balanced, the law might recognize a kind of split possession. But if it does not recognize it until a right is acquired, then the protection of a disseisor in the use of an easement must still be explained as it was in the article referred to.

VI. There is no part of the theory of possession on which the Germans have been more fertile than the grounds for its protection. Bruns 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. 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 which must be righted without regard to conformity of the will to law, and so on in a Kantian vein.2 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; 3 and Puchta, a great master, The will which wills itself, that is, the recognition of its own personality, is to be protected. Windscheid thinks the protection of possession stands on the same principle as protection against injuria, that every one is the equal of every other in the State, and no one shall raise himself over the other. Savigny said that every act of violence is unlawful, and seemed to put the ground in the protection to the person; but he is discredited, and those who have been content with humble grounds of expediency seem to have been few in number, and have recanted or are out of favor. Finally, Ihering, a man of genius, says 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 as against one who is in an unlawful position. Which may be answered without going farther, as it is in Bruns's later work, that it assumes disseisors to generally have a worse

1 R. d. Besitzes, 487.

2 R. d. Besitzes, 490, 491.

8 Bruns, R. d. Besitzes, 415; Windscheid Pand. § 148, n. 6. Further Hegelian discourse upon the subject may be found in Dr. J. Hutchison Sterling's lectures on the Philosophy of the Law.

4 Institutionen, §§ 224, 226; Windscheid, Pand. § 148, n. 6.

5 Windscheid Pand. § 148, n. 6.

6 Possession, § 6, Eng. tr. pp. 27, 28.

7 Krit. Vierteljahrsschrift, xii. 63-85. The original work has not been accessible to the writer.

title than disseisees, which cannot be taken for granted, and is probably not true in fact.1

Perhaps another fact, besides those mentioned as leading the Germans to require the animus domini, has influenced their reasoning on the present question. We refer to the accurate division between possessory and petitory actions or defences.2 It is very natural to seek an absolute reason for an absolute distinction. If a defendant in a possessory action cannot set up title in himself, a theorist readily finds a mystical importance in possession. Fortunately we are less scientific; or, to speak justly, more rational. In the assize of novel disseisin, which was a true possessory action, the defendant could always rely on his title, although Heusler thinks this merely a result of the English formalism and narrowness in their interpretation of the writ (disseisivit de tenemento suo).3 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. 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 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.

The

The courts have said but little as to the reasons for protecting possession. 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 qu. cl. did not pass to an assignee in bankruptcy. So it has been said that to deny a

1 Besitzklagen, 276, 279.

2 Bruns, 499.

8 Gewere, 429-432. It will be remembered that there was no such narrowness in

dealing with catalla sua in trespass. See above, p. 691.

4 Rogers v. Spence, 13 M. & W. 579, 581.

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." We may

also refer again to the cases of capture, some of which have been cited. 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.2 Each of these customs has been sustained and acted on; and we have seen that Judge Lowell has decided in accordance with still a third. The ground as put by Lord Mansfield is simply that, were it not for such a custom, 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 will fight in the several cases, it tends, so far as it goes, to shake an a priori theory of the matter. The same may be said as to the statute of New York concerning persons in fresh pursuit of deer.

American and English readers, for whatever reason, will not have to be much argued with to convince them that the grounds are empirical. Indeed, 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. Philosophy may find a hundred reasons to justify the instinct, but it is totally immaterial if it should condemn it and bid us surrender without a murmur. As long as the instinct remains, it will be

1 Webb v. Fox, 7 T. R. 391, 397.

2 Fennings v. Lord Grenville, 1 Taunt. 240; Littledale v. Scaith, ib. 243, n. (a); cf. Hogarth v. Jackson, M. & M. 58; Skinner v. Chapman, ib. 59, n.

8 1 Taunt. 248.

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.

This, it may be said, would give trespass and trover to servants, -to which it may be replied that the denial has already been shown to be an anomaly.

It has only been possible in this article to analyze possession properly so called. Many questions remain. Thus, although no bailor whatsoever has possession of the goods in his bailee's hands, every bailor has rights closely analogous to those of a possessor, and as independent of title as the latter. This suggests an inquiry whether it is not possible to draw from possession, and the analogous facts to which similar rights are attached, a higher abstraction in which the differences vanish. But it is enough for the present if, with some incidental matters, it has been shown from the History (I.) and Analysis (III.) of our law, and from Theory (VI.), that, except in the instance of servants as explained, one who manifests physical control over a thing with the intent and power (judged by the manifested facts) to exclude others than the owner from it, acquires possession, whether he has or has not the intent to deal with it as owner.

O. W. HOLMES, Jr.

DIGEST OF THE ENGLISH LAW REPORTS FOR FEBRUARY, MARCH, AND APRIL, 1878.

In an action for obstruction of ancient lights, it appeared that plaintiff was entitled to access of light by prescription, and that defendant had diminished the light by erecting a high building opposite, but that there was still light enough for the business carried on in plaintiff's premises. COCKBURN, C. J., instructed the jury that they should bring in substantial damages, if they found that the light had been sensibly diminished, so as to affect the value of the premises, either for the purposes for which they had been previously used, or for any purpose for which they were likely to be used in the future. Defendants contended that the damages should be nominal, unless it appeared that the premises were injured for the purposes for which they had always been and were still used. Held, that the instruction of the judge was correct. Martin v. Goble (1 Camp. 320) questioned. — Moore v. Hall, 3 Q. B. D. 178.

ANIMUS MANENDI. - See DOMICILE.

ANNUITY.

A testator gave an annuity to his son, with cesser and a gift over "if he shall do or permit any act, deed, matter, or thing whatsoever, whereby the same shall be aliened, charged, or incumbered." The annuitant committed an act of bankruptcy by failing to answer to a debtor's summons. Held, that the annuity thereupon ceased. Ex parte Eyston. In re Throckmorton, 7 Ch. D.

145.

ANTICIPATION.

A married woman, entitled under a will to £400 a year for her separate use, without power of anticipation, joined with her husband in mortgaging her interest under the will, by perpetrating a gross fraud upon the mortgagee as to the restraint upon anticipation. The mortgagee got judgment against them, and an order to charge the wife's income as it came due. Held, that the restraint on anticipation could in no case be evaded or set aside, even in case of such gross fraud. — Stanley v. Stanley, 7 Ch. D. 589.

VOL. XII.

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