[206] LECTURE VI.
POSSESSION.
POSSESSION is a conception which is only less important than
contract. But the interest attaching to the theory of possession
does not stop with its practical importance in the body of
English law. The theory has fallen into the hands of the
philosophers, and with them has become a corner-stone of more
than one elaborate structure. It will be a service to sound
thinking to show that a far more civilized system than the Roman
is framed upon a plan which is irreconcilable with the a priori
doctrines of Kant and Hegel. Those doctrines are worked out in
careful correspondence with German views of Roman law. And most
of the speculative jurists of Germany, from Savigny to Ihering,
have been at once professors of Roman law, and profoundly
influenced if not controlled by some form of Kantian or
post-Kantian philosophy. Thus everything has combined to give a
special bent to German speculation, which deprives it of its
claim to universal authority.
Why is possession protected by the law, when the possessor is not
also an owner? That is the general problem which has much
exercised the German mind. Kant, it is well known, was deeply
influenced in his opinions upon ethics and law by the
speculations of Rousseau. Kant, Rousseau, and the Massachusetts
Bill of Rights agree that all men are born free and equal, and
one or the other branch of that declaration has afforded the
answer to the [207] question why possession should be protected
from that day to this. Kant and Hegel start from freedom. The
freedom of the will, Kant said, is the essence of man. It is an
end in itself; it is that which needs no further explanation,
which is absolutely to be respected, and which it is the very end
and object of all government to realize and affirm. Possession is
to be protected because a man by taking possession of an object
has brought it within the sphere of his will. He has extended his
personality into or over that object. As Hegel would have said,
possession is the objective realization of free will. And by
Kant's postulate, the will of any individual thus manifested is
entitled to absolute respect from every other individual, and can
only be overcome or set aside by the universal will, that is, by
the state, acting through its organs, the courts.
Savigny did not follow Kant on this point. He said that every act
of violence is unlawful, and seemed to consider protection of
possession a branch of protection to the person. /1/ But to this
it was answered that possession was protected against disturbance
by fraud as well as by force, and his view is discredited. Those
who have been contented with humble grounds of expediency seem to
have been few in number, and have recanted or are out of favor.
The majority have followed in the direction pointed out by Kant.
Bruns, an admirable writer, expresses a characteristic yearning
of the German mind, when he demands an internal juristic
necessity drawn from the nature of possession itself, and
therefore rejects empirical reasons. /2/ He finds the necessity
he seeks in the freedom of the human will, which the whole legal
system does but recognize [208] and carry out. Constraint of it
is a wrong, which must be righted without regard to conformity of
the will to law, and so on in a Kantian vein. /1/ So Gans, a
favorite disciple of Hegel, "The will is of itself a substantial
thing to be protected, and this individual will has only to yield
to the higher common will." /2/ So Puchta, a great master, "The
will which wills itself, that is, the recognition of its own
personality, is to be protected." /3/
The chief variation from this view is that of Windscheid, a
writer now in vogue. He prefers the other branch of the
declaration in the Bill of Rights. He thinks that the protection
to possession stands on the same grounds as protection against
injuria, that every one is the equal of every other in the state,
and that no one shall raise himself over the other. /4/ Ihering,
to be sure, a man of genius, took an independent start, and said
that possession is ownership on the defensive; and that, in favor
of the owner, he who is exercising ownership in fact (i. e. the
possessor) is freed from the necessity of proving title against
one who is in an unlawful position. But to this it was well
answered by Bruns, in his later work, that it assumes the title
of disseisors to be generally worse than that of disseisees,
which cannot be taken for granted, and which probably is not true
in fact. /5/
It follows from the Kantian doctrine, that a man in possession is
to be confirmed and maintained in it until he is put out by an
action brought for the purpose. Perhaps [209] another fact
besides those which have been mentioned has influenced this
reasoning, and that is the accurate division between possessory
and petitory actions or defences in Continental procedure. /1/
When a defendant in a possessory action is not allowed to set up
title in himself, a theorist readily finds a mystical importance
in possession.
But when does a man become entitled to this absolute protection?
On the principle of Kant, it is not enough that he has the
custody of a thing. A protection based on the sacredness of man's
personality requires that the object should have been brought
within the sphere of that personality, that the free will should
have unrestrainedly set itself into that object. There must be
then an intent to appropriate it, that is, to make it part of
one's self, or one's own.
Here the prevailing view of the Roman law comes in to fortify
principle with precedent. We are told that, of the many who might
have the actual charge or custody of a thing, the Roman law
recognized as possessor only the owner, or one holding as owner
and on his way to become one by lapse of time. In later days it
made a few exceptions on practical grounds. But beyond the
pledgee and the sequester (a receiver appointed by the court)
these exceptions are unimportant and disputed. /2/ Some of the
Roman jurists state in terms that depositaries and borrowers have
not possession of the things intrusted to them. /3/ Whether the
German interpretation of the sources goes too far or not, it must
be taken account of in the examination of German theories.
[210] Philosophy by denying possession to bailees in general
cunningly adjusted itself to the Roman law, and thus put itself
in a position to claim the authority of that law for the theory
of which the mode of dealing with bailees was merely a corollary.
Hence I say that it is important to show that a far more
developed, more rational, and mightier body of law than the
Roman, gives no sanction to either premise or conclusion as held
by Kant and his successors.
In the first place, the English law has always had the good sense
/1/ to allow title to be set up in defence to a possessory
action. In the assize of novel disseisin, which which was a true
possessory action, the defendant could always rely on his title.
/2/ Even when possession is taken or kept in a way which is
punished by the criminal law, as in case of forcible entry and
detainer, proof of title allows the defendant to retain it, and
in many cases has been held an answer to an action of trespass.
So in trespass for taking goods the defendant may set up title in
himself. There might seem to be a trace of the distinction in the
general rule, that the title cannot be tried in trespass quare
clausum. But this is an exception commonly put on the ground that
the judgment cannot change the property, as trespass for chattels
or trover can. /3/ The rule that you cannot go into title in a
possessory action presupposes great difficulty in the proof, the
probatio diabolica of the Canon law, delays in the process, and
importance of possession [211] ad interim,--all of which mark a
stage of society which has long been passed. In ninety-nine cases
out of a hundred, it is about as easy and cheap to prove at least
a prima facie title as it is to prove possession.
In the next place, and this was the importance of the last
Lecture to this subject, the common law has always given the
possessory remedies to all bailees without exception. The right
to these remedies extends not only to pledgees, lessees, and
those having a lien, who exclude their bailor, but to simple
bailees, as they have been called, who have no interest in the
chattels, no right of detention as against the owner, and neither
give nor receive a reward. /1/
Modern German statutes have followed in the same path so far as
to give the possessory remedies to tenants and some others. Bruns
says, as the spirit of the Kantian theory required him to say,
that this is a sacrifice of principle to convenience. /2/ But I
cannot see what is left of a principle which avows itself
inconsistent with convenience and the actual course of
legislation. The first call of a theory of law is that it should
fit the facts. It must explain the observed course of
legislation. And as it is pretty certain that men will make laws
which seem to them convenient without troubling themselves very
much what principles are encountered by their legislation, a
principle which defies convenience is likely to wait some time
before it finds itself permanently realized.
It remains, then, to seek for some ground for the protection of
possession outside the Bill of Rights or the Declaration of
Independence, which shall be consistent with the larger scope
given to the conception in modern law.
[212] The courts have said but little on the subject. It was laid
down in one case that it was an extension of the protection which
the law throws around the person, and on that ground held that
trespass quare clausum did not pass to an assignee in bankruptcy.
/1/ So it has been said, that to deny a bankrupt trover against
strangers for goods coming to his possession after his bankruptcy
would be "an invitation to all the world to scramble for the
possession of them"; and reference was made to "grounds of policy
and convenience." /2/ I may also refer to the cases of capture,
some of which will be cited again. In the Greenland
whale-fishery, by the English custom, if the first striker lost
his hold on the fish, and it was then killed by another, the
first had no claim; but he had the whole if he kept fast to the
whale until it was struck by the other, although it then broke
from the first harpoon. By the custom in the Gallipagos, on the
other hand, the first striker had half the whale, although
control of the line was lost. /3/ Each of these customs has been
sustained and acted on by the English courts, and Judge Lowell
has decided in accordance with still a third, which gives the
whale to the vessel whose iron first remains in it, provided
claim be made before cutting in. /4/ The ground as put by Lord
Mansfield is simply that, were it not for such customs, there
must be a sort of warfare perpetually subsisting between the
adventurers. /5/ If courts adopt different rules on similar
facts, according to the point at which men will fight in the
[213] several cases, it tends, so far as it goes, to shake an a
priori theory of the matter.
Those who see in the history of law the formal expression of the
development of society will be apt to think that the proximate
ground of law must be empirical, even when that ground is the
fact that a certain ideal or theory of government is generally
entertained. Law, being a practical thing, must found itself on
actual forces. It is quite enough, therefore, for the law, that
man, by an instinct which he shares with the domestic dog, and of
which the seal gives a most striking example, will not allow
himself to be dispossessed, either by force or fraud, of what he
holds, without trying to get it back again. /1/ Philosophy may
find a hundred reasons to justify the instinct, but it would be
totally immaterial if it should condemn it and bid us surrender
without a murmur. As long as the instinct remains, it will be
more comfortable for the law to satisfy it in an orderly manner,
than to leave people to themselves. If it should do otherwise, it
would become a matter for pedagogues, wholly devoid of reality.
I think we are now in a position to begin the analysis of
possession. It will be instructive to say a word in the first
place upon a preliminary question which has been debated with
much zeal in Germany. Is possession a fact or a right? This
question must be taken to mean, by possession and right, what the
law means by those words, and not something else which
philosophers or moralists may mean by them; for as lawyers we
have nothing to do with either, except in a legal sense. If this
had always been borne steadily in mind, the question would hardly
have been asked.
[214] A legal right is nothing but a permission to exercise
certain natural powers, and upon certain conditions to obtain
protection, restitution, or compensation by the aid of the public
force. Just so far as the aid of the public force is given a man,
he has a legal right, and this right is the same whether his
claim is founded in righteousness or iniquity. Just so far as
possession is protected, it is as much a source of legal rights
as ownership is when it secures the same protection.
Every right is a consequence attached by the law to one or more
facts which the law defines, and wherever the law gives any one
special rights not shared by the body of the people, it does so
on the ground that certain special facts, not true of the rest of
the world, are true of him. When a group of facts thus singled
out by the law exists in the case of a given person, he is said
to be entitled to the corresponding rights; meaning, thereby,
that the law helps him to constrain his neighbors, or some of
them, in a way in which it would not, if all the facts in
question were not true of him. Hence, any word which denotes such
a group of facts connotes the rights attached to it by way of
legal consequences, and any word which denotes the rights
attached to a group of facts connotes the group of facts in like
manner.
The word "possession" denotes such a group of facts. Hence, when
we say of a man that he has possession, we affirm directly that
all the facts of a certain group are true of him, and we convey
indirectly or by implication that the law will give him the
advantage of the situation. Contract, or property, or any other
substantive notion of the law, may be analyzed in the same way,
and should be treated in the same order. The only difference is,
that, [215] while possession denotes the facts and connotes the
consequence, property always, and contract with more uncertainty
and oscillation, denote the consequence and connote the facts.
When we say that a man owns a thing, we affirm directly that he
has the benefit of the consequences attached to a certain group
of facts, and, by implication, that the facts are true of him.
The important thing to grasp is, that each of these legal
compounds, possession, property, and contract, is to be analyzed
into fact and right, antecedent and consequent, in like manner as
every other. It is wholly immaterial that one element is accented
by one word, and the other by the other two. We are not studying
etymology, but law. There are always two things to be asked:
first, what are the facts which make up the group in question;
and then, what are the consequences attached by the law to that
group. The former generally offers the only difficulties.
Hence, it is almost tautologous to say that the protection which
the law attaches by way of consequence to possession, is as truly
a right in a legal sense as those consequences which are attached
to adverse holding for the period of prescription, or to a
promise for value or under seal. If the statement is aided by
dramatic reinforcement, I may add that possessory rights pass by
descent or devise, as well as by conveyance, /1/ and that they
are taxed as property in some of the States. /2/
We are now ready to analyze possession as understood by the
common law. In order to discover the facts which constitute it,
it will be found best to study them at the moment when possession
is first gained. For then they must [216] all be present in the
same way that both consideration and promise must be present at
the moment of making a contract. But when we turn to the
continuance of possessory rights, or, as is commonly said, the
continuance of possession, it will be agreed by all schools that
less than all the facts required to call those rights into being
need continue presently true in order to keep them alive.
To gain possession, then, a man must stand in a certain physical
relation to the object and to the rest of the world, and must
have a certain intent. These relations and this intent are the
facts of which we are in search.
The physical relation to others is simply a relation of
manifested power coextensive with the intent, and will need to
have but little said about it when the nature of the intent is
settled. When I come to the latter, I shall not attempt a similar
analysis to that which has been pursued with regard to intent as
an element of liability. For the principles developed as to
intent in that connection have no relation to the present
subject, and any such analysis so far as it did not fail would be
little more than a discussion of evidence. The intent inquired
into here must be overtly manifested, perhaps, but all theories
of the grounds on which possession is protected would seem to
agree in leading to the requirement that it should be actual,
subject, of course, to the necessary limits of legal
investigation.
But, besides our power and intent as towards our fellow-men,
there must be a certain degree of power over the object. If there
were only one other man in the world, and he was safe under lock
and key in jail, the person having the key would not possess the
swallows that flew over the prison. This element is illustrated
by cases of capture, [217] although no doubt the point at which
the line is drawn is affected by consideration of the degree of
power obtained as against other people, as well as by that which
has been gained over the object. The Roman and the common law
agree that, in general, fresh pursuit of wild animals does not
give the pursuer the rights of possession. Until escape has been
made impossible by some means, another may step in and kill or
catch and carry off the game if he can. Thus it has been held
that an action does not lie against a person for killing and
taking a fox which had been pursued by another, and was then
actually in the view of the person who had originally found,
started, and chased it. /1/ The Court of Queen's Bench even went
so far as to decide, notwithstanding a verdict the other way,
that when fish were nearly surrounded by a seine, with an opening
of seven fathoms between the ends, at which point boats were
stationed to frighten them from escaping, they were not reduced
to possession as against a stranger who rowed in through the
opening and helped himself. /2/ But the difference between the
power over the object which is sufficient for possession, and
that which is not, is clearly one of degree only, and the line
may be drawn at different places at different times on grounds
just referred to. Thus we are told that the legislature of New
York enacted, in 1844, that any one who started and pursued deer
in certain counties of that State should be deemed in possession
of the game so long as he continued in fresh pursuit of it, /3/
and to that extent modified the New York decisions just cited.
So, while Justinian decided that a wild beast so [218] badly
wounded that it might easily be taken must be actually taken
before it belongs to the captors, /1/ Judge Lowell, with equal
reason, has upheld the contrary custom of the American whalemen
in the Arctic Ocean, mentioned above, which gives a whale to the
vessel whose iron first remains in it, provided claim be made
before cutting in. /2/
We may pass from the physical relation to the object with these
few examples, because it cannot often come into consideration
except in the case of living and wild things. And so we come to
the intent, which is the really troublesome matter. It is just
here that we find the German jurists unsatisfactory, for reasons
which I have already explained. The best known theories have been
framed as theories of the German interpretation of the Roman law,
under the influence of some form of Kantian or post-Kantian
philosophy. The type of Roman possession, according to German
opinion, was that of an owner, or of one on his way to become
owner. Following this out, it was said by Savigny, the only
writer on the subject with whom English readers are generally
acquainted, that the animus domini, or intent to deal with the
thing as owner, is in general necessary to turn a mere physical
detention into juridical possession. /3/ We need not stop to
inquire whether this modern form or the [Greek characters]
(animus dominantis, animus dominandi) of Theophilus /4/ and the
Greek sources is more exact; for either excludes, as the
civilians and canonists do, and as the [219] German theories
must, most bailees and termors from the list of possessors. /1/
The effect of this exclusion as interpreted by the Kantian
philosophy of law, has been to lead the German lawyers to
consider the intent necessary to possession as primarily
self-regarding. Their philosophy teaches them that a man's
physical power over an object is protected because he has the
will to make it his, and it has thus become a part of his very
self, the external manifestation of his freedom. /2/ The will of
the possessor being thus conceived as self-regarding, the intent
with which he must hold is pretty clear: he must hold for his own
benefit. Furthermore, the self-regarding intent must go to the
height of an intent to appropriate; for otherwise, it seems to be
implied, the object would not truly be brought under the
personality of the possessor.
The grounds for rejecting the criteria of the Roman law have been
shown above. Let us begin afresh. Legal duties are logically
antecedent to legal rights. What may be their relation to moral
rights if there are any, and whether moral rights are not in like
manner logically the offspring of moral duties, are questions
which do not concern us here. These are for the philosopher, who
approaches the law from without as part of a larger series of
human manifestations. The business of the jurist is to make known
the content of the law; that is, to work upon it from within, or
logically, arranging and distributing it, in order, from its
stemmum genus to its infima species, so far as practicable. Legal
duties then come before legal [220] rights. To put it more
broadly, and avoid the word duty, which is open to objection, the
direct working of the law is to limit freedom of action or choice
on the part of a greater or less number of persons in certain
specified ways; while the power of removing or enforcing this
limitation which is generally confided to certain other private
persons, or, in other words, a right corresponding to the burden,
is not a necessary or universal correlative. Again, a large part
of the advantages enjoyed by one who has a right are not created
by the law. The law does not enable me to use or abuse this book
which lies before me. That is a physical power which I have
without the aid of the law. What the law does is simply to
prevent other men to a greater or less extent from interfering
with my use or abuse. And this analysis and example apply to the
case of possession, as well as to ownership.
Such being the direct working of the law in the case of
possession, one would think that the animus or intent most nearly
parallel to its movement would be the intent of which we are in
search. If what the law does is to exclude others from
interfering with the object, it would seem that the intent which
the law should require is an intent to exclude others. I believe
that such an intent is all that the common law deems needful, and
that on principle no more should be required.
It may be asked whether this is not simply the animus domini
looked at from the other side. If it were, it would nevertheless
be better to look at the front of the shield than at the reverse.
But it is not the same if we give to the animus domini the
meaning which the Germans give it, and which denies possession to
bailees in general. The intent to appropriate or deal with a
thing as owner can [221] hardly exist without an intent to
exclude others, and something more; but the latter may very well
be where there is no intent to hold as owner. A tenant for years
intends to exclude all persons, including the owner, until the
end of his term; yet he has not the animus domini in the sense
explained. Still less has a bailee with a lien, who does not even
mean to use, but only to detain the thing for payment. But,
further, the common law protects a bailee against strangers, when
it would not protect him against the owner, as in the case of a
deposit or other bailment terminable at pleasure; and we may
therefore say that the intent even to exclude need not be so
extensive as would be implied in the animus domini. If a bailee
intends to exclude strangers to the title, it is enough for
possession under our law, although he is perfectly ready to give
the thing up to its owner at any moment; while it is of the
essence of the German view that the intent must not be relative,
but an absolute, self-regarding intent to take the benefit of the
thing. Again, if the motives or wishes, and even the intentions,
most present to the mind of a possessor, were all self-
regarding, it would not follow that the intent toward others was
not the important thing in the analysis of the law. But, as we
have seen, a depositary is a true possessor under the common-law
theory, although his intent is not self-regarding, and he holds
solely for the benefit of the owner.
There is a class of cases besides those of bailees and tenants,
which will probably, although not necessarily, be decided one way
or the other, as we adopt the test of an intent to exclude, or of
the animus domini. Bridges v. Hawkesworth /1/ will serve as a
starting-point. There, [222] a pocket-book was dropped on the
floor of a shop by a customer, and picked up by another customer
before the shopkeeper knew of it. Common-law judges and civilians
would agree that the finder got possession first, and so could
keep it as against the shopkeeper. For the shopkeeper, not
knowing of the thing, could not have the intent to appropriate
it, and, having invited the public to his shop, he could not have
the intent to exclude them from it. But suppose the pocket-book
had been dropped in a private room, how should the case be
decided? There can be no animus domini unless the thing is known
of; but an intent to exclude others from it may be contained in
the larger intent to exclude others from the place where it is,
without any knowledge of the object's existence.
In McAvoy v. Medina, /1/ a pocket-book had been left upon a
barber's table, and it was held that the barber had a better
right than the finder. The opinion is rather obscure. It takes a
distinction between things voluntarily placed on a table and
things dropped on the floor, and may possibly go on the ground
that, when the owner leaves a thing in that way, there is an
implied request to the shopkeeper to guard it, which will give
him a better right than one who actually finds it before him.
This is rather strained, however, and the court perhaps thought
that the barber had possession as soon as the customer left the
shop. A little later, in a suit for a reward offered to the
finder of a pocket-book, brought by one who discovered it where
the owner had left it, on a desk for the use of customers in a
bank outside the teller's counter, the same court said that this
was not the finding of a lost article, and that "the occupants of
the banking house, and not [223] the plaintiff, were the proper
depositaries of an article so left." /1/ This language might
seem to imply that the plaintiff was not the person who got
possession first after the defendant, and that, although the
floor of a shop may be likened to a street, the public are to be
deemed excluded from the shop's desks, counters, and tables
except for the specific use permitted. Perhaps, however, the case
only decides that the pocket-book was not lost within the
condition of the offer.
I should not have thought it safe to draw any conclusion from
wreck cases in England, which are mixed up with questions of
prescription and other rights. But the precise point seems to
have been adjudicated here. For it has been held that, if a stick
of timber comes ashore on a man's land, he thereby acquires a
"right of possession" as against an actual finder who enters for
the purpose of removing it. /2/ A right of possession is said to
be enough for trespass; but the court seems to have meant
possession by the phrase, inasmuch as Chief Justice Shaw states
the question to be which of the parties had "the preferable
claim, by mere naked possession, without other title," and as
there does not seem to have been any right of possession in the
case unless there was actual possession.
In a criminal case, the property in iron taken from the bottom of
a canal by a stranger was held well laid in the canal company,
although it does not appear that the company knew of it, or had
any lien upon it. /3/
[224] The only intent concerning the thing discoverable in such
instances is the general intent which the occupant of land has to
exclude the public from the land, and thus, as a consequence, to
exclude them from what is upon it.
The Roman lawyers would probably have decided all these cases
differently, although they cannot be supposed to have worked out
the refined theories which have been built upon their remains.
/1/
I may here return to the case of goods in a chest delivered under
lock and key, or in a bale, and the like. It is a rule of the
criminal law, that, if a bailee of such a chest or bale
wrongfully sells the entire chest or bale, he does not commit
larceny, but if he breaks bulk he does, because in the former
case he does not, and in the latter he does, commit a trespass.
/2/ The reason sometimes offered is, that, by breaking bulk, the
bailee determines the bailment, and that the goods at once revest
in the possession of the bailor. This is, perhaps, an
unnecessary, as well as inadequate fiction. /3/ The rule comes
from the Year Books, and the theory of the Year Books was, that,
although the chest was delivered to the bailee, the goods inside
of it were not, and this theory was applied to civil as well as
criminal cases. The bailor has the power and intent to exclude
the bailee from the goods, and therefore may be said to be in
possession of them as against the bailee. /4/
[225] On the other hand, a case in Rhode Island /1/ is against
the view here taken. A man bought a safe, and then, wishing to
sell it again, sent it to the defendant, and gave him leave to
keep his books in it until sold. The defendant found some
bank-notes stuck in a crevice of the safe, which coming to the
plaintiff's ears he demanded the safe and the money. The
defendant sent back the safe, but refused to give up the money,
and the court sustained him in his refusal. I venture to think
this decision wrong. Nor would my opinion be changed by assuming,
what the report does not make perfectly clear, that the defendant
received the safe as bailee, and not as servant or agent, and
that his permission to use the safe was general. The argument of
the court goes on the plaintiff's not being a finder. The
question is whether he need be. It is hard to believe that, if
the defendant had stolen the bills from the safe while it was in
the owner's hands, the property could not have been laid in the
safe-owner, /2/ or that the latter could not have maintained
trover for them if converted under those circumstances. Sir James
Stephen seems to have drawn a similar conclusion from Cartwright
v. Green and Merry v. Green; /3/ but I believe that no warrant
for it can be found in the cases, and still less for the reason
suggested.
It will be understood, however, that Durfee v. Jones is perfectly
consistent with the view here maintained of the [226] general
nature of the necessary intent, and that it only touches the
subordinate question, whether the intent to exclude must be
directed to the specific thing, or may be even unconsciously
included in a larger intent, as I am inclined to believe.
Thus far, nothing has been said with regard to the custody of
servants. It is a well-known doctrine of the criminal law, that a
servant who criminally converts property of his master intrusted
to him and in his custody as servant, is guilty of theft, because
he is deemed to have taken the property from his master's
possession. This is equivalent to saying that a servant, having
the custody of his master's property as servant, has not
possession of that property, and it is so stated in the Year
Books. /1/
The anomalous distinction according to which, if the servant
receives the thing from another person for his master, the
servant has the possession, and so cannot commit theft, /2/ is
made more rational by the old cases. For the distinction taken in
them is, that, while the servant is in the house or with his
master, the latter retains possession, but if he delivers his
horse to his servant to ride to market, or gives him a bag to
carry to London, then the thing is out of the master's possession
and in the servant's. /3/ In this more intelligible form, the
rule would not now prevail. But one half of it, that a guest at a
tavern has not possession of the plate with which he is served,
is no doubt still law, [227] for guests in general are likened to
servants in their legal position. /1/
There are few English decisions, outside the criminal on the
question whether a servant has possession. But the Year Books do
not suggest any difference between civil and criminal cases, and
there is an almost tradition of courts and approved writers that
he has not, in any case. A master has maintained trespass against
a servant for converting cloth which he was employed to sell, /2/
and the American cases go the full length of the old doctrine. It
has often been remarked that a servant must be distinguished from
a bailee.
But it may be asked how the denial of possession to servants can
be made to agree with the test proposed, and it will be said with
truth that the servant has as much the intent to exclude the
world at large as a borrower. The law of servants is
unquestionably at variance with that test; and there can be no
doubt that those who have built their theories upon the Roman law
have been led by this fact, coupled with the Roman doctrine as to
bailees in general, to seek the formula of reconciliation where
they have. But, in truth, the exception with regard to servants
stands on purely historical grounds. A servant is denied
possession, not from any peculiarity of intent with regard to the
things in his custody, either towards his master or other people,
by which he is distinguished [228] from a depositary, but simply
as one of the incidents of his status. It is familiar that the
status of a servant maintains many marks of the time when he was
a slave. The liability of the master for his torts is one
instance. The present is another. A slave's possession was his
owner's possession on the practical ground of the owner's power
over him, /1/ and from the fact that the slave had no standing
before the law. The notion that his personality was merged in
that of his family head survived the era of emancipation.
I have shown in the first Lecture /2/ that agency arose out of
the earlier relation in the Roman law, through the extension pro
hac vice to a freeman of conceptions derived from that source.
The same is true, I think, of our own law, the later development
of which seems to have been largely under Roman influence. As
late as Blackstone, agents appear under the general head of
servants, and the first precedents cited for the peculiar law of
agents were cases of master and servant. Blackstone's language is
worth quoting: "There is yet a fourth species of servants, if
they may be so called, being rather in a superior, a ministerial
capacity; such as stewards, factors, and bailiffs: whom, however,
the law considers as servants pro tempore, with regard to such of
their acts as affect their master's or employer's property." /3/
[229] It is very true that in modern times many of the effects of
either relation--master and servant or principal and agent--may
be accounted for as the result of acts done by the master
himself. If a man tells another to make a contract in his name,
or commands him to commit a tort, no special conception is needed
to explain why he is held; although even in such cases, where the
intermediate party was a freeman, the conclusion was not reached
until the law had become somewhat mature. But, if the title
Agency deserves to stand in the law at all, it must be because
some peculiar consequences are attached to the fact of the
relation. If the mere power to bind a principal to an authorized
contract were all, we might as well have a chapter on ink and
paper as on agents. But it is not all. Even in the domain of
contract, we find the striking doctrine that an undisclosed
principal has the rights as well as the obligations of a known
contractor,--that he can be sued, and, more remarkable, can sue
on his agent's contract. The first precedent cited for the
proposition that a promise to an agent may be laid as a promise
to the principal, is a case of master and servant. /1/
As my present object is only to show the meaning of the doctrine
of identification in its bearing upon the theory of possession,
it would be out of place to consider at any length how far that
doctrine must be invoked to explain the liability of principals
for their agents' torts, or whether a more reasonable rule
governs other cases than that applied where the actor has a
tolerably defined status as a [230] servant. I allow myself a few
words, because I shall not be able to return to the subject.
If the liability of a master for the torts of his servant had
hitherto been recognized by the courts as the decaying remnant of
an obsolete institution, it would not be surprising to find it
confined to the cases settled by ancient precedent. But such has
not been the fact. It has been extended to new relations by
analogy, /1/ It exists where the principal does not stand in the
relation of paterfamilias to the actual wrong-doer. /2/ A man may
be held for another where the relation was of such a transitory
nature as to exclude the conception of status, as for the
negligence of another person's servant momentarily acting for the
defendant, or of a neighbor helping him as a volunteer; /3/ and,
so far as known, no principal has ever escaped on the ground of
the dignity of his agent's employment. /4/ The courts habitually
speak as if the same rules applied to brokers and other agents,
as to servants properly so called. /5/ Indeed, it [231] has been
laid down in terms, that the liability of employers is not
confined to the case of servants, /1/ although the usual cases
are, of course, those of menial servants, and the like, who could
not pay a large verdict.
On the other hand, if the peculiar doctrines of agency are
anomalous, and form, as I believe, the vanishing point of the
servile status, it may well happen that common sense will refuse
to carry them out to their furthest applications. Such conflicts
between tradition and the instinct of justice we may see upon the
question of identifying a principal who knows the truth with an
agent who makes a false representation, in order to make out a
fraud, as in Cornfoot v. Fowke, /2/ or upon that as to the
liability of a principal for the frauds of his agent discussed in
many English cases. /3/ But, so long as the fiction which makes
the root of a master's liability is left alive, it is as hopeless
to reconcile the differences by logic as to square the circle.
In an article in the American Law Review /4/ I referred [232] to
an expression of Godefroi with regard to agents; eadem est
persona domini et procuratoris. /1/ This notion of a fictitious
unity of person has been pronounced a darkening of counsel in a
recent useful work. /2/ But it receives the sanction of Sir Henry
Maine, /3/ and I believe that it must stand as expressing an
important aspect of the law, if, as I have tried to show, there
is no adequate and complete explanation of the modern law, except
by the survival in practice of rules which lost their true
meaning when the objects of them ceased to be slaves. There is no
trouble in understanding what is meant by saying that a slave has
no legal standing, but is absorbed in the family which his master
represents before the law. The meaning seems equally clear when
we say that a free servant, in his relations as such, is in many
respects likened by the law to a slave (not, of course, to his
own detriment as a freeman). The next step is simply that others
not servants in a general sense may be treated as if servants in
a particular connection. This is the progress of ideas as shown
us by history; and this is what is meant by saying that the
characteristic feature which justifies agency as a title of the
law is the absorption pro hac vice of the agent's legal
individuality in that of his principal.
If this were carried out logically, it would follow that an agent
constituted to hold possession in his principal's name would not
be regarded as having the legal possession, or as entitled to
trespass. But, after what has been said, no opinion can be
expressed whether the law would go so far, unless it is shown by
precedent. /4/ The nature of the case [233] will be observed. It
is that of an agent constituted for the very point and purpose of
possession. A bailee may be an agent for some other purpose. A
free servant may be made a bailee. But the bailee holds in his
own as we say, following the Roman idiom, and the servant or
agent holding as such does not.
It would hardly be worth while, if space allowed, to search the
books on this subject, because of the great confusion of language
to be found in them. It has been said, for instance, in this
connection, that a carrier is a servant; /1/ while nothing can be
clearer than that, while goods are in custody, they are in his
possession. /2/ So where goods remain in the custody of a vendor,
appropriation to the contract and acceptance have been confounded
with delivery. /3/ Our law has adopted the Roman doctrine, /4/
that there may be a delivery, that is, a change of possession, by
a change in the character in which the vendor holds, but has not
always imitated the caution of the civilians with regard to what
amounts to such a change. /5/ Bailees are constantly spoken of as
if they were agents to possess,--a confusion made [234] easier by
the fact that they generally are agents for other purposes. Those
cases which attribute possession to a transferee of goods in the
hands of a middleman, /1/ without distinguishing whether the
middleman holds in his own name or the buyer's, are generally
right in the result, no doubt, but have added to the confusion of
thought upon the subject.
German writers are a little apt to value a theory of possession
somewhat in proportion to the breadth of the distinction which it
draws between juridical possession and actual detention; but,
from the point of view taken here, it will be seen that the
grounds for denying possession and the possessory remedies to
servants and agents holding as such--if, indeed, the latter have
not those remedies--are merely historical, and that the general
theory can only take account of the denial as an anomaly. It will
also be perceived that the ground on which servants and
depositaries have been often likened to each other, namely, that
they both hold for the benefit of another and not for themselves,
is wholly without influence on our law, which has always treated
depositaries as having possession; and is not the true
explanation of the Roman doctrine, which did not decide either
case upon that ground, and which decided each for reasons
different from those on which it decided the other.
It will now be easy to deal with the question of power as to
third persons. This is naturally a power coextensive with the
intent. But we must bear in mind that the law deals only or
mainly with manifested facts; and hence, when we speak of a power
to exclude others, we mean no more than a power which so appears
in its manifestation. [235] A ruffian may be within equal reach
and sight when a child picks up a pocket-book; but if he does
nothing, the child has manifested the needful power as well as if
it had been backed by a hundred policemen. Thus narrowed, it
might be suggested that the manifestation of is only important as
a manifestation of intent. But the two things are distinct, and
the former becomes decisive when there are two contemporaneous
and conflicting intents. Thus, where two parties, neither having
title, claimed a crop of corn adversely to each other, and
cultivated it alternately, and the plaintiff gathered and threw
it in small piles in the same field, where it lay for a week, and
then each party simultaneously began to carry it away, it was
held the plaintiff had not gained possession. /1/ But the first
interference of the defendant had been after the gathering into
piles, the plaintiff would probably have recovered. /2/ So where
trustees possessed of a schoolroom put in a schoolmaster, and he
was afterwards dismissed, but the next day (June 30) re-entered
by force; on the fourth of July he was required by notice to
depart, and was not ejected until the eleventh; it was considered
that the schoolmaster never got possession as against the
trustees. /3/
We are led, in this connection, to the subject of the continuance
of the rights acquired by gaining possession. To gain possession,
it has been seen, there must be certain physical relations, as
explained, and a certain intent. It remains to be inquired, how
far these facts must continue [236] to be presently true of a
person in order that he may keep the rights which follow from
their presence. The prevailing view is that of Savigny. He thinks
that there must be always the same animus as at the moment of
acquisition, and a constant power to reproduce at will the
original physical relations to the object. Every one agrees that
it is not necessary to have always a present power over the
thing, otherwise one could only possess what was under his hand.
But it is a question whether we cannot dispense with even more.
The facts which constitute possession are in their nature capable
of continuing presently true for a lifetime. Hence there has
arisen an ambiguity of language which has led to much confusion
of thought. We use the word "possession," indifferently, to
signify the presence of all the facts needful to gain it, and
also the condition of him who, although some of them no longer
exist, is still protected as if they did. Consequently it has
been only too easy to treat the cessation of the facts as the
loss of the right, as some German writers very nearly do. /1/
But it no more follows, from the single circumstance that certain
facts must concur in order to create the rights incident to
possession, that they must continue in order to keep those rights
alive, than it does, from the necessity of a consideration and a
promise to create a right ex contractu, that the consideration
and promise must continue moving between the parties until the
moment of performance. When certain facts have once been made
manifest which confer a right, there is no general ground on
which the law need hold the right at an end except the
manifestation of some fact inconsistent with its continuance,
[237] the reasons for conferring the particular right have great
weight in determining what facts shall be to be so. Cessation of
the original physical relations to the object might be treated as
such a fact; but it never has been, unless in times of more
ungoverned violence than the present. On the same principle, it
is only a question of tradition or policy whether a cessation of
the power to reproduce the original physical relations shall
affect the continuance of the rights. It does not stand on the
same ground as a new possession adversely taken by another. We
have adopted the Roman law as to animals ferae naturae, but the
general tendency of our law is to favor appropriation. It abhors
the absence of proprietary or possessory rights as a kind of
vacuum. Accordingly, it has been expressly decided, where a man
found logs afloat and moored them, but they again broke loose and
floated away, and were found by another, that the first finder
retained the rights which sprung from his having taken
possession, and that he could maintain trover against the second
finder, who refused to give them up. /1/
Suppose that a finder of a purse of gold has left it in his
country-house, which is lonely and slightly barred, and he is a
hundred miles away, in prison. The only person within twenty
miles is a thoroughly equipped burglar at his front door, who has
seen the purse through a window, and who intends forthwith to
enter and take it. The finder's power to reproduce his former
physical relation to the gold is rather limited, yet I believe
that no one would say that his possession was at an end until the
burglar, by an overt [238] act, had manifested his power and
intent to exclude others from the purse. The reason for this is
the same which has been put with regard to the power to exclude
at the moment of gaining possession. The law deals, for the most
part, with overt acts and facts which can be known by the senses.
So long as the burglar has not taken the purse, he has not
manifested his intent; and until he breaks through the barrier
which measures the present possessor's power of excluding him, he
has not manifested his power. It may be observed further, that,
according to the tests adopted in this Lecture, the owner of the
house has a present possession in the strictest sense, because,
although he has not the power which Savigny says is necessary, he
has the present intent and power to exclude others.
It is conceivable that the common law should go so far as to deal
with possession in the same way as a title, and should hold that,
when it has once been acquired, rights are acquired which
continue to prevail against all the world but one, until
something has happened sufficient to divest ownership.
The possession of rights, as it is called, has been a
fighting-ground for centuries on the Continent. It is not
uncommon for German writers to go so far as to maintain that
there may be a true possession of obligations; this seeming to
accord with a general view that possession and right are in
theory coextensive terms; that the mastery of the will over an
external object in general (be that object a thing or another
will), when in accord with the general will, and consequently
lawful, is called right, when merely de facto is possession. /1/
Bearing in mind what was [239] said on the question whether
possession was a fact or right, it will be seen that such an
antithesis between possession and right cannot be admitted as a
legal distinction. The facts constituting possession generate
rights as truly as do the facts which constitute ownership,
although the rights a mere possessor are less extensive than
those of an owner.
Conversely, rights spring from certain facts supposed to be true
of the person entitled to such rights. Where these facts are of
such a nature that they can be made successively true of
different persons, as in the case of the occupation of land, the
corresponding rights may be successively enjoyed. But when the
facts are past and gone, such as the giving of a consideration
and the receiving of a promise, there can be no claim to the
resulting rights set up by any one except the party of whom the
facts were originally true--in the case supposed, the original
contractee,--because no one but the original contractee can fill
the situation from which they spring.
It will probably be granted by English readers, that one of the
essential constituent facts consists in a certain relation to a
material object. But this object may be a slave, as well as a
horse; /1/ and conceptions originated in this way may be extended
by a survival to free services. It is noticeable that even Bruns,
in the application of his theory, does not seem to go beyond
cases of status and those where, in common language, land is
bound for the services in question, as it is for rent. Free
services being [240] so far treated like servile, even by our
law, that the master has a right of property in them against all
the world, it is only a question of degree where the line shall
be drawn. It would be possible to hold that, as one might be in
possession of a slave without title, so one might have all the
rights of an owner in free services rendered without contract.
Perhaps there is something of that sort to be seen when a parent
recovers for the seduction of a daughter over twenty-one,
although there is no actual contract of service. /1/ So,
throughout the whole course of the canon law and in the early law
of England, rents were regarded as so far a part of the realty as
to be capable of possession and disseisin, and they could be
recovered like land by all assize. /2/
But the most important case of the so-called possession of rights
in our law, as in the Roman, occurs with regard to easements. An
easement is capable of possession in a certain sense. A man may
use land in a certain way, with the intent to exclude all others
from using it in any way inconsistent with his own use, but no
further. If this be true possession, however, it is a limited
possession of land, not of a right, as others have shown. But
where an easement has been actually created, whether by deed or
prescription, although it is undoubtedly true that any possessor
of the dominant estate would be protected in its enjoyment, it
has not been so protected in the past on the ground that the
easement was in itself an object of possession, but by the
survival of precedents explained in a later [241] Lecture. Hence,
to test the existence of a mere possession of this sort which the
law will protect, we will take the case of a way used de facto
for four years, but in which no easement has yet been acquired,
and ask whether the possessor of the quasi dominant tenement
would be protected in his use as against third persons. It is
conceivable that he should be, but I believe that he would not.
/2/
The chief objection to the doctrine seems to be, that there is
almost a contradiction between the assertions that one man has a
general power and intent to exclude the world from dealing with
the land, and that another has the power to use it in a
particular way, and to exclude the from interfering with that.
The reconciliation of the two needs somewhat artificial
reasoning. However, it should be borne in mind that the question
in every case is not what was the actual power of the parties
concerned, but what was their manifested power. If the latter
stood thus balanced, the law might recognize a kind of split
possession. But if it does not recognize it until a right is
acquired, then the protection of a disseisor in the use of an
easement must still be explained by a reference to the facts
mentioned in the Lecture referred to.
The consequences attached to possession are substantially those
attached to ownership, subject to the question the continuance of
possessory rights which I have touched upon above. Even a
wrongful possessor of a [242] chattel may have full damages for
its conversion by a stranger to the title, or a return of the
specific thing. /1/
It has been supposed, to be sure, that a "special property" was
necessary in order to maintain replevin /2/ or trover. /3/ But
modern cases establish that possession is sufficient, and an
examination of the sources of our law proves that special
property did not mean anything more. It has been shown that the
procedure for the recovery of chattels lost against one's will,
described by Bracton, like its predecessor on the Continent, was
based upon possession. Yet Bracton, in the very passage in which
he expressly makes that statement, uses a phrase which, but for
the explanation, would seem to import ownership,--"Poterit rem
suam petere." /4/ The writs of later days used the same language,
and when it was objected, as it frequently was, to a suit by a
bailee for a taking of bona et catalla sua, that it should have
been for bona in custodia sua existentia, it was always answered
that those in the Chancery would not frame a writ in that form.
/5/
The substance of the matter was, that goods in a man's possession
were his (sua), within the meaning of the writ. But it was very
natural to attempt a formal reconciliation between that formal
word and the fact by saying that, although the plaintiff had not
the general property in the [243] chattels, yet he had a property
as against strangers, /1/ or a special property. This took place,
and, curiously enough, two of the earliest instances in which I
have found the latter phrase used are cases of a depositary, /2/
and a borrower. /3/ Brooke says that a wrongful taker "has title
against all but the true owner." /4/ In this sense the special
property was better described as a "possessory property," as it
was, in deciding that, in an indictment for larceny, the property
could be laid in the bailee who suffered the trespass. /5/
I have explained the inversion by which a bailee's right of
action against third persons was supposed to stand on his
responsibility over, although in truth it was the foundation of
that responsibility, and arose simply from his possession. The
step was short, from saying that bailees could sue because they
were answerable over, /6/ to saying that they had the property as
against strangers, or a special property, because they were
answerable over, /7/ and that they could sue because they had a
special property and were answerable over. /8/ And thus the
notion that special property meant something more than
possession, and was a requisite to maintaining an action, got
into the law.
The error was made easier by a different use of the phrase in a
different connection. A bailee was in general liable for goods
stolen from his custody, whether he had a lien or not. But the
law was otherwise as to a [244] pledgee, if he had kept the
pledge with his own goods, and the two were stolen together. /1/
This distinction was accounted for, at least in Lord Coke's time,
by saying that the pledge was, in a sense, the pledgee's own,
that he had a special property in it, and thus that the ordinary
relation of bailment did not exist, or that the undertaking was
only to keep as his own goods. /2/ The same expression was used
in discussing the pledgee's right to assign the pledge, /3/ In
this sense the term applied only to pledges, but its significance
in a particular connection was easily carried over into the
others in which it was used, with the result that the special
property which was requisite to maintain the possessory actions
was supposed to mean a qualified interest in the goods.
With regard to the legal consequences of possession, it only
remains to mention that the rules which have been laid down with
regard to chattels also prevail with regard to land. For although
the plaintiff in ejectment must recover on the strength of his
own title as against a defendant in possession, it is now settled
that prior possession is enough if the defendant stands on his
possession alone Possession is of course sufficient for
trespass.5 And although the early remedy by assize was restricted
to those who had a technical seisin, this was for reasons which
do not affect the general theory.
Before closing I must say a word concerning ownership and kindred
conceptions. Following the order of analysis [245] which has been
pursued with regard to possession, the first question must be,
What are the facts to which the rights called ownership are
attached as a legal consequence? The most familiar mode of
gaining ownership is by conveyance from the previous owner. But
that presupposes ownership already existing, and the problem is
to discover what calls it into being.
One fact which has this effect is first possession. The captor of
wild animals, or the taker of fish from the ocean, has not merely
possession, but a title good against all the world. But the most
common mode of getting an original and independent title is by
certain proceedings, in court or out of it, adverse to all the
world. At one extreme of these is the proceeding in rem of the
admiralty, which conclusively disposes of the property in its
power, and, when it sells or condemns it, does not deal with this
or that man's title, but gives a new title paramount to all
previous interests, whatsoever they may be. The other and more
familiar case is prescription, where a public adverse holding for
a certain time has a similar effect. A title by prescription is
not a presumed conveyance from this or owner alone, it
extinguishes all previous and inconsistent claims. The two
coalesce in the ancient fine with proclamations where the
combined effect of the judgment and the lapse of a year and a day
was to bar claims. /1/
So rights analogous to those of ownership may be given by the
legislature to persons of whom some other set of facts is true.
For instance, a patentee, or one to whom the government has
issued a certain instrument, and who in fact has made a
patentable invention.
[246] But what are the rights of ownership? They are
substantially the same as those incident to possession. Within
the limits prescribed by policy, the owner is allowed to exercise
his natural powers over the subject-matter uninterfered with, and
is more or less protected in excluding other people from such
interference. The owner is allowed to exclude all, and is
accountable to no one. The possessor is allowed to exclude all
but one, and is accountable to no one but him. The great body of
questions which have made the subject of property so large and
important are questions of conveyancing, not necessarily or
generally dependent on ownership as distinguished from
possession. They are questions of the effect of not having an
independent and original title, but of coming in under a title
already in existence, or of the modes in which an original title
can be cut up among those who come in under it. These questions
will be dealt with and explained where they belong, in the
Lectures on Successions.