 28) and with iusta causa (Dig. 6. 2. 13. pr.) of an object acquirable by ordinary usucapion (Dig. 6. 2. 9. 5) against anyone who withheld possession from him except the owner, who could repel him by the exceptio iusti dominii (si ea res possessoris non sit), Dig. 6. 2. 16 and 17.

Dr. Hunter seems to have been led into what we cannot but regard as other than a completely wrong theory by not rigidly confining his attention to Possession-not this possession or that possession, but all Possession-whether bona fide or mala fide. His insurmountable difficulty lies in the impossibility of identifying Possession, when accompanied by mala fides, with Equitable ownership. Upon mala fide Possession he is inconsistent. In one passage (p. 205) he says, 'the interdicts were open equally to mala fide possessors;' in another (p. 200), 'the mala fide possessor of moveables had no right against third persons.' The latter statement, which is based solely on the inability of a mala fide possessor to bring an actio furti or bonorum vi raptorum, is shown to be untrue, so far as interdicts are concerned, by Savigny and Dr. Walker (Selected Titles from the Digest, Introduction to Digest 41. 2): and interdicts are all that here we need concern ourselves with; other remedies are not for the protection of Possession, as such, at all. In fact, Dr. Hunter's general position seems defensible only to this

extent, viz. that where a man has usucapion Possession, he also has Equitable ownership.

For a discussion of the question, to what part of the Roman system the doctrine of Possession logically belongs, see Poste, Gaius, pp. 622 sqq.; and for the possessory interdicts, and the cases to which they were individually applicable, Bk. iv. Title 15, and notes inf.

INTRODUCTION TO BOOK III.

In this book the treatment of universal succession is continued, the first subject considered being the mode in which a person's universitas iuris devolves on his dying intestate. This falls naturally into two divisions, according as the deceased was free-born or libertus. Of the devolution of a free-born man's universitas we have a full historical account. The first two Titles in the main describe the classes of persons who succeeded an intestate under the law of the Twelve Tables: in the first rank being the sui heredes to the exclusion of all other descendants; in the second the nearest agnate or agnates, in preference to ascendants and all other collateral relatives whatsoever. No portion of the Institutes presents so clearly the contrast between modern and ancient law, or brings out more vividly the exclusive regard paid to agnatic relationship in primitive society. While pointing out the injustice which this system of succession entailed upon many classes, especially emancipated children and descendants or collaterals who traced their kinship with the deceased through a female, Justinian takes occasion to describe briefly the extent to which a remedy had been supplied by the bonorum possessio intestati of the Praetor, a subject more explicitly treated in Title 9, and also various disconnected changes made in the law by earlier Emperors as well as by himself. To the most sweeping of the Praetor's innovations, namely that by which he granted rights of succession upon intestacy to persons related to the deceased by cognation alone, though only in subordination to the classes recognised by the Twelve Tables, the fifth Title is exclusively devoted; that which follows details the mode in which the degrees of this natural relationship are calculated. The third and fourth Titles deal with two enactments of the civil law passed in the latter half of the second century, the SCa Tertullianum and Orfitianum, which redressed a wrong arising from the Twelve Tables for which no adequate remedy had been provided by the praetorian bonorum possessio.