Chapter X.: Classifications of Property.

All who have any knowledge of Legal History are aware of certain distinctions which run through all commodities or through large departments of them, and which cause the objects of enjoyment lying on either side of the line to belong, in the eyes of lawyers, to widely different provinces of law. Among these distinctions, there is that which the ancient Roman lawyers drew between Res Mancipi and Res nec Mancipi—that is, between Things which required and Things which did not require for their transfer the conveyance of Mancipation; there is the mediæval West European distinction between the Allod and the Feud, between allodial land and feudal land; there is the still surviving English distinction between Realty and Personalty, and finally there is the late Roman and modern European distinction between Res Mobiles and Res Immobiles, between movable and immovable property.

We only know the distinction between Movables and Immovables as relatively modern in the Roman State and in Europe. It is the result of an attempt of the Roman lawyers to abandon the old historical classifications, and to classify commodities, Property, the objects of enjoyment, according to their actual nature. The generalisation has required but little subsequent correction; the difficulties which have arisen in using it have been insignificant, and have occurred only on the very border-line between the two great classes of Things. In the Middle Ages, the fact that a tree, though immovable, generally acquires value through being hewn down and becoming movable, and possibly some local practice of employing movable wooden frames in the structure of houses, suggested to the expositors of a few early German legal systems a definition of movables as everything which could be destroyed by fire; and, in more recent times, the question of the proper place to be assigned to a class of things of which modern manufacturing industry has greatly increased the importance—‘fixtures,’ as we call them, the ‘immovables by destination’ of French law—has occasioned doubts and disputes. Still, on the whole, if law had really been founded on the principles imagined in the last century to constitute its basis—on those principles of simplicity or fitness or good sense which are associated with the words ‘Nature’ and ‘Natural’—it is probable that no classification of commodities would have struck mankind sooner than that which divides them into movable and immovable. We know, nevertheless, that the whole course of Roman legal modification from the Twelve Tables to the reforms of Justinian had to be gone through before this seemingly obvious distinction formally superseded the old historical distinction between Res Mancipi and Res nec Mancipi, the first including Land, Slaves, Horses, and Oxen, and the second everything else; and the curious fact remains that the English-speaking communities—England, her colonies, and considerably more than half the States of the American Union—still reject the improved Roman classification, and, separating leases of land for years from the bulk of immovable property, join them to personalty or movables. Thus stubbornly do the old historical classifications hold their ground. But still, if we firmly grasp the truth that these historical classifications can only mean that the commodities which they place in the highest class must have been at some time or other the sole important subjects of proprietary right, and that the others either did not exist or were of trifling value, we cannot but see that there must have been a still earlier time when the accepted historical classifications were themselves modern. The most archaic of them, one probably as old as any conscious attempt to draw this kind of distinction, is that bequeathed to us by the Romans. Yet land, slaves, horses, and oxen cannot, as subjects of individual property, have been of contemporaneous origin. There must have been a time when a wild animal tamed, which was a rarity, was of more value than a hundred acres of land, which was superabundant. The domain of a tribe, as soon as the history of mankind began, may have been jealously guarded by it as exclusive hunting-ground, as marking the limits which none but a tribesman could step within save for bloodshed or plunder, or may have been reserved by it (in a later stage of society) for pasture; but each man’s share of this domain was of less value to him individually than a slave, a horse, an ox, or even than a flint-headed axe or spear. All this follows from the simplest economical axioms; but the vestiges of the older (and yet probably not the oldest) state of the primitive objects of enjoyment are plainly stamped upon one authentic record of archaic custom, the ancient Irish law; and they seem to me equally discernible in the ancient Teutonic Code, the Lex Salica, which, whatever else it is, is pre-eminently a body of rules protecting the ownership of kine, swine, sheep, goats, horses, and even bees.

I pass to a distinction which rose into importance in an age nearer our own—the distinction between the allod and the feud, between allodial and feudal land. The allod in some form or other is probably as old as the institution of individual landed property, and we may regard it as equivalent to or directly descended from the share which each man took in the appropriated portion of the domain of the group to which he belonged—tribe, joint-family, village community, or nascent city. But many facts—facts which are receiving constant additions—appear to me to show that this share was not at first a definite area, but what we should now call a fraction or aliquot part of the divisible land. The shares of the domain which each family or household could claim shifted among the households under a system of distribution in turns or by lot, and each share very slowly became appropriated to particular families. We only know the society of the Roman Commonwealth when it had reached this last stage; indeed, the hungry struggle for the public domain which begins authentic Roman history would seem to show that the system of ‘shifting severalties,’ which had not quite died out in England fifty years ago, was long over among the free Roman peasantry; and the traces of an older economical condition must be sought in that copious law of servitudes or easements into which modern lawyers of all nations have dug as into an inexhaustible mine, and which seems to show that the agricultural land of every Roman was really servient, as the technical phrase ran, to his neighbours in respect of rights of way, rights of riding, driving, and draught, rights of drawing and lending water, and a mass of other rights, far beyond all modern experience and example. The abundant Roman servitudes appear to me to point back to the same modified common enjoyment of land which characterised other Aryan races; but the early period at which the land of a free Roman peasant became appropriated to his family in strict severalty affected the legal and economical history of Roman society very strongly, and thus becomes a fact of much importance in the development of the Western world.

There are indications that at first the possession of allodial land was everywhere the distinctive privilege of the freeman. Down indeed to the first French Revolution the exceptional tenure of land in ‘franc-alleu,’ which here and there survived amid the general feudalisation, was held by Frenchmen in high honour. Nevertheless, the modern history of allodial land is essentially the history of the holding of land by servile or by very humble classes. It bequeathed its great characteristic, its divisibility at death between all the children or all the sons, to that lowest stratum of landed right upon which the feudal structure reposed, either because communities originally free had sunk on all sides into villenage, or because the allod was the type of all enjoyment of land, and was followed in colonies of serfs planted by a Roman dominus or Teutonic lord. All peasant holdings in France were adjusted to this type till the Revolution, and so were German peasant estates down to a considerably later date. We have traces of its peculiar rules in the Gavelkind of Kent, and in much copyhold land; and a comparison of the treatises of Glanvill and Bracton enables us to fix the time when the most widely diffused of English tenures—socage—was just putting off the characteristics of the allod, and putting on those of the feud. But our current Real Property Law is coloured throughout by the feudal view of land, which is that, when held in individual enjoyment, it is primarily impartible or indivisible. The great system of land-law, resting on this feudal conception, though occasionally wrested into departure from it by sovereign authority, is essentially a system of rules regulating the tenure of land by noble classes. The allodial tenure, which is believed to have been originally the tenure of freemen, became in the Middle Ages the tenure of serfs. The feudal tenure, which was certainly at first the tenure of servants who, but for the dignity of their master, might have been called slaves, became in the Middle Ages the tenure of noblemen. It was by an exception, and a remarkable one, that in our country the land-law of the nobles became the land-law of the people.

We know thus much of the beginnings of that feudal system, of which the feudal land-law was a part, that it had several diverse origins. The land on the border lines of the Roman Empire was held by soldier-cultivators on tenure of military service; and this must have had something to do with it. The Roman law of Patron and Client must have had something to do with it; for it plainly suggested many customary relations of lord and vassal. We see much which cannot but have contributed to it in the primitive or barbarous usages of the Aryan races re-introduced into the Roman Empire by the Germans. Among these, society was distributed into compact groups of families or clans, the first administered by the eldest member subject to a species of election, the second often, if not always, governed by some member of a ruling family, selected by the process which the Irish called Tanistry. And these Chiefs or Kings were in the habit of buying or rewarding the services of their immediate retainers by gifts. We can put our finger on a variety of the ingredients of feudalism spread over a large surface. Nevertheless, with all our knowledge, there is still the greatest obscurity on one point. How was the conception of landed property so completely changed? Nothing can be more singularly unlike than the legal aspect of allodial land, or, as the Romans would have called it, land held in dominium, and the legal aspect of feudal land. In passing from one to the other, you find yourself among a new order of legal ideas.

Perhaps it requires a lawyer alive to the significance of technicalities, and tolerably acquainted with the later Roman and earlier feudal law, fully to estimate the thoroughness of the transmutation. An account of all which it implies would be out of place here; but, to take only one phase of it, no subversion of an accepted legal notion can be more striking than that of the Roman (which is the developed allodial) view of land as essentially divisible by the feudal conception of land as essentially impartible. The Roman lawyers note, as a fundamental difference between immovable and movable property, that land is divisible ad infinitum, and may be always so conceived though actually undivided, while movables are not properly capable of division. They could conceive land as held (so to speak) under different legal dispensations, as belonging to one person in Quiritarian and to another in Bonitarian ownership, a splitting of ownership which, after feudalism had fallen into decay, revived in our country in the distinction between the legal and the equitable estate. But there is no symptom that a Roman lawyer could conceive what we call a series of estates—that is, a number of owners entitled to enjoy the same piece of land in succession, and capable of being contemplated together. It is a very remarkable fact that when these great legal thinkers had to form an idea of an interest in land so familiar to us as an estate for life, they had to go for an analogy to the law of servitudes or easements. A Roman usufruct of land was in its practical effects very much the same as an English estate for life; but the Roman jurists classed it with rights of way over another man’s field, or a right of drawing water from another man’s well. The impression left on my mind by a variety of passages in the Roman legal records is that, if a Roman lawyer had been asked to take into his mental view a number of persons having rights together over the same property, he would have contemplated them not as enjoying it in turn, but as dividing it at once between them. Thus far was he from conceiving the ownership of the same area of soil as distributed over tenants for life and remainder men, tenants in tail male, and tenants in tail female, doweresses, tenants by the courtesy of England, and reversioners. This long series of persons, all having ascertainable rights capable of co-existing in the same property—this long succession of partial ownerships, making up together one complete ownership, the feodum or fee—could not have been dreamed of till a wholly new conception of landed property had arisen. When, several centuries after the birth of feudalism, lawyers sought to employ the Roman law to express the feudal relations, it had to be violently wrested from its true meaning and purpose; as was notably the case with the law of Fidei-commissa, or testamentary gifts in trust.

One particular agency by which this great revolution of legal ideas was, at least, partially effected, has been of late the subject of controversy between some of the most learned men of our day; and the controversy, I am sorry to say, has been marked by much of the bitterness peculiar to disputes which are still confined to the learned and have not yet become popular. The Beneficium, or Benefice, an assignment of land by a conquering Teutonic king as the reward or price of military service, is allowed on all sides to have had much to do with this great change in the legal point of view. Whether the benefice was always a gift of public land—as M. Fustel de Coulanges insists that it was—in the countries which passed under the sceptre of the House of Clovis, or a gift of confiscated land—as there is reason to think it was, at all events, in some subjugated provinces of the Roman Empire—it began a new stage in the history of land-law. In its earliest form it was unlike the estates of matured feudalism, since (according to the better opinion) it was not at first generally hereditary; but it was still more unlike the allodial lot of the Teutonic freedman and the fundus of the Roman provincial citizen. One modification of Roman landed property came near it—the Emphyteusis; and I still hold to the opinion that we have here one of the sources of the new legal conception. But though this explanation is plausible, as far as it goes, it is only partial; and, moreover, the symptoms of a change in the legal view of landed property are not confined to countries which had formed part of the Roman Empire, but are found in purely Teutonic lands.

Feodum, the later Teutonised name of the Beneficium, is now allowed to have been derived from the old Gothic word ‘fihu,’ or ‘fiu’—cattle. The term is supposed to have come to mean ‘property,’ just as pecunia, from pecus, contracted this meaning. A few years ago, after pointing out the great part played by cattle in converting Irish tribal holdings into something like feudal tenures, I stated that I suspected ‘feodum’ to have a closer connection with cattle than the usual etymology implied. M. de Laveleye, commenting on this remark, has stated that he has no doubt of the association; and he observes that we thus see the meaning of the original contrast between allodium and feodum—al-od, the complete property; fe-od, the cattle property. Plausible as this is, I should have hesitated to build on it as a basis but for the remarkable results disclosed by the examination of the Salic Law. It undoubtedly shows that an ancient Law of Movable Property may deeply affect a Law of Land. Now, we know that among the Germans observed by Tacitus or his informants the chiefs were rewarded by King or Commonwealth with assignments of cattle and corn; the companions of the chief, living in his house, received a horse and arms as pay. It was exactly the system which prevails at this moment at the Court of a Kaffir chieftain in North Africa. Now, let us conceive this system modified by the growth of population or by conquest, but otherwise unaltered. In the first case, land increases in value through natural economical causes. In the second, the Teutonic host become the masters of lands long since populous and filled with wealth accumulated during the Pax Romana. If, then, we assume that, at once in the occupied provinces and more gradually in Teutonic territory, gifts of land took the place of gifts of cattle and arms, but that the old associations with assignments of movables continued to attach to a Benefice in land, the transfer of idea—to my mind, at all events—explains better than anything else the transformation of the legal aspect of landed property. I can now understand why the Benefice was not at first hereditary; why, even when it became hereditary, the donor could select the son who was to inherit; why he could cause it, after the death of any holder, to remain to somebody else; why, like a horse, or a suit of armour, or a herd of cattle, it could pass through a succession of hands and then revert to the giver; why it was impartible, the ancient gift of movables having to be restored entire either in genere or in specie; and lastly, to pass to more technical matters, why such importance was attached by the early feudal law to seisin, or actual possession, and why the gift of a feudal estate implied warranty of the title to it, which a grant of allodial land never did.

As a matter of fact, we have in the Irish usages lately brought to our knowledge a system just such as we might expect if we were permitted a view of Teutonic customs somewhere between the first and the fifth century—a feudal system (if we may so call it) dependent on cattle and kinship instead of land and tenure. I will not now repeat the account which I gave on former occasions of the remarkable social mechanism disclosed by the Brehon laws; but those who will examine it carefully will find a number of special feudal rules much more simply explained by the relations of Irish chief and Irish clansman than by any theory founded on the exigencies of military service or on spontaneous modifications of property in land.

I must not be understood as affecting to offer a complete account of the complicated system of rights and duties, some personal and some proprietary, which made up what we call feudalism. The mailed knight of the days of chivalry, who is spoken of in much of history and historical romance as if he were a product of one age and one region, may be shown to have obtained from all sorts of quarters the materials of the ascendency which he long exercised in Western Europe. His iron armour came from the household cavalry of the Eastern Cæsar at Byzantium; the stirrups, without which he could not have worn it on horseback, were brought, with his horseshoes, by Tartar riders from the steppes of the furthest Asia. Just so feudalism, which in the twelfth century looks to us all of a piece, is undoubtedly the result of many converging lines of descent. We are now only concerned with the feudal land-law, and to attribute it to a single origin would be quite inadmissible. We must give due weight to the influence of purely Roman ideas: those connected with the Emphyteutic form of property, those springing up among the military colonies on the German border, and those which had their origin in the Roman law of Patron and Client. Competing with these Roman ideas are others even more potent, of barbarous or primitive origin. I cannot doubt that, when the Benefice or Feud became hereditary, the plan of succession was mainly taken from that which the men of primitive Aryan race had considered as appropriate to chiefships or sovereignties, and which in one of its stages the Irish called Tanistry. As little can I doubt that the general tumult of the Western world, during the dissolution of the Carolingian Empire, contributed to diffuse succession by Primogeniture on the one hand, and to produce Villenage on the other. The imminent daily danger caused little societies to cluster round their natural leader, or some soldier of fortune who had taken his place; the general impoverishment caused men to be depressed to the condition of beasts of burden. Unquestionably the squalor and poverty which meet us on the threshold of the Middle Ages did not characterise the provinces of the Roman Empire, even on the eve of its fall. There can be no greater delusion than that the Roman provincials were pauperised by taxation; and M. Fustel de Coulanges seems to me to have quite proved in his last work that Gaul, at all events, even when swarming with barbarians, was still full of wealth and splendour. But no surer ruin can be wrought to the hoarded capital of centuries than by such an anarchy as prevailed on the relaxation of the Carolingian power. Lord Macaulay, in contrasting India as the English found it with the impressions of it entertained by European adventurers, has said that it is really a very poor country; but it is very difficult to believe this of so great an area of fertile soil crowded for ages by an industrious population. The true secret of the poverty of India, from which she is slowly recovering, I take to be the desolation caused by the wars and brigandage of about 2,000 several chiefs while the Mogul dominion was dissolving. I think that India during the reigns of Akhbar and Jehangir was very probably as rich as the Western world thought it; but its carefully hoarded capital was destroyed as were the accumulations of the Roman Empire. There are some very singular analogies between the dissolution of the Mogul and the dissolution of the Carolingian power—to some extent in their course, but in a much greater degree in their social effects. These, however, cannot be conveniently considered here.

One result of this revolution of legal ideas, which arose from assimilating immovable property to movable, was, I need hardly say, greatly to complicate the law of land. The complex land-law of the feudal ages was, on the Continent of Europe, essentially the law of noble classes; but in this country it became the general land-law, as I before stated, by exception. Among the many proposals which have been made for reforming it since Bentham became an authority among us, one frequently put forward may be described as a proposal to carry to its farthest consequences the early process of change in which feudalism begun. The suggestion has often been made that real property should be closely assimilated to personalty, more especially in respect of conveyance. There ought to be no more difficulty, it is said, in transferring a piece of land than in selling a horse. I believe the analogy to be unsound, and the route indicated a false one. There is far more promise in reversing than in extending the principle, in treating land as essentially unlike movables, and in a return to the ancient methods of conveying allodial land. The subject is, for several reasons, worthy of our attention.

It is to be recollected, first, that the primitive conveyances of allodial land were before all things public. Land belonged to the tribe, joint-family, or village-community before it belonged to the individual household; even when it became private property, the brotherhood retained large rights over it, and without the consent of the collective brotherhood it could not be transferred. The public consent of the village to a sale of land is still required over much of the Aryan world. Although, as we know the Mancipation in Roman legal history, it is a form of private transfer, it plainly bears the stamp of its original publicity. The five witnesses who had to assist at a Mancipation represent the old consenting community, according to a principle of representation by fives widely diffused among primitive races. As a private conveyance, Mancipation was extremely clumsy, and I have no doubt it was a great advantage to Roman society when this ancient conveyance was first subordinated to Tradition, or simple delivery, and finally superseded by it. Nevertheless, the most successful modern experiments have reverted in principle to a method of transfer even older than Mancipation, and the latest simplifications of the conveyance of land are a reproduction of the primitive public transfers in the face of the community, in a new form appropriate to large and miscellaneous societies.

In France, and in the territories incorporated with the Empire of Napoleon I., there has existed, ever since the establishment or introduction of the Code called by his name, a system of publicly registering sales and mortgages of land. In some of the Germanic countries there was long a disinclination to adopt these expedients; but they have now been almost universally copied on the Continent, and, as sometimes happens, the new system is most perfect where the delay in accepting it was longest. The land-registries which have the highest commendation from juridical writers are those of certain small Teutonic communities—e.g. the state of Hesse-Darmstadt, and the Swiss canton of Zürich. I can here give but a brief description of the mechanism. The land of the community is divided into a number of circumscriptions of no great area. For each of these a central office is established, with a staff of functionaries who are to some extent experts, and at each office a register is opened in which separate portions or groups of pages are appropriated to separate masses of land. There has been some controversy as to what the area selected for separate treatment should be—whether a space determined by land-measurement, or, as we should say, an estate, an aggregate of lands once held as a single property; but I believe that the historical system, that which deals with estates rather than with areas settled by land-surveyors, has been found practically the most convenient. When the register has once been opened, the legal history of every parcel of every area is thenceforward recorded in it, and every transfer or mortgage must be registered in it, under pain of invalidity. Whether a person wishing to sell or mortgage has the right to do so it is the business of the staff of experts to ascertain. It is absolutely essential to the system that the register should be easily accessible, and the formalities of registration simple and cheap.

The nearest English analogy to these new foreign systems is to be sought in the Court Rolls of Manors; and it is sometimes asserted by lawyers that the manifold disadvantages of copyhold property are compensated by the many conveniences arising from its registration in these rolls. As to the great mass of English freehold property, there is a general admission among lawyers of the expediency of registration, but vehement dispute as to the best method, and a certain disposition to look upon the practical difficulties as insuperable. It is true that these difficulties are far greater than abroad. Our land law is much more complex than the land law of Continental countries, where it has its counterpart, if it has any, in the exceptional law applied to the estates of a limited number of noble families; and English real-property law has been still further complicated by the liberty of transfer and devise which we have enjoyed from a comparatively early period. The great difficulty with us lies in the preliminary process of ascertaining whether a person desirous of selling or mortgaging has the right to do it; but this is in most Continental countries a comparatively easy matter, the bulk of the land having been held until the early part of this century by a tenure of strict villenage, or, as we should say, in copyhold.

My immediate object, however, is not to pass an eulogy on the principle of conveyance by entries on a register, or to weigh one system of registration against another. I wish rather to point out some remarkable consequences of registration which ought to have our attention in our special branch of study. A short time since I stated that the problems once solved by the expedient of Warranty were common to all bodies of jurisprudence. What is to be done in the case of the man, who is in fact exercising all the powers of an owner, but who has no title to show? Is he to be at the mercy of anybody who chooses to injure or disturb him? The Roman law answers this question by providing the vast body of rules which constitute the chapter on Possession. What has to be done with the man who has bought, with the proper formalities, but not from the true owner—or from the true owner, but not with the proper formalities? The answer of the Roman law consists in the doctrines of bonâ fide Possession and of ownership in bonis—Bonitarian or Equitable ownership. Is the Bonitarian owner or the Possessor, with or without good faith, always to have an imperfect title? The reply is in the great departments of law concerned with Usucaption and Prescription. If a man mortgages his property to a number of creditors, in what order are they to be satisfied? The volume of rules by which all systems try to solve this problem is quite enormous. But it is very remarkable that where there is a perfect system of land registry the strong tendency is to revert to the doctrines of Roman law as it must have been before Possession, Usucapion, and Bonitarian ownership grew up. The registry of the sale or mortgage of land being extremely easy, expeditious, and cheap, there is a marked disposition among the authors and expositors of law to say to the members of the community, ‘Either register your transfers or mortgages, or cause them to be registered, or you shall have no rights whatever. If you neglect doing that which it is in your power to do at any moment and at a trifling cost in time and money, you shall not have the benefit of Possession, of Bonitarian ownership, of Usucapion, or Prescription. At most, there shall be an Action of Contract to compel the seller of land to register and the buyer to pay the purchase-money. As regards mortgages, they shall rank in the order of priority of registration, and if you delay going through the proper formalities, or compelling them to be gone through, you, the mortgagee, will be postponed to creditors more diligent than yourself, and you will be satisfied after them.’ I follow German writers of authority in saying that this is the condition to which legal doctrine is approximating in much of Germany, though it is not quite adjusted to it. The singular result is that some of the most intricate and difficult chapters of law cease to be of any, or much, importance. The expedient of public registration is, it will be seen, purely mechanical. A contrivance very like it in principle spontaneously and very early suggested itself to the human race. Nevertheless, where a public registry of mortgage and land transfer has been established, some of the most famous and luxuriant branches of law show a tendency to dwindle and wither away under its shadow. Possession, Usucapion, Bonitarian ownership, and Hypothek occupy together a prodigious space in the Roman jurisprudence; the bulk of what corresponds to them in other systems of law is very great; if they are reduced to a fraction of their present dimensions, the diminution of the aggregate body of law will be extraordinary and will have been produced in a most unexpected way.

I have dwelt on these Continental systems of land registration, and on the effects attributed to them by German juridical opinion, for two reasons. In the first place, the fact is certainly curious that the latest improvements in the mechanism of mortgage and land transfer involve a reversion to the primitive publicity of conveyance. The public register at some accessible spot, in which all transactions must be registered under penalty of immediately forfeiting all their benefits, pretty much corresponds to the primitive assembly of the village before which all transfers of shares in the domain must be accomplished, in order that the brotherhood may consent to them and supply evidence of them by the general recollection. It is true that the ancient formalities had one object which has nothing to do with the modern. The primitive publicity of transfer went with a most rigid exclusiveness, and the public consent which was insisted upon was employed to refuse the power of purchase to strangers. The decay of the ancient public conveyances was very probably caused by a change of circumstances which made the communities either unable or unwilling to maintain their collective control over the land of their domain. In modern India the growth of wealth has greatly stimulated the spirit of individualism; buyers and sellers of land alike become impatient of the necessity for obtaining the public consent of the villagers to their bargain; the modern Anglo-Indian law is unfavourable to these archaic restrictions; and thus the primitive public methods of alienation are everywhere giving way to private transfers. In the historically ancient world, the same results were most probably produced by conquest and by the absorption of one or more of the primitive proprietary groups by others stronger than themselves. In the Roman State, including a population ever more and more miscellaneous, we find, at the outset of legal history, a mere shadow of the old forms of transfer in the Mancipation; and Mancipation, long before its abolition by Justinian, was subordinated by every sort of legal contrivance to mere Delivery or Tradition. Yet even Tradition, when it became the sole Roman conveyance, retained some trace of the institutions out of which it grew. The Roman law never to the last allowed the dominium or right of property to be passed from one person to another by a mere contract; it was absolutely necessary that the contract should be followed by the delivery of the Thing which was its subject. This is a peculiarity which has more than once caused perplexity to persons who have consulted the Roman law of Transfer in ignorance of its being founded on a principle which the English law and the French Code have abandoned.

The other fact to which I wish to call attention is not merely curious, but highly instructive. The tendency of German juridical opinion, which I have mentioned, shows that we are in danger of overestimating the stability of legal conceptions. Legal conceptions are indeed extremely stable; many of them have their roots in the most solid portions of our nature, and those of them with which we are most familiar have been for ages under the protection of irresistible sovereign power. Their great stability is apt to suggest that they are absolutely permanent and indestructible; and this assumption seems to me to be sometimes made not only by superficial minds, but by strong and clear intellects. I am not sure that even such juridical thinkers as Bentham and Austin are quite free from it. They sometimes write as if they thought that, although obscured by false theory, false logic, and false statement, there is somewhere behind all the delusions which they expose a framework of permanent legal conceptions which is discoverable by a trained eye, looking through a dry light, and to which a rational Code may always be fitted. What I have stated as to the effects upon law of a mere mechanical improvement in land registration is a very impressive warning that this position is certainly doubtful, and possibly not true. The legal notions which I described as decaying and dwindling have always been regarded as belonging to what may be called the osseous structure of jurisprudence; the fact that they are nevertheless perishable suggests very forcibly that even jurisprudence itself cannot escape from the great law of Evolution.