Page:EB1911 - Volume 22.djvu/187

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173
POSSE COMITATUS—POSSESSION

In France the Comtian tradition was maintained with important reservations and the abandonment of the religious aspect by Littré (gm), Taine and others. In Germany many of the followers of Kant have in greater or less degree maintained the View that all true knowledge depends upon the observation of objective phenomena. The distinctly religious aspect has been comparatively unimportant, except in so far as modern social evolutionist ethics may be regarded as religious in character. In England, however, a number of prominent Positivists have carried out Comte's original ideal of a Church of Humanity with ritual and organization. The chief building (in Chapel Street, La1nb's Conduit Street, London) is adorned with busts of the saints of humanity, and regular services are held. Positivist hymns are sung and addresses delivered. Among the leaders of this movement have been Frederic Harrison, Richard Congreve, E. S. Beesly and ]. H. Bridges (d. 1906). Services are also held weekly in Essex Hall, London, and there are a few other centres in the provinces, including a prosperous church in Liverpool.


POSSE COMITATUS (Lat. “ power of a county ”), a summons to every male in the county, between the ages of fifteen and twenty, to be ready and apparelled, at the command of the sheriff and the cry of the county, to maintain peace and pursue felons. Ecclesiastical persons, peers and such as laboured under any infirmity were not compellable to attend. Owing to the establishment of county police, the sheriff does not now pursue felons, but by the Sheriffs Act (1887, sec. 8, sub-sec. 2) the calling out of the posse comitatus is expressly authorized if the sheriff finds any resistance in the execution of a writ. In view of the sheriff's duty to raise, if necessary, the posse comitatus it is no answer by him, for non-execution of a writ, to say that he was resisted.

See P. E. Mather, Sheriff Law.


POSSESSION (Lat. possession, passidere, to possess), in law, a term derived from Roman law. The Roman conception of possession has been generally adopted, but not the Roman deductions from the conception. The subject of possession has become more difficult owing to the various senses in which the term has been interpreted. Thus it has been said to be either a right or a fact conferring a right, or both together. The latter is the view of Savigny, the leading authority upon the subject (Recht des Besitzes, translated by Sir Erskine Perry, 1848). Further, there is a want of agreement among legal writers as to the amount of right or rights that it confers. All that can be said with safety is that possession stands in a position intermediate between simple detention and absolute ownership, and that it implies two elements, physical detention and mental intention to hold the thing possessed as one's own. These difficulties being borne in mind, the definition of W. A. Hunter may be accepted: “ Possession is the occupation of anything with the intention of exercising the rights of ownership in respect of it ” (Roman Law, p. 20Q).Y Possession is inchoate or incomplete ownership; it is on its way to become ownership. In the case of the public domain of Rome (ager pnblicns) the possession was really the important matter, the domininm being practically of no value. Possession in Roman law was either natural or civil. The former was mere occupation, the latter such occupation as ripened by prescription into ownership. Possession exclusive against the world (including the true owner) was called “ adverse possession.” A servitude, such as a right of way, could not be held in true possession, but was said to be in “ quasi-possession.” The quasi-possessor, however, had possessor remedies. In Roman law a broad distinction was drawn between possession and ownership (domininm).1 They were protected by different remedies-possession by interdict, ownership by action. This difference can only be explained by history. Here again, unfortunately, authorities differ. According to Savigny, a Roman citizen who had become a tenant of part of the ager publicus could not by any length of holding obtain more than a quasi-ownership, but one of which it would have been morally unjust to have deprived him. “The only legal remedies of which the tenants could avail themselves, if ejected or threatened with disturbance, were the possessor interdicts, summary processes of Roman law which were either expressly devised by 1 The distinction is very important, as it affects the contract of sale. The contract was I'lOt to transfer ownership, as in English law, but only vacua passessio.

the praetor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right ” (Maine, Ancient Law, ch. viii.). Savigny regards the protection of possession as an extension of the protection of the person. The same view was taken by the English court of exchequer in Rogers v. Spence, 13 M. & W. R. p. 581. According to Hunter (Roman Law, pp. 206, 221), Savigny overlooked the needs of aliens. It was the needs of aliens, incapable of the full proprietary rights of Roman citizens, that led to the invention by the praetor of a means of giving them equitable rights in the land, and protecting them in the enjoyment of these rights. Savigny attributes only two rights to possession in Roman law-acquisition of ownership by possession for a given time (nsncapio, longi temporis possession) and protection of possession from disturbance (interdiclum). Others have included further rights-inter alia, the right to use force in defence of possession, and the right to have the burden of proof, in a contest as to the title, thrown upon the adversary: “In pari causa possessor potior haberi debet.” The position of the possessor in Roman law was very strong. If a bona fide possessor, he could bring an action for fnrtum even against the owner, if a mala jide possessor of land, he was so far protected that he could not be ejected by force." A mala jide possessor of movables could, however, acquire no rights.”

It has been already stated that there is both a physical and a mental element in the conception of possession. This does not necessarily mean that corporal contact is in all cases requisite, or that the intention to hold the thing possessed as one's own may not be abandoned for a time. The control may be potential as well as actual. An estate may be possessed without the possessor going upon the land at all, and the possession of goods may be given by delivering the key of the warehouse in which they are stored. In international law the possession of part as giving a title to the whole has been of great importance (see INTERNATIONAL LAW). Where goods are pledged or bailed for a specific purpose the intention of the pledgor or bailor to hold them as his own is suspended during the existence of the limited right of the pledgee or bailee, to whom a fragment of the possession has passed. In Roman law the pledgor had possession ad nsncapionem, the pledgee possession ad inlefdicta. The possession of the pledgee or bailee has been called “ derivative possession.” Possession may be exercised through another (“ animo nostro, corpore alieno ”), as through a servant, who has not true possession? Possession so exercised has been called “ representative possession.” As soon as the representative determines to assume control on his own behalf or to submit to the control of another, the possession of the principal is gone. Possession may be transferred or lostf It is lost when either the corpus or the aniinns (to use the terms of Roman law) ceases to exist. It may be lost by the representatives in cases where the principal might have lost it. In both Roman and English law the possessor tended to supersede the proprietary remedies from their greater convenience-that is to say, the plaintiff based his claim or the defendant his right upon possession rather than property. The English possessor action may have been directly suggested by the interdict. Bracton (rogb) identifies the assise of novel disseisin, the most common form of possessor action, with the interdict nnde vi. In England ejectment had practically superseded other real actions before the latter were (with the exception of dower, writ of dower and, qnare impedit) expressly abolished by the Real Property Limitation Act 1833, s. 36. The action for the recovery of land, introduced by the Tudicature Acts, is the modern representative of the action of ejectment. 2 This does not agree with English law, where in certain cases a ahief ian giye a good title to stolen goods, though he has no title imse

3 Much of the law of master and servant is based upon the Roman law of master and slave. The servant, like the slave, has not possession of his master's goods even though they are in his custody, unless, indeed, the circumstances are such that he ceases to be a servant and becomes a bailee.