The only existing theories on [168] the subject come from
Germany. The German philosophers who have written upon law have
known no other system than the Roman, and the German lawyers who
have philosophized have been professors of Roman law. Some rules
which we think clear are against what the German civilians would
regard as first principles. To test the value of those
principles, or at least to prevent the hasty assumption that they
are universal, toward which there is a slight tendency among
English writers, it is well to realize that we are dealing with a
new system, of which philosophy has not yet taken account.
In the first place, we find an action to recover stolen property,
which, like the Salic procedure, was based on possession, not on
title. Bracton says that one may sue for his chattel as stolen,
by the testimony of good men, and that it does not matter whether
the thing thus taken was his own property or another's, provided
it was in his custody. /1/
The point of especial importance, it will be remembered, was the
oath. The oath of the probi homines would seem from the letter of
Bracton to have been that the thing was lost (adirata), and this
we are expressly told was the fact in a report of the year 1294.
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