NARRATOR: Thanks for joining this episode of the No. 86 lecture series, in which Professor Richard Epstein discusses property rules in the Roman Law. Episode 3 includes: The rules of acquisition and development Whether or when occupation of property is necessary What things can be considered “property” This lecture is part of a series with Professor Epstein on how this ancient legal system can provide crucial insights about modern problems. Professor Epstein is one of the most prominent legal scholars of our day. He is the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, a Senior Fellow at the Hoover Institution, and Professor of Law Emeritus and a senior lecturer at the University of Chicago. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Let’s start with a basic question. How does the concept of private property arise in a society? RICHARD EPSTEIN: We said first of all you have rights in your labor by a kind of implicit autonomy assumption. Then what happens is you have rights in the things that you acquire by first possession and the rights of exclusion are towards. But the dominant relationships is relationship by contract and these contracts can allow you to sell services, they can allow you to sell property, they can allow you to give licenses for people to enter into our property they can allow you to divide property to mortgage property to lease property and so forth. So the private law system creates this rich transactional network of immense subtlety and so what the Roman's did in their relentless fashion is they then decided to develop three kinds of rules. First of all the rules that deal with the acquisition of various forms of our private property and then the rules that deal with their transfer then the rules that deal with essentially their protection and then related to the property rules but often considered separately from it, there's this theory of restitution which talks about the ways in which transfers of property can take place in legitimate fashions even though there is not a voluntary transaction between the two parties. Okay? Okay. So now when we start to look at this, I've mentioned that there are three bodies of law and it's important to understand what they are and the relationships between them. The first thing is we've decided that property was “res nullius” in the state of nature, which means that nobody could own it. Well if its always going to remain res nullius then farming will never start to take place, nobody can build a house and essentially what we would do would be known as a negative commons, nobody could enter this particular thing to use it. Everybody is forced to keep off and that's not a particularly helpful situation. So you have to find a way in which to get this stuff out of collective solution and out of immobility and deprive in hand. And the rules of acquisition based upon the theory of occupation, which I'll talk about, are the one set of rules that are allowed to do this and in fact you only want to single set of rules to deal with occupation. Because the moment you put in two alternative rules and their inconsistent then you have to decide a priority between them so that the Romans had the right result which says it's a uniform principal of occupation that governs this and then quite sensibly they realized that different kinds of resources would require different kinds of rules with respect to what counts as occupation without having any problem of competition. PUBLIUS: Can you elaborate on these rules that govern acquisition? RICHARD EPSTEIN: Well, to begin with this system, generally speaking, the first question you'll have to ask is how it is that somebody gets something, which was in the common, I.e., owned by nobody and reduces it to private possession. Now, this is logically the point that you would start with, because unless you can acquire possession and title of land in one way or another, it's pointless to figure out how you can get exclusive use of it and it's pointless to figure out how you can transfer it in one form or another to anybody else. So if you're going to start this as a logical matter, possession should come before transfer and protection. If you look at the Justinian digest and Gaius' Institute, you'll see that they don't have the same one. Gaius does not begin with possession and acquisition. He begins with the rules of transfer, whereas Justinian inverts the situation and begins first with acquisition. Why is that? Because if you go back and you start looking at the hierarchy of laws, essentially the sort of natural law rules, which tell you how these things run in a state of nature, are thought to be inferior to some extent to those rules and formalities that are created by the dictate of the emperor. And so the transfer rules by way of mancipatio in particular, that is by formal transfers, are essentially created by the State, so you start talking about those first. Then what you do is you move on to talk about what happens when the formal rules of transfer aren't honored and you have elicited incomplete transfers and then you turn to possession. Whereas by the time they get to Justinian, all the formalities are largely eliminated in this thing, and so he goes back and goes to the correct order, first starting with acquisition. That's exactly the same thing that, for example, John Locke does when he starts with his treaty of property in book five of the Second Treatise of Government. Now, the first thing what you have to do is to understand what the Roman law was and what is sufficient about that. The term that they used was "Occupatio," loosely translated as occupation, and what they meant by that is that the rules of possession required two things. One, that you actually occupied; that is, took over the particular property, and two, you gave notice to the rest of the world in one form or another, so that they knew that you had made this particular claim. There was nothing in there which limited the amount of land that you can take as a matter of positive principle to only that amount of land which you could usefully cultivate and so forth. All there was, was you could take it so long as you could put it in. Clearly, if you start thinking about the way in which things work, there's a very difficult trade off of for people when they're starting to acquire. Let's start with land: the most important asset. If you try to acquire too much land and you try to fence it in, you don't have enough material to fence it in, and what's going to happen is animals are going to not respect anything you're doing. They're going to wreck the property. Your neighbors will not be particularly interested in it, the whole things open, so they'll take it from you as well. So the way in which the original acquisition does, they're kind of natural principles that start to limit the amount of blend that you are going to acquire in part by the amount of land that you think you could protect against downside. Now, why is it that protection works within this system? Well, there's a fundamental relationship that everybody understands, which is that if you have a defensive position behind walls and somebody else tries to take it over, if in fact you are weaker than him, you still may be strong enough in a defensive position. And in the rough estimates, depending on where you are, is that the attacking force has to be about three to five times as large as the defending force in order to overrun. So now you can see how the kind of initial equilibrium works, not only with respect to clans, but also with respect to individuals. Let's assume that you're twice as strong as I am. Obviously I'm not going to attack you, so you're safe. But on the other hand, your two to one advantage isn't big enough for you to attack me. And so, so long as the ratio between the two parties is relatively close, it turns out that you'll get a stable equilibrium. If one guy gets very, very much bigger than the other fellow, say five or six to one, there may be a deal which will avert conquest and you'll have some surrender of rights, but conquest may well be in the position. So property is always fragile. The more equality that you have between the groups, the more stable it's going to turn out to be. The fatal encounters will come where the attacker thinks that he's got a four to one advantage, when in fact he only has a two to one advantage. So given his mistake, he is going to start to attack. But given your resources, you'll be able to defend successfully, but both of you are going to be very badly bloodied in this situation. So to some extent, full information actually is a source of stability and that can exist between private parties. So what happens is if you're reasonably modest in the way in which you claim territory and the guy next to you does it, there'll be stable relationships and then what will happen, if in fact you learned to develop some degree of trust, is you'll start the trade and the trade will essentially improve the position of both of you with respect to everybody else. If you go a little bit further, you may then agree on common boundaries, which means that the amount of perimeter protection that you need relative to the amount of space protection that's protected goes down, which works to the benefit of everybody. So it turns out, although there's a rivalrous element to the first possession rule, there is also a cooperative element. PUBLIUS: How much can you develop your own property? RICHARD EPSTEIN: Now once you have this particular resource the first thing you can do is to start to develop it so you have to know exactly what it is that you have, and the basic instinct that one develops is as follows; property has both a temporal and a spatial dimension. On the temporal dimension, if you acquire a piece of property essentially you acquire this thing forever so there's no artificial time barrier, which tells you how long you can use the stuff. This is very different from the rules that govern the use of huts in times of storm that's on public property and the moment the peril pass your ability to use the hut on the public property passes as well. All relationships created by necessity are necessarily of short temporal arrangements, they last only as long as the necessity goes but when you're trying to figure out how you cultivate land to build a house and you put any temporal limitation on this you can only have it for X years. The closer you get to that barrier the more awkward the transactions are going to be. So essentially the dominate solution in virtually every case is if you acquire something by acquisition you acquire it essentially in perpetuity and you may be able to create by contract limited interest in that particular thing but there is no government restriction saying for this far you may have it and no further. In addition to having the temporal arrangement there are also spatial arrangements and how far do you go? The Romans did not actually systematically answer this question but it turns out the medievalists that followed on the Romans developed what was known as the ad coelum and the ad inferos. “ Ad coelum” meant if you owned the surface you owned clear the way up through the sky so if you can imagine a cone going up from my land not only would I be in the upper atmosphere but I could be all the way out to Jupiter and Mars and so forth and nobody would stop me and then the “ad inferos” rule means that you take my land and you put it down narrower until we get to the center of the earth, so I own all of that. Clearly the further you get away from the surface of the earth the less valuable the rights turn out to be. But there was no reason in Roman times to restrict them in an artificial fashion. So if you can only build for 100 feet why do you want to have 150 foot rule if somebody's going to put an antenna on top of the thing and so forth. So it would go all the way up, going down was extremely important because if you owned the underground stuff it meant that you had exclusive rights to the minerals that turned out to be there. Interestingly enough, although this was not a Roman issue, if there was water or oil and gas under the land stuff which was to use the word fugacious which sort of moved around from place to place the old system would not work particularly well, but those issues did not really come into play until sort of late 19th century when the more intensive use of water resources and the development of oil and gas rights essentially made you create important exceptions to the particular rule which we can talk about very briefly here. So you're going all the way up and you're going all the way down you're going all the way forward in time and what you do now is you have something that is clearly worth acquiring. But as it was with the water rights showing up whenever you go this far sooner or later you're going to run into some technological development some reason we're just going to start the talk about why it is that some sensible limitations might be placed upon both the upward and the downward movement. But before you want to talk about the exceptions you want to understand how the basic system started to work. So with these is the definition of the property rights then the key questions you have to ask is how are these things acquired. Well the answer is you acquire occupation of the surface you get by imputation as they say all the stuff going up and down and you get an indefinitely and you then after the acquisition rules are done you try to figure out the transfer rules. These are of two sorts some transfers are out-and-out so you're gone and the new guy is in. Those are relatively easy to structure, but the really important and difficult cases are those of divided interest where somebody else gets some portion of the total and you keep some residual portion of that. So now you've got two or more parts and you have to make sure that there are no gaps between the two parts so that waste will take place and there is no overlap between the two parts so that you don't get conflicts with respect to uses. And it's amazing how much of the Roman law has to deal with that thing in connection with the law of use, which I had mentioned in connection with water law which actually comes back to play and extremely important part in the general Roman law dealing with property after it turns out to be acquired. PUBLIUS: What happens after property is “acquired”? Does it have to be occupied and what does that mean? RICHARD EPSTEIN: So now that you take these things, what is it that you have to do in order to get it? And the rule of occupation was a very slim rule. What you said is as little as possible, is what is needed to make sure that you have differentiated yourself from somebody else. So you have to be able to mark the boundaries and give some indication that you're actually there, using and cultivating the land, which can be very very minimal. Now, why did we want this rule? The basic logic of the rule is if in fact you required more in order to acquire possession, you would dissipate the value of the property, and buying, spending enough labor to do it. So when the limit, if you said "Ah, here's a piece of land which is worth $100" and you have to invest $100 in this land in order to perfect title, what's gonna happen is nobody will bother to acquire land because if you spend 100 to gain 100, why bother to do anything at all? So the first possession rule says if you can get away with spending two instead of 10, that's $8 more of surplus, so we minimize the amount of stuff that you acquire. When you start looking at the theoretical developments of this in the common law, there's no deviation whatsoever from this particular kind of rule. Everybody kind of understands the logic of the implicit surplus that takes place by minimizing the formalities that are needed to demarcate land. Then comes along John Locke, and he completely messes this up, because he announces that there's a labor theory of value of enormous influence, which says that the way in which you acquire ownership of property is to mix your labor with the thing. At no point does he ever mentioned the word "Occupatio" in his thing. Everything is how much you put into it. Well, under this theory, you can start to say, "Oh my God, if you only put in two units, you're only entitled the two units". So the other 98 units will be regarded as quote unquote "An unearned increment" and that ought to be socialized in one form or another. So the Labor theory of value, if you do it that way, says that you only acquire value to the extent that you put value in, which means that you never do it. So this theory is a colossal blunder to the extent that you're trying to explain how property rights ought to be acquired against neighbors and it essentially is almost indistinguishable from the Marxist theory of the Labor theory of value. And would you say that the value at the property is the only thing that you're justified in keeping and this so called “Unearned increment” that is the excess value over your contribution belongs to the society at law. So you have to get rid of the mistake and then you ask yourself, well when, if at all, do you really care about how much you put in? And there's a very different situation to which this model apply. Let's suppose I owned something, and now we're getting to the law of restitution, and I own a plane or a boat and it turns out that you're a subcontractor and what you do is you give me a value of improvement to the boat, of $100 on a $1,000 boat. It also turns out that the general contractor doesn't bother to pay, and you have not got given a lien waiver. So now the question is, you've given $100 of value to somebody else, so its improved his boat. Are you supposed to go with nothing? And the general answer is always been no. This is a case of unjust enrichment. As I mentioned earlier, you are now entitled to a Lien on the boat, which is for $100. If he doesn't pay you off, you can then literally force the boat to be sold, get your $100 and give them the residue. But since he knows that, he'll pay off the $100 and get it back. Now that's a classic case in which you want to give the guy a $100 because the property rights had been well established and you don't want somebody to get something for nothing as a private benefit, but that situation is completely different from the situation in which you're taking something out of a state of nature and reducing it to private property. What to put it another way, if you had actually done the contract correctly, the guy would have been paid his $100 and now what you're doing is you're giving him a remedy which gives him the same $100 but doesn't allow him to touch the greater value of the ship by claiming his own because there's a difference. So the rule with respect to these liens is that you only get the amount that you've put in and the labor theory of value makes perfectly sense there, even though it makes no sense in the stranger case, but if you start looking at the standard philosophical treatments on that, most of the people who write about the labor theory of value do not understand or work well within the Roman tradition; so they don't see the enormous difference that it creates. The labor theory of value means that the unearned increment goes to everybody else and the occupation theory means that the original owner keeps it. This is exactly essential at every form of property. If you're dealing with something like patents, for example, you want to create a rule in which minimal amount of labor will tell you what's covered by your invention. You can't do it by putting stakes in the ground or building a fence, so you have to file papers, but essentially minimum proof is what is necessary because you want to make sure that the surplus is not dissipated by the principles of title perfection. And so the Romans got this thing exactly right. So that's the first question about why it is that we use the world of occupation. PUBLIUS: You mentioned types of property besides land, such as an invention. Many types of things can qualify as “property.” Are the rules the same for the usage and ownership of all types of resources? RICHARD EPSTEIN: So the question that we then have to face in all of these contexts is how does this particular rule play out with respect to different sorts of resources? And they do present very serious problems of one form or another. And first of all, with respect to land, generally speaking, you can't just look at land and say, “I hereby possess this.” What you have to do is to take some affirmative steps that give permanent notice to the rest of the world that you have treated this thing as your own. What that typically means in an ancient society is you have to mark the corners of the land, you have to put boards up in one form or another, you have to start cultivating the land so that anybody who looks at it would realize you don't see these nice rows of flowers and beans and trees in there as a matter of nature. Only a man can create it, so you know somebody else has done it, so now you are under a duty to keep off because it's been claimed and so the notice provisions, you'd like them to be as cheap as possible. But remember, they're gonna be very different in very different areas. If you're claiming small parts of agricultural land, generally speaking, you've got to get pretty clear demarcation. But if you are talking about scrub land with a useful amount of land to occupy has to be very much larger because the per acre value is much less than that. Then maybe just putting up a bunch of posts around the land or a barbed wire fence would be sufficient to tell everybody else that they have to keep off that particular property. And sure enough, in some cases there may be that a stream on one side will mark the natural boundary on a land and, and in other areas that won't be any streams at all. So basically the amount of demarcation you have to do is going to be a function of the kind of terrain you have. There's early texts, mainly from an author known as Paul, who said: “Do you have to occupy the full amount of the territory within the boundary?” And if you start thinking about, you know, the typical person standing up occupies maybe one square foot of land, lying down, maybe six square feet. You'll want a claim, you know, lots of land. You can't put it all in your hand. You can't lie down on it. So the basic rule is that the boundary is clear and you make some small use of any fraction of it. Everybody else has to understand that you've protected the whole. And so the Roman rules of possession with respect to land under this form are exactly the same rules of possession that we have today, because the fundamental problem is the same today as it was in any other time. So if you're dealing with a upward acquisition of property, the first possession rule stars to tell you what it is that you have to do for possession, you want to make it onerous enough so that you differentiate yourself from the rest of the world, but you don't want to make it so onerous that you actually dissipate the bag of the resource that you're kind of protecting and the occupatio rules that the Romans developed with respect to land really meet that kind of a question on the basic place. Now, when you start moving to other kinds of resources, it's going to be a little bit different. So suppose you're now talking about animals and how do you create this thing? And the answer is, well, these things could run. So you have to capture them in some way, shape or form. Well, what's the rule going to be? Everybody agrees with the famous rule that if you actually lasso the animal, capture it, and keep it in your possession, then in effect you have prima facie ownership of the thing, but the ambiguities then come into additional kinds of cases that are worth mentioning, because they appear again in exactly the same form. The great case of Pearson and Post decided in New York around 1805, and the first thing is, suppose it turns out that you're chasing an animal and you wound the animal, which continues to lumber along and before you can actually bring it down, some saucy intruder, as we like to say, comes along and first captures it. Can that guy claim the property against you on the ground, that he's the first possessor, the first occupier of the thing? Every legal system says no to that. And why is it? Because now you are thinking a little bit about the labor theory of value. The one guy does all the work in order to get the thing down and the other guy comes in and does virtually no work at all. If in fact the rule were that the saucy intruder can prevail, then you treat it as though it's a theft of labor. So the general rule under these circumstances is that the outsider has to stand aside and give the guy who essentially engaged in the hunt the opportunity to finish this thing up and to capture the animal in question in order to make it its own. And it's a perfectly sensible rule, and it starts to show you that, like everything else, the occupatio rule has to have fine gradations as you start moving to different kinds of resource. So then the second question that you have with the simple animal runs as follows: suppose that you're engaged in hot pursuit of the animal, but you've yet to hit it, but you've worn the whole thing out. Our saucy intruder comes along now and what he does is he managed to capture though, you know the stag, which is exhausted after you've worn the thing out and says “It's all mine, it's not yours.” If you looked at the Roman law texts for the most part, what they say is either it's wounding one, nothing, and yet the same problem about the labor value essentially starts to take place. So what you do is you get a battle of the two views on this question in Pierson and Post, which is really quite remarkable. On the one side, what happens is: somebody says, “this is a matter of jurisprudence.” We start looking at jurisprudence if you haven't taken occupation it's not yours, and the other guy said, “What are you talking about, Jurisprudence?” There are a bunch hunters. They're in a community. They're in constant repeat interaction with one another. These are high frequency, low value interactions, only the value of this animal. You do it a thousand times. And if the custom of the trade is that everybody has a chance when they're in hot pursuit to finish it up, first of all, you ask why it is they have the custom, and secondly, why is it you would want to deviate from it? Well, it turns out there are two reasons why you want this particular rule, in most cases. One of which is the same labor theory of value: you expend the labor, somebody else can snatch it away from you at the last moment. It's a theft of labor. So what you're going to do is really reduce the willingness to hunt, or get people starting to become very hostile and start to shoot at guys when they want to steal their particular things. The second thing is that if you're doing the capture, it turns out you're trying to converge on a moving target, and if I'm going after this thing at full tilt and you come along and you're going after this thing at full tilt than tumult-on confusions are likely to emerge. What the customary rule does is it avoids those kinds of things. So essentially what happens is if you understand why the custom is created, you're not going to rely on an abstract principle or positive law. If you have specific rules applying to a specific kind of animal in a specific location, essentially what custom says, we have high amounts of information about a particular setting, we ought to do it. So now suppose you start to change the setting, how is that going to influence things? Now the Romans never talked about the way in which you acquired acquisition over whales, but these, the same rules really start to apply, and whales are pretty big. And it turns out that in many cases what typically happened is that one guy cannot bring a whale down with a single harpoon. It turns out you need to have an entire boatload of people in order to get that harpoon in it. So sure enough, you need to have essentially a contract between the captain and the crew to allocate the amount that each person will get, when it turns out that this particular whale or their fraction of it is done. And this is done by contract, but with many kinds of whales, what happened is you put the harpoon in it, you can't capture it. And so it's going to be either beached or captured by somebody else. Now the question is, do you want to apply the first possession rule, which says that the guy who actually captures it is the fellow who's going to be able to keep the whole thing; when the other guy has done essentially all the labor. So there's a famous situation where somebody comes across the beached whale says “Ah, this whale is unowned, and so what's gonna happen is I'm just going to claim it.” And then the guys who shot it down says, “No. The custom of the county has always been, if I basically deal with the whale and kill it and you find it on the beach, you will get compensation for giving me notice that my particular whale has come up there. So you're incentivized to give me notice, but you can't expropriate the whole thing. So therefore, if you have sold the whale or the sperm oil from whale, I'm entitled to get all of those proceeds, lest the commission that you would otherwise work." And so what they're trying to do by the modification of the first possession rule, is to make sure that everybody who has an input gets a return from that greater than the input that they put in there. You cannot do that if you give a wildly disproportionate rate of return to the fellow who happens upon the whale on the beach, relative to the fellow who actually shot the thing down. And this is perfectly consistent with Roman principles, but what you're doing is you're creating a quasi partnership between strangers, and the basic rule of a partnership is each member to the firm has to be able to get a return larger than his input. Then you divide the surplus, and if they're wildly asymmetrical inputs what you ideally want to do, is not to divide the total gain 50/50. What do you want to do is to give each person the same rate of return on his investment that the other guy gets. So if I put in 98 percent of the work to kill the whale and you put in two percent of the work that give it to me, you get two percent of the gain, I get 98 percent of the gain because that's the maximum stable arrangement, and custom will basically get you to that particular equilibrium, which is why it's accepted. Then there's a third situation. Suppose it turns out that what you do is you managed to deal with a whale and wound it, but it flies away, sails away or swims away, and it turns out that somebody else captures it down the road. That's a much bigger job than the one that you had. So the whaling custom, no longer does the second guy get a trivial return. What you did is one guy got the sperm oil and the other guy got the carcass or something like that, so that there was a rough division between the two of them, again, proportioned to the amount of labor that's put in. And so this first possession rule starts out very naively in connection with a single fox, and so forth, changes as you start to have different animals and different customs. Now Gaius doesn't spend so much time talking about this, but when you get to Justinian, he says, “Now what are we going to do with other kinds of things, like birds and bees and so forth?” And you know, just take the one case of the bee. It's a hive, do you have to capture each and every bee in order to be able to claim the hive, or do you have to show that you've managed to contain control of the tree in which the hive turns out to be located? Almost invariably, what they do with resources like this as they follow the same basic notion as little as possible, as needed to differentiate this thing. We don't want people to dissipate wealth in order to secure a title when notice has already been given by a less expensive and less intrusive means. And so they're all the way with them. That's the first part of animals. But what about the second part of animals? Nobody has ever seen a piece of land run away after it's been acquired. Nobody's ever seen a chattel run away after this thing has been acquired and with the chattel, of course, you can pick it up in your hands and put it in your barn, and so the question of boundaries never arrived. But with wild animals, this does take place, and so you have to have a rule. What if this animal starts to leave? The obvious situation is that oftentimes when you have animals at night, you keep them in a barn for safety and in the daytime what you do is you let them wander around the hills in order to graze and then they come back safely at night. And if you had a rule which says, “Ah, the animal is now out of your possession under these circumstances, and so therefore somebody else's entitled to take it”, that's going to essentially make it impossible to run animals. So the rule is that you retain possession of this particular animal, until it has lost the capacity to return. How do you know this way? You don't do a mental study of the way in which the animal is, but if essentially it's out in the field and all the previous days it's come back, you're gonna assume it's going to come back, but if somebody sees this animal in a rather shabby state, 35 miles away, kind of lost in the range, you could assume that it's an escape, and now it's back to the state of nature and somebody else can acquire the possession of it. It's an extremely astute rule with respect to this. PUBLIUS: Can you talk a bit more about possession and how it works? RICHARD EPSTEIN: So this problem then also comes up with respect to land, and this is essentially a point on which both Blackstone and Bentham, for all their differences, agree. What they do is they agree with the Roman rule. The Roman rule on possession was as follows: once you have acquired possession of a particular thing, you retain possession of that thing, maybe only in thought, right? Or by intention, until the thing either escapes, the animal, right? Or you abandoned the thing, or you voluntarily transferred to somebody else. Now most people thinking about transfer would say, “Oh, this sounds like a pretty technical rule. Why am I worried about this particular rule?” Well, essentially it's the rule on which all civilization necessarily stands; because what both Bentham and Blackstone do is they assume the counterfactual to the Roman rule, which both of them have endorsed. Now it turns out what you do is you go into your house, you build it, and you're sitting in there, nobody can come in and then you decide to leave it in order to go into town. It is now empty and somebody else comes in and says, “Oh, you left your particular property, so therefore I'm not allowed to take it.” And if it turned out that every time you departed from the premises, it became a res nullius again; it'd mean that nobody would ever be able to build anything or to keep it. So the rule has been exactly what I said it was: you are going into town, nobody thinks when you're buying provisions that you're saying about this house of enormous positive value or that you've abandoned it, right? Nobody thinks that you've sold it. So essentially you remain in possession of this thing even when it's no longer within your hands or your stuff. So the term possession starts out by thinking of a person putting their hands around something and holding it, and after a while what you have to do is to extend the conception a little bit further, or it turns out that the whole system of property rights collapses and one of the ways to say this is if the natural meaning of the word possession is you have something in your hand. If you then extend the right, what you're doing is you're creating a pro rata improvement over the previous state of the world, by giving them more extensive definition of possession. It means that the value of the property increases markedly. It's true for every particular owner on the face of the globe, and so therefore what we do is we adopt this new definition of possession, rather than the old one. The Romans got this thing dead on, right? They didn't give the full explanation of it, but they understood that this obviously accorded with natural reason. What they meant by that is the assets would become worthless unless you could protect protection even though you were no longer in physical possession of the situation. So you add the word “Physical" then you put the word “Legal” in there. It becomes a bit of a terminological jungle, but the developments are perfectly sensible under these circumstances about the permanence of these kinds of relationships. You then have to develop rules of abandonment and there's a simple rule of thumb in this particular area. If something has positive value and it's sitting there on the street, you do not assume that this thing was abandoned, because why would somebody abandon something of value? You assume that it was lost and then you may be able to get a reward if you return it, but you just can't take it on your own. If it also turns out that you put something on the curb and say to everybody in the world “Here, a bunch of books I'm no longer reading, pick them up.” At that particular point, you treat these things as though it's abandoned and the interim case, which turns out to be a big fourth amendment issue, is “I put something on the curb and it's understood that I want it go into the wastepaper bin.” Can another individual come in and look through my papers, either a private person or the government, on the ground that they've been abandoned? I think the correct answer to that question is: everybody from the social context knows that this is out here in order to be picked up, not to be read, but if you look at the United States Supreme Court, they have given the opposite rule on this situation, which now means that if you want to protect your stuff, you really have to chop it up before you put it on the street corner because the federal agents or the state agents can come in and look at it. So this possession question about how long you keep it and how you abandon it or have you abandoned it, turns out the Roman terms absolutely carry over to the modern situation and interestingly enough, you'll do much better on a search and seizure rules, if you understand the Roman rules, the possession, why they would develop, how they got carried over into Anglo American law and why it is that the basic Roman connection on this particular issue was completely correct. NARRATOR: Thank you for listening to this episode in the Roman Law unit of the No. 86 lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for more lectures and videos on Property, Contracts, and the Common Law. Thanks for listening. See you in class!