There has been much discussion as to the reasons on which this provisional protection of possession is based. It would seem probable that the considerations of greatest weight are the three following.
1. The evils of violent self-help are deemed so serious that it must be discouraged by taking away all advantages which any one derives from it. He who helps himself by force even to that which is his own must restore it even to a thief. The law gives him a remedy, and with it he must be content. This reason, however, can be allowed as valid only in a condition of society in which the evils and dangers of forcible self-redress are much more formidable than they are at the present day. It has been found abundantly sufficient to punish violence in the ordinary way as a criminal offence, without compelling a rightful owner to deliver up to a trespasser property to which he has no manner of right, and which can be forthwith recovered from him by due course of law. In the case of chattels, indeed, our law has not found it needful to protect possession even to this extent. It seems that an owner who retakes a chattel by force acts within his legal rights. Forcible entry upon land, however, is a criminal offence.
2. A second reason for the institution of possessory remedies is to be found in the serious imperfections of the early proprietary remedies. The procedure by which an owner recovered his property was cumbrous, dilatory, and inefficient. The path of the claimant was strewn with pitfalls, and he was lucky if he reached his destination without disaster. The part of plaintiff in such an action was one of grave disadvantage, and possession was nine points of the law. No man, therefore, could be suffered to procure for himself by violence the advantageous position of defendant, and to force his adversary by such means to assume the dangerous and difficult post of plaintiff. The original position of affairs must first be restored; possession must first be given to him who had it first; then, and not till then, would the law consent to discuss the titles of the disputants to the property in question. Yet however cogent such considerations may have been in earlier law, they are now of little weight. With a rational system of procedure the task of the plaintiff is as easy as that of the defendant. The law shows no favour to one rather than to the other.
3. A third reason for possessory remedies, closely connected with the second, is the difficulty of the proof of ownership. It is easy to prove that one has been in possession of a thing, but difficult (in the absence of any system of registration of title) to prove that one is the owner of it. Therefore it was considered unjust that a man should be allowed by violence to transfer the heavy burden of proof from his own shoulders to those of his opponent. Every man should bear his own burden. He who takes a thing by force must restore it to him from whom he has taken it; let him then prove, if he can, that he is the owner of it; and the law will then give to him what it will not suffer him to take for himself. But English law has long since discovered that it is possible to attain this end in a much more satisfactory and reasonable way. It adjusts the burden of proof of ownership with perfect equity, without recourse to any such anomaly as the protection of the possessor against the owner. This it does by the operation of the three following rules:
1. Prior possession is prima facie proof of title. Even in the ordinary proprietary action a claimant need do nothing more than prove that he had an older possession than that of the defendant; for the law will presume from this prior possession a better title. Qui prior est tempore potior est jure.
2. A defendant is always at liberty to rebut this presumption by proving that the better title is in himself.
3. A defendant is not allowed to set up the defence of jus tertii, as it is called; that is to say, he will not be heard to allege, as against the plaintiff’s claim, that neither the plaintiff nor he himself, but some third person, is the true owner. Let every man come and defend his own title. As between A. and B. the right of C. is irrelevant.
By the joint operation of these three rules the same purpose is effected as was sought in more cumbrous fashion by the early duplication of proprietary and possessory remedies.[[255]]
SUMMARY OF CHAPTERS XIII. AND XIV.
| Possession | In fact—possessio naturalis. | ||
| In law—possessio civilis. | |||
| Possession in law | Seisin | ||
| Possession. | |||
| Possession | Corporeal—possessio corporis—Sachenbesitz. | ||
| Incorporeal—possessio juris—Rechtsbesitz. | |||
| Corporeal possession—the continuing exercise of a claim to the exclusive use of a material thing. | |||
| Elements of corporeal possession | Animus sibi habendi. | ||
| Corpus. | |||
| Animus sibi habendi: | |||
| 1. Not necessarily a claim of right. | |||
| 2. Must be exclusive. | |||
| 3. Not necessarily a claim to use as owner. | |||
| 4. Not necessarily a claim on one’s own behalf. | |||
| 5. Not necessarily specific. | |||
| Corpus—the effective realisation of the animus in a security for enjoyment. | |||
| Elements of the corpus: | |||
| 1. A relation of the possessor to other persons, amounting to a security for their non-interference. | |||
| The grounds of such security: | |||
| 1. Physical power. | |||
| 2. Personal presence. | |||
| 3. Secrecy. | |||
| 4. Custom. | |||
| 5. Respect for rightful claims. | |||
| 6. Manifestation of the animus. | |||
| 7. Protection afforded by other possessions. | |||
| The rights of a finder. | |||
| 2. A relation of the possessor to the thing possessed, amounting to a security for the use of the thing at will. | |||
| Possession | Immediate—without the intervention of another person. | ||
| Mediate—through or by means of another person. | |||
| Mediate possession | 1. Through servants or agents. | ||
| 2. Through bailees or tenants at will. | |||
| 3. Through persons claiming temporary possession for themselves. | |||
| The relation between the mediate and the immediate possessor. | |||
| The exclusiveness of possession. | |||
| Exceptional instances of duplicate possession: | |||
| 1. Mediate and immediate possession. | |||
| 2. Possession in common. | |||
| 3. Corporeal and incorporeal possession. | |||
| The acquisition of possession: | |||
| 1. Taking | |||
| 2. Delivery | Actual | ||
| Constructive | Traditio brevi manu. | ||
| Constitutum possessorium. | |||
| Attornment. | |||
| Possession not essentially the physical power of exclusion. | |||
| Incorporeal possession: | |||
| Its nature—the continuing exercise of any claim, save one to the exclusive use of a corporeal thing. | |||
| Its relation to corporeal possession. | |||
| The generic conception of possession. | |||
| The relation between possession and ownership. | |||
| Possession the de facto exercise of a claim. | |||
| Ownership the de jure recognition of one. | |||
| The identity of the objects of ownership and possession. | |||
| Exceptions: | |||
| 1. Things which can be possessed, but cannot be owned. | |||
| 2. Things which can be owned, but cannot be possessed. | |||
| Possessory remedies. | |||
| 1. Their nature. | |||
| 2. Their objects. | |||
| 3. Their exclusion from English law. | |||