06 - Common Law by Oliver Wendell Holmes, Jr.

Dive into the rich history and intricate details of common law in the United States, exploring its evolution and significance through compelling narratives. (summary by TB27)

Episode Transcript

Speaker 1 (00:00):
Lecture six of the Common Law by Oliver Wendell Holmes Junior.
This recording is in the public domain 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.

(00:23):
The theory has fallen into the hands of the philosophers,
and with them has become a cornerstone 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

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doctrines are worked out in careful correspondence with German views
of Roman law, and most of the speculative Jewists of Germany,
from Savigny to Yeering, have been at once professors of
Roman law and profoundly influenced, if not controlled, by some
form of Cantean or Postcantian philosophy. Thus everything has combined

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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 a general problem which has much
exercised the German mind. Karn't It is well known as
deeply influenced in his opinions upon Essex and law by

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the speculations of Rousseau. Can't 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. Can't and Hegel start
from freedom. The freedom of the will, Kant said, is

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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

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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 Card's postulate,
the will of any individual thus manifested, is entitled to
absolute respect from every other individual, and can only be

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overcome or set aside by the universal will, that is,
by the state acting through its organs the courts. Saviny
did not follow Kart 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.

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But to the 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. Brins,

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an admirable writer, expresses a characteristic yearning of the German
mind when he demands an internal jurisdic 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

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which must be righted without regard to conformity of the
will to law, and so on. In a Cantean 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 commonwealth.
So Porta a great master. The will which wills itself,

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that is, the recognition of its own personality, is to
be protected. The chief variation from this view is that
of Winschild, 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 everyone is the

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equal of every other in the state, and that no
one should raise himself over the other. Yewing 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 eve the possessor is freed from the necessity of

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proving title against one who is in an unlawful position.
But to this it was well answer by Bruns in
his later work, that it assumes the title of dicisors
to be generally worse than that of decisis which cannot
be taken for granted, and which probably is not true.
In fact, it follows from the Kantian doctrine that a

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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 pedatory actions or defenses in
Continental procedure. When a defendant in a possessory action is

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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 a man's personality requires that the object should

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have been brought within the sphere of that personality, that
the free wealth should have unastrainingly 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 Here,
the prevailing view of the Roman law comes in to
fortify a principle as precedent. We are told that of

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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 pledge and the sequester a receiver appointed by

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the court, these exceptions are unimportant and disputed. Some of
the Roman jurists state in terms, the depositories and borrowers
have not possession of the singhs entrusted to them. Whether
the German interpretation of the sources good, those too far
or not, it must be taken account of in the
examination of German theories philosophy. By denying possession to babies

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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 Bailey's 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,

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as held by Kant and his successes. In the first place,
the English law has always had the good sense to
allow title to be set up in defense to a
possessory action. In the assize of novel is seasoned, which
was a true possessory action, the defendant could always rely
on his title, even when possession is taken or kept

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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 attain 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

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trace of the distinction in the general rule that the
title cannot be tried in trespass quare Clausen. But this
is an exception commonly put on the ground that the
judgment cannot change the property as trespas for chattels or
trova can The rule of that you cannot go into
title in a possessory action presupposes great difficulty in the proof.

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The probacio diabolica of the canon law delays in the
process and importance of possession, add interim, all of which
mark a stage of society which has long been passed.
In ninety nine cases out of one hundred. It is
about as easy and cheap to prove at least a
prima fasci title as it is to prove possession in

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the next place. And this was the importance of the
last lecture to this subject. The common law has always
given the possessory remedies toward bailees without exception. The right
of these remedies extends not only to pledges, lyses and
those having aleen who exclude their baila, but to simple bailees,
as they have been called, who have no interest in

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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 past so far as to
give the possessory remedies to tenants and some others. Brunns says,
as the spirit of the Kantian theory required him to
say that this is a sacrifice of principle to convenience.

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But I cannot see what is left of a principle
which avows itself inconsistent was convenience and the actual course
of legislation. The first call of a series 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

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convenient without troubling themselves very much, what principles are uncounted
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

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declaration of independence, which shall be consistent with the largest
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 extinction of
the protection which the law throws around the person, and
on that ground held the trespass quare Klausen did not

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pass to an assigne in bankruptcy. So it has been
said that to deny a bankrupt trovera 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 the grounds
of policy and convenience. I may also refer to the

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cases of capture, some of which will be sighted again.
In the Greenland World 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 hole if he kept fast to
the well until it was struck by the other, although
it then broke from the first harpoon. By the custom

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in the Glapagus, on the other hand, the first striker
had half the well, although control of the line was lost.
Each of these customs had been sustained and acted on
by the English courts, and Judge Lowell has decided in
accordance with still assert which gives the whale to the
vessel whose iron first domains in it, provided claim be

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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 would fight. In the
several cases it tends so far as it goes to

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shake an apriori theory of the matter. 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 a fact that a certain ideal or theory
of government is generally entertained. Law, being a practical thing,

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must found itself on actual forces. It is quite enough, therefore,
for the law, that man, by any 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

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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

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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 being debated with much seal 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 to something else which philosophers

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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 born steadily in mind, the
question would hardly have been asked. A legal right is
nothing but of an ossion to exercise certain natural powers,
and upon certain conditions, to obtain protection, restitution, or compensation

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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

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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,

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he is said to be entitled to the corresponding rights,
meaning thereby that the law helps him to constrain his
neighbours 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

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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
the man that he has possession, we affirm directly that
all the facts of a certain group are true of him,

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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 denotes the consequence, property always and

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a 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

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legal compounds, possession, property, and contract is to be analyzed
into fact and right and aecedent 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.

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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

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as truly right in the legal sense as those consequences
which are attached to adverse holding for the period of prescription,
or to a promise for value or underseal. If the
statement is aided by dramatic reinforcement, I may add that
possessory rights passed by descent or devise as well as
by conveyance, and that they are taxed as property in

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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

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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 the schools that less than all of
the facts required to call those rights into being need
continue presently true in order to keep them alive. To

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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. The physical relation to others is simply a
relation of manifested power, coextensive with the intent, and will

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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 reguard 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,

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would be little more than a discussion of every 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

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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

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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

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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

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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 send with an opening of seven
fasms 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 rode in through the
opening and helped himself. But the difference between the power

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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 that the legislature of
New York enacted in eighteen forty four that anyone who
started and pursued deer in certain counties of that state

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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,

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has upheld the contrary custom of the American wellman in
the Arctic Ocean mentioned above, which gives a well 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

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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 juris unsatisfactory, for
reasons which I have already explained. The best known theories
have been framed as series of the German interpretation of
the Roman law, under the influence of some form of

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Campian from 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 an owner. Following
this out, it was said by Savini, the only writer
on the subject with whom English readers are generally acquainted,
that the animus dominie or intend to deal with the

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singh as owner, is in general necessary to turn a
near physical detention into juridical possession. We need not stop
to inquire whether this modern form or the animus dominantis
animals dominandi of Ceophilis and the Greek sources is more exact,
for either excludes as the civilians and canonists do, and

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as the German theories must baileies and termers 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

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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

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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. The grounds for
rejecting the criteria of the Roman law have been shown above.
Let us begin afresh. Legal duties are logically antecedent to

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legal rights. What may be their relation to mal rights,
if there are any, and whether mal rights are not
in like manner? Logically the offspring of mal duties are
questions which do not concern us here. These are for
the philosopher who approaches the law from without as part
of a larger series of human manifestations. The business of

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the jewist is to make known the content of the law,
that is, to work upon it from within, or logically
arranging and distributing it in order from its demum genus
to its enfema species. So far as practicable, legal duties
then come before legal rights. To put it more broadly,

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and avoid the word duty, which is open to objection,
the direct working of the law is to limit freedom
of action or choice on the part of a greater
or less number of persons in certain specified ways. While
the power of removing or enforcing this limitation, which is
generally confided to certain other private persons, or in other words,

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right corresponding to the burden, is not a necessary or
universal coalative. Again, a large part of the advantages enjoyed
by one who has right are not created by the law.
The law does not enable me to use or abuse
this book which lies before me. That is a physical
power which I have without the aid of the law.

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What the law does is simply to prevent other men,
to a greater or less extend, from interfering with my
use or abuse. And this analysis and example apply to
the case of possession as well as to ownership. Such
being the direct working of the law. In the case
of possession, one would think that the animals or intent

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most nearly parallel to its movement would be the intent
of which we are in search. If what the law
or does is to exclude others from interfering with the object,
it would seem that the intent which the law should
require is an intent to exclude others. I believe that
such an intent is all that the common law deems needful,

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and that on principle no more should be required. It
may be asked whether this is not simply the animist
domini looked at from the other side. If it were,
it would nevertheless be better to look at the front
of the shield than at the reverse. But it is
not the same. If we give to the animist domini

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the meaning which the Germans give it, and which denies
possession to baileys. In general, the intent to appropriate or
deal with a singh as owner can hardly exist without
an intent to exclude others and something more. But the
latter may very well be ware there is no intent
to hold its owner. A tenant for years intends to

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exclude all persons, including the owner, until the end of
his tay. Yet he has not the animous dominie in
the sense explained, still less as a bailey with a
lean who does not even mean to use, but only
to detain the thing for payment. But further, the common
law protects a bailey against strangers when it would not

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protect him against the owner, as in the case of
a deposit or other bellmen terminable at pleasure. And we
may therefore say that the intent even to exclude, need
not be so extensive as would be implied in the
animous dominie. If a bailey intends to exclude strangers to
the title, it is enough for possession under our law,

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although he is perfectly ready to give the thing up
to its owner at any moment. While it is of
the essence of the German view that the intent must
not be relative, but an absolute, self regarding intent to
take the benefit of the thing. Again, if the motives
or wishes, and even the intentions most present to the
mind of a possessor were all self regarding, it would

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not follow that the intent toward others was not the
important thing in the analysis of the law. But as
we have seen, a depository is a true possessor under
the common law theory, although his intent is not self regarding,
and he holds solely for the benefit of the owner.
There is a class of cases besides those of bailey's

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and tenants, which will probably although not necessarily be decided
one way or the other, as we adopt the test
of an intent to exclude or of the animous dominie,
which is the Hawksworth, will serve as a starting point. There.
A pocketbook was dropped on the floor of a shop
by a customer and picked up by another customer before

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the shopkeeper knew of it. Common law judges and civilians
would agree that the finder got possession first, and so
could keep it as against the shopkeeper. For the shopkeeper,
not knowing of the thing, could not have the intent
to appropriate it, and having invited the public to his shop,
he could not have the intend to exclude them from it.

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Which suppose the pocket book had been dropped in a
private room, how should the case be decided. There can
be no animous nominy unless the thing is known of,
but an intent to exclude others from it may be
contained in the larger intent to exclude others from the
place where it is without any knowledge of the object's existence.

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In Macavoy Vmandina, a pocketbook had been left upon a
barber's table, and it was held that the barber had
a better right than the finder. The opinion is rather obscure.
It takes a distinction between things voluntarily placed on a
table and things dropped on the floor, and may possibly
go on the ground that when the owner leaves a

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thing in that way, there is an implied request to
the shopkeeper to guard it, which will give him a
better right than one who actually finds it before him.
This is rather strained, however, and the court perhaps sought
that the barber at possession as soon as a customer
left the shop. A little later, in a suit for
reward offered to the finder of a pocket book brought

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by one who discovered it where the owner had left
it on a desk for the use of customers in
a bank outside the teller's counter, the same court said
that this was not the finding of a lost article,
and that the occupants of the banking house and of
the plaintiff were the proper depositories of an article so left.
This language might seem to imply that the plaintiff was

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not the person who got possession first after the defendant,
and that although the floor of a shop may be
likened to a street, the public art to be deemed
excluded from the shops, desks, counters, and tables, except for
the specific use permitted. Perhaps, however, the case only decides
that the pocketbook was not lost within the condition of

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the author. I should not have sought it safe to
draw any conclusion from wreck cases in England, which are
mixed up with questions of prescription and other rights. But
the precise point seems to have been adjudicated here. For
it has been held that if a stick of timber
comes ashore on a man's land, he thereby acquires a

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right of possession as against an actual finder who enters
for the purpose of removing it. A right of possession
is said to be enough for trespass. But the court
seems to have meant possession by the phrase, inasmuch as
Chief Justice Shaw states the question to be which of
the parties had the preferable claim by mere naked possession

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without other titles, and as there does not seem to
have been any right of possession in the case unless
there was actual possession. In a criminal case. The property
in iron taken from the bottom of the canal by
a stranger was held well laid in the canal company,
although it does not appear that the company knew of

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it or had any lean upon it. The only intent
concerning the thing discoverable. In such instances is a general
intent which the occupant of land has to exclude the
public from the land, and thus, as a consequence, to
exclude them from what is upon it. The Roman lawyers
would probably have decided all these cases differently, although they

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cannot be supposed to have worked out the refined theories
to being built upon their remains. I may here return
to the case of goods in a chest delivered under
lock and key, or in a bell and the like.
It is a rule of the criminal law that if
a bailey of such a chess or bale wrongfully sells
seem tire, chest or boil, he does not commit lastening,

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but if he breaks bulk, he does, because in the
former case he does not, and in the latter he
does commit a trespass. The reason sometimes offered is that
by breaking bulk, the bailey determines the bellm and that
the goods at once revest in the possession of the baylor.
This is perhaps an unnecessary as well as inadequate fiction.

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The rules comes from the year books, and the sery
of the year books was that although the chest was
delivered to the bailey, the goods inside of it were not,
and this sery was applied to civil as well as
criminal cases. The baylaer has the power and intent to
exclude the bailey from the goods, and therefore may be
said to be in possession of them as against the bailey.

(33:22):
On the other hand, a case in Rhode Island is
against the view. Here taken, a man wre to safe
and then wishing to sell it again, sent it to
the defendant and gave him leave to keep his books
in it until as solved. The defendant found some banknote
stuck in a crevice of the safe, which, coming to
the plaintiff's ears, he demanded the safe and the money.

(33:44):
The defendant sent back the safe, but refused to give
up the money, and the court sustained him in his refusal.
I ventured to think this decision wrong, Nor would my
opinion be changed by assuming what the report does not
make perfectly clear that the defendant received the safe as
bailey and not as servant or agent, and that his

(34:05):
permission to use the safe was general. The argument of
the court goes on the plaintiffs not being a finder.
The question is whether he need be. It is hard
to believe that if the defendant had stolen the bills
from the safe while it was in the owner's hands,
the property could not have been laid in the safe owner,
or that the latter could not have maintained trova for

(34:27):
them if converted under those circumstances. Sir James Stephen seems
to have drawn a similar conclusion from Cartwright v. Greene
and Mary v. Greene. But I believe that no warrant
for it can be found in the cases, and still
less for the reason suggested. It will be understood, however,
that Durfey v. Jones is perfectly consistent with the view

(34:50):
here maintained of the general nature of the necessary intent,
and that it only touches the subordinate question whether the
intent to exclude must be direc to the specific thing,
or may be even unconsciously included in a larger intent,
as I am inclined to believe. Thus far, nothing has
been said with regard to the custody of servants. It

(35:13):
is a well known doctrine of the criminal law that
a servant who criminally converts property of his master entrusted
to him and in his custody is servant, is guilty
of theft because he is deemed to have taken the
property from his master's possession. This is equivalent to saying
that a servant having the custody of his master's property

(35:34):
as servant has not possession of that property, and it
is so stated in the yearbooks. The anomalous distinction, according
to which if the servant receives the sing from another
person for his master, the servant has the possession and
so cannot commitft, is made more rational by the old cases,

(35:55):
for the distinction taken in them is that while the
servant is in the house or with his master, the
latter retains possession. But if he delivers his horse to
his servant to write to market, or gives him a
bag to carry to London, then the singh is out
of the master's possession, and in the servants. In this

(36:15):
more intelligible form, the rule would not now prevail, but
one half of it, that a guest at a tavern
has not possession of the plate with which he is
served is no doubt still law. The guests in general
aliken to servants in their legal position. There are few
English decisions outside the criminal on the question whether a

(36:37):
servant has possession but the yearbooks do not suggest any
difference between civil and criminal cases, and there is an
almost tradition of courts and approved writers that he has
not in any case a master has maintained trespass against
a servant for converting cloths which he was employed to sell.
And the American cases go the full lengths of the

(36:59):
uk All doctrine. It has often been remarked that a
servant must be distinguished from a bailey. But it may
be asked how the denial of possession to servants can
be made to agree with the test proposed, And it
will be said with truth that the servant has as
much the intent to exclude the world at large as
a borrower. The law of servants is unquestionably at variance

(37:23):
with that test, and there can be no doubt that
those who have built their series upon the Roman law
have been led by this fact, coupled with the Roman doctrine,
as the bailies in general to seek the formula of
reconciliation where they have but in truce. The exception with
regard to servants stands on purely historical grounds. A servant

(37:44):
is denied possession not from any peculiarity of intent with
regard to the sings in his custody, either towards his
master or other people, by which he is distinguished from
a depository, but simply as one of the incidents of
his status. It is familiar that the status of a
servant maintains many marks of the time when he was

(38:05):
a slave. The liability of the master for his thoughts
is one instance. The present is another. A slave's possession
was his owner's possession on the practical ground of the
owner's power over him, and from the fact that the
slave had no standing before the law, the notion that
his personality was merged in that of his family head

(38:28):
survived the error of emancipation. I have shown in the
first lecture that agency arose out of the earlier relation
in the Roman law through the extincsion pro hac we
care to a freeman of conceptions derived from that source.
The same is true, I think of our own law,
the later development of which seems to have been largely

(38:50):
under Roman influence as late as Blackstone. Agents appear under
the general head of servants, and the first presidents cited
for the seculiar law of agents, or cases of master
and servant Blackstone's language is worth quoting. There is yet
a fourth species of servants, if they may be so called,

(39:13):
being rather in a superior a ministerial capacity, such as stewarts, factors,
and bailiffs, whom, however, the law considers as servants pro
temporee with regard to such of their acts as affect
their master's or employer's property. It is very true that
in modern times many of the effects of either relation

(39:36):
master and servant or principle and agent may be accounted
for as the result of acts done by the master himself.
If a man tells another to make a contract in
his name, or commands him to commit a taught, no
special conception is needed to explain why he is held,
although even in such cases where the intermediate party was

(39:59):
a free human, the conclusion was not reached until the
law had become somewhat mature. But if the title agency
deserves to stand in the law at all, it must
be because some peculiar consequences are attached to the fact
of the relation. If the mere power to bind a
principle to an orciorized contract were all, we might as

(40:22):
well have a chapter on ink and paper as on agents.
But it is not all. Even in the domain of contract,
we find the striking doctrine that an undisclosed principle has
the rights as well as the obligations of a known contractor,
that he can be sued, and more remarkable, can sue

(40:42):
on his agent's contract. The first President cited for the
proposition that a promise to an agent may be laid
as a promise to the principle. Is a case of
master and servant. As my present object is only to
show the meaning of the doctrine of identification in its
bearing of the sery of possession, it would be out

(41:02):
of place to consider at any links how far the
doctrine must be invoked to explain the liability of principles
for their agent's taughts, or whether a more reasonable rule
governs other cases than that applied where the actor has
a tolerably defined status as a servant. I allow myself
a few words, because I shall not be able to

(41:23):
return to the subject. If the liability of a master
for the trts of his servant had hitherto been recognized
by the courts as the decaying remnant of an obsolete institution,
it would not be surprising to find it confined to
the cases settled by ancient president. But such has not
been the fact. It has been extended to new relations

(41:46):
by analogy. It exists where the principle does not stand
in the relation of pater familias to the actual wrongdoer.
A man may be held for another where the relation
was of such a transitory name nature as to exclude
the conception of status as for the negligence of another
person's servant momentarily acting for the defendant, or of a

(42:09):
neighbor helping him as a volunteer. And so far as known,
no principle has ever escaped on the ground of the
dignity of his agent's employment. The courts habitually speak as
if the same rules applied to brokers and other agents
as to servants, properly so called. Indeed, it has been

(42:30):
laid down in terms that the liability of employers is
not confined to the case of servants, although the usual
cases are of course those of menial servants and the like,
who could not pay a large verdict. On the other hand,
if the peculiar doctrines of agency are anomalous and form,

(42:51):
as I believe, the vanishing point of the servile status,
it may well happen that common sense will refuse to
carry them out to their thirst applications. Such conflicts between
tradition and the instinct of justice we may see upon
the question of identifying a principle who knows the truce
with an agent who makes a false representation in order

(43:14):
to make out a fraud as in comfort the falc
or upon that as to the liability of a principle
with the fords of his agent, discussed in many English cases.
But so long as the fiction which makes the root
of a master's liability is left alive, it is as
hopeless to reconcile the differences by logic as to square

(43:36):
the circle. In an article in the American Law of View,
I refer to an expression of God refrois as a
guard to agents adam es persona domini e pocuratoits. This
notion of a fictitious unity of person has been pronounced
a darkening of council in a recent useful work, But

(43:58):
it receives the sanction of Sir Henry Maine, and I
believe that it must stand as expressing an important aspect
of the law. If, as I have tried to show
there is no adequate and complete explanation of the modern law,
except by the survival in practice of rules which lost
their true meaning from the objects of them sees to

(44:19):
be slaves. There is no trouble in understanding what is
meant by saying that a slave has no legal standing,
but is absorbed in the family which his master represents
before the law. The meaning seems equally clear when we
say that a free servant, in his relations as such,
is in many respects likened by the law to a slave,

(44:40):
not of course to his own detriment as a freeman.
The next death is simply that others, not servants in
a general sense, may be treated as if servants in
a particular connection. This is the progress of ideas, as
shown us by history, and this is what is meant
by saying that the characteristic feature which justifies agency as

(45:02):
a title of the law is the absorption pro hacrique
of the agent's legal individuality and that of his principle.
If this were carried out logically, it would follow that
an agent constituted to hold possession in his principle's name
would not be regarded as having the legal possession or
as entitled to trespass. But after what has been said,

(45:25):
no opinion can be expressed whether the law would go
so far, unless it is shown by precedent. The nature
of the case will be observed. It is that of
an agent constituted for the very point and purpose of possession.
A bailey may be an agent for some other purpose.
A free servant may be made a bailey. But the

(45:46):
bailey holds in his own as we say, following the
Roman idiom, and the servant or agent hoarding as such
does not. It would hardly be worse while if space
allowed to search the books on this sub because of
the great confusion of language to be found in them.
It has been said, for instance, in this connection that

(46:08):
a carrier is a servant. While nothing can be clearer
than that while goods are in custody, they are in
his possession. So where goods remain in the custody of
a vendor, appropriation to the contract and acceptance have been
confounded with the delivery. Our law has adopted the Roman
doctrine that there may be a delivery, that is a

(46:30):
change of possession by a change in the character in
which the vendor holds, but has not always imitated the
caution of the civilians, with a guard to what amounts
to such a change. Baillies are constantly spoken of as
if they were agents to possess, a confusion made easier
by the fact that they generally are agents for other purposes.

(46:53):
Those cases which attribute possession to a transferry of goods
in the hands of a middleman, without distinguishing whether the
middleman holds in his own name or the buyers, are
generally right in the result, no doubt, but have added
to the confusion of sort upon the subject. German writers
are a little apt to value a theory of possession

(47:14):
somewhat in proportion to the breadths of the distinction which
it draws between juridical possession and actual detention. But from
the point of view taken here, it will be seen
that the grounds for denying possession and the possessory remedies
to servants and agents holding as such, if indeed the
latter have not those remedies, are merely historical, and that

(47:36):
the generous theory can only take account of the denial
as an anomaly. It will also be perceived that the
ground on which servants and depositaries have been often likened
to each other, namely that they both hold for the
benefit of another and not for themselves. Is wholly without
influence of our law, which is always treated depositories as

(47:56):
having possession, and is not the true explanation of the
Roman doctrine, which did not decide either case upon that ground,
and which decided each for reasons different from those on
which it decided the other. It will now be easy
to deal with the question of power as to serve persons.
This is naturally a power coextensive with the intent. But

(48:20):
we must bear in mind that the law deals only
or mainly with manifested facts, and hence when we speak
of a power to exclude others, we mean no more
than a power which so appears in its manifestation. Ouffian
may be within equal reach in sight when a child
picks up a pocket book, but if he dis nothing,

(48:40):
the child has manifested the needful power, as well as
if it had been backed by a hundred policemen. Thus narrowed,
it might be suggested that the manifestation of is only
important as a manifestation of intent. But the two things
are distinct, and the former becomes decisive. And there were
two contemporaneous and conflicting intents. Thus, where two parties, neither

(49:06):
having title, claimed a crop of corn adversely to each other,
and cultivated it alternately, and the plaintiff gazed and threw
it in small piles in the same field, where it
lay for a week, and then each party simultaneously began
to carry it away, it was held the plaintiff had
not gained possession. But if the first interference of the

(49:28):
defendant had been after the gathering into piles, the plaintiff
would probably have occovered. So where trustees possessed of a
schoolroom put in a schoolmaster, and he was afterwards dismissed,
but the next day, June thirtieth, re entered by force.
On the force of July, he was required by notice

(49:49):
to depart, and was not rejected until the eleventh. It
was considered that the schoolmaster never got possession as against
the trustees. We are led in in this connection to
the subject of the continuance of the rights acquired by
gaining possession. To gain possession, it has been seen there
must be certain physical relations, as explained, and a certain intent.

(50:13):
It remains to be inquired how far these facts must
continue to be presently true of a person, in order
that he may keep the rights which follow from their presence.
The prevailing view is that of Savigny. He thinks that
there must be always the same animus as at the
moment of acquisition, and a constant power to reproduce at

(50:34):
will the original physical relations to the object. Everyone agrees
that it is not necessary to have always a present
power over the think otherwise one could only possess what
was under his hand. But it is a question whether
we cannot dispense with even more. The facts which constitute
possession are in their nature capable of continuing presently true

(50:58):
for a lifetime. Hence, there has arisen an inbiguity of
a language which has led to much confusion of sort.
We use the word possession indifferently to signify the presence
of all the facts needful to gain it, and also
the condition of him, who, although some of them no
longer exist, is still protected as if they did. Consequently,

(51:23):
it has been only too easy to treat the cessation
of the facts as the loss of the right, as
some German writers very nearly do. But it no more
follows from the single circumstance that certain facts must concur
in order to create the rights incident to possession, that
they must continue in order to keep those rights alive.

(51:47):
That it does from the necessity of a consideration and
a promise to create a right ex contract to that
the consideration and promise must continue moving between the parties
until the moment of thes when certain facts have once
been made manifest which confer a rite. There is no
general ground on which the law need hold the right

(52:09):
at an end, except the manifestation of some fact inconsistent
with its continuance. The reasons for conferring the particular right
have great weight in determining what facts shall be to
be so, cessation of the original physical relations to the
object might be treated as such a fact, but it

(52:30):
never has been, or less in times of more ungoverned
violence than the present. On the same principle, it is
only a question of tradition or policy whether a cessation
of the power to reproduce the original physical relations should
affect the continuance of the rights. It does not stand
on the same ground as a new possession adversely taken

(52:53):
by another. We have adopted the Roman law as to
animals ferai naturai tendency of our law is to favor appropriation.
It abhors the absence of proprietary or possessory rights as
a kind of vaccum. Accordingly, it has been expressly decided

(53:13):
where man found logs afloat, and more than that 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 trova
against the second fighter, who refused to give them up.
Suppose that a finder of a purse of gold has

(53:35):
left it in his country house, which is lonely and
slightly barred, and he is one hundred miles away in prison.
The only person within twenty miles is a solely equipped
burglar at his front door, who has seen the purse
through a window, and who intends forcewith to enter and
take it. The finder's power to reproduce his former physical

(53:57):
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 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 reguard to the power to exclude at the

(54:18):
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
possesses power of excluding him, he has not manifested his power.

(54:42):
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. With others,
it is conceivable that the common law should go so

(55:05):
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

(55:27):
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 aren't theory co
extensive terms, that the mastery of the will over an
external object in general, be that object a thing or another. Will,

(55:52):
when an accord with the general will, and consequently lawful,
is called right. When merely de facto is possession. Bearing
in mind what was said on the question whether possession
of the fact or right, it will be seen that
such an antithesis between possession and right cannot be admitted

(56:12):
as a legal distinction. The facts constituting possession generate rights
as truly as to the facts which constitute ownership, or
though the rights of a mere possessor are less extensive
than those of an owner. Conversely, rights bring from certain
facts supposed to be true of the person entitled to

(56:34):
such rights. While these facts are of such a nature
that they 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
passed and gone, such as the giving of a consideration
and the receiving of a promise, there can be no

(56:56):
claim to the resulting rights set up by anyone except
the party of whom the facts were originally true. In
the case supposed the original contract team, because no one
but the original contract tee can film the situation from
which they spring. It will probably be granted by English
readers that one of the essential constituent facts consists in

(57:20):
a certain relation to a material object. But this object
may be a slave as well as a hawks, and
conceptions originated in this way may be extended by a
survival to free services. It is noticeable that even Runs,
in the application of his theory, does not seem to
go beyond cases of status and those where in common language,

(57:43):
land is bound for the services in question, as it
is for rent. Free services being so far treated like
servar even by our law, that the master has a
right of property in them against all the world. It
is only a question of degree where alive shall be drawn.
It would be possible to hold that, as one might

(58:04):
be in possession of a slave without title, so one
might have all the rights of an owner in free
services rendered without contract. Perhaps there is something of that
sort to be seen when a parent recovers for the
seduction of a daughter over twenty one, although there is
no actual contract of servants. So throughout the whole course

(58:26):
of the Canon law and in the early law of England,
rents were regarded as so far apart of the realty
as to be capable of possession and the season, and
they could be recovered like land by all assis. But
the most important case of the so called possession of
rights in our law, as in the Roman, occurs with

(58:48):
regard to easements. An easement is capable of possession in
a certain sense. A man may use land in a
certain way with the intent to exclude all others from
using it in any way inconsistent was his own use,
but no further. If this be true possession, however, it

(59:09):
is a limited possession of land, not of a right,
as others have shown, but where an easement has been
actually created, whether by deed or prescription. Although it is
undoubtedly true that any possessor of the dominant estate would
be protected in its enjoyment, it has not been so
protected in the past on the ground that the easement

(59:32):
was in itself an object of possession, but by the
survival of precedents explained in a later lecture. Hence to
test the existence of a mere possession of this sort
which the law will protect, it will take the case
of a way used to facto for four years, but
in which no easement has yet been acquired, and ask

(59:54):
whether the possessor of the quasi dominant tenement would be
protected in his use as a against sir persons. It
is conceivable that he should be, but I believe that
he would not. The chief objection to the doctrine seems
to be that there is almost a contradiction between the
assertions that one man has a general power and intent

(01:00:16):
to exclude the world from dealing with the lamb, and
that another has the power to use it in a
particular way and to exclude the owner from interfering with that.
The reconciliation of the two needs somewhat artificial reasoning. However,
it should be borne in mind that the question in
every case is not what was the actual power of

(01:00:39):
the party's concern, but what was their manifested power. If
the latter stood thus balanced, the law might recognize a
kind of split possession. But if it does not recognize
it until the right is acquired, then the protection of
a deceaser in the use of an easement must still
be explained by a reference to the facts mentioned in

(01:01:00):
the lecture referred to. The consequences attached to possession are
substantially those attached to ownership. Subject to the question the
continuance of possessory rights which I have touched upon above,
even a wrongful possessor of a chattel may have full
of damages for its conversion by a stranger to the

(01:01:21):
title or a return of the specific thing. It has
been supposed to be sure that a special property was
necessary in order to maintain a plevin or trova. But
modern cases established that possession is sufficient, and an examination
of the sources of our law proves that special property

(01:01:43):
did not mean anything more. It has been shown that
the procedure for the recovery of chattels lost against one's will,
described by Bracton, like its predecessor on the Continent, was
based upon possession. Yet Bracton, in the very passage in
which he expressly makes that statement, uses a phrase which,

(01:02:04):
but for the explanation, would seem to import ownership potterit
rem suam peterre. The writs of later days used the
same language, and when it was objected as It frequently
was to a suit by a bailey for a taking
of bonnar et katala suar, that it should have been
for Bonnar in gustodia sua existentia. It was always answered

(01:02:29):
that those in the chancery would not frame a writ
in that form. The substance of the matter was that
goods in a man's possession were his sua within the
meaning of the writ. But it was very natural to
attempt a formal reconciliation between that formal word and the
fact by saying that although the plaintiff had not the

(01:02:52):
general property in the chattels, yet he had a property
as against strangers, or a special property. This took place,
and curiously enough, two of the earliest instances in which
I have found the latter phrase used are cases of
a depository and a borer. Brooke says that our uncle
taker as title against all but the true owner. In

(01:03:16):
this sense, the special property was better described as a
possessory property, as it was in deciding that in an
indictment larceny, the property could be laid in the bailey
who suffered the trespass. I have explained the inversion by
which a bailey's right of action against surd persons was

(01:03:37):
supposed to stand on his responsibility over, although in truce
it was the foundation of that responsibility and arose simply
from his possession. The step was short from saying that
bailies could sue because they were answerable over to saying
that they had the property as against strangers or a

(01:03:59):
special property, because they were answerable over, and that they
could sue because they had a special property and were
answerable over. And thus the notion that special property meant
something more than possession and was a requisite to maintaining
an action got into the law. The error was made

(01:04:21):
easier by a different use of the phrase in a
different connection. A bailey was in general liable of the
goods stolen from his custody, whether he had a lean
or not, but the law was otherwise as to a
pledgeing if he had kept the pledge with his own
goods and the two were stolen together. This distinction was

(01:04:43):
accounted for, at least in Lord Coke's time, by saying
that the pledge was in a sense the pledge's own,
that he had a special property in it, and thus
that the ordinary relation of Belmont did not exist, or
that the undertaking was owned need to keep as his
own goods. The same expression was used in discussing the

(01:05:05):
pledge's right to assign the pledge. In this sense, the
term applied only to pledges, but its significance in a
particular connection was easily carried over into the others in
which it was used, with the result that the special
property which was requisite to maintain the possessive actions was
supposed to mean a qualified interest in the goods. With

(01:05:28):
regard to the legal consequences of possession, it only remains
to mention that the rules which have been laid down
with regard to chattels also prevailed as a guard to land.
For though the plaintiff in ejectment must recover on the
strengths of his own title as against a defendant in possession,
it is now settled that prior possession is enough if

(01:05:51):
the defendant stands on his possession alone. Possession is of
course sufficient for trespass. And although the early by assizes
was restricted to those who had a technical season, this
was for reasons which do not affect the general theory.
Before closing, I must say a word concerning ownership and

(01:06:12):
kindred conceptions following the order of analysis which has been
pursued with reguard to possession. The first question must be
what are the facts to which the rights called ownership
are attached as a legal consequence. The most familiar mode
of gaining ownership is by conveyance from the previous owner,

(01:06:33):
but that presupposes ownership already existing, and the problem is
to discover what causes it into being. One fact which
has this effect is first possession. The capita of wild
animals or the taker of fish from the ocean has
not merely possession, but a title good against all the world.

(01:06:54):
The most common mode of getting an original and independent
title is by certain proceedings in court or out of it,
adverse to all the world. At one extreme of these
is the proceeding in rem of the Admiralty, which conclusively
disposes of the property in its power, and when it
sells or condemns, it does not deal with this or

(01:07:18):
that man's title, but gives a new title parallel to
all previous interests, whatsoever they may be. The other and
more familiar case is prescription, where a public adverse holding
for a certain time has a similar effect. A title
by prescription is not a presumed conveyance from this or

(01:07:39):
that owner alone, it extinguishes all previous and inconsistent claims.
The two coaletes in the ancient find as proclamations that
the combined effect of the judgment and the lapse of
a year and a day was to bar claims. So
write's analogous to those of ownership may be given by

(01:08:00):
the legislature to persons of whom some other set of
facts is true, for instance, a patent t or one
to whom the government has issued a certain instrument, and
who in fact has made a patentable invention. But what
are the rights of ownership? They are substantially the same

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as those incident to possession. Within the limits prescribed by policy.
The owner is allowed to exercise his natural powers over
the subject matter uninterfered with, and is more or less
protected in excluding other people from such interference. The owner
is allowed to exclude all and is accountable to no one.

(01:08:43):
The possessor is allowed to exclude all but one, and
is accountable to no one but him. The great body
of questions which have made the subject of property so
large and important are questions of conveyancing, not necessarily or
generally pendent on ownership as distinguished from possession. They are

(01:09:04):
questions of the effect of not having an independent and
original title, but of coming in under a title already
in existence, or of the modes in which an original
title can be cut up among those who come in
under it. These questions will be dealt with and explained
where they belong in the Lectures on Successions. End of

(01:09:29):
a Lecture six