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. 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.
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, 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, and that they are taxed as property in some of the States. 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 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.
