Page:Harvard Law Review Volume 10.djvu/351

325 THE PLEDGE-IDEA. 325 over remained of substantial value ; i. e., the idea that it was pro- visional led to the disappearance of the " forfeit " idea; the origi- nal claim became ultimately the measure of the parties* rights, and therefore the debtor could no longer throw the creditor exclusively on the res for satisfaction, nor could the creditor keep it all in case of default. It is this progress from the idea of forfeit to the idea of collateral security which we are to keep in mind as the general feature of our present subject ; and we may now proceed to the evidence that this was in fact the course of development of this legal idea. The varied aspects of the subject and the richness of the material make it necessary to keep v/ithin narrow bounds. Legal ideas are so interrelated that many subordinate and troublesome topics must be here disregarded. The usury-prohibition and the history of interest have something to do with our subject, but will not be considered, except as affecting the vifgage. Furthermore, the his- tory of judicial execution for debt, which has by many students been supposed to explain the origin of the hypothec, and the source of the institution of rent-charge, which in some periods is almost inseparable from our subject, must be ignored, except where necessary in dealing with the hypothec. Discarding also all other topics connected with the history of real security, it is enough to trace the main idea, and to distinguish the various transactional forms that throw light on it. The topics will be : — I. The Forfeit-idea, in general, as the forerunner of the Col- lateral-Security idea. II. The Hypothec (pledgor's possession) as distinguished from the ordinary Pledge (pledgee's possession). III. The Sale for Purchase, as distinguished from the Pledge. IV. The Vifgage as distinguished from the Mortgage. After noting the development of the idea in the legal systems which furnish the richest materials for examining different stages of the law, the Germanic and the Scandinavian, we may then ex- amine what evidence there is in other systems, — Jewish, Moham- medan, Egyptian, Chaldean, Slavic, Hindu, and Japanese; leaving to the last the Greek and the Roman, as presenting peculiar diffi- only on the material that has been published by the various workers in that field (Sohm, Brunner, Stobbe, Heusler, Franken, Valde Li^vre, Esmein, Wodon, etc.); but none of the theories hitherto (except Ileusler's) seem to have taken into account the original unity of the zt/<f</-idea, from which the three branches developed, and a restate- ment from that point of view seems to explain certain facts otherwise unaccounted for. The above statement is substantially Heusler's.