THE STORY OF MORTGAGE LAW. 5. by drawing upon the highly elaborated foreign system of law with which, through the medium of Italian writers, they were familiar. The Roman law, which these judges knew, — *' the spring-head of the English jurisprudence upon the subject of these securi- ties," ^ — offered a simple, rational, and convenient system of pledg- ing land. When a lien was to be created, it went about the creation of it simply. The lender was to have a lien; it gave him nothing less, nothing more, stating frankly that it did so. More- over, to meet the necessities of practical affairs, it did not require a transfer of possession. That was as the parties might agree. The law of Attica, in a remote antiquity, had done the same, indi- cating a pledge without possession by a pillar or tablet set up on the land, inscribed with the creditor's name and the amount of the debt. That feature of the reforms of Solon which extin- guished mortgage debts was characterized as having removed the pillars from Attica.^ The Roman law made no material distinction, in matter of pledges, between land and chattels. The system was one and the same for a farm and for a cart. If a pledgee took possession, the transaction was a pawn; if not, it was a hypothecation. And to obviate embarrassments from the pledgor's retaining posses- sion, and with it a show of ownership, it was quite early provided that a fully effective hypothecation could be made only by some notorious act recognized by law, as by registration in a pubHc office.^ It fortunately happened that this system was entirely in har- mony with the ideas already existing among the English people. Its plain and natural scheme would seem to have been, if not instinctive with the whole human race, at least common to the Indo-European stock. It is set forth with great distinctness and full elaboration in the early law of India.* The Anglo-Saxon word for pledge was etymologically the same as the Roman word, vadium. This fact, of itself, at least suggests a community of ideas of immemorial antiquity. The Saxon law seems very clearly to have run parallel with the civil law, even to 1 Swayne, J., Oilman v. 111. & Co Tel Co., 91 U. S, 603, 615. 2 Grote, History of Greece, vol. iii. part ii, chap xi., where the historian quotes from a fragment of the iambics of Solon a striking personal appeal to the Earth, ad- dressed as having passed by Solon's hand from slavery into freedom.
- Cod., 1 viii. tit iS, § ri ; Sandars, Just. Inst. 227. See Cod-, 1. viii. tit. 18, § u.
4 The Iledaya, book xlviii., and see, in particular, chap. li.
