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, 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. 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. 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, and to that extent modified the New York decisions just cited.
So, while Justinian decided that a wild beast so badly wounded that it might easily be taken must be actually taken before it belongs to the captors, 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. 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. We need not stop to inquire whether this modern form or the
(animus dominantis, animus dominandi) of Theophilus and the Greek sources is more exact; for either excludes, as the civilians and canonists do, and as the German theories must, most bailees and termors from the list of possessors. 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. 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.
