erson； and on that ground held that trespass quare clausum did not pass to an assignee in bankruptcy。 /1/ So it has been said； that to deny a bankrupt trover against strangers for goods coming to his possession after his bankruptcy would be 〃an invitation to all the world to scramble for the possession of them〃； and reference was made to 〃grounds of policy and convenience。〃 /2/ I may also refer to the cases of capture； some of which will be cited again。 In the Greenland whale…fishery； by the English custom； if the first striker lost his hold on the fish； and it was then killed by another； the first had no claim； but he had the whole if he kept fast to the whale until it was struck by the other； although it then broke from the first harpoon。 By the custom in the Gallipagos； on the other hand； the first striker had half the whale； although control of the line was lost。 /3/ Each of these customs has been sustained and acted on by the English courts； and Judge Lowell has decided in accordance with still a third； which gives the whale to the vessel whose iron first remains in it； provided claim be made before cutting in。 /4/ The ground as put by Lord Mansfield is simply that； were it not for such customs； there must be a sort of warfare perpetually subsisting between the adventurers。 /5/ If courts adopt different rules on similar facts； according to the point at which men will fight in the ＇213＇ several cases； it tends； so far as it goes； to shake an a priori theory of the matter。
Those who see in the history of law the formal expression of the development of society will be apt to think that the proximate ground of law must be empirical； even when that ground is the fact that a certain ideal or theory of government is generally entertained。 Law； being a practical thing； must found itself on actual forces。 It is quite enough； therefore； for the law； that man； by an instinct which he shares with the domestic dog； and of which the seal gives a most striking example； will not allow himself to be dispossessed； either by force or fraud； of what he holds； without trying to get it back again。 /1/ Philosophy may find a hundred reasons to justify the instinct； but it would be totally immaterial if it should condemn it and bid us surrender without a murmur。 As long as the instinct remains； it will be more comfortable for the law to satisfy it in an orderly manner； than to leave people to themselves。 If it should do otherwise； it would become a matter for pedagogues； wholly devoid of reality。
I think we are now in a position to begin the analysis of possession。 It will be instructive to say a word in the first place upon a preliminary question which has been debated with much zeal in Germany。 Is possession a fact or a right？ This question must be taken to mean； by possession and right； what the law means by those words； and not something else which philosophers or moralists may mean by them； for as lawyers we have nothing to do with either； except in a legal sense。 If this
had always been borne steadily in mind； the question would hardly have been asked。
＇214＇ A legal right is nothing but a permission to exercise certain natural powers； and upon certain conditions to obtain protection； restitution； or compensation by the aid of the public force。 Just so far as the aid of the public force is given a man； he has a legal right； and this right is the same whether his claim is founded in righteousness or iniquity。 Just so far as possession is protected； it is as much a source of legal rights as ownership is when it secures the same protection。
Every right is a consequence attached by the law to one or more facts which the law defines； and wherever the law gives any one special rights not shared by the body of the people； it does so on the ground that certain special facts； not true of the rest of the world； are true of him。 When a group of facts thus singled out by the law exists in the case of a given person； he is said to be entitled to the corresponding rights； meaning； thereby； that the law helps him to constrain his neighbors； or some of them； in a way in which it would not； if all the facts in question were not true of him。 Hence； any word which denotes such a group of facts connotes the rights attached to it by way of legal consequences； and any word which denotes the rights attached to a group of facts connotes the group of facts in like manner。
The word 〃possession〃 denotes such a group of facts。 Hence； when we say of a man that he has possession； we affirm directly that all the facts of a certain group are true of him； and we convey indirectly or by implication that the law will give him the advantage of the situation。 Contract； or property； or any other substantive notion of the law； may be analyzed in the same way； and should be treated in the same order。 The only difference is； that； ＇215＇ while possession denotes the facts and connotes the consequence； property always； and contract with more uncertainty and oscillation； denote the consequence and connote the facts。 When we say that a man owns a thing； we affirm directly that he has the benefit of the consequences attached to a certain group of facts； and； by implication； that the facts are true of him。 The important thing to grasp is； that each of these legal compounds； possession； property； and contract； is to be analyzed into fact and right； antecedent and consequent； in like manner as every other。 It is wholly immaterial that one element is accented by one word； and the other by the other two。 We are not studying etymology； but law。 There are always two things to be asked： first； what are the facts which make up the group in question； and then； what are the consequences attached by the law to that group。 The former generally offers the only difficulties。
Hence； it is almost tautologous to say that the protection which the law attaches by way of consequence to possession； is as truly a right in a legal sense as those consequences which are attached to adverse holding for the period of prescription； or to a promise for value or under seal。 If the statement is aided by dramatic reinforcement； I may add that possessory rights pass by descent or devise； as well as by conveyance； /1/ and that they are taxed as property in some of the States。 /2/
We are now ready to analyze possession as understood by the common law。 In order to discover the facts which constitute it； it will be found best to study them at the moment when possession is first gained。 For then they must ＇216＇ all be present in the same way that both consideration and promise must be present at the moment of making a contract。 But when we turn to the continuance of possessory rights； or； as is commonly said； the continuance of possession； it will be agreed by all schools that less than all the facts required to call those rights into being need continue presently true in order to keep them alive。
To gain possession； then； a man must stand in a certain physical relation to the object and to the rest of the world； and must have a certain intent。 These relations and this intent are the facts of which we are in search。
The physical relation to others is simply a relation of manifested power coextensive with the intent； and will need to have but little said about it when the nature of the intent is settled。 When I come to the latter； I shall not attempt a similar analysis to that which has been pursued with regard to intent as an element of liability。 For the principles developed as to intent in that connection have no relation to the present subject； and any such analysis so far as it did not fail would be little more than a discussion of evidence。 The intent inquired into here must be overtly manifested； perhaps； but all theories of the grounds on which possession is protected would seem to agree in leading to the requirement that it should be actual； subject； of course； to the necessary limits of legal investigation。
But； besides our power and intent as towards our fellow…men； there must be a certain degree of power over the object。 If there were only one other man in the world； and he was safe under lock and key in jail； the person having the key would not possess the swallows that flew over the prison。 This element is illustrated by cases of capture； ＇217＇ although no doubt the point at which the line is drawn is affected by consideration of the degree of power obtained as against other people； as well as by that which has been gained over the object。 The Roman and the common law agree that； in general； fresh pursuit of wild animals does not give the pursuer the rights of possession。 Until escape has been made impossible by some means； another may step in and kill or catch and carry off the game if he can。 Thus it has been held that an action does not lie against a person for killing and taking a fox which had been pursued by another； and was then actually in the view of the person who had originally found； started； and chased it。 /1/ The Court of Queen's Bench even went so far as to decide； notwithstanding a verdict the other way； that when fish were nearly surrounded by a seine； with an opening of seven fathoms between the ends； at which point boats were stationed to frighten them from escaping； they were not reduced to possession as against a stranger who rowed in through the opening and helped himself。 /2/ But the difference between the power over the object which is sufficient for possession； and that which is not； is clearly one of degree only； and the line may be drawn at different places at different times on grounds just referred to。 Thus we are told that the legislature of New York enacted； in 1844； that any one who started and pursued deer in certain counties of that State should be deemed in possession of the game so long as he continued in fresh pursuit of it； /3/ and to that extent modified the New York decisions just cited。 So； while Justinian decided that a wild beast so ＇218＇ badly wounded that it might easily be taken must be actually taken before it belongs to the captors； /1/ Judge Lowell； with equal reason； has upheld the contrary custom of the American whalemen in the Arctic Ocean； mentioned above； which gives a whale to the vessel whose iron first remains in it； provided claim be made