not unlike those used by Chief Justice Holt in Coggs v. Bernard, but distinctly confines their application to common carriers.

"But there is a further degree of responsibility by the custom of the realm, that is, by the common law; a carrier is in the nature of an insurer.... To prevent litigation, collusion, and the necessity of going into circ.u.mstances impossible to be unravelled, the law presumes against the carrier, unless," &c.

/1/

At the present day it is a.s.sumed that the principle is thus confined, and the discussion is transferred to the question who are common carriers. It is thus conceded, by implication, that Lord Holt's rule has been abandoned. But the trouble is, that with it disappear not only the general system which we have seen that Lord Holt entertained, but the special reasons repeated by Lord Mansfield. Those reasons apply to other bailees as well as to common carriers. Besides, hoymen and masters of ships were not originally held because they were common carriers, and they were all three treated as co-ordinate species, even in Coggs v.

Bernard, where they were mentioned only as so many instances of bailees exercising a public calling. We do not get a new and single principle by simply giving a single name to all the cases to be accounted for. If there is a sound rule of public policy which ought to impose a special responsibility upon common carriers, as those words are now understood, and upon no others, it has never yet been stated. If, on the other hand, there are considerations which apply to a particular cla.s.s among those so designated,--for instance, to railroads, who may have a private individual at their mercy, or exercise a power too vast for the common welfare,--we do not prove that the [205] reasoning extends to a general ship or a public cab by calling all three common carriers.

If there is no common rule of policy, and common carriers remain a merely empirical exception from general doctrine, courts may well hesitate to extend the significance of those words.

Furthermore, notions of public policy which would not leave parties free to make their own bargains are somewhat discredited in most departments of the law. /1/ Hence it may perhaps be concluded that, if any new case should arise, the degree of responsibility, and the validity and interpretation of any contract of bailment that there may be, should stand open to argument on general principles, and that the matter has been set at large so far as early precedent is concerned.

I have treated of the law of carriers at greater length than is proportionate, because it seems to me an interesting example of the way in which the common law has grown up, and, especially, because it is an excellent ill.u.s.tration of the principles laid down at the end of the first Lecture. I now proceed to the discussion for the sake of which an account of the law of bailment was introduced, and to which an understanding of that part of the law is a necessary preliminary.

[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 Ma.s.sachusetts 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 ent.i.tled 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 t.i.tle against one who is in an unlawful position. But to this it was well answered by Bruns, in his later work, that it a.s.sumes the t.i.tle 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 pet.i.tory actions or defences in Continental procedure. /1/ When a defendant in a possessory action is not allowed to set up t.i.tle in himself, a theorist readily finds a mystical importance in possession.

But when does a man become ent.i.tled 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 t.i.tle to be set up in defence to a possessory action. In the a.s.size of novel disseisin, which which was a true possessory action, the defendant could always rely on his t.i.tle.

/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 t.i.tle allows the defendant to retain it, and in many cases has been held an answer to an action of trespa.s.s.

So in trespa.s.s for taking goods the defendant may set up t.i.tle in himself. There might seem to be a trace of the distinction in the general rule, that the t.i.tle cannot be tried in trespa.s.s quare clausum. But this is an exception commonly put on the ground that the judgment cannot change the property, as trespa.s.s for chattels or trover can. /3/ The rule that you cannot go into t.i.tle 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 pa.s.sed. In ninety-nine cases out of a hundred, it is about as easy and cheap to prove at least a prima facie t.i.tle 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 trespa.s.s quare clausum did not pa.s.s to an a.s.signee 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 a.n.a.lysis 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, rest.i.tution, 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 ent.i.tled 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 a.n.a.lyzed 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 a.n.a.lyzed 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 pa.s.s 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 a.n.a.lyze possession as understood by the common law. In order to discover the facts which const.i.tute 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 a.n.a.lysis 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 a.n.a.lysis 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 ill.u.s.trated 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 pa.s.s 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 a.n.a.lysis 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 t.i.tle, 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 a.n.a.lysis 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 cla.s.s 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 ash.o.r.e 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 trespa.s.s; 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 t.i.tle," 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 ca.n.a.l by a stranger was held well laid in the ca.n.a.l 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.