Article by David V. Snyder
The phrase “Roman law” conjures warm images in the mind of every true civilian believer. The greatest possible attainment of a medieval jurist-becoming a doctor utriusque iura (doctor of both laws, canon and secular, Christian and Roman)-has been replaced by learning in both ancient and modern law. Modern scholars are excited when they see vestiges of Roman law in modern codes. When such vestiges are discovered, grand civilian pretensions to being heirs to the Roman law are legitimized.
The law relating to possession in the Louisiana Digest of 1808, commonly called the Civil Code of 1808, affords Louisiana a serious claim as a middle-aged pretender. Concededly, the Code is heavily influenced by Spanish law; Louisiana had been a Spanish colony only a few years earlier. Louisiana also had been a French colony for some time, and the influence of French law was strong too. The Code of 1808 was written shortly after the Code Napoléon of 1804, and the Louisiana legislation took advantage of the work done by the French redactors. There has been a great deal of debate over the relative influence of the French and Spanish sources on the Code of 1808, but that dispute is of relatively little concern here. In the area of possession, Louisiana followed Rome, not Spain or France.
Both the French and the Spanish have their own pretensions to the heirship of Rome, and Louisiana's claim would be tarnished if it admitted receiving the Roman law via those intermediate sources. Through the possession articles, Louisiana can make the case that it took in its own right from Rome. Proving that case is the purpose of this Article. The argument will be made in three parts.
First, a close textual analysis of the articles in the Code of 1808 and the parallel provisions of the Institutes of Justinian (which are largely taken from Gaius) reveals that the Code tracks the Institutes. The Siete Partidas also follow the Institutes, and the question arises whether Louisiana received its Roman law in this area through the Siete Partidas or from the Institutes themselves. The conclusion is that the Louisiana redactors may have consulted the Spanish law, but they did not always elect to follow it and instead chose to follow the Institutes directly. Louisiana wins its claim by a preponderance of the evidence in the first phase of its case.
In the second phase, this Article explains the rudiments of the Roman law of possessio, including possessory protection in the form of interdicta, as well as modes of acquiring ownership, such as usucapio and occupatio. As these concepts are explained, their Louisiana counterparts will be examined for similarities, or actual copying. This exposition will set the stage for the third phase of the argument, which will show how the basic understanding of possession in Louisiana law, particularly under the Code of 1808 and the Code of Practice of 1825, followed traditional Roman thinking when addressing problematic issues of possession law. The conclusion is that Louisiana can claim to take from the Roman tradition in its own right, at least in the area of possession law. While in other areas the State must claim through the French or the Spanish, in the field of possession its claim is equal to the claims of France and Spain.
Before the argument itself can begin, some basic concepts need to be defined. The word “possession” is used in a number of senses under the current Louisiana regime and under older regimes in Louisiana and other jurisdictions. A person might be said colloquially to “possess” a book borrowed from the library, but that person would not possess the book in the proper, juridical sense. Used in its proper sense, “possession” means the exercise of physical control over a thing with the requisite intent-such as the intent to own the thing. The “possessor” of the library book is not a possessor in the proper sense because the intent element is missing: he exercises physical control over the book because he has borrowed it, not because he has any pretense to having it for himself.
Exactly what intent is required at Roman law is the subject of some controversy, and this issue will be addressed below. Some element of intent was certainly required; the only question is the quality of the intent. Exercise of physical control without the requisite intent is mere “detention.” This Article will attempt to use these terms strictly, although the law itself sometimes confuses the concepts, leading to potential confusion in interpretation.
Further, the reader should not confuse ownership and possession. According to Ulpian's ancient Roman maxim, “Ownership has nothing in common with possession.” This is perhaps an overstatement and should not be taken literally, but the two concepts are nevertheless separate. The Louisiana redactors understood this, stating in the Code of 1808:
Although the possession be naturally linked with the <ownership>, yet they may subsist separately from each other, for it often happens that the < ownership> of a thing being controverted between two persons, there is one of the two who is <recognized> to be possessor, and it may be that it is the person who is not the right owner, and that thus the possession may be separated from the < ownership>.
Possession sometimes can lead to ownership through means such as occupatio, praescriptio, or usucapio. The relation of possession to ownership is important, but it is only a relation; the two are not identical. Praescriptio and usucapio will be discussed below. Likewise, occupatio, although it is an outgrowth of possession, is a means of acquiring ownership. It is intimately related to possession, however, and this Article will treat the subject in some detail, particularly because the similarity in language of the Roman and Louisiana law is so striking.
About the Author
David V. Snyder. Judicial clerk to the Honorable John M. Duhé Jr., United States Court of Appeals for the Fifth Circuit. B.A., Yale College, 1988; J.D., Tulane University, 1991.
Citation
66 Tul. L. Rev. 1853 (1992)