Then commenced a movement which, as Mr John Austin pointed out,exactly reproduced itself in English law. Proprietors, domini,began to prefer the simpler forms or speedier course of theInterdict to the lagging and intricate formalities of the RealAction, and for the purpose of availing themselves of thepossessory remedy fell back upon the possession which wassupposed to be involved in their proprietorship. The libertyconceded to persons who were not true Possessors, but Owners, tovindicate their rights by possessory remedies, though it may havebeen at first a boon, had ultimately the effect of seriouslydeteriorating both English and Roman jurisprudence. The Roman lawowes to it those subtleties on the subject of Possession whichhave done so much to discredit it, while English law, after theactions which it appropriated to the recovery of real propertyhad fallen into the most hopeless confusion, got rid at last ofthe whole tangled mass by a heroic remedy. No one can doubt thatthe virtual abolition of the English real actions which tookplace nearly thirty years since was a public benefit, but stillpersons sensitive to the harmonies of jurisprudence will lamentthat, instead of cleansing, improving, and simplifying the trueproprietary actions, we sacrificed them all to the possessoryaction of ejectment, thus basing our whole system of landrecovery upon a legal fiction.
Legal tribunals have also powerfully assisted to shape andmodify conceptions of proprietary right by means of thedistinction between Law and Equity, which always makes its firstappearance as a distinction between jurisdictions. Equitableproperty in England is simply property held under thejurisdiction of the Court of Chancery. At Rome, the Praetor'sEdict introduced its novel principles in the guise of a promisethat under certain circumstances a particular action or aparticular plea would be granted; and, accordingly, the propertyin bonis, or Equitable Property, of Roman law was propertyexclusively protected by remedies which had their source in theEdict. The mechanism by which equitable rights were saved frombeing overridden by the claims of the legal owner was somewhatdifferent in the two systems. With us their independence issecured by the Injunction of the Court of Chancery. Since howeverLaw and Equity, while not as yet consolidated, were administeredunder the Roman system by the same Court, nothing like theInjunction was required, and the Magistrate took the simplercourse of refusing to grant to the Civil Law Owner those actionsand pleas by which alone he could obtain the property thatbelonged in equity to another. But the practical operation ofboth systems was nearly the same. Both, by means of a distinctionin procedure, were able to preserve new forms of property in asort of provisional existence, until the time should come whenthey were recognised by the whole law. In this way, the RomanPraetor gave an immediate right of property to the person who hadacquired a Res Mancipi by mere delivery, without waiting for theripening of Usucapion. Similarly he in time recognised anownership in the Mortgagee who had at first been a mere "bailee"or depositary, and in the Emphyteuta, or tenant of land which wassubject to a fixed perpetual rent. Following a parallel line ofprogress, the English Court of Chancery created a specialproprietorship for the Mortgagor, for the Cestui que Trust, forthe Married Woman who had the advantage of a particular kind ofsettlement, and for the Purchaser who had not yet acquired acomplete legal ownership. All these are examples in which formsof proprietory right, distinctly new, were recognised andpreserved. But indirectly Property has been affected in athousand ways by equity both in England and at Rome. Intowhatever corner of jurisprudence its authors pushed the powerfulinstrument in their command, they were sure to meet, and touch,and more or less materially modify the law of property: When inthe preceding pages I have spoken of certain ancient legaldistinctions and expedients as having powerfully affected thehistory of ownership, I must be understood to mean that thegreatest part of their influence has arisen from the hints andsuggestions of improvement infused by them into the mentalatmosphere which was breathed by the fabricators of equitablesystems.
But to describe the influence of Equity on Ownership would beto write its history down to our own days. I have alluded to itprincipally because several esteemed contemporary writers havethought that in the Roman severance of Equitable from Legalproperty we have the clue to that difference in the conception ofOwnership, which apparently distinguishes the law of the middleages from the law of the Roman Empire. The leading characteristicof the feudal conception is its recognition of a doubleproprietorship, the superior ownership of the lord of the fiefco-existing with the inferior property or estate of the tenant.
