possession in the common law - HiddenMysteries Information Central

6
deposited a purse entrusted to him by a friend. In whose possession is the bag, 1 –in mine, in my clerk’s, in my
son’s, or his friend’s? It is possible to double or triple the number of these degrees; the question may be
complicated at pleasure.
‘How shall these problems be resolved?
‘Consult firstly primitive utility, and if it be found neuter, indifferent, then follow the popular ideas; collect
them when they have decided, fix them when they are wavering, supply them when they are wanting; but by
one method or another resolve these subtilties, or, what is better, prevent the necessity of recurring to them.
Instead of the thorny question of possession, substitute that of honest intention, which is more simple.’ –
(General View of a Complete Code, p. 188 of vol. iii. of the collected works.)
On this it is firstly to be observed that although Bentham proposes to ask these questions with reference to
physical possession as distinguished from legal possession, the questions have no significance and are
incapable of being answered for any purpose of law except with reference to possession in the legal sense, and
that the rules of law for the purposes of which he seeks an answer do refer to possession in the legal sense. In
fact, Bentham lets himself slide from the ‘natural’ into the ‘civil’ meaning of possession, Secondly, it may be
worth while to suggest the answers which the English common law would give in each of Bentham’s
instances. The case of the manufactory is one of an immoveable thing, and happens to be a much simpler one
than many that might be put. The occupier, if he is my tenant, has the possession. If he is merely my servant, I
have the possession, but he may defend it on my behalf. If he is my partner, we are in joint possession, unless
I have given him a separate tenancy. It is a previous question of fact whether he is tenant, servant, or partner.
[9]In the case of the inn, the innkeeper has the possession of the bundle in the first instance as the bailee of
his guest. The strangers do not, so long as they merely touch it, acquire any possession, but if one of them
lifted it with an intention to exclude the owner, or all persons but himself, he would acquire the possession.
The innkeeper’s running to claim it would make no difference unless he re-took it or the taker relinquished it.
The porter’s return while the possession is with the innkeeper wi11, if the innkeeper consents, determine the
innkeeper’s possession; but the porter’s return when the bundle has been lifted and is retained by the stranger
will make no difference unless he retakes or the taker relinquishes the possession of the bundle. In the case of
the escritoire more information is required. If it is moveable furniture, in a room let to the clerk, it is in his
possession (Meeres’ Case, 1669; I Show. 50), and so are all the things in it. If it is in a part of the home which
is in my occupation, it is in my possession and he has merely a licence to use it; the things in it are bailed to
me and in my possession when the clerk is absent; but when he is present they are in his possession unless I
prevent his access to them. (Cp. however Bourne v. Foshrooke, 1865, 18 C.B.N.S. 5 I 5; 34 L.J.C.P. 164,
where ‘possession’ is used by ErIe C.J. in the sense assigned below to ‘right to possession,’ and the clerk even
in his absence is said to have possession).
The definition of possession has varied even in this country at different times. At one time the supposed
rules of the Roman law as to ‘possession’ seem to have been applied, and a depositary, a mandatary, and other
kinds of bailees (see in 1 Hawk. 33. 10) have been treated as having no possession as against the bailor; _and
on the other hand, in Staundford’s time (P. C. c. 15, fo. 25 a, ed. 1567) a servant entrusted by his master with
money for delivery was held to have the possession at common law: cp. the statute 21 Hen. VIII. c. 7. It was
thought that the master retained possession only so long as the servant was in his house or accompanying him.
The contrary rule, though settled in the modern authorities, is certainly somewhat of an anomaly in the
Common Law. It is worth notice that Staundford cites the Roman Law as to theft by bailees by way of
contrast, with the remark that ‘in les cases avant dites le ley de cest realme est plus favorable que nest le ley
civil’ Among the apocryphal feats of justice ascribed to King Alfred in the ‘Mirror of Justices’ is that ‘he
hanged Wolmer because he judged Graunt to death by colour of [10] a larcine of a thing which he had
received by title of baylement.’ (p. 242, ed. 1646).
It has constantly been asked: Is Possession a matter of fact or of right? Bentham and others have made the
want of a plain answer a reproach to the law. But in truth no simple answer can be given to such a question,
for all its terms are complex and need to be analysed. Every legal relation is or may be an affair both of facts
[8] 1 Sic in the English edition. The French text, in Traités de Législation, ed. Dumont, iii. 338, has ‘Dans ce secrétaire se trouve pour le moment une cassette à serrure,
occupée habituellement par mon fils; dans cette cassette, une bague confiée à sa garde par un ami. Lequel de nous est en possession de la hague, moi, mon clerc, mon fils, ou
son ami?’