rights as now defined. They cannot properly claim that property rights should no longer be maintained. We turn now to the question whether, from the standpoint of justice, our law bases its recognition of property rights upon a proper selection of facts. This inquiry embraces two points: first, as to the conditions that are accepted by the law as creating the right of property; and, secondly, as to the purpose sought by the law in extending its protection over the right, when recognized. We find it frequently stated that the law in its creation of property rights recognizes the validity of the occupation theory. This theory we have already shown to be invalid. It therefore becomes important to determine whether our law, or indeed any modern law, stands committed to it. In a general way the law does recognize a property right in him who first takes possession of a res nullius. The rights which, in the eyes of the law, belong to the first possessor are, however, no other in nature than those which attach to the actual holder of a piece of property belonging to another. Not only in the Roman, but in the Common Law, he who has actual possession of an article of value has a legal right to hold and enjoy it as against all the world, except him who is able, by a judicial proceeding, to establish a better title to it. And this is so even though no claim of actual ownership be set up by the possessor. As against the true owner, he has, of course, no right; but even in such case the owner can enter into possession only after a judicial deter mination of his right. The difference between the rights of ownership and those of possession, then, consist only in this, that the owner's right to possession is good as against every one; the possessor's right is good as against every one but the owner. Thus it is that if an owner be able to establish his right to the possession of a given piece of property, he is as fully secured against the interference of others as he would be were he to establish his right to absolute proprietorship. "One who is out of possession," says Pollock, "and has a rightful claim to possess, has need of the law's assistance. When he has recovered possession, he has not any need to ask the law to do any more for him. . . . Hence it is commonly sufficient for an owner to rely on his rights to possession; and, as it is commonly easier to prove the less right than the greater, it is often preferable to claim possession only. Nay more, it is possible for ownership to be sufficiently guarded for all practical purposes by a system of remedies which omits, or has come to omit, any such solemn and express form of asserting ownership as that to which the Romans emphatically gave the name Vindication. In the Common Law this has actually happened. For some centuries all practical remedies for the recovery of both land and goods have been possessory, and property has meant for judicial purposes, the right, or the best right to possess." Returning now to the assertion that the right recognized in the first occupant or possessor of a res 1 First Book of Jurisprudence, p. 170. nullius is no other in essence than that recognized in the actual holder of a piece of property owned by some one else, we see that, while it is only a right to possession that is recognized, it, in fact, becomes the equivalent of ownership, in that, ex hypothesi, there is no owner in existence to set up a better title. But why is possession protected by the law, when the possessor is not also the owner? Kant and Hegel would say, because freedom of the will is to be protected at all hazards, and that by taking possession of a thing a man has brought it within the sphere of his will. This will, when so manifested, they hold, may legitimately be interfered with by no other particular will, but only by the universal will as voiced and executed by the organs of the State.1 "This right following from the fact of possession," says Kant, "does not consist in the fact that because the possessor has the presumption of being a rightful man, it is unnecessary for him to bring forward proof that he possesses a thing rightfully. . . . It is because it accords with the postulate of the practical reason that every one is invested with the faculty of having as his own any external object upon which he has exerted his will, and, consequently, all actual possession is a state whose rightfulness is established upon that postulate by an anterior act of will.” 2 Others have said that possession should be protected because there is a presumption that the pos 1 Cf. Holmes, The Common Law, Lecture VI. sessor is also the owner.1 But this is in accordance neither with legal theory nor with legal history. The real and sole reason is, as its historical connection with the frith shows, that the public peace may be preserved. Should forcible ouster of an occupant or possessor be permitted either to a stranger or to the owner, no imagination is required to picture the disorder in which the community would be continually involved. The law must, if it would secure peace at all, guarantee to the occupiers of land, and the possessors of personal property, protection against all interference, except such as is founded upon a judicial process in which it has been determined that another has a higher right to the possession of the goods in question. In all this the sole idea is, as said, the preservation of the peace. The law accepts the distribution of wealth as it is brought about by chance, by competition, or by other economic or social forces, and seeks to render secure to each one the possession and enjoyment of the portions, if any, of the economic goods which he has obtained. Thus by preventing disorder and by punishing spoliations, the law seeks both to open to all the opportunity for gaining property, and to furnish that stimulus to industry which is derived from a knowledge that a quiet possession and undisturbed enjoyment in the fruits of one's labor are guaranteed. When it is once decided that certain rights of 1E.g. Ihering, Ueber den Grund des Besitzesschutzes. ownership shall exist, either because they are just or because they are economically desirable, the law steps in and declares that the State, by its power, will guarantee such rights against violation. In so doing the law adds no new element either to the justification for private property or to the proof of its economic expediency. It is implicitly recognized that these two facts have already been established when the law comes upon the scene. Least of all does the law attempt the task of providing that each shall gain that proportion of wealth to which, upon abstract principles of justice, he is entitled. 66 This characteristic of the law has been especially commented upon by Menger. "If we look at the economic life by which men are surrounded," he says, we find its main purport to be that men labor for the satisfaction of their wants, that all labor aims at a return, every want at a satisfaction. Labor and the produce of labor, wants and satisfactions, are the facts in the two sequences in which the economic life of mankind fulfils itself. The ideal law of property from the economic point of view would therefore be attained in a system which secured to every laborer the whole produce of his labor, and to every want as complete satisfaction as the means at disposal would allow. Our actual law of property, which rests almost entirely on traditional political conditions, does not even attempt the attainment of these economic ends. . . . By assigning the existing objects of wealth, and especially the instruments of production, to individuals to use at their pleasure, our law |