s itself as soon as Courts of Law are in steady
operation, but are nevertheless still under the empire of primitive
notions. In an advanced state of legal opinion, tribunals regard
collusive litigation as an abuse of their procedure; but there has
always been a time when, if their forms were scrupulously complied
with, they never dreamed of looking further.

The influence of Courts of Law and of their procedure upon Property
has been most extensive, but the subject is too large for the
dimensions of this treatise, and would carry us further down the
course of legal history than is consistent with its scheme. It is
desirable, however, to mention, that to this influence we must
attribute the importance of the distinction between Property and
Possession--not, indeed, the distinction itself, which (in the
language of an eminent English civilian) is the same thing as the
distinction between the legal right to act upon a thing and the
physical power to do so--but the extraordinary importance which the
distinction has obtained in the philosophy of law. Few educated
persons are so little versed in legal literature as not to have heard
that the language of the Roman jurisconsults on the subject of
Possession long occasioned the greatest possible perplexity, and that
the genius of Savigny is supposed to have chiefly proved itself by the
solution which he discovered for the enigma. Possession, in fact, when
employed by the Roman lawyers, appears to have contracted a shade of
meaning not easily accounted for. The word, as appears from its
etymology, must have originally denoted physical contact or physical
contact resumeable at pleasure; but, as actually used without any
qualifying epithet, it signifies not simply physical detention, but
physical detention coupled with the intention to hold the thing
detained as one's own. Savigny, following Niebuhr, perceived that for
this anomaly there could only be a historical origin. He pointed out
that the Patrician burghers of Rome, who had become tenants of the
greatest part of the public domain at nominal rents, were, in the view
of the old Roman law, mere possessors, but then they were possessors
intending to keep their land against all comers. They, in truth, put
forward a claim almost identical with that which has recently been
advanced in England by the lessees of Church lands. Admitting that in
theory they were the tenants-at-will of the state, they contended that
time and undisturbe