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. Some of the Roman jurists state in terms that depositaries and borrowers have not possession of the things intrusted to them. Whether the German interpretation of the sources goes too far or not, it must be taken account of in the examination of German theories.
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 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.
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. 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 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. 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. But Icannot 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.
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.
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." 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. 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. 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. If courts adopt different rules on similar facts, according to the point at which men will fight in the several cases, it tends, so far as it goes, to shake an a priori theory of the matter.
