inciples； 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