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 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. 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. He finds the necessity he seeks in the freedom of the human will, which the whole legal system does but recognize 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. 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." So Puchta, a great master, "The will which wills itself, that is, the recognition of its own personality, is to be protected." 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. 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. 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 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. 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.
