ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 51 



I shall be excused for reading a few words from Sir Frederick Pollock's 

 admirable chapter on this subject, in which, through a number of pages, 

 he illustrates, with care and accuracy of language, the difticulty of defin- 

 ing this word '' possession" and the vast range of applications in which 

 it is dependent upon the nature of property. It will repay any person 

 who desires to investigate this subject, to read this whole chai)ter. He 

 says, for instance, at page 6: 



To prevent perpetual equivocation, it is necessary carefully to distinguish between 

 physical and legal possession. We here refer to the former. It does not suppose 

 any law — 



I find I am mistaken in saying this is Sir Frederick Pollock's 

 language. It is quoted by him from Sir E. Perry, who is translating 

 Savigny on possession; and the language I am reading is not Sir Fred- 

 erick Pollock's, but is quoted and adopted by him; though what I have 

 said quite apidies to what he does say in his own words. 



We here refer to the former: it does not suppose any law; it existed before there 

 were laws; it is tlie possession of the subject itself, wiiether a thing or the service 

 of a man. Legal possession is altogether tlic work of the law ; it is tlie possession of 

 the right over a tbing or over the services of man. To have pliysical possession of a 

 thing is to have a certain relation with that thing, of which, if it please the legis- 

 lator the existence may hold the place of an investitive event, for the ])urpose of 

 giving commencement to certain rights over that thing. To have legal possession 

 of a thing is already to have certain rights over that thing, whether by reason of 

 jihysical possession or otherwise. 



It would seem as if this author anticipated what would be claimed 

 some day by eminent counsel on this subject — that possession meant 

 l)hysical confinement, even though it was a physical confinement that 

 destroyed the object of ])ossession. 



I do not read the whole page, but I pass to another passage. 



The idea of possession Avill be different according to the nature of the subject, 

 according as it respects tilings or the services of man, or hctitious entities, as 

 l^arentage, privilege, exem])tiou from services, etc. 



The idea will be different according as it refers to things moveable or immove- 

 able. How many questions are necessary for determining what constitutes a building, 

 a lodging. Must it be factitious, but a natural cavern may serve for a dwelling, — 

 must it be immoveable f But a coach, in which one dwells in journeying, a ship, 

 are not immoveables? But this land, this building — Avhat is to be done that it may 

 be possessed? Is it actual occupation? Is it the habit of possessing it? Is it 

 facility of possessing without opposition, and in spite of opposition itself. 



Again, this is Sir Frederick Pollock's own language at page 10: 



It has constantly been asked : Is possession a matter of fact or of right? Bentham 

 and others have made the want of a plain answer a reproach to the law. But in 

 truth no simple answer can be given to such a question, for all its terms are complex 

 and need to be analysed. Every legal relation is or may be an affair both of facts 

 and of right: there are not two separate and incommunicable spheres, the one of 

 fact and tlie other of right. Facts have no importance for the lawyer unless and 

 until they appear to be, directly or indirectly, the conditions of legal results, of 

 rights which can l)e claimed and of duties which can be enl'orced. Rights cannot 

 be established or enforced unless and until the existence of the requisite facts is 

 recognized. 



Then at page 12 he says : 



It appears, then, that even at the earliest stage we have many things to distin- 

 guish. De facto i)ossessiou, or detention as it is currently named in continental 

 writings, nuiy be paraphrased as effective occupation or control. Now it is evident 

 that exclusive occu])ation or control in the sense of a real unqualified power to exclude 

 others, is nowhere to be found. All i)hy8ical security is finite and qualified. 



Then on page 13 he says: 



To determine what acts will be sufficient in a particuhir case we must attend to 

 the circumstances, and especially to the nature of the thing dealt with, and the 



