The Common Law [92]
It does not stand on the same ground as a new possession adversely taken by another. We have adopted the Roman law as to animals ferae naturae, but the general tendency of our law is to favor appropriation. It abhors the absence of proprietary or possessory rights as a kind of vacuum. Accordingly, it has been expressly decided, where a man found logs afloat and moored them, but they again broke loose and floated away, and were found by another, that the first finder retained the rights which sprung from his having taken possession, and that he could maintain trover against the second finder, who refused to give them up. /1/
Suppose that a finder of a purse of gold has left it in his country-house, which is lonely and slightly barred, and he is a hundred miles away, in prison. The only person within twenty miles is a thoroughly equipped burglar at his front door, who has seen the purse through a window, and who intends forthwith to enter and take it. The finder's power to reproduce his former physical relation to the gold is rather limited, yet I believe that no one would say that his possession was at an end until the burglar, by an overt [238] act, had manifested his power and intent to exclude others from the purse. The reason for this is the same which has been put with regard to the power to exclude at the moment of gaining possession. The law deals, for the most part, with overt acts and facts which can be known by the senses. So long as the burglar has not taken the purse, he has not manifested his intent; and until he breaks through the barrier which measures the present possessor's power of excluding him, he has not manifested his power. It may be observed further, that, according to the tests adopted in this Lecture, the owner of the house has a present possession in the strictest sense, because, although he has not the power which Savigny says is necessary, he has the present intent and power to exclude others.
It is conceivable that the common law should go so far as to deal with possession in the same way as a title, and should hold that, when it has once been acquired, rights are acquired which continue to prevail against all the world but one, until something has happened sufficient to divest ownership.
The possession of rights, as it is called, has been a fighting-ground for centuries on the Continent. It is not uncommon for German writers to go so far as to maintain that there may be a true possession of obligations; this seeming to accord with a general view that possession and right are in theory coextensive terms; that the mastery of the will over an external object in general (be that object a thing or another will), when in accord with the general will, and consequently lawful, is called right, when merely de facto is possession. /1/ Bearing in mind what was [239] said on the question whether possession was a fact or right, it will be seen that such an antithesis between possession and right cannot be admitted as a legal distinction. The facts constituting possession generate rights as truly as do the facts which constitute ownership, although the rights a mere possessor are less extensive than those of an owner.
Conversely, rights spring from certain facts supposed to be true of the person entitled to such rights. Where these facts are of such a nature that they can be made successively true of different persons, as in the case of the occupation of land, the corresponding rights may be successively enjoyed. But when the facts are past and gone, such as the giving of a consideration and the receiving of a promise, there can be no claim to the resulting rights set up by any one except the party of whom the facts were originally true--in the case supposed, the original contractee,--because no one but the original contractee can fill the situation from which they spring.
It will probably be granted by English readers, that one of the essential constituent facts consists in a certain relation to a material object. But this object may be a slave, as well as a horse; /1/ and conceptions originated
Suppose that a finder of a purse of gold has left it in his country-house, which is lonely and slightly barred, and he is a hundred miles away, in prison. The only person within twenty miles is a thoroughly equipped burglar at his front door, who has seen the purse through a window, and who intends forthwith to enter and take it. The finder's power to reproduce his former physical relation to the gold is rather limited, yet I believe that no one would say that his possession was at an end until the burglar, by an overt [238] act, had manifested his power and intent to exclude others from the purse. The reason for this is the same which has been put with regard to the power to exclude at the moment of gaining possession. The law deals, for the most part, with overt acts and facts which can be known by the senses. So long as the burglar has not taken the purse, he has not manifested his intent; and until he breaks through the barrier which measures the present possessor's power of excluding him, he has not manifested his power. It may be observed further, that, according to the tests adopted in this Lecture, the owner of the house has a present possession in the strictest sense, because, although he has not the power which Savigny says is necessary, he has the present intent and power to exclude others.
It is conceivable that the common law should go so far as to deal with possession in the same way as a title, and should hold that, when it has once been acquired, rights are acquired which continue to prevail against all the world but one, until something has happened sufficient to divest ownership.
The possession of rights, as it is called, has been a fighting-ground for centuries on the Continent. It is not uncommon for German writers to go so far as to maintain that there may be a true possession of obligations; this seeming to accord with a general view that possession and right are in theory coextensive terms; that the mastery of the will over an external object in general (be that object a thing or another will), when in accord with the general will, and consequently lawful, is called right, when merely de facto is possession. /1/ Bearing in mind what was [239] said on the question whether possession was a fact or right, it will be seen that such an antithesis between possession and right cannot be admitted as a legal distinction. The facts constituting possession generate rights as truly as do the facts which constitute ownership, although the rights a mere possessor are less extensive than those of an owner.
Conversely, rights spring from certain facts supposed to be true of the person entitled to such rights. Where these facts are of such a nature that they can be made successively true of different persons, as in the case of the occupation of land, the corresponding rights may be successively enjoyed. But when the facts are past and gone, such as the giving of a consideration and the receiving of a promise, there can be no claim to the resulting rights set up by any one except the party of whom the facts were originally true--in the case supposed, the original contractee,--because no one but the original contractee can fill the situation from which they spring.
It will probably be granted by English readers, that one of the essential constituent facts consists in a certain relation to a material object. But this object may be a slave, as well as a horse; /1/ and conceptions originated