possession in the common law - HiddenMysteries Information Central

4
the apparent anomaly, and of these sometimes one and sometimes another may have in fact been the decisive
reason in virtue of historical conditions, or may be regarded as decisive according to the individual genius of
this or that philosophic student. The most obvious of them, from the point of view of our own time, is perhaps
that in a settled and industrial state some amount of genuine doubt as to ownership and title must unavoidably
follow upon the complexity of men’s affairs; that protection must in some measure be given to persons
dealing in good faith on the strength of apparently lawful title, and to those who may afterwards deal with and
claim through such persons; and that such protection cannot be given effectually to the innocent without also
protecting some who are not innocent. Further, it can be and has been maintained that on attentive
examination the [4] seeming anomaly will be found indispensable for the adequate protection of true
ownership itself. Another element which no doubt has been important in the earlier historical development of
the law, and to which some great authorities have attached exclusive or all but exclusive importance in
modern times, is the interest of public peace and order. Men will defend that which they deem their own even
if the law purports to forbid them; and the wholesale allowance of redress by private force, or exposure of
wrongful possessors to dispossession by newcomers having no better right, would create more and greater
evils than any that could be thus remedied or prevented. But in forbidding existing relations of persons to
things to be disturbed by private violence, or acts likely to provoke violence, the law must needs, at that stage,
protect the unjust with the just. If the ultimate justice of the matter were always manifest at first sight, there
would be no call for provisional protection. It is also said that possession is in a normal state of things the
outward sign of ownership or title, and therefore the possessor is presumed to be or to represent the true
owner; some have gone so far as to say that, apart from this, the mere will of a possessor to hold the object for
himself is in the eye of the law relatively meritorious as against anyone not showing a better title. However,
the comparative worth of the philosophical or semi-philosophical theories of Possession cannot be weighed to
much purpose until one has mastered in some detail the actual contents of the law. 1
§ 2. Terminology .
It need not give occasion for surprise that we fail to find in our books any title of Possession eo nomine. First,
the historical categories of the Common Law have oftener been [5] determined by procedure and remedies
than by rights. Our old authors looked mainly to the forms of action, and thought less, for example, of the
essential differences between breach of contract and defamation than of the formal similarity of the remedy as
being for either an action on the case. A doctrine of possession exists, but it was developed by means of
various remedies for wrongs to possessory rights, and was long thought of wholly or mainly as determining
the conditions of those remedies. Trespass, a wrong to possessors 1 of land or goods; Conversion, a wrong
affecting possessory rights, in goods only, and best known under the catch-word of Trover, the specialized
action on the case which was its appropriate remedy; Theft or Larceny, a particular kind of trespass to goods
which by virtue of the trespasser’s intent becomes criminally punishable; these and such as these, not the
terms of general analysis, are the clues to Eng1ish authority. For the special applications of the doctrine to
land we may add the titles of Ejectment, Landlord and Tenant, and the Statutes of Limitation; and there is
much that cannot be rightly understood without going back to the all but forgotten learning of Disseisin.
Secondly, the learning of possession disguised itself by its very importance. The Common Law never had any
adequate process in the case of land, or any process at all in the case of goods, for the vindication or
ownership pure and simple. So feeble and precarious was property without possession, or rather without
possessory remedies, in the eyes of medieval lawyers, that Possession largely usurped not only the substance
but the name of Property; 2 and when distinction became necessary in modern times, the clumsy term ‘special
property’ was employed to denote the rights of a possessor not being owner.
Thirdly, there are many things material to be known with reference to what may be called the physical
basis of the law of Possession-things of which the law takes notice, [6] and which to a certain extent are
defined by authority which yet do not come within the legal definitions of particular estates and interests, and
are relegated in our rough working classification to the head of Evidence, that general refuge of things
[4] 1 The speculative literature of the subject, which for modern readers may be said to date from Savigny, shows no sign of coming to an end. The best way of getting on the
track of it, if desired, is to consult the latest current edition of a good German book of’ Pandektenrecht,’ such as Arndts. And see Holmes, The Common Law, Lect. vi
[5] 1 See 15 H. VII. 3a.
2 In Brooke’s Abridgment, ‘Propertie et proprietate probanda,’ the two, conceptions are not in any way discriminated.