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POSSESSION

On what ground is bare Possession to be main­tained, if it is not a Right ? The answer is, that Possession cannot be disturbed except by force, and force is not allowed. The fundamental notion then is this ; a violent disturbance of Possession is an attack on a man's personality, on his freedom.

It is shown in the article agrariae leges that the origin of the Roman doctrine of Possession may probably be traced to the Possessio of the Ager Publicus. Possessio, Possessor, and Possidere are the proper technical terms used by the Roman writers to express the possession and the enjoy­ment of the Public Lands. These terms aid not express ownership (ex jure Quiritium) : they had i-n fact no more relation to ownership than the Possessio of which this- article treats. Still the notion of this kind of use and enjoyment was such, that one may easily conceive how the term Possessio became applicable to various cases in which there was no Quiritarian ownership, but something that had an analogy to it. Thus in the case of Damniim infectimi, with reference to the1 second missio in possessionem (ex secundo decreto), the Praetor says " possidere jubebo," which is equivalent to giving bonitarian ownership with the power of usucapion. A ususfuuctus which could only be maintained by the Jus Praetoriurn, was a. Possessio ususfructus as opposed to Dominium ususfructus. The expressions Hereditatis or bo-norum possessio do not mean the actual possession of the things, but the peculiar character- of the Praetoria hereclitas : for this Bonorum possessio has the same relation to the Hereditas that Boni-tarian has to Quiritarian ownership. [DoMiNiUM ; herbs.] Now there is a clear analogy in all these instances to> the Possessio of the Ager Publicus, which consists in this, that in botb eases an actual exclusive enjoyment of a particular'per­son to a particular thing is recognized. This will also explain how property in provincial ground came to be called Possessio : smeh property was not Quiritarian ownership, but it was a right to the exclusive enjoyment of the land, a right which the word Possessio sufficiently expressed. Thus the name Possessio was transferred from the Right to its Object j and Ager and Possessio were thus opposed: Ager was a piece of land which was the object of Quiritarian ownership, and Possessio a piece of land which was either accidentally an object only of Bonitarian ownership, as a fnndus Italicus of which there had been inerefy tradition ; or it was land that could not be the object of Quiri­tarian ownership, such as Provincial land (Javo-leims, Dig. 50. tit. 16. s. 115), and the old Ager Publicus.

Other matters relating to Possessio appear to be explained by this view of its historical origin. The Interdictum reeuperandae possessions relates only to land, a circumstance which is consistent with the hypothesis of the origin of Possessio. The nature of the Precarium also is explained, when we know that it expressed originally the relation between the Patronus and the Cliens who occupied the Possessio of the Patroims as a tenant at will and could be ejected by the Interdictum de pre-cario, if he did not quit on notice. Further, we may thus explain the apparent inconsistency in the ease of a lessee of Ager Vectigalis, who thoughjie had only a jus in re, had yet juristical Possessio : the Ager Vectigalis was in -fact fashioned accord­ing to the analogy of the old Ager Publicus, a»d it

.949

POSTLIMINIUM.

was a simple process to transfer it to that notion of Possessio which had existed in the case of the Ager Publicus. [empiiyteusis.]

This article read in connection with the article on the Agrariae Leges, and the Licinian Roga­ tions [LEX, pp. 693, 694], will give the reader an outline of the law of Possession both in relation to the Ager Publicus and Privates. .

The preceding view of possession is from Savigny, Das Redd dcs Besitzes, fifth ed. 1827. There is an analysis of this excellent work by Warnkonig, " Analyse du traite de la possession par M. de Savigny, Liege 1824 ;" and a summary view of Savigny's Theory is given by Mackeldey, Lehrluch, <&c. ii. p. 7. See also Puchta, List. ii. §224 ; Gains, iv. 138—170 ; Inst. 4. tit. 15 ; Dig. 41. tit. 2, 3 ; 43. tit. 16—23, 26, 31 ; Cod. 7. tit. 32 ; 8.. tit. 4, 5, 6, 9 ; Cod. Theod. 4. tit. 22,23. [G. L.]

POSSESSM}, BONORUM. [bonorum

SESSIO.]

POSSE'SSIO* CLANDESTl'NA.

POSTICUM. [janua.] POSTLIMFNIUM, JUS POSTLIMI'NII.

" There are," says Pomponius (Dig. 49. tit. 15. s. 1 4), " two kinds of Postliminium, for a man may either return himself or recover something."'*; Postliminium is further defined \>y Paulus (Dig. 49. tit. 15. s. 19) to be the "right of recovering a lost thing from an extraneus and of its being re­stored to its former status, which right has been established between us (the Romans) and free peo­ple and kings by usage and laws (moribus ao, legibus) ; for what we have lost in war or even oufc: of war^ if we recover ife, we are said to recover postliminio ; and this, usage has been introduced-by natural equity, in order that he who was wrongfully detained by strangers, should recover his former rights on returningf into his own terri­tories (in fines swos)." Again Paulus says, " a man seems to have returned Postliminio, when he has entered our territory (in fines nostros intra-verif) ; as a foundation is laid for a Postliminium (sicuti admiititiw*} (?,) when he has gone beyond our. territories (ivbi.fines nostros excessit). But if a man has come into a state in alliance (soda) or friend­ship with Rome, or has come to a King in alliance or friendship with Rome, he appears to have forth­with returned by Postliminium,; because he then first begins to be safe under the i>ame of the Roman. state. '* These extracts ai'e .made .for the purpose of clearing up the Etymology of this Avord, as to, which there was a difference of opinion. (Cic. Top. 8.) The explanation of Scaevola, as given-by Cicero, has reference to the etymology of the. word, post and limen : " what has been lost by us and has come to an enemy and as it were has gone from its own limen, and then has afterwards (post) returned to the same limen, seems to have returned by Postliminium.'" According to this explanation, the limen was the boundary or limit within which the thing was under the authority of Rome and an object of Roman law. A recent writer (Goet-tling, GescUchtedev Rom. Staatsverfassung^ p. 117) suggests that Postliminium must be viewed in a sense analogous to Pomoerium. There is a fanciful explanation of the matter by Plutarch (Quaest. Rom. 5) in his answer to the question, Why are

* " Sicuti amittitur," Flor., Geb. et Spang.

3 p 3

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