Chapter VII: Front Matter (7)

Suppose, next, that the plaintiff sued in case for a tort. As before, the breach of duty complained of might be such damage to property as had always been sued for in that form of action, or it might be a loss by theft for which detinue would formerly have been brought, and which fell on the bailee only by reason of the bailment. If the goods had been stolen, the bailee's liability rested neither on his common calling nor on his assumpsit and his neglect, but arose from the naked facts that he had accepted a delivery and that the goods were gone, and in such cases it ought to have been enough to allege those facts in the declaration. /1/ But it was very natural that the time-honored foundations for the action on the case in its more limited application should still be laid in the pleadings, even after the scope of the action had been enlarged. We shall have to inquire, later, whether the principles of Southcote's Case were not also extended in the opposite direction to cases not falling within it. The reasons for the rule which it laid down had lost their meaning centuries before Gawdy and Clench were born, when owners had acquired the right to sue for the wrongful taking of property in the hands [187] and the rule itself was a dry precedent likely to be followed according to the letter because the spirit had departed. It had begun to totter when the reporter cautioned bailees to accept in such terms as to get rid of it. /1/

Accordingly, although that decision was the main authority relied on for the hundred years between it and Coggs v. Bernard whenever a peculiar responsibility was imposed upon bailees, we find that sometimes an assumpsit was laid as in the early precedents, /2/ or more frequently that the bailee was alleged to be a common bargeman, or common carrier, or the like, without much reference to the special nature of the tort in question; and that the true bearing of the allegation was sometimes lost sight of. At first, however, there were only some slight signs of confusion in the language of one or two cases, and if the duty was conceived to fall within the principle of Southcote's Case, pleaders did not always allege the common or public calling which was held unnecessary. /3/ But they also adopted other devices from the precedents in case, or to strengthen an obligation which they did not well understand. Chief Justice Popham had sanctioned a distinction between paid and unpaid bailees, hence it was deemed prudent to lay a reward. Negligence was of course averred; and finally it became frequent to allege an obligation by the law and custom of the realm. This last deserves a little further attention.

There is no writ in the Register alleging any special obligation of common carriers by the custom of the realm. But the writ against innkeepers did lay a duly "by the [188] law and custom of England," and it was easy to adopt the phrase. The allegation did not so much imply the existence of a special principle, as state a proposition of law in the form which was then usual. There are other writs of trespass which allege a common-law duty in the same way, and others again setting forth a statutory obligation. /1/ So "the judges were sworn to execute justice according to law and the custom of England." /2/

The duties of a common carrier, so far as the earlier evidence goes, were simply those of bailees in general, coupled with the liabilities generally attached to the exercise of a public calling. The word "common" addressed itself only to the latter point, as has been shown above. This is further illustrated by the fact that, when the duty was thus set forth, it was not alleged as an obligation peculiar to common carriers as such, but was laid as the custom of law of common hoymen, or lightermen, &c., according to the business of the party concerned. It will be noticed that Chief Justice Holt in Coggs v. Bernard states the liability as applicable to all bailees for reward, exercising a public employment, and mentions common hoymen and masters of ships alongside of, not as embraced under, common carriers. It will also be noticed in the cases before that time, that there is no settled formula for the obligation in question, but that it is set forth in each case that the defendant was answerable for what he was said to have done or omitted in the particular instance. /3/

[189] Returning now to the succession of the cases, Rich v. Kneeland is the next in order (11 Jac. I., A.D. 1613). It was an action on the case (tort), against a common hoyman. In Croke's report nothing is said of custom; but the declaration avers that the defendant was a common bargeman, that the plaintiff delivered him a portmanteau, &c. to carry, and paid him for it, and that the defendant tam negligenter custodivit, that it was taken from him by persons unknown,--like the second count in Morse v. Slue, below. The plea was demurred to, and adjudged for the plaintiff. A writ of error being brought, it was assigned that "this action lies not against a common bargeman without special promise. But all the Justices and Barons held, that it well lies as against a common carrier upon the land." If we follow this report, it seems at the first glance that importance was attributed to the common calling. But as the loss was clearly within the principle of Southcote's Case, which required neither special promise nor common calling for its application, and which remained unquestioned law for three quarters of a century later, the court must have referred to the form of action employed (case), and not to the liability of the defendant in some form of action (detinue). The objection was that "this action lies not," not that the defendant not liable, "without special promise." Even thus narrowed, it rather countenances the notion that allegations which were necessary to charge a man for damage happening through his neglect, in the more ancient and use of this action, were also necessary in this new [190] extension of it to a different class of wrongs. As it was now pretty clear that case would lie for a nonfeasance, the notion was mistaken, and we shall see that it was denied in subsequent decisions. /1/

According to Hobart's report, it was alleged that the defendant was a common hoyman, to carry goods by water, for hire, &c., that by the custom of England such carriers ought to keep the goods, &c., so as they should not be lost by the default of them or their servants, &c. "And it was resolved that, though it was laid as a custom of the realm, yet indeed it is common law." This last resolution may only mean that the custom of the realm and the common law are the same thing, as had been said concerning innkeepers long before. /2/ But the law as to innkeepers, which was called the custom of the realm in the writ, had somewhat the air of a special principle extending beyond the law of bailment, inasmuch as their liability extended to goods within the inn, of which they had not the custody, and the court may have meant to make an antithesis between such a special principle and the common law or general law of bailment governing the present case.

Whatever doubts some of Croke's language might raise, standing alone, the fact remains indisputable, that for nearly a century from Woodlife's Case the liability of carriers for loss of goods, whether the custom of the realm or the defendant's common calling was alleged or not, was placed upon the authority and was intended to be decided on the principle of Southcote's Case.

[191] Symons v. Darknell 1 (4 Car. I., A.D. 1628) is precisely in point. The declaration was, that, by the common law, every lighterman ought so to manage his lighter that the goods carried therein should not perish. "And although no promise laid, it seemed to the court that the plaintiff should recover; and not alleging that defendant was common lighterman was no harm. Hyde, C. J., delivery makes the contract." This did not mean that delivery was a good consideration for a promise; but, as was laid down in Southcote's Case, that delivery, without a special acceptance to keep only as one's own goods, bound the bailee to keep safely, and therefore made it unnecessary to allege either an assumpsit or the defendant's common calling. Whitlock, J. called attention to the fact that the action was tort, not contract. "Et en cest case... Southcote's Case fuit cite."

The same rule is stated as to bailments in general, the same year, by Sergeant Maynard arguendo in Williams v. Hide, /2/ again citing Southcote's Case.

In Kenrig v. Eggleston /3/ (24 Car. I., A.D. 1648), "case against a country carrier for not delivering a box," &c., of which he was robbed, nothing was said about custom, nor being a common carrier, unless the above words imply that he was; but it was laid down, as in Southcote's Case, that "it must come on the carrier's part acceptance" if he would lessen his liability as bailee.

Nichols v. Moore /4/ (13 Car. II., A.D. 1661) was case against a "water carrier," between Hull and London, laying a delivery to him at York. It was moved in arrest of [192] judgment, that the defendant did not undertake to carry the goods from York to Hull. "But notwithstanding this per totam curiam, the defendant shall be charged on his general receipt at York, according to Southcote's Case."

It is fair to mention that in Matthews v. Hopkins /1/ (17 Car. II.)the declaration was on the custom of the realm against a common carrier, and there was a motion in arrest of judgment, because there was a misrecital of the custom of the realm, and the defendant was not alleged to have been a carrier at the time of the receipt, and also because counts in trover, and in case on the custom, were joined. Judgment was arrested, it would seem on the latter ground, but the court continued: "And, although the declaration may be good without recital of the custom of the realm, as Hobart says, still it is the better way to recite it."

We now come to the great case of Morse v. Slue /2/ (23 & 24 Car. II., A.D. 1671, 1672). This was an action against the master of a ship lying in the river Thames, for the loss of goods intrusted to him. The goods in question were taken away by robbers, and it was found that the ship had the usual guard at the time. There seem to have been two counts, one on the law and custom of England (1 Vent. 190), for masters of ships "carefully to govern, preserve, and defend goods shipped, so long as said ship should remain in the river Thames" (2 Keb. 866); "to keep safely [goods shipped to be carried from London beyond sea] without loss or subtraction, ita quodpro defectu of them they may not come to any damage" (1 Vent. 190); "to keep safely goods delivered to them to carry, dangers [193] of the sea excepted" (2 Levinz, 69; the exception last was perhaps drawn by the reporter from the usual bills of lading referred to in argument). The second count, which is usually overlooked, was a special count "on delivery and being stolen by his neglect." /1/

The case was twice argued, and all the reports agree, as far as they go, in their statements of the points insisted on.

Holt, for the plaintiff, maintained: /2/ 1. That the master receives goods generally, citing Southcote's Case, and that in "only guardian in socage who hath the custody by law, who factor who is servant at the master's dispose, and so cannot take care, are exempt." 2. That the master has a reward for his keeping, and is therefore a proper person to be sued. 3. That the master has a remedy over, citing the case of the Marshal of the King's Bench. /3/ That the mischief would be great if the master were not liable, as merchants put their trust in him, and no particular default be shown, as appears by the bill of lading, and, finally, that neglect appeared.

On the other side, it was urged that no neglect was found, and that the master was only a servant; so that, if any one was liable, the owners were. /4/ It was also suggested that, as there would have been no liability if the goods had been taken at sea, when the case would have within the admiralty law, it was absurd that a different rule should govern the beginning of the voyage from would have governed the rest of it. /5/

[194] On the second argument, it was again maintained for the plaintiff that the defendant was liable "at the common law on the general bailment," citing Southcote's Case, and also that, by the Roman and maritime law, he was liable as a public carrier and master of a ship.

The opinion of the court was delivered by Chief Justice Hale. It was held that, the ship being within the body of the county, the admiralty law did not apply; or, according to 1 Mod. 85, note a, "the master could not avail himself of the rules of the civil law, by which masters are not chargeable pro damno fatali"; that the master was liable to an action because he took a reward; that "he might have made a caution for himself, which he omitting and taking in the goods generally, he shall answer for what happens." /1/ The case of Kenrig v. Eggleston /2/ seems also to have been referred to. It was further said that the master was rather an officer than a servant, and in effect received his wages from the merchant who paid freight. Finally, on the question of negligence, that it was not sufficient to have the usual number of men to guard the ship, but that it was neglect not to have enough to guard the goods, unless in case of the common enemies, citing the case of the Marshal, which it will be remembered was merely the principle of Southcote's Case and the common law of bailment in another form. /3/

It will be observed that this case did not go on any special custom, either as to common carriers or shipmasters, but that all the arguments and the opinion of the court assumed that, if the case was to be governed by the common law, and not by the milder provisions of the civil [195] law relied on for the defence, and if the defendant could be regarded as a bailee, and not merely a servant of the owners, then the general law of bailment would apply, and the defendant would be charged, as in Southcote's Case, "by his general acceptance."

It can hardly be supposed, however, that so enlightened a judge as Sir Matthew Hale would not have broken away the Year Books, if a case had arisen before him where property had been received as a pure favor to the plaintiff, without consideration or reward, and was taken from the defendant by robbery. Such a case was tried before Chief Justice Pemberton, and he very sensibly ruled that no action lay, declining to follow the law of Lord Coke's time to such extreme results /1/ (33 Car. II., A.D. 1681).

About the same time, the defendant's common calling began to assume a new importance. The more important alternative allegation, the assumpsit, had the effect in the end of introducing the not intrinsically objectionable doctrine that all duties arising from a bailment are founded on contract. /2/ But this allegation, having now a special action to which it had given rise, was not much used where the action was tort, while the other averment occurs with increasing frequency. The notion was evidently gaining ground that the liability of common carriers for loss of [196] goods, whatever the cause of the loss might be, arose from a special principle peculiar to them, and not applicable to bailees in general. The confusion of independent duties which has been explained, and of which the first trace was seen in Rich v. Kneeland, was soon to become complete. /1/ Holt became Chief Justice. Three of the cases in the last note were rulings of his. In Lane v. Cotton /2/ (13 Will. III., A.D. 1701), he showed his disapproval of Southcote's Case, and his impression that the common law of bailment was borrowed from Rome. The overthrow of Southcote's Case and the old common law may be said to date from Coggs v. Bernard /3/ (2 Anne, A.D. 1703). Lord Holt's famous opinion in the latter case quotes largely from the Roman law as it filtered to him through Bracton; but, whatever influence that may have had upon his general views, the point decided and the distinctions touching common carriers were of English growth.

The action did not sound in contract. The cause was for damage to the goods, and the plaintiff sued for a tort, laying an assumpsit by way of inducement to a charge of negligence, as in the days of Henry VI. The plea was not guilty. But after verdict for the plaintiff, there was a motion in arrest of judgment, "for that it was not alleged in the declaration that the defendant was a common porter, nor averred that he had anything for his pains." Consideration was never alleged or thought of in the primitive assumpsit, but in the modern action of contract in that form [197] it was required. Hence, it was inferred that, wherever an assumpsit was laid, even in all action of tort for damage to property, it was the allegation of a contract, and that a consideration must be shown for the undertaking, although the contrary had been decided in the reign of Queen Elizabeth. /1/ But the motion did not prevail, and judgment was given for the plaintiff. Lord Holt was well aware that the use of an assumpsit was not confined to contract. It is true that he said, "The owner's trusting [the defendant] with the goods is a sufficient consideration to oblige him to a careful management," or to return them; but this means as distinguished from a consideration sufficient to oblige him to carry them, which he thought the defendant would not have been bound to do. He then expressly says, "This is a different case, for assumpsit does not only signify a future agreement, but, in such cases as this, it signifies an actual entry upon the thing and taking the trust upon himself"; following the earlier cases in the Year Books. /2/ This was enough for the decision, and the rule in Southcote's Case had nothing to do with the matter. But as the duty of common carriers by reason of their calling was now supposed to extend to all kinds of losses, and the doctrine of Southcote's Case was probably supposed to extend to many kinds of damage, it became necessary, in a general discussion, to reconcile or elect between the two principles.

The Chief Justice therefore proceeded to distinguish between [198] bailees for reward exercising a public employment, such as common carriers, common hoymen, masters of ships, &c., and other bailees; denied the rule in Southcote's Case as to the latter; said that the principle of strict responsibility was confined to the former class, and was applied to them on grounds of public policy, and that factors were exonerated, not because they were mere servants, as had always been laid down (among others, by himself in arguing Morse v. Slue), but because they were not within the reason of the rule.

The reader who has followed the argument so far, will hardly need to be convinced that this did not mean the adoption of the Praetor's Edict. There is further evidence at hand if required.

In the first place, as we have seen, there was a century of precedents ending with Morse v. Slue, argued by Holt himself, in which the liability of masters of ships, hoymen, carriers, &c. had been adjudicated. Morse v. Slue is cited and relied on, and there is no hint of dissatisfaction with the other cases. On the contrary, they furnished the examples of bailees for reward exercising a public calling. The distinction between bailees for reward and others is Chief Justice Popham's; the latter qualification (exercising a public calling) was also English, as has partly appeared already, and as will be explained further on.

In the next place, the strict rule is not confined to nautae, caupones, and stabularii, nor even to common carriers; but is applied to all bailees for reward, exercising a public calling.

In the next place, the degree of responsibility is precisely that of bailees in general, as worked out by the previous decisions; but quite unlike and much more severe [199] than that imposed by the Roman law, as others have observed. /1/

And, finally, the exemption from liability for acts of God or the public enemy is characteristically English, as will be proved further on.

But it has been partially shown in this Lecture that the law of to-day has made the carrier's burden heavier than it was in the time of the Year Books. Southcote's Case, and the earlier authorities which have been cited, all refer to a loss by robbery, theft, or trespass, and hold the bailee liable, where, in theory at least, he has a remedy over. It was with reference to such cases, as has been seen, that the rule arose, although it is not improbable that it would have been applied to an unexplained loss; the writ against innkeepers reads absque subtractionie seu amissione custodire. In later times, the principle may have been extended from loss by theft to loss by destruction. In Symons v. Darknoll /2/ (4 Car. I.), already cited as decided on the authority of Southcote's Case, the goods were spoiled, not stolen, and probably had not even perished in specie. Before this time, the old rule had become an arbitrary precedent, followed according to its form with little thought of its true intent.

The language of Coggs v. Bernard is, that "the law charges the person thus intrusted to carry goods as against all events but acts of God and the enemies of the king." This was adopted by solemn decision in Lord Mansfield's time, and it is now settled that the common carrier "is liable for all losses which do not fall within the excepted [200] cases." /1/ That is to say, he has become an insurer to that extent, not only against the disappearance or destruction, but against all forms of damage to the goods except as excepted above.

The process by which this came to pass has been traced above, but a few words may be added here. The Year Books, even in dealing with the destruction (as distinguished from the conversion) of chattels in the hands of a bailee, always state his liability as based upon his fault, although it must be admitted that the language is used alio intuitu. /2/ A jettison, in tempest, seems to have been a good plea for a factor in the time of Edward III.; /3/ but that cannot be relied on for an analogy. The argument from the Marshal's case /4/ is stronger. There it appears to have been thought that burning of the prison was as good an excuse for an escape as a release by alien enemies. This must refer to an accidental fire, and would seem to imply that he was not liable in that event, if not in fault. The writs in the Register against bailees to keep or carry goods, all have the general allegation of negligence, and so do the older precedents of declarations, so far as I have observed, whether stating the custom of the realm or not. /5/ But a bailee was answerable for goods wrongfully taken from him, as an innkeeper was for goods stolen from his inn, irrespective of negligence. /6/

It is true that the Marshal's case speaks of his negligent [201] keeping when the prisoners were released by rebels, (although that was far less likely to result from negligence, one would think, than a fire in the prison,) and that after Lord Coke's time negligence was alleged, although the goods had been lost by wrongful taking. So the writ against innkeepers is pro defectu hujusmodi hospitatorum. In these instances, neglect only means a failure de facto to keep safely. As was said at a much later date, "everything is a negligence in a carrier or hoyman that the law does not excuse." /1/ The allegation is simply the usual allegation of actions on the case, and seems to have extended itself from the earlier declarations for damage, when case supplanted detinue and the use of the former action became universal. It can hardly have been immaterial to the case for which it was first introduced. But the short reason for disbelieving that there was any warrant in the old law for making the carrier an insurer against damage is, that there seem to be no early cases in which bailees were held to such a responsibility, and that it was not within the principle on which they were made answerable for a loss by theft.

Having traced the process by which a common carrier has been made an insurer, it only remains to say a word upon the origin of the admitted exceptions from the risk assumed. It has been seen already how loss by the public enemy came to be mentioned by Chief Justice Holt. It is the old distinction taken in the Marshal's case that there the bailee has no remedy over.

With regard to the act of God, it was a general principle, not peculiar to carriers nor to bailees, that a duty was [202] discharged if an act of God made it impossible of performance. Lord Coke mentions the case of jettison from a Gravesend barge, /1/ and another of a party bound to keep and maintain sea-walls from overflowing, as subject to the same limitation, /2/ and a similar statement as to contracts in general will be found in the Year Books. /3/ It is another form of the principle which has been laboriously reargued in our own day, that parties are excused from the performance of a contract which has become impossible before breach from the perishing of the thing, or from change of circumstances the continued existence of which was the foundation of the contract, provided there was no warranty and no fault on the part of the contractor. Whether the act of God has now acquired a special meaning with regard to common carriers may be left for others to consider.

It appears, from the foregoing evidence, that we cannot determine what classes of bailees are subject to the strict responsibility imposed on common carriers by referring to the Praetor's Edict and then consulting the lexicons under Nautoe, Caupones, or Stabularii. The question of precedent is simply to what extent the old common law of bailment still survives. We can only answer it by enumerating the decisions in which the old law is applied; and we shall find it hard to bring them together under a general principle. The rule in Southcote's Case has been done away with for bailees in general: that is clear. But it is equally clear that it has not maintained itself, even within the limits of the public policy invented by Chief Justice [203] Holt. It is not true to-day that all bailees for reward exercising a public calling are insurers. No such doctrine is applied to grain-elevators or deposit-vaults. /1/

How Lord Holt came to distinguish between bailees for reward and others has been shown above. It is more pertinent here to notice that his further qualification, exercising a public calling, was part of a protective system which has passed away. One adversely inclined might say that it was one of many signs that the law was administered in the interest of the upper classes. It has been shown above that if a man was a common farrier he could be charged for negligence without an assumpsit. The same judge who threw out that intimation established in another case that he could be sued if he refused to shoe a horse on reasonable request. /2/ Common carriers and common innkeepers were liable in like case, and Lord Holt stated the principle: "If a man takes upon him a public employment, he is bound to serve the public as far as the employment extends, and for refusal an action lies." /3/ An attempt to apply this doctrine generally at the present day would be thought monstrous. But it formed part of a consistent scheme for holding those who followed useful callings up to the mark. Another part was the liability of persons exercising a public employment for loss or damage, enhanced in cases of bailment by what remained of the rule in Southcote's Case. The scheme has given way to more liberal notions; but the disjecta membra still move.

Lord Mansfield stated his views of public policy in terms [204] not unlike those used by Chief Justice Holt in Coggs v. Bernard, but distinctly confines their application to common carriers. "But there is a further degree of responsibility by the custom of the realm, that is, by the common law; a carrier is in the nature of an insurer.... To prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless," &c. /1/

At the present day it is assumed that the principle is thus confined, and the discussion is transferred to the question who are common carriers. It is thus conceded, by implication, that Lord Holt's rule has been abandoned. But the trouble is, that with it disappear not only the general system which we have seen that Lord Holt entertained, but the special reasons repeated by Lord Mansfield. Those reasons apply to other bailees as well as to common carriers. Besides, hoymen and masters of ships were not originally held because they were common carriers, and they were all three treated as co-ordinate species, even in Coggs v. Bernard, where they were mentioned only as so many instances of bailees exercising a public calling. We do not get a new and single principle by simply giving a single name to all the cases to be accounted for. If there is a sound rule of public policy which ought to impose a special responsibility upon common carriers, as those words are now understood, and upon no others, it has never yet been stated. If, on the other hand, there are considerations which apply to a particular class among those so designated,--for instance, to railroads, who may have a private individual at their mercy, or exercise a power too vast for the common welfare,--we do not prove that the [205] reasoning extends to a general ship or a public cab by calling all three common carriers.

If there is no common rule of policy, and common carriers remain a merely empirical exception from general doctrine, courts may well hesitate to extend the significance of those words. Furthermore, notions of public policy which would not leave parties free to make their own bargains are somewhat discredited in most departments of the law. /1/ Hence it may perhaps be concluded that, if any new case should arise, the degree of responsibility, and the validity and interpretation of any contract of bailment that there may be, should stand open to argument on general principles, and that the matter has been set at large so far as early precedent is concerned.

I have treated of the law of carriers at greater length than is proportionate, because it seems to me an interesting example of the way in which the common law has grown up, and, especially, because it is an excellent illustration of the principles laid down at the end of the first Lecture. I now proceed to the discussion for the sake of which an account of the law of bailment was introduced, and to which an understanding of that part of the law is a necessary preliminary.

[206]

LECTURE VI. -- 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. The theory has fallen into the hands of the philosophers, and with them has become a corner-stone 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 doctrines are worked out in careful correspondence with German views of Roman law. And most of the speculative jurists of Germany, from Savigny to Ihering, have been at once professors of Roman law, and profoundly influenced if not controlled by some form of Kantian or post-Kantian philosophy. Thus everything has combined 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 the general problem which has much exercised the German mind. Kant, it is well known, was deeply influenced in his opinions upon ethics and law by the speculations of Rousseau. Kant, 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 [207] question why possession should be protected from that day to this. Kant and Hegel start from freedom. The freedom of the will, Kant said, is 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 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 Kant's postulate, the will of any individual thus manifested is entitled to absolute respect from every other individual, and can only be overcome or set aside by the universal will, that is, by the state, acting through its organs, the courts.

Savigny did not follow Kant 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. /1/ But to this 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. Bruns, an admirable writer, expresses a characteristic yearning of the German mind, when he demands an internal juristic necessity drawn from the nature of possession itself, and therefore rejects empirical reasons. /2/ He finds the necessity he seeks in the freedom of the human will, which the whole legal system does but recognize [208] and carry out. Constraint of it is a wrong, which must be righted without regard to conformity of the will to law, and so on in a Kantian vein. /1/ 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 common will." /2/ So Puchta, a great master, "The will which wills itself, that is, the recognition of its own personality, is to be protected." /3/

The chief variation from this view is that of Windscheid, 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 every one is the equal of every other in the state, and that no one shall raise himself over the other. /4/ Ihering, 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. e. the possessor) is freed from the necessity of proving title against one who is in an unlawful position. But to this it was well answered by Bruns, in his later work, that it assumes the title of disseisors to be generally worse than that of disseisees, which cannot be taken for granted, and which probably is not true in fact. /5/

It follows from the Kantian doctrine, that a man in possession is to be confirmed and maintained in it until he is put out by an action brought for the purpose. Perhaps [209] another fact besides those which have been mentioned has influenced this reasoning, and that is the accurate division between possessory and petitory actions or defences in Continental procedure. /1/ When a defendant in a possessory action is 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 man's personality requires that the object should have been brought within the sphere of that personality, that the free will should have unrestrainedly 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 principle with precedent. We are told that, of 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 pledgee and the sequester (a receiver appointed by the court) these exceptions are unimportant and disputed. /2/ Some of the Roman jurists state in terms that depositaries and borrowers have not possession of the things intrusted to them. /3/ Whether the German interpretation of the sources goes too far or not, it must be taken account of in the examination of German theories.

[210] Philosophy by denying possession to bailees 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 bailees 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 as held by Kant and his successors.

In the first place, the English law has always had the good sense /1/ to allow title to be set up in defence to a possessory action. In the assize of novel disseisin, which which was a true possessory action, the defendant could always rely on his title. /2/ Even when possession is taken or kept 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 retain 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 trace of the distinction in the general rule, that the title cannot be tried in trespass quare clausum. But this is an exception commonly put on the ground that the judgment cannot change the property, as trespass for chattels or trover can. /3/ The rule that you cannot go into title in a possessory action presupposes great difficulty in the proof, the probatio diabolica of the Canon law, delays in the process, and importance of possession [211] ad interim,--all of which mark a stage of society which has long been passed. In ninety-nine cases out of a hundred, it is about as easy and cheap to prove at least a prima facie title as it is to prove possession.

In the next place, and this was the importance of the last Lecture to this subject, the common law has always given the possessory remedies to all bailees without exception. The right to these remedies extends not only to pledgees, lessees, and those having a lien, who exclude their bailor, but to simple bailees, as they have been called, who have no interest in the chattels, no right of detention as against the owner, and neither give nor receive a reward. /1/

Modern German statutes have followed in the same path so far as to give the possessory remedies to tenants and some others. Bruns says, as the spirit of the Kantian theory required him to say, that this is a sacrifice of principle to convenience. /2/ But I cannot see what is left of a principle which avows itself inconsistent with convenience and the actual course of legislation. The first call of a theory 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 convenient without troubling themselves very much what principles are encountered 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 Declaration of Independence, which shall be consistent with the larger scope given to the conception in modern law.

[212] The courts have said but little on the subject. It was laid down in one case that it was an extension of the protection which the law throws around the person, and on that ground held that trespass quare clausum did not pass to an assignee in bankruptcy. /1/ So it has been said, that to deny a bankrupt trover 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 "grounds of policy and convenience." /2/ I may also refer to the cases of capture, some of which will be cited again. In the Greenland whale-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 whole if he kept fast to the whale until it was struck by the other, although it then broke from the first harpoon. By the custom in the Gallipagos, on the other hand, the first striker had half the whale, although control of the line was lost. /3/ Each of these customs has been sustained and acted on by the English courts, and Judge Lowell has decided in accordance with still a third, which gives the whale to the vessel whose iron first remains in it, provided claim be made before cutting in. /4/ 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. /5/ If courts adopt different rules on similar facts, according to the point at which men will fight in the [213] several cases, it tends, so far as it goes, to shake an a priori 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 the fact that a certain ideal or theory of government is generally entertained. Law, being a practical thing, must found itself on actual forces. It is quite enough, therefore, for the law, that man, by an 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. /1/ Philosophy may 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 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 been debated with much zeal 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 something else which philosophers 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 borne steadily in mind, the question would hardly have been asked.

[214] A legal right is nothing but a permission to exercise certain natural powers, and upon certain conditions to obtain protection, restitution, or compensation 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 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, he is said to be entitled to the corresponding rights; meaning, thereby, that the law helps him to constrain his neighbors, 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 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 a man that he has possession, we affirm directly that all the facts of a certain group are true of him, 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, [215] while possession denotes the facts and connotes the consequence, property always, and 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 legal compounds, possession, property, and contract, is to be analyzed into fact and right, antecedent 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. 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 as truly a right in a legal sense as those consequences which are attached to adverse holding for the period of prescription, or to a promise for value or under seal. If the statement is aided by dramatic reinforcement, I may add that possessory rights pass by descent or devise, as well as by conveyance, /1/ and that they are taxed as property in some of the States. /2/

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 [216] all be present in the same way that both consideration and promise must be 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 schools that less than all the facts required to call those rights into being need continue presently true in order to keep them alive.

To 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 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.