We have seen in a former chapter that ownership is of two kinds, being either corporeal or incorporeal. A similar distinction is to be drawn in the case of possession. Corporeal possession is the possession of a material object—a house, a farm, a piece of money. Incorporeal possession is the possession of anything other than a material object—for example, a way over another man’s land, the access of light to the windows of a house, a title of rank, an office of profit, and such like. All these things may be possessed as well as owned. The possessor may or may not be the owner of them, and the owner of them may or may not be in possession of them. They may have no owner at all, having no existence de jure, and yet they may be possessed and enjoyed de facto.
Corporeal possession is termed in Roman law possessio corporis. Incorporeal possession is distinguished as possessio juris, the possession of a right, just as incorporeal ownership is the ownership of a right. The Germans distinguish in like fashion between Sachenbesitz, the possession of a material thing, and Rechtsbesitz, the possession of a right. The significance of this nomenclature and the nature of the distinction indicated by it will be considered by us later.
It is a question much debated whether incorporeal possession is in reality true possession at all. Some are of opinion that all genuine possession is corporeal, and that the other is related to it by way of analogy merely. They maintain that there is no single generic conception which includes possessio corporis and possessio juris as its two specific forms. The Roman lawyers speak with hesitation and even inconsistency on the point. They sometimes include both forms under the title of possessio, while at other times they are careful to qualify incorporeal possession as quasi possessio—something which is not true possession, but is analogous to it. The question is one of no little difficulty, but the opinion here accepted is that the two forms do in truth belong to a single genus. The true idea of possession is wider than that of corporeal possession, just as the true idea of ownership is wider than that of corporeal ownership. The possession of a right of way is generically identical with the possession of the land itself, though specifically different from it.
This being so, the strictly logical order of exposition involves the analysis, in the first place, of the generic conception, in its full compass, followed by an explanation of the differentia, which distinguishes possessio corporis from possessio juris. We shall, however, adopt a different course, confining our attention in the first place to possessio corporis, and proceeding thereafter to the analysis of possessio juris and to the exposition of the generic idea which comprises both of them. This course is advisable for two reasons. In the first place, the matter is of such difficulty that it is easier to proceed from the specific idea to the generic, than conversely. And in the second place, the conception of corporeal possession is so much more important than that of incorporeal, that it is permissible to treat the latter simply as a supplement to the former, rather than as co-ordinate with it.
§ 96. Corporeal Possession.
Corporeal possession is clearly some form of continuing relation between a person and a material object. It is equally clear that it is a relation of fact and not one of right. It may be, and commonly is, a title of right; but it is not a right itself. A man may possess a thing in defiance of the law, no less than in accordance with it. Nor is this in any way inconsistent with the proposition, already considered by us, that possession may be such either in law or in fact. A thief has possession in law, although he has acquired it contrary to law. The law condemns his possession as wrongful, but at the same time recognises that it exists, and attributes to it most, if not all, of the ordinary consequences of possession.[[217]]
What, then, is the exact nature of that continuing de facto relation between a person and a thing, which is known as possession? The answer is apparently this: The possession of a material object is the continuing exercise of a claim to the exclusive use of it. It involves, therefore, two distinct elements, one of which is mental or subjective, the other physical or objective. The one consists in the intention of the possessor with respect to the thing possessed, while the other consists in the external facts in which this intention has realised, embodied, or fulfilled itself. These two constituent elements of possession were distinguished by the Roman lawyers as animus and corpus, and the expressions are conveniently retained by modern writers. The subjective element is called more particularly the animus possidendi, animus sibi habendi, or animus domini.
Apiscimur possessionem, so runs a celebrated sentence of the Roman lawyer Paul,[[218]] corpore et animo, neque per se animo aut per se corpore. Neither of these is sufficient by itself. Possession begins only with their union, and lasts only until one or other of them disappears. No claim or animus, however strenuous or however rightful, will enable a man to acquire or retain possession, unless it is effectually realised or exercised in fact. No mere intent to appropriate a thing will amount to the possession of it. Conversely, the corpus without the animus is equally ineffective. No mere physical relation of person to thing has any significance in this respect, unless it is the outward form in which the needful animus or intent has fulfilled and realised itself. A man does not possess a field because he is walking about in it, unless he has the intent to exclude other persons from the use of it. I may be alone in a room with money that does not belong to me lying ready to my hand on the table. I have absolute physical power over this money; I can take it away with me if I please; but I have no possession of it, for I have no such purpose with respect to it.
§ 97. The Animus Possidendi.
We shall consider separately these two elements in the conception. And first of the animus possidendi. The intent necessary to constitute possession is the intent to appropriate to oneself the exclusive use of the thing possessed. It is an exclusive claim to a material object. It is a purpose of using the thing oneself and of excluding the interference of other persons. As to this necessary mental attitude of the possessor there are the following observations to be made.