This section of the book is from the "A Man and His Money" book, by Harvey Reeves Calkins , published in 1915.
When ancient Greece succumbed to the conquering Roman arms it was the beginning of that wider conquest of the Greek mind which continues until this day. In the compelling line of Horace, "Captive Greece led captive her untaught conqueror." So also, when the barbaric hordes of northern Europe overran Italy and spiked the massive machinery of the Roman empire, it was the beginning of that wider understanding of the principles of law which slowly spread among the northern tribes, until, in the words of that profound English jurist, Sir William Blackstone, there was "established a new Roman empire over most of the states of the continent."
We cannot therefore understand the significance of our own common law, which has come to us directly from the common law of Europe, unless we note, with some degree of care, its beginnings in those far-off days of early Rome. "The history of Roman law," says Professor Morey, "may be regarded as continuous from the earliest settlement of the Aryan tribes in Italy to the present. Indeed," continues this eminent American scholar, "it may be said that, by its perpetuity and diffusion among European states, its importance as a civilizing agency has been even greater in the modern than it was in the ancient world."
Our inquiry is concerning one element in that marvelous fabric of Roman jurisprudence: The law of ownership, whence came it?
In common with all primitive peoples, the early Aryan tribes that settled in Italy held the very primitive notion that the best title to property is conquest. There is no more primitive conception of ownership than this. It marks man level with the animals of the forest and the field. The leopard can hold his lair against all comers, therefore his title is supreme; the squirrel may chatter confidently in the treetops, for none will care to disturb his title; likewise, "the conies are but a feeble folk, yet make they their houses in the rock." In such manner the early Aryans, in southern Europe as in central Asia, held their possessions as property—an ownership which was at best precarious, whether a man's title to possession rested in brute strength, in superior skill, or in more watchful cunning. Nevertheless, primitive and barbarous though they were, these notions of property were sufficient to shape community customs, and these community customs were the germ of civil law after the early tribal life of the people had developed into the larger life of an organized state.
Thus we find, in the time of the Roman republic, that, while the fact of ownership no longer depended on actual physical prowess, nevertheless the underlying meaning of ownership was unchanged from earliest times. Professor Morey says, "The customs of a barbarous age had become stereotyped into a regular judicial process, the heated wrangle had cooled down into a formal method of joining an issue, and the lance, which was a weapon of conquest, had become transformed into a symbol of ownership." In a Roman court the formal method of avowing ownership was to touch the lance, just as in later centuries the custom of taking oath in an English court was to kiss the Book.
Now, what did Roman law mean by ownership, or, to use the Latin word which has come down into modern jurisprudence, by "dominium"? Ownership signified, of course, the right to use or enjoy one's possession, but this was not its distinguishing mark. In the Roman law the essence of ownership was this: the legal power to hinder others from using or enjoying one's possession. Tullius "owns" a horse; but wherein does that ownership consist—in the legal right of Tullius to ride his horse? Not at all. This passes without the saying, for this is a right that could never be even questioned. But the real test of Tullius's ownership is this: his legal power, which is equivalent to his absolute authority, to hinder Marcus or Tertius from riding his horse. For if Marcus and Tertius have an equal right, or even a subsidiary right, to the use of Tullius's horse, how then is Tullius the owner? and wherein is his "dominium"? To the Roman mind this logic was absolute and final, and no part of the Roman law was so thoroughly worked out as this same doctrine of private ownership, together with the various kinds of "rights," "conveyances,'' and civil "actions" that grew out of it.
For reasons which we shall presently consider, the Roman doctrine of ownership passed into the common law of modern civilization, practically without change. How completely it dominates all our ordinary conceptions of property is perfectly apparent. One does not need to acquaint himself with jurisprudence to understand his "rights" under the law. Mr. Brockman "owns" an automobile. What is the legal test of his ownership—his receipt from the dealer for the purchase price? No, that gives him title to possession, but does not proclaim him "owner." His right to drive the car? By no means; this never occurs to him as his "right" under the law; he simply assumes this because he has possession; this is not the legal test, at all. But his ownership, and the proof of his ownership, is this: He has the legal "right" to hinder anyone else from driving the car. Should one be so foolish as to doubt the fact, let him remove Mr. Brockman's car from the garage without the consent of the "owner"!
That the modern theory of ownership follows entirely the ancient Roman law is clearly seen by analyzing the development of any ordinary civil case in court. Professor Thomas Erskine Holland, of Oxford, in his masterful Jurisprudence, thus characterizes our familiar rights of ownership: "The essence of all such rights lies not so much in the enjoyment of the thing as in the legal power of excluding others." The law of ownership is keenly analyzed in these luminous words of Kant: "If a man were alone in the world, he could properly hold or acquire nothing as his own; because between himself, as Person, and all other outward objects, as Things, there is no relation." Robinson Crusoe, on his lonely island, could possess and enjoy the whole of it, but he "owned" nothing until the man Friday joined him; for, until the coming of another man, it would be meaningless to say, "This ax, this gun is mine." Ownership, in our common jurisprudence, means more than the possession or enjoyment of anything: it signifies the nearness, or possible nearness, of other people who can be hindered from possessing or enjoying the thing that is "mine." In a word, ownership means hindrance. It must be confessed that it jars a righteous man not a little to find that what he has considered as sincere "rights of ownership" are nothing more than a dignified legal covering for brute selfishness. Even though he himself may be generous and not selfish, yet the law under which he "owns" things is a glorification of sinister selfhood. Nor should the law be impugned because of this human fact, for the law did not make the fact. Law is crystallized custom, and custom is the way folks act. The meaning of all this is perfectly obvious, and the origin of it is accurately historical. Beyond the steering wheel of Mr. Brockman's automobile, and beyond the snaffle-rein of Tullius's horse, we look into the lowering eyes of that primitive Man with the Lance.