Possession

369. Notion. Possession is the holding of a thing not prohibited to be possessed, with the mind of having it as one's own.

a. Holding supposes apprehension of the thing: for possession is begun by apprehension, by which someone occupies the thing, and by holding possession is continued. As to rights, their apprehension ordinarily consists in acceptance and holding consists in their exercise.

b. By the name thing is signified the object of possession, which can be not only a corporeal thing, such as money, a field, a house, but also an incorporeal thing, such as a right. In the former case there is possession properly so called; in the latter there is possession improperly so called, or quasi-possession.

c. For possession it does not suffice that someone physically apprehend and hold some thing, but it is required that he hold it with the mind of having it as his own. Therefore it is required that he apprehend the thing not only by body but also by mind or will; therefore a depositary does not properly possess the deposit.

d. For true possession a right in the thing possessed is indeed not required; for even a thief possesses, although unjustly. But it is required that the law not declare a certain thing incapable of being possessed, or a certain person incapable of possessing. Thus public things cannot be possessed by a private man, and some sacred things cannot be possessed by a layman.

e. Therefore three things are required for having possession: alpha. holding of the thing, or if the matter concerns a right, use of the right; beta. the mind of having it for oneself; gamma. permission of the law, which indeed does not approve the possession, but does not prohibit it.

370. Division. Possession is divided: a. into legitimate possession or possession of right, which is begun with a title which of itself can transfer ownership, such as donation, purchase; and into illegitimate possession or possession of fact, which lacks a title which can transfer ownership, such as possession from theft.

He who doubts whether a thing which he assumes for possession is his own or another's begins to possess it legitimately, if it is in the possession of no one and he himself has the mind of inquiring and restoring the thing to the certain owner.

b. Possession of fact is either possession of good faith, doubtful faith, or bad faith: possession of good faith is had if the possessor invincibly thinks that the thing is his own; possession of doubtful faith is had if the possessor, either at the beginning or in the course of possession, doubts whether the thing is his own; possession of bad faith is had if the possessor knows that the thing which he possesses is another's.

He who doubts whether a thing which another possesses is his own or another's possesses illegitimately if he assumes it for possession against the will of the other. The same must be said concerning him who doubts whether a thing which another possesses is this one's or a third person's.

371. Effects of possession. 1. All rights attribute certain privileges to possession, both because the very fact of possession, if it is of good faith, founds a presumption of law, namely that with possession there is also joined a right in the thing possessed, and because these privileges conduce to public tranquility and arouse the diligence of citizens in guarding their own things. These privileges, which belong to possession both from the law of nature and from civil law, are reckoned as two:

a. In an equal cause or doubt the condition of the possessor is better, that is, possession gives the right of retaining the thing possessed until it is certain, or at least established by a stronger motive, that it is another's.

Therefore no one can be despoiled without injustice of a thing which he possesses unless it is sufficiently established that another has the right of possessing it.

b. Possession of good faith begets prescription, but nevertheless it does not transfer ownership of the thing except by the help of prescription.

2. Possession does not confer these privileges unless it is certain and legitimate; doubtful possession or possession of bad faith has no value.

There are various principles or axioms suitable for the purpose of forming one’s conscience when in doubt. They are for the most part taken from canon law, but they are also used in questions belonging to the forum of conscience.

In dubio melior est conditio possidentis—Possession is properly a physical fact, and consists in the corporal detention of a thing. In a wider sense rights are objects of possession, as a right of way, or the right to one’s liberty; so that if one’s liberty has hitherto been unrestricted, it is said to be in possession. The very fact of possession gives a right to continue in possession unless there is an adverse and stronger claim. There is also in the possessor a presumption of title to possess, for all men are jealous of their rights, and usually do not allow their property or rights to be held by others as owners. If, then, I am in possession of some object or right, and a doubt supervenes as to whether I am entitled to possession in the case or not, the question may be solved in the forum of conscience as it would be in a court of law, by applying the maxim —In dubio melior est conditio possidentis.¹

If, then, a doubt arises as to whether I have said my breviary, I must say it, for the law is in possession; if on the contrary a doubt comes into my mind as to whether I have taken food after midnight, I may go to Holy Communion, because my right to receive is in possession.

¹ Cf. Irish Eccles. Record, Sept. 1899.

THE first root of restitution is the possession of another person’s property without any just title. 'This possession may hitherto have been in good faith without any suspicion that the property belonged to somebody else, or it may have been in bad faith with the knowledge that someone else was the rightful owner, or in doubtful faith with doubts about the ownership. The obligations of the possessor of another’s property will be different in these three cases. We will treat of them in the three following sections:

The foregoing rules tell us what has to be done when one discovers that he has possession of the property of another, or when such property has perished while in his possession, But suppose that while he was in good faith the possessor of another’s property, he sold it to someone else, and afterwards he finds out that it was not his to sell, what are his obligations in that case ¹ No general answer can be given to this question; it will be necessary to distinguish according to several possible hypotheses.

The sale may have taken place in market overt, and then though the seller could not give a valid title to the property, yet the law does so. The Sale of Goods Act, 1893, sec. 22, makes the following provision: “ Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.”

According to Indermaur, ‘‘ By sale in market overt is meant selling goods in open market as opposed to selling them privately. In the country the market-place or piece of ground set apart by custom for the sale of goods is in general the only open market there; but in London, and in other towns where so warranted by custom, a sale in an open shop of proper goods is equivalent to, and in fact amounts to, sale in market overt,””²

In spite, however, of sale in market overt, “‘ Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, “notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise.’”” In this case on conviction of an offence which involves larceny, the court, if the accused has sold the property to an L: innocent purchaser, on restitution of the property to the owner, may order the price paid by the purchaser to be repaid to him out of any money found on the convict when arrested. This provision is in addition to that allowing compensation to a person injured by a felony.”³

If the sale did not take place in market overt, and the stolen property has not been restored to the true owner, the seller is bound to nothing in justice, according to a very probable opinion. For the property is no longer in his possession or under his control, so he cannot restore it to the owner; if he received money for it, he received it in good faith for value, and when he has mixed it with his other moneys it would seem that he makes it his own.⁴ It would seem that this is in accordance with English law: ‘‘ A mesne possessor acquiring the goods innocently from the thief, and reselling before conviction, is under no obligation in trover to the original owner.”⁵

It was said above that the seller is bound to nothing in justice, but if without relatively serious inconvenience to himself he can, by giving the requisite information, procure the restoration of the property to its rightful owner, he will be bound to do this out of charity.

If the property was not sold in market overt, and if it has been restored to the rightful owner, the purchaser can demand back the purchase money from the seller, rescinding the contract for failure of warranty which is implied in every such sale: ‘“‘ In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is: (1) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass; (2) an implied warranty that the buyer shall have and enjoy quiet possession of the goods.’”⁶ These solutions would seem to be tenable whether the mesne possessor obtained the property in good faith by purchase or by gift, and whether he gained anything or not by selling it. For although one who possesses another’s property either in itself or in its equivalent is bound to make restitution to the owner, a mesne possessor who has sold it in good faith to another no longer possesses it even in its equivalent, for the price after being mixed with his own moneys is not its equivalent; and although he is the richer by the transaction, yet it cannot be said that he is the richer unjustly, and so he is not bound to restitution.⁷

It is a disputed point among theologians whether a purchaser in good faith from a thief of stolen goods, on finding out that the goods were stolen, may return them to the seller if he cannot otherwise get back his money. It would seem that in conscience he may do so, for in so doing he does not wrong the rightful owner; he replaces the goods where he found them, so to say, and they are in no worse a position through having been for a time in his possession. He is justified in leaving them there if he cannot otherwise save himself from loss.⁸ Such an action, however, might bring him into collision with the law of the country. In England it might amount to misprision of felony or be considered compounding a felony.

¹ Principles of the Common Law, p. 323, 6th ed.

² Sale of Goods Act, 1893, sec. 24.

³ Encyclopedia of Laws of England, s.v. Stolen Goods.

⁴ Stephen, 2, p. 60.

⁵ Encyclopedia of Laws of England, s.v. Stolen Goods.

⁶ Sale of Goods Act, 1893, sec. 12.

⁷ Bucceroni, 1, n. 1341.

⁸ St Alphonsus, 3, n. 569.

There is only question here of one who has well-grounded reasons for thinking that something in his possession belongs to another. We do not contemplate the case of one who merely suspects without solid reason that what he has belongs to someone else, much less the case of one who is ignorant of what title he has to his property. The doubtful faith of such a one as we are contemplating may date from a period subsequent to his obtaining possession of the property, or it may date from the time of his gaining possession of it; the possessor’s obligations will be different as one or the other of these suppositions is verified.

One who strictly doubts about the cessation or fulfillment of a law, in other words, one who holds it as equally or almost equally probable that the law has not ceased or has not been fulfilled, is held to observe it.

It is said "one who strictly doubts," or "one who holds it as equally or almost equally probable"; since it is commonly admitted that the obligation of observing the law is absent in broad doubt about the cessation or fulfillment of a law, in other words, where it is more probable that the law has ceased or has been fulfilled. Besides, in doubt about the fulfillment of a law several principles are at hand, in view of which the fact of fulfillment can commonly be held as more probable. Principles of this sort are: What regularly, what ordinarily happens, is judged to have happened; from things commonly occurring a prudent presumption is made.¹ Likewise: In doubt every fact is presumed to have been done rightly;² or: In doubt one must stand for the validity of the act³ (St. Alphonsus, I, 26). With these points noted, the thesis is proved:

I. From the authority of St. Alphonsus. Although I would not wish to deny that this thesis is not to be valued as much as the first and third theses are to be valued, nevertheless it cannot be denied that it extends very widely and pertains to the whole system, so that what we said above (nn. 214, 225) about the authority of St. Alphonsus is also to be applied to this thesis. But the holy Doctor, who had previously adhered to the more benign opinion, after considering the matter better, revoked it (I, 29) and defended the stricter opinion (I, 26-34); which in any case is now commonly admitted even by the adversaries themselves.⁴

II. From the authority of theologians. Our opinion was formerly commonly admitted, even by those authors who adhered to Probabilism. The witnesses of this assertion are Suarez⁵ and Laymann.⁶ The fact that afterward several withdrew from this opinion does not prevent the consensus of ancient theologians from supplying us some argument.

III. From reason. First, in strict doubt the condition of the possessor is better; or, to abstain from the ambiguous word "possessor," in strict doubt the condition of that which is prior seems to be better than the condition of that which is posterior.⁷ But the law itself is prior to its cessation and fulfillment. Therefore, in strict doubt about the cessation or fulfillment of a law, the condition of the law seems to be better (St. Alphonsus, I, 29-34).

The major is established by these arguments: first, our principle of its own accord pleases reason more than the contrary principle, which would have to be admitted by the adversaries, namely: in strict doubt the condition of that which is prior seems to be worse than the condition of that which is posterior. This spontaneous inclination of reason indeed seems to supply an argument for our doctrine. Second, a principle which favors stability, or a stable manner of acting, seems to be preferred to a principle which fosters mutability, or a changeable manner of acting. But our principle favors stability, while the contrary favors mutability. Third, there is added that the principle stated by us has force for the external forum. Why, precisely, would the contrary principle have to be admitted for the internal forum?

Then our thesis is proved from the fact that the thesis of the Probabilists is at least doubtful: namely, a law which has doubtfully ceased or has doubtfully been fulfilled obliges unless it is demonstrated, or certain, that it does not oblige. But no one who hears prudently will contend that that is certain.

The major is evinced from a principle admitted by all: in a practical doubt not entirely solved, the safer part is to be followed.

To prove the minor, it will be enough to advert to these things: first, the arguments of the adversaries, as we shall soon see, either involve a begging of the question, or are such that they themselves require further proof. Second, add that always very many, and those grave and distinguished, theologians supported the contrary opinion. Third, finally, our arguments seem to be of such a kind that not even the adversaries will deny them all probability. Once all these things have been attended to and well weighed, no one will have affirmed that the opinion of the Probabilists has been placed beyond doubt.

¹ Suppose someone, while praying Sext, doubts whether he has said Terce. In the case he can commonly hold it as more probable that Terce has been said, since from things commonly occurring a prudent presumption is made. But it commonly happens that Sext is not begun before Terce has been said.

² Suppose someone doubts whether he has confessed with true sorrow. In the case he can commonly hold it as more probable that true sorrow was present.

³ Yet this principle, which canonists and moralists commonly use, is very ambiguous; namely, it has force only insofar as it rests on another principle of presumption. But this happens when there is doubt about the manner in which an act has been placed; in which case it can be held as more probable that all those things required for validity were done. It is otherwise if the manner in which the act was placed is known, but it is disputed whether the act so placed is valid.

⁴ Cf. De Minusprobabilismo, pp. 133-139, where those things which some formerly objected are refuted.

⁵ Suarez, treating the question whether one who has doubtfully fulfilled an oath is still held to fulfill it, responds: "It is beyond controversy that he is held," because "in doubt the condition of the possessor is better" (De Relig., tr. 5, bk. 2, cap. 33, n. 7); this solution is a mere application of our thesis to a particular case.

⁶ Laymann speaks thus: "But the latter part of the assertion is common" (Theol. mor., bk. 1, tr. 1, c. 5, § 3, n. 31), namely, that one who doubts whether he has fulfilled a vow or promise, or satisfied any other debt whatsoever, is held by the obligation.

⁷ In this sense St. Alphonsus and others take the principle of possession, insofar as it regards matter distinct from the matter of justice; but since others explain it otherwise, we have abstained from that designation, mindful of this: "It belongs to the wise man not to care about names" (St. Thomas, In II Sent., dist. 3, q. 1). With these points noted, those things which several theologians object concerning the nature of the principle of possession do not harm our argument.

Possession can be taken both for a right in a thing and for a fact. Possession taken in the former sense is a right in the very detention of some thing, with the intention of ownership; taken in the other sense, it is the very detention of the thing, with the intention of ownership. But since possession accepted in this latter sense can bring certain rights with it, it is useful to set forth certain things concerning it. Therefore let there be:

I. Notion of possession. Possession, as is drawn from what has been said, is understood here as detention of a thing, with the intention of ownership. It is said:

1. Of a thing; moreover, under the name of thing there is understood not only a thing properly so called, for example a field or house, but also the use of a thing, such as dwelling in a house or the exercise of authority.

2. Detention; by this word are comprehended physical detention, or its equivalent, if there is question of a corporeal thing; the very acts of using a thing, if there is question of the use of a thing.

3. With the intention of ownership, that is, with the intention of having the thing as one's own.

II. Division of possession. Possession, not indeed by reason of itself but by reason of the mind with which it is possessed, is divided into possession of good, bad, and doubtful faith.

1. Good faith is had when the possessor judges that he licitly retains the thing; in other words, it is had: 1. when the possessor is conscious that the thing is his own; 2. when the possessor, although he doubts whether the thing is his own, nevertheless detains it without fault or, if there is question of a grave thing, at least without grave fault. These things will be explained more fully later.

2. Bad faith is had when the possessor judges that he illicitly retains the thing; in other words, it is had: 1. when the possessor is conscious that the thing is another's; 2. when the possessor doubts whether the thing is his own and detains it with fault, if there is question of a light thing, or with grave fault, if there is question of a grave thing.

3. Doubtful faith, strictly speaking, is not had, because one who doubts whether the thing possessed is his own necessarily detains it either without fault or with fault; in that case he becomes of good or bad faith, as the case bears according to the things explained above. But what is lawful for one doubting whether the thing possessed is his own, we shall explain later. I said strictly speaking; but doubtful faith is customarily taken for the doubt of a possessor whether the thing possessed by him is his own. What is lawful for one thus doubting, however, we shall say at once.

III. Effects of possession. 1. Possession in good faith, and in some way also in doubtful faith, creates some presumption of an existing true right.

2. Possession, if doubt about the right in the thing possessed persists after truth has been investigated, brings with it the right of continuing the use of the thing, or even, if there is question of a thing which can be consumed, of consuming it, if: 1. the possession was begun in good faith; 2. the possession is such as is required by a just law; 3. the judge has not justly determined otherwise. The reason is sought both from the fact that the common good requires this; and, as regards ecclesiastical matter, from rule 50 in Sexto: in doubt the condition of the possessor is better; and, as regards civil matter, from civil law. What the law is, if possession began in doubtful or bad faith, you should draw from what is to be said later about the possessor in doubtful or bad faith.

Three Kinds of Unlawful Possessors.—The second root of restitution mentioned above (1762) is unjust possession, which includes the acceptance or the retention of another person’s goods against the latter’s will. There are three kinds of unlawful possessors:

(a) the possessor in good faith, who is one that has been invincibly ignorant of the unlawfulness of his possession, but now learns his error (e.g., a buyer who discovers that the horse he purchased did not belong to the seller but was stolen property);

(b) the possessor in doubtful faith, who is one that has serious reasons for fearing his possession is unlawful (e.g., the buyer of a horse learns that the seller is known to have sold some stolen property, or that the price he charged for the horse was remarkably small);

(c) the possessor in bad faith, who is one that knows his possession is unjust (e.g., a buyer who purchases a horse which he knew had been stolen by the seller).

Obligations of the Possessor in Good Faith in Reference to the Property Itself.—(a) If the property is still in his keeping, he is generally obliged to return it to the owner, for a thing calls for its owner. An exception would be the case in which the possessor can not return the property to the owner without a greater loss to his own property.

(b) If the property has perished, the possessor is generally obliged or not to restitution according as he has been enriched or not by the property; for one person should not be enriched at the expense of another, but property perishes to its owner.

(c) If the property is in possession of a third party to whom the possessor transferred it, he is generally obliged or not to restitution to the third party, on the latter’s dispossession, according as he has been enriched or not by the third party’s goods; for if he received nothing for the goods, he is clearly bound to nothing, but if he received payment, he must indemnify the buyer who is evicted for lack of title.

Note: An exception, and a true and illogical exception of probabilism, is the limitation which some probabilists and equiprobabilists add to probabilism from the principle of possession: In doubt the condition of the possessor is better. Therefore, they say, a doubtful law, in doubt about the existence of the law, does not indeed oblige, because liberty possesses. But a doubtful law in doubt about its cessation obliges, because the law possesses. Hence if it is probable that you did not emit a vow, you are not bound by the vow. If you certainly emitted a vow, and it is probable that you satisfied it, you are still bound to satisfaction.

But thus to admit probabilism halfway concerning the existence of the law, and not concerning the cessation of the law, is to admit the principles and deny the conclusions. If a doubtful law does not oblige, precisely because it is doubtful, whenever it is doubtful it will not oblige. Now the law is as doubtful in doubt about its existence, namely about its first existence, as it is doubtful in doubt about its cessation; for if its cessation is probable, by that very fact the existence itself of the law becomes doubtful. But the law obliging is not a law which existed, but one which exists; nor is it the law which exists in the abstract, but one which binds us in the present by its certain obligation.

But if a probable opinion is had concerning the cessation of the law, however that may be understood, its obligation becomes doubtful, and its existence likewise becomes doubtful; namely again, not the very existence itself of the law in the abstract, but its force of obliging in the concrete, in the particular case, here and now. L. 1. 1. n. 63. 78. And thus, although it is certain that a vow was emitted and at some time existed, if you probably satisfied it, that certain vow, insofar as it once existed, becomes doubtful insofar as it binds you here and now; and that saying has force: A doubtful law does not oblige.

Possession indeed constitutes a prevailing right insofar as he who possesses is shown by possession itself, or at least is presumed, to be the owner of the thing which he possesses. But how can that be either demonstrated or reasonably presumed when the opposite is established by true or grave probability? For then it is established by true and grave probability that the possession is not legitimate, which alone can constitute a prevailing right. For if the fact alone of possession, without legitimate title, at least reasonably presumed, constituted that prevailing right, then all thieves and robbers could retain another's property by the prevailing right of possession. Cf. 157. 4; Troplong, Della Prescrizione c. 2 del Possesso a. 2228; D'Annib. ed. 4. p. 1. n. 260. 268.

The material fact itself of possession by no means constitutes a prevailing right in the internal forum, as regards the very right of dominion and ownership of the thing, but only as regards proof in the external forum, which must be instituted by the plaintiff against the possessor, because of the aforesaid presumption of dominion. But presumption yields to truth. Hence if someone has possessed in bad faith, even for a very long time, he must restore the thing even spontaneously and without proof or petition by the plaintiff. D'Annibale himself, who ed. 4. p. 1. n. 264 seq. follows the rule of possession, asserts n. 256 note 5: "Justice forbids giving damage to him who is in certain possession of his right....

I said, who is in certain possession of his right; for if the right of another is uncertain, either the condition of the possessor will be better, or at least because no certain right of another is violated, there will be no obligation of restitution." Behold how D'Annib. himself requires certain and legitimate possession, so that it really constitutes a prevailing right. And the same D'Annib. l. c. n. 259 note 18 also asserts: "Namely, certainty against true probability is not given." How therefore will the obligation of the law be certain, if it is probable that that obligation already ceased long ago?

See also ibid. n. 169. 181. 203. - Cf. 143. S. Alph. l. 3. n. 112 par. Secundo says: "When it is probable that the obligation of the law never began, or that it has been abolished, then the presumption in favor of the law ceases, and liberty possesses." Behold, the limitation of probabilism through the principle of possession is finished; and from S. D. also, it has no value except from presumption. S. D. joins indifferently the two cases, that the law never began, or that it has been abolished, and when each is probable, from S. D. the obligation of the law is not present. - Likewise n. 290 he says that probable custom suffices for excusing from the law. Behold again, no account is taken by S. D. of possession of the law.

And then, distinguishing well altogether between doubt and probability, he says: "that in doubt about custom the precept possesses, whence a dispensation must be sought; otherwise, if it is probable that custom is present." Cf. L. 1. 3. n. 325, par. Infirmi, n. 483, l. 4. n. 47. Besides, D'Annibale asserts the law of possession in a threefold case, namely in doubt 1. whether it receives a restrictive interpretation, 2. whether it is just, 3. whether it has ceased. P. 1. n. 262. And in the preceding n. 261 note 30 and n. 263 note 1, he affirms that S. Alphonsus perpetually used this rule of possession. - Now D'Annibale himself, cited n. 262 note 35, says: "except the 2nd case, in which all agree, Cf. here 157, in the others even those who seem to profess it depart from our rule."

And among these he expressly cites and reports only S. Alphonsus! And while the praised author notes this against Probabilism, that it must use exceptions which his rule of possession does not need, l. c. n. 266, he then candidly admits that his rule is not perpetual, and that it fails in several cases which he enumerates, l. c. n. 269 note 30. - But the alleged exceptions of Probabilism, namely when the question concerns not only the honorableness of an action, but an end to be obtained absolutely and the objective truth of the thing, l. c. n. 266, 256 note 5, are not really exceptions.

Cf. here 120. What he likewise says, l. c. n. 267, that the probabilist is forced to give contradictory responses, is in no way true. Cf. here 128. And it is certainly surprising that the learned theologian found a contradiction, cited n. 267, as regards that same case in which he himself had expressly affirmed a little before, namely n. 263, that it is licit to follow each of two contrary probable opinions. - Finally he asserts n. 264 that that rule of possession enjoys a better right, and n. 269 that it is better than the others not only as to the truth of the thing, but also as to practice; but in the following n. 270, immediately afterward, he affirms that it is licit to follow opinions truly and gravely probable; and n. 263, after he has set forth the various systems and also established his own rule n. 262, he says, let it be licit for each one to choose what pleases him more.

Perhaps to avert contradiction it can be said that the illustrious D'Annibale regarded that rule of possession not for the case of true probability, but for the case of doubt, which he seems sufficiently to suggest n. 269; and thus it is altogether true that theologians most commonly teach that rule, n. 268, and in this sense we also admit it and diligently explain it. Cf. here 143 seq. And certainly that rule is stated in doubt.

In doubt the condition of the possessor is better. C. 6 de Praescript. This axiom in the external forum, both ecclesiastical and civil, has been received as a certain rule of judgments. For it is to be presumed that he who possesses a thing possesses it by right, unless the contrary is clear. The same certainly has force in the internal forum of conscience. For certain and legitimate possession produces moral certainty concerning the dominion of the thing, L. 1. 1. n. 35, l. 4. 210, l. 6. n. 905. 927; and the reason is that, given human customs, no one is, morally speaking, negligent; indeed on the contrary all are diligent and very diligent in guarding their own things. Moreover, where one does not proceed from a false supposition, the right of the external and internal forum is the same; for each forum is founded on the principles of natural justice and equity. Hence theologians commonly admit the aforesaid rule for the forum of conscience. L. 1. 1. n. 26. Now some say that this axiom has force only in the matter of justice. "Yet I," says S. Alph. l. c., "do not know how it can be denied in all matters." And this certainly is by far the more common and truer opinion. The reason for this extension also to other matters, with due proportion, is the same as in the matter of justice. For no one can justly be despoiled without sufficient reason of a good which is his own. But man naturally, and therefore certainly and altogether legitimately, possesses his liberty, which certainly is some good and right of his own. Therefore this good also pertains to justice, and he who unjustly either takes it away or weakens it violates justice. Without injustice a free man cannot be subjected to servitude. But there can be no doubt that in doubtful laws liberty is always in prior possession of itself. For upon whom is law imposed except a free man? Whence it is that what is licit is not whatever the law permits, but what the law does not prohibit, L. 28. § 2 Ex quib. caus. maior., and therefore this prohibition must be manifestly proved, C. 23 de Verb. signif. - Suarez tr. 3. d. 12. s. 5. n. 8; Lugo De Iust. et Iur. d. 17. n. 87, d. 23. n. 110. In doubt: that is, in negative doubt, and the reason of the axiom is then clear, because possession stands for the possessor, and therefore moral certainty; for the petitioner no prudent reason is had. Cf. Lugo De Iust. et Iur. 23. n. 110. But in positive doubt, or probability, if probability is present on each side, so that on one side possession and probability of right stand, and on the other only equal or almost equal contrary probability of right, the condition of the possessor is again better, as is clear of itself. But if on one side indeed possession stands, but on the other contrary probability of right; or on one side possession and at the same time probability of right, and on the other far greater contrary probability of right, then certainly the condition of the possessor is not better, but doubtful. Indeed the first opinion holds that the judge is bound to adjudge the thing to the plaintiff, because the right of possession prevails in an equal cause, but not in a less probable cause. For Rule 65 of the Law in the Sixth has it thus: "In equal fault, or cause, the condition of the possessor is stronger"; and in L. 128 ff. de div. Reg. Iuris it is said: "In an equal cause the possessor ought to be held stronger." But the second opinion holds that the condition of the possessor is still better, and that the judge cannot despoil him of possession. The reason is that "it is certain that legitimate possession gives to each a certain right of retaining the thing, until the right of another is not established, as they say most commonly... a certain right, which cannot be overcome except by the certain right of another through certain convincing reasons." For possession is defined: the right of insisting in a thing not prohibited to be possessed. L. 1. 1. n. 36; Ithur. Cas. 1. n. 2. Cf. L. 1. 3. n. 547. 562. 711, etc.

Therefore the possession about which the present saying speaks is certain and legitimate possession. It is called certain, that is, that the fact of possession is certain; legitimate, that is, begun and continued in good faith, and likewise begun and continued by a just title, at least apparent, or at least thought to exist, or presumed, such as, for example, donation, purchase, inheritance, and similar things, through which ownership of some thing is usually acquired. Therefore if possession is doubtful, or begun with doubtful faith, or by a doubtful title, it by itself does not exhibit to the possessor a special prerogative and presumption against which no contrary probability has force. L. 1. 1. n. 36. 47, l. 4. n. 210.

Probability of right, which can be only on one side or on each side, is the probability of a real just title, or of one actually existing, from which true and real dominion and ownership of the thing arise. For for legitimate possession, about which the axiom speaks, it suffices that the just title at least appears, because, for example, a donation or purchase intervened from him who was thought to be owner, although he was not; or at least was thought to exist, because the action signified by the title is thought to have intervened, although it did not intervene, as happens when someone thinks that the thing was given to him or bought by him, and nevertheless this was not done; or at least presumed, because, for example, because of length of time in peaceful possession or other circumstances, it is prudently thought that some title intervened, although the possessor cannot allege any determinate one. Therefore this probability of right, as is clear, is altogether outside possession itself, which only gives the right of insisting in the thing, or of holding it, although perhaps its dominion and ownership does not belong to you, since a just title was not really present. Now the probability of a real just title, or of one actually existing, can be in two ways: 1. Probability of the justice of the title for beginning or continuing possession and ownership of the thing, for example, a testament lacking legal formalities. 2. Probability of the reality or existence of a just title for the same effect, for example, of donation, when it is also probable that the thing was taken by theft. The former probability is called of right; the latter is called of fact. Where this latter is treated, "when the fact is not plainly proved, it is not probable that the accused can be condemned, since laws never permit the accused to be condemned unless the crime or debt is fully proved; but it is not proved fully and sufficiently for a sentence when, although two or three witnesses testify, nevertheless other witnesses testify the contrary; for through these the testimony of the former is destroyed or diminished, and therefore the sufficient proof required for full proof and condemnation does not remain." Lugo De Iust. et Iure d. 16. n. 100. Cf. also d. 23. n. 100, d. 16. n. 34. 96. 99.

Of how many kinds is vain observance? - There are four species of vain observance, which are distinguished only materially by reason of effects. 1. If certain useless things are observed for acquiring an infusion of knowledge, without other study, and it is called the notory art. It differs from divination because the latter directly regards speculative knowledge; the former directly regards an infusion of knowledge for one's own convenience, but indirectly the knowledge itself. Thus they sin who take a prepared potion, or employ a certain prayer, so that they may immediately become learned. 2. If useless things are observed for obtaining health, and it is called the observance of healths. Thus they sin who use unknown names and certain empty ceremonies for driving away animals; or who carry amulets, wrappings, or something similar for repelling diseases. L. 18; S. Th. 2. 2, q. 178, a. 2. 3. If from consideration of some trifling event it is determined what will be future, and someone thence regulates his actions, and it is called the observance of events. It differs from divination, both because observations of this sort are without any reason and art, whence they are more vain and superstitious, and because they look to directing one's own acts; but divination rather intends speculative knowledge of hidden things. Thus he would sin who refused to sit with thirteen at table as though this were a sign of death, although this for the most part can be excused, since no true faith is given to this matter, but there is a certain simple and empty fear. 4. If the observance concerns bodies to be variously changed and other wondrous or harmful effects to be produced, and it is called magic or malefice. Malefice contains a threefold moral malice against religion, charity, and justice. One malefice is amatory, or a philter; another is poisonous. The former is for exciting carnal love or hatred toward some person, the demon moving the phantasy of the man or the humors of the body, yet doing nothing upon the will; whence it does not induce necessarily to committing sin. But the latter is for inflicting harm upon someone, whether in his goods or in his health.

Job 1:12; S. Th. 2. 2, q. 178, a. 2. But here it must be noted that possession consists in this, that a demon in some way is united to a human body, and works extraordinary things in it and through it. But if the demon does not seem to reside in the body of a man, but only works externally, vexing it in various ways, then there is obsession. It must be noted besides that "power over demons has not been committed to man, so that he could licitly use them for whatever he wished." S. Th. 2. 2, q. 96, a. 2 ad 3. Struggl 28, 41, 42, 43; Suarez, cc. 15, 16; L. 15, 23; S. Th., Quodl. 4, q. 9, a. 16; 2. 2, q. 96.

What is possession, and how many kinds are there? "Possession is so called, as Labeo also says, from seats, as if position, because it is naturally held by him who stands upon it; the Greeks call it detention." L. 1. de Possessione. Possession is often confused with property. Yet it differs from it, because possession is a right by which a thing is held as one's own; but property or ownership is the very right by which a thing is one's own, and someone is its owner. Possession is rather a matter of fact than of right. Nevertheless, possession is distinguished as twofold: one of fact, the other of right. C. B. 854 ff.; Troplong, On Prescription, c. 2, On Possession.

What is possession of fact and of right? Possession of fact is: the apprehension or detention of a thing, with the support of body, mind, and right. "Of a thing"; by this name we understand not only corporeal things, but also incorporeal things, such as censuses, patronages, etc.; these are said to be quasi-possessed, to distinguish them from corporeal things, which are said to be possessed. "Apprehension or detention"; because possession is considered either in its beginning, or in its continuation; in its beginning it is apprehension of a thing; in its continuation it is detention of the same. "With the support of body"; because, for some corporeal thing to be possessed, it must be apprehended by some bodily act, for example by hands, feet, etc. If the thing belongs to no one, true and real apprehension is required for acquiring it. If the thing belongs to someone who hands it over to another, fictive apprehension suffices, as if he hands over the keys of a house to another. Finally, if the thing is acquired by the disposition of law alone, legal apprehension suffices, as if an heir, without knowing, acquires an inheritance. From C. A. 441 legal possession is had from the fact that a document proving the right of property has been inscribed in a public book. If the thing is incorporeal, apprehension and detention are had by acceptance of the right, and by the very use or exercise of the right, or with the forms prescribed by law observed. "Of mind"; because for a thing to be possessed, it must be apprehended with the intention of having it as one's own, and retained by persuasion that it is one's own. Possession indeed is not had if someone detains a thing without any intention of receiving from it advantage and emolument as from his own. Hence if someone, while he is waiting for a friend, takes in his hand that friend's book which he found in a hall, and looks at the title, he holds the book, but does not possess it. Hence also one who by right of neighborhood or familiarity or mere tolerance enters a neighbor's farm, or draws water from a neighbor's well, is not understood to quasi-possess. Error, whether of law or fact, does not obstruct the aforesaid intention and persuasion, as is openly clear from C. I. 701; C. G. 550; C. A. 326. "Of right," that is, with right not resisting nor impeding; because for possession it is required that right or the laws not impede the detention of a thing from being judged its true possession, by rendering one incapable of possession. Thus, for example, detention by a layman of a sacred thing which belongs to a church, or detention by a private person of a public thing, cannot even be called possession of fact; because right, by rendering these persons incapable of such possession, impedes such possession. On the contrary, detention of a stolen profane thing by a thief is true possession of fact, although unjust, because right does not impede detention of such a thing from sufficing for possession. L. Qui universos de acquir. vel amitt. possess.; Inst. 1. 2. t. 1. sections 1, 3, 4; C. I. 685, 687, 688, 690; C. G. 2134, 2228, 2230-2232; C. H. 430-432, 437-440; C. A. 309-315; C. L. 474.

Possession of right is defined: the right of standing upon a thing as one's own, which is not prohibited to be possessed. "Right," by which it differs from possession of fact, which is the very occupation of a thing or its detention, by which either there is had a right, namely the right of standing upon a thing as one's own, if it is just; or it is not had, if it is unjust. Just, unjust: therefore the right itself of ownership and property does not arise and cannot arise from detention or possession; but on the contrary, just detention or possession arises from the aforesaid right. Hence in judgments there is given a twofold action: action in a possessory cause, and action in a petitory cause; in the former there is question of the right of possession; in the latter of the very ownership of the thing. Possession nevertheless carries with itself a presumption of property in favor of the possessor. C. L. 477. "Of standing upon a thing," that is, of peacefully detaining the thing against disturbers. "As one's own"; for if someone stands upon a thing in the name of another, there will not be true possession. Thus, for example, a tutor cannot be said to possess the goods of a minor, but the minor himself possesses through the tutor, because the tutor does not retain those goods as his own, but in the name of the minor. "Which is not prohibited to be possessed," that is, with no law resisting and impeding, as was said above concerning possession of fact. But for possession to be legitimate, besides this, the formalities prescribed by law must be observed. C. I. 686, 701; C. G. 540, 550, 2229, 2268; C. H. 430-432, 437-441; C. A. 316, 329.

From C. He. 919, 922; C. B. 854-857, possession is acquired by the fact of obtained power over a thing; this power, for retaining possession, can also be exercised through another. But when power over the thing has ended, possession ends; nevertheless it passes over to heirs and successors, and can be continued in them.

If a possessor has handed over a thing to another, so that the latter may exercise some limited real right, or a personal right, both are possessors. The one who possesses as proprietor has original possession; the other has derived possession. C. He. 920.

Acts of mere tolerance and facultative acts, as also violent and clandestine acts, cannot constitute the beginning of legitimate possession. C. I. 688, 689; C. L. 474. Only those things can be possessed which can be the object of property. C. L. 479. Or at least possession of things whose property cannot be acquired has no juridical effect. C. I. 690. Troplong, On Prescription, c. 2, On Possession, n. 253 ff.

What is natural and civil possession? Possession is divided into natural, civil, and most civil. Natural possession is that by which the thing possessed is retained by body and mind as one's own, namely when someone bodily stands upon the detention of a thing as his own; this is done by one who is so near to a thing placed within sight that he can be present to it immediately. Civil possession is that by which a thing apprehended by body and mind is retained by mind alone; thus he possesses his own house who is absent from the house, as long as he has the intention of retaining it for himself. Likewise the owner of a thing possesses civilly what a thief retains with himself. Finally, most civil possession is that which is retained by the disposition of law alone, without any support of mind and body; this happens, for example, in a little child to whom some inheritance has come; he possesses the inheritance of the deceased without any act of apprehension, indeed even without any cognition of intellect. C. L. 483.

Natural and civil possession are also distinguished insofar as merely natural possession is called the mere detention of some thing, or the mere use of some right, such as is the possession of one who detains a thing in another's name; but civil possession is called this same detention of a thing, or use of a right, but together with the intention of having the thing or right as one's own. Therefore someone possesses not in another's name, but in his own name, namely with the mind of an owner, whether indeed he detains the thing, or uses the right, by himself or through another, through a farmer, tenant, fructuary, etc. And thus a borrower for use, depositary, and lessee possess naturally; the owner possesses civilly. C. I. 685, 687, 688; C. G. 2134, 2228, 2232; C. H. 430-432, 438, 441; C. A. 309, 310, 313, 352; Inst. 1. 4. t. 15.

From C. B. 868 ff., if someone possesses a thing as usufructuary, lessee, depositary, or in another similar way, by force of which he himself has a right or obligation of possession with respect to another, this one also is a possessor, but by indirect possession. This indirect possession can be transferred to another by cession of the right to restitution of the thing to himself. He who possesses a thing as its proprietor is a possessor in his own name. Natural possession by body and mind altogether prevails over civil possession by mind alone. Thus, for example, Titius, lessee of a field, sells the field to Sempronius, who, buying it in good faith, cultivates the field for 10 or 20 years and receives fruits from it in good faith as his own. During that space of 10 or 20 years, Titius, from the interest of the price received, pays to Caius, the owner of the field, the rent owed for the lease. After 10 or 20 years Caius visits his field, and when he finds in it not the farmer Titius but the owner Sempronius, he claims his property, but in vain, because Sempronius opposes prescription, his natural possession in good faith prevailing. C. I. 2117; C. G. 2239.

What are the rights of a possessor? The rights and juridical privileges annexed to juridical possession are the following: 1. By taking possession of a thing belonging to no one, its ownership is acquired. C. A. 381. Likewise a possessor in good faith, after a certain time has elapsed, can prescribe against the direct owner of the thing and acquire ownership of it.

Nevertheless it always confers the right of standing upon the thing; and no one can by private authority deprive another of possession of a thing, and possession obtained in this way is defective. C. B. 858. Possession is continued by the law itself in the person of a successor by universal title. A successor by particular title can unite to his own possession the possession of his author, namely so that he may obtain the effect of it. C. I. 693; C. B. 221, 858, 943, 944; C. He. 941.

2. Possession in good faith, if it is immemorial, or if its beginning exceeds the memory of men now living, regularly supplies all defects from which otherwise legitimate ownership would not exist, as is clear from C. Quibusdam de Verb. signific. Cf. C. I. 530. From more recent laws a possessor in good faith makes his own the fruits received. Cf. here 1337. But possession itself stands in place of title as regards movable things, C. G. 2279, acquired from one who is not the owner, by onerous title, C. A. 367, because things by their nature movable, and as regards unnamed bank notes, not as regards a universality of movables, and in relation to third parties, C. I. 707. Movable things; not rights, such as credits, excepting the aforesaid unnamed bank notes from C. I. As regards found and stolen things, cf. here 893. "From one who is not the owner," as regards third parties; and therefore the owner can prove that the possessor possesses the thing in his name, for example a thing leased, deposited, given to him in pledge, etc. From C. He. 930 ff., the possessor of a movable thing is presumed to be the proprietor. But a possessor in good faith is not bound to restore bearer securities and money, although the preceding possessor had been unwillingly deprived of them.

3. A possessor who begins possession of a thing which no one possesses begins possession legitimately, although he doubts whether it belongs to another, but apprehends it with the intention of inquiring about the owner, whether he truly exists. But a possessor who begins possession of a thing which another possesses, while doubting whether it is truly his own, begins to possess illegitimately. A possessor in good faith, when doubt arises whether the thing is his own or another's, if the contrary cannot be shown certainly, can with a safe conscience retain the thing; and the judge, while such doubt stands, ought to adjudge the thing to him. In the external forum good faith is presumed. Likewise, by legitimate possession of a thing, property itself is presumed. But in whatever name, whether another's or his own, he began to possess, in that same name he is now presumed to possess. And thus one who at the beginning possesses a thing deposited with him by an unknown traveler, who left it from forgetfulness and could always return to seek it back for himself, cannot thereafter begin to possess it as though lost or abandoned. C. I. 687, 691, 694, 700, 702; C. G. 2230, 2231, 2268; C. A. 446, 459; C. A. 323, 324, 328; C. B. 1006; C. L. 477, 478.

4. A possessor in good faith can, by the sole title of possession in good faith, use the thing possessed according to his will, and he can even consume and destroy it, without responsibility. Nevertheless, no possessor of another's thing can further retain it by title of another debt. C. A. 329, 471; C. He. 938. But retention of goods belongs to him by reason of improvement made and existing in them, if indemnity is not sought in judgment without proof. C. I. 706.

5. A possessor at the time of contested litigation is to be defended by the judge in possession, unless he drew that possession to himself by force, secretly, or by sufferance; for then he would have to be deprived of possession. C. H. 446; C. I. 694; C. B. 861, 862; C. He. 933.

6. If a possessor has been driven from possession by private violence, before all things restitution of the despoiled person must be made, nor is the occupier first to be heard when he alleges title and wishes to prove the thing to be his own. C. In litteris de Restit. spoliat. Cf. C. I. 694, 695, 697, 700; C. A. 339, 346; C. He. 927; C. L. 484 ff.

7. A possessor in good faith can defend the thing possessed even with arms against an invader, provided this is done immediately and with the moderation of blameless defense, that is, defensively and not offensively. And he can immediately retake for himself a thing violently taken from him. L. 3. ff. de Vi et de vi armata; C. A. 344; C. B. 859; C. He. 926 ff.; C. L. 486.

8. If someone is successively obligated to donate or hand over the same movable thing to two persons, the one who first obtains possession of that thing also has its property, although his title is later, provided he is in good faith. C. I. 1126; C. G. 1141; C. H. 445, 1473; C. A. 322; L. 1. 3. n. 927, 1. 4. n. 210; Inst. 1. 4. t. 15.

Is possession required for prescription? - It is certain that legitimate possession is required for prescription. This is clear both from civil law and from canon law: "Without possession prescription does not proceed." R. I. 3 in the Sixth. Possession as to things, quasi-possession as to rights, which consists in the use of a right, or in cessation from fulfilling an obligation, as if someone uses a servitude of passage or of aqueduct, if someone prohibits another from going through his land, or obstructs an aqueduct. Inst. 1. 2. t. 6; C. I. 2106; C. G. 2229; C. H. 1940; C. A. 1460; Laymann 1. 3. tr. 1. c. 8. n. 4; Struggl, Theol. univ. p. 2. tr. 8. d. 2. q. 3, a. 4. II; Troplong, della Prescrizione c. 2; E. M.

What of a possessor in good faith? A possessor in good faith, as soon as he knows the thing possessed to be another's, is bound to restore it, still extant, to the owner. The reason is that otherwise he retains another's good while the owner is reasonably unwilling, and therefore violates his strict right.

If meanwhile by his negligence he has made another's thing worse, he is bound to no compensation of damage. If he has lost or destroyed another's thing, even by his negligence, he is held to nothing. "He who neglected the thing as though his own is subject to no complaint." L. 31 § 3, Dig. de Haered. petit.; C. He. 938; C. L. 494; L. 607; C. B. 985, 993.

What of a possessor in bad faith? - A possessor in bad faith must restore the thing itself, materially or formally existing, for the thing cries out for its owner. Moreover, he is bound to compensate all damages which came to the owner from the unjust possession of the thing, for he is the per se efficacious cause of those damages. - Likewise he is bound to restore all those things in which he has been unjustly made richer from the unjust detention of another's thing; for no one can justly become rich from another's injury. C. A. 335; C. B. 985, 987-990, 992; C. He. 940; C. L. 496. According to C. I. 1147, he who received payment in bad faith is bound to restitution both of the capital and of the interest or fruits from the day of payment.

What of a possessor in doubtful faith? - A possessor in doubtful faith can be such either at the beginning or only during the course of possession. Concerning the first case it has been said above, n. 1327. Concerning the second, the discussion is here. - A possessor in doubtful faith must inquire after the true owner of the thing; otherwise he exposes himself to the danger of retaining another's thing through his own culpable negligence. Once inquiry has been made, and doubt perseveres, he can retain the whole thing if before the doubt arose he possessed in good faith. The reason is that peaceful possession of a thing in good faith exhibits moral certainty. L. 547, 608; Gousset 940, 1028; C. A. 323; C. I. 687; C. G. 550; C. H. 433.

Possession. A power existing in fact over a thing can accede to right, or right and fact are separated. Joined with right, possession gives to the one having the right all the advantages and privileges of a possessor. And even separated, according to itself, it binds a certain bond between the thing or right and the possessor, by force of which the possessor, as such, by the very law of nature is preferred to all who do not prove their right, and is sometimes also protected by several privileges of positive law.

Lest a more accurate exposition of a laborious question become too involved for the end of the present treatise, we shall use the customary definition, which nevertheless we shall temper or correct by a declaration of the words, reserving a somewhat fuller explanation for the smaller text. Therefore:

1. What possession is. Possession, which, as we all confusedly feel, is the connatural consequence of right, or a fact which regularly coheres with right, is still more commonly defined: detention of a thing with the mind of an owner.

In this definition, detention, which of itself would signify only the effect of corporeal apprehension, impossible in immovable things, must be taken much more broadly and even improperly; for it designates the relation of a thing to a person existing in fact, such as is required for freely taking the utility of the thing; or more briefly, a true apprehension or one equated in moral estimation. - Under the name of thing, they are also accustomed in some way to understand rights, yet in various ways. For some, considering that things alone can properly be possessed, in order to excuse the metaphorical use, add quasi-usufruct and quasi-possession of rights to the usufruct and possession of things; the Codes of France (art. 2228) and Italy (art. 685) equally admit possession of things and of rights, in these words: "Il possesso e la detenzione di una cosa o il godimento di un diritto che uno ha o per se stesso, o per mezzo di un altro, il quale detenga la cosa o eserciti il diritto in nome di lui"; better, in our opinion, and more consequently to the received division of dominion into direct and indirect, the Code of Germany (cf. arts. 854 and 868) acknowledges direct possession of the thing to the owner (true or supposed), but indirect possession to him who, on account of a right in another's thing or on account of a contract, e.g. of lease, readily dominates or is judged to dominate the thing. Finally, by the words "with the mind of an owner" there is excluded the possession of him who detains the thing for another. For someone can detain a thing through himself or through another. Detention itself is sometimes called the body of possession.

This is natural possession, which is born, remains, and ceases with the fact.

But, since possession is protected by positive law and is fortified by various privileges, possession to which positive law gives favor, i.e. civil possession, must also be considered. Moreover, positive law can deny its protection to certain natural possessions: thus certain sacred things cannot be possessed by a private person (c. 1510, §2), and c. 1695, §1, concedes an action of retaining possession only after a year. Of itself indeed it sanctions natural possession itself, so that for the most part natural possession is also civil; but sometimes it treats as possessor one who has lost natural possession: thus, by the laws of France and Italy, possession of land is not lost unless it has naturally ceased for a year; or it even judges him a possessor who never was a possessor. This possession is merely civil; or even most civil when it rests on civil law alone and was never natural. In the U.S.A., merely civil possession is called constructive possession or also possession in law or legal possession.

Fuller Explanation. Only the strange and not very scientific etymologies which once were admitted must be recalled. Thus Paulus, L. 1, Princ. D. De acquirenda possessione, wrote: "Possession is said from the feet, as if a placing of the feet"; others derived the name from the ancient pos, i.e. powerful, and sedeo, as if signifying: I sit with power.

2. But what possession is, jurists, according to Molina, tr. II, d. 12, n. 2, 3, always judged very difficult to define. Wherefore the Gloss on L. Stipulati, § Haec quoque, De verborum obligatione, pronounced: "the most expert have not dared to define possession." Then the definition of Hostiensis in the Summa was received rather commonly: "the detention of a corporeal thing by body and mind and with the support of right." Molina nevertheless judges that definition to be more causal than formal; he, in d. 17 of the same tr. 2, n. 3, proposes this formal one: "actual or habitual insistence in some thing, proceeding from apprehension by body and mind with the support of right." In this description, the word apprehension must be taken broadly and even improperly, and natural possession is not distinguished from civil. - Lugo, d. 2, n. 59, narrates the difficulty of the jurists, but neglects the question. In the nineteenth century, von Savigny (1779-1861), the illustrious interpreter of Roman law, propagated a definition similar to that of Hostiensis; after him, even the prudent men of our civil law began to speak expressly of the body and mind of possession. Recently, the celebrated Ihering, at the end of the nineteenth century, denied the necessity of the mind, since otherwise the demented would be incapable of possession; and he contended that the body of possession consists essentially not at all in physical power over the thing or in detention, or at least by no means formally flows from physical apprehension, since every possession is nothing other than a relation between person and thing existing in fact, such as relation the economic utility of the thing, which varies with the thing, requires. He proposed these things while the civil Code of Germany was being made; and he obtained that silence be kept concerning the mind, but not that possession be described otherwise than by physical power over the thing. (Cf. the text written by Savigny concerning the body of possession in the work of the magistrate de Meulenaere, Code civil allemand, Appendix and p. 230.) Concerning the body of possession we sufficiently agree with Ihering; we think that the difficulty made concerning the mind is none, since the same would return where there is question of the acquisition of dominion by the demented; namely, the persons who represent those incapable persons can have the mind for them.

For us, from the very notion of right handed down above, the description of natural possession is sufficiently convenient. For it is a relation of prevalence and subjection, existing in fact, between a thing and a person, which, if it is inviolable, constitutes the right itself.

What a Juridical Fact Is. A juridical fact is whatever, voluntary or non-voluntary, influences the various rights of persons. Nor can all voluntary things be recalled to contracts. Wherefore, under the name of juridical acts come testaments. Juridical facts are designations of offices, whether these have been sought or imposed on account of the common good. Juridical facts are delicts themselves and quasi-delicts.

I. To every right there is attributed some dominion, either toward the public common good, and it is jurisdiction; or toward the private good of the one having it and of his own, and it is the dominion of property.

II. To the dominion of jurisdiction pertains the so-called high dominion, by which, with regard to the common good, perfect society can order and moderate the exercise of the right of property, indeed, with the equality of justice preserved, which here easily becomes commutative and therefore exacts compensation of damage, can deprive a subject of his things. Now we must treat of private dominion alone.

III. In things there can be full dominion of property, which, with at least justice preserved, permits the owner use or enjoyment at will, exclusion of others even when use ceases, and disposition of the thing. By division it becomes imperfect: either, with utility excluded, there is preserved the right in the substance, which is called naked, direct, or also radical dominion; or it is of utility alone without disposition concerning the substance, which is called indirect or useful. This latter dominion can be dismembered, so that separately, in several subjects, there exist various partial rights which together would constitute full dominion. Concerning the individual ones briefly:

IV. 1. Usufruct is the right of using and enjoying the things of another, with their substance preserved.

A fruit is "whatever is accustomed to be born and reborn from a thing." Those which a thing produces are called natural, at least in a broad sense; in the strict sense, if they are begotten by the nature of the thing alone; those which are owed to the industry of men are called industrial; while mixed are those which, as most are, are produced by the joined forces of nature and man. Finally, civil fruits are understood as monies which, from a contract concerning a thing, must be paid constantly after stated intervals: e.g. the annual price of a leased house.

Thus civil laws are accustomed to distinguish fruits according to their very nature; while the Code of Germany, attending also to the origin from which they come, distinguishes fruits of a thing, fruits of a right, and fruits which are owed to a juridical relation concerning a thing or right (art. 99 Cod. Germaniae).

In things which are consumed by first use, quasi-usufruct is constituted; what then, at the end of the usufruct, must be returned, the civil laws define.

2. Use and habitation, in certain laws, signify a circumscribed right merely of using a thing or habitation.

3. Servitude, passively, is a real burden by which an immovable thing is burdened in favor either of another fund (real servitude), or of a definite person (personal servitude).

For the acquisition, exercise, and extinction of servitudes, continuous and non-continuous, apparent and non-apparent, positive and negative servitudes must be distinguished.

5. Superficies designates dominion over all, or at least certain, things which are built or planted on another's fund.

6. Emphyteusis is a right in a thing, by which someone can enjoy another's thing fully for a long time or in perpetuity, under this law, that he pay something (a canon) to the owner, at least in acknowledgment of dominion. Liberation from that obligation is called redemption of the canon.

7. Thus far concerning rights which consist according to themselves. Besides, as accessory rights, existing merely for strengthening the execution of a principal obligation, there are: a) pledge, or a movable thing which, from a contract, is handed over by the debtor to the creditor, so that from it he may obtain payment of the debt before other creditors. Commercial pledge is distinguished from common pledge by facility of constitution and efficacy.

In certain laws antichresis is also acknowledged, as pledge of an immovable thing. And several other forms of security are acknowledged by laws today.

b) Privilege, or a disposition of law by force of which, for extinguishing certain debts (privileged debts), the goods of the debtor, either all (general privilege), or certain ones (special privilege), must serve before other debts (even hypothecary debts).

c) Hypothec, or, in another's immovable thing, the right by which the creditor can satisfy himself before others from the price of the thing. It is distinguished as legal, judicial, conventional.

Dominion can be singular or pertain to several. Undivided condominium is customarily little pleasing to modern laws, so that it cannot be established in perpetuity.

V. On possession. Possession properly is detention of a thing with the mind of an owner: in which definition detention must be taken very broadly; the thing can also be a right; the mind of an owner is opposed to the mind of possessing for another.

It is acquired by some apprehension of the thing - whether true or symbolic, which legally suffices - with the intention of an owner. But as long as the thing remains in our power, possession is preserved by the mind alone; indeed longer, if the law has so established. Possession itself in fact binds the thing to the possessor, so that deservedly he is preferred to others who do not prove a contrary right.

Besides this natural possession, there is also merely civil possession, which, by positive law alone, is judged to remain or to be constituted. There is also possession of right, which profits him who exercises that right as its owner.

Possession of good faith is distinguished, which, strictly taken, is joined with the persuasion of dominion or right, and possession of bad faith, or of him who knows the thing to be another's, or, in doubt, neglects due inquiry.

Simple detention of good faith is that of him who, without the mind of an owner, at least absolute, detains a thing, judging this to be lawful for himself.

Most broadly, every good faith signifies concord between intention and conscience.

Possession is called vicious with respect to him to whom force has been inflicted or possession concealed. Otherwise it is not vicious.

VI. What a juridical fact is. By this name is called every fact, voluntary or involuntary, which gives, takes away, or changes rights.

Possession is the holding of a thing, or the enjoyment of a right, which someone exercises by himself or through another, yet in his own name. Holding of a thing is called possession simply, and enjoyment of a right quasi-possession. Each is divided into natural, civil, and mixed. Cf. Schmalzgr., lib. 2, tit. 12, n. 4. - Baller., note (a) and (b), p. 508.

You will ask first what possession is.

I answer. Possession is said from the position of the feet, because over immovables it is usually acquired by the position of feet. It is commonly defined: "Detention of a thing with the aid of body, mind, and right."

It is explained. It is said, "detention:" under which name is understood also the first apprehension, which is the beginning and acquisition of possession.

It is said, "of a thing," not only corporeal, as a field, a house, or movables, but also incorporeal, as an annuity, a benefice, a servitude, and similar rights, which are said to be possessed in a manner.

It is said, "with the aid of the body;" because it does not begin, nor is it possession, unless there comes an external or corporeal act by which the thing is apprehended by foot, hand, eyes, or some similar way, in itself or in another in which it is held to be contained, as I shall say presently.

It is said, "with the aid of the mind;" because the intention of possessing and holding the thing for oneself and not for another is required. Hence a depositary does not properly possess the deposit, nor a tutor the goods of a minor.

It is said, "with the aid of right," not that it is necessary that right approve it, otherwise every possession would be just, but because for possession it is required that right not impede the detention of a thing from being held its possession. For this reason, detention of a sacred thing by a layman is not possession, not even of fact, since right prohibits it; but detention of a stolen profane thing, though unjust, is nevertheless true possession of fact, because right does not impede the detention of such a thing from sufficing for possession.

You will ask secondly in how many ways possession is twofold.

I answer. Among the various divisions of possession (for one is just, another unjust, one in one's own name, another in another's name), the principal is into civil, natural, and most civil.

Civil is that which, begun with the aid of the body, is retained and continued by the aid of the mind alone. Thus he possesses civilly who is absent from his things, but holds and occupies them as his own in mind and faculty, so long as he is not cast out of possession by another. It is called civil, because it rests more on civil than on natural law, since the natural mode of possessing is by bodily insistence, and also because it produces a civil effect, namely prescription.

Natural is that by which a thing is occupied by body and mind together. But one is held to occupy corporally when he is so near the thing that he can be present to it immediately. This natural possession can be separated from civil: for a thief, e. g., possesses my thing naturally, I civilly, until by abstraction of it from place to place it is put outside my custody; for then I am cast out of civil possession.

Most civil is that which is acquired by the sole disposition of law, even by one who knows nothing of it, and therefore without the aid of body and mind. Thus the infant heir possesses the inheritance of the deceased, especially in France and the country of Liege, where the dead clothes the living: Le mort saisit le vif. The reason is, because the mode of acquiring possession is subject to human law, which can establish diverse modes according as it seems more expedient for the commonwealth.

You will ask thirdly whether, possession lost, dominion is always lost.

I answer negatively. For of a thing lost or taken by theft I lose possession, yet not dominion.

You will ask fourthly what are the privileges of possession.

I answer. The chief privileges of possession are: first, that it produces prescription; second, that in doubt the condition of the possessor is better; third, that it is not for the possessor to prove that the thing is his, but for the assailant to prove that it is not. Concerning possession see more among the interpreters of the laws.

VII. QUESTION IV. What is possession, and the manner of acquiring or losing it? ANSWER. It is the detention of a thing by the support of body, of mind, and of right. For true possession it is required that a man take possession of the thing in mind and in body, in the manner prescribed by law, namely with hands, with feet, or by another formula defined in the law. Possession is twofold. One is just, that is, of right together with fact. The other is unjust, and of fact alone. The former is called the detention of one's own thing with the right of detaining. The latter, on the contrary, is the detention of a thing as one's own without the right of detaining.

Titius thinks that by means of modern science the phenomena which theologians hitherto have been accustomed to attribute to diabolical possession can be sufficiently explained. Thus, in a recent case in which a certain nun is said to have received wounds inflicted by a demon, Titius attributes the phenomenon to the imaginative power of the nun herself; the power of the same nun to distinguish between ordinary and blessed water, a consecrated and an unconsecrated host, the effect of exorcism, and even knowledge of languages hitherto wholly unknown, Titius attributes to emanations from the brains of bystanders who knew those languages. Caius recognizes that such things are signs of diabolical possession commonly admitted not only by theologians but by the Church in the Ritual; hence he would very much like to know whether the explanation of Titius can be admitted. Hence it is asked:

1. Is diabolical possession truly found, and by what signs can it be established?

2. Can the theory of telepathy, or thought-reading, be admitted?

3. What is to be said of the case?

1. Does diabolic possession exist and by what signs may it be known? Diabolic possession certainly exists, as we know from the pages of Holy Scripture, and very similar cases have been reported in all times down to the present day. While the Roman Ritual warns priests not to be too ready to believe that anyone is possessed by the devil, it gives the signs by which they may be able to distinguish cases of true possession: “First, let him not easily believe that anyone is possessed by a demon, but let him know well those signs by which one possessed is distinguished from those who labor either from black bile or from some disease. The signs of a possessing demon, however, are: to speak many words in an unknown language, or to understand one speaking; to disclose distant and hidden things; to show strength beyond the nature of one’s age or condition; and other things of this kind, which, when very many concur, are greater indications.” — De Exorcizandis Obsessis a Daemonio.

2. Can the theory of telepathy, or thought transference, be admitted ?

Telepathy is the name given to a theory according to which thought may be transmitted from mind to mind through the ether or through other than the ordinary channels of sense. Many claim that the possibility of telepathy has been demonstrated by experiment. Others, however, stoutly deny this. Thus Dr. J. Milne Bramwell writes: "After many years’ hypnotic work, and frequent opportunities of investigating the experiments of others, I have seen nothing, absolutely nothing, which might be fairly considered as affording even the slightest evidence for the existence of telepathy, or any of the so-called occult phenomena.”¹ Sir Oliver Lodge and others invoke the theory of the subliminal consciousness in order to explain the wonders of hypnotism and spiritism. Dr. Bramwell rejects this and other theories as inadequate to explain the facts, and then adds: “As William James truly says, these manifestations of the hidden self are immensely complex and fluctuating things, which we have hardly begun to understand, and concerning which sweeping generalization is sure to be premature.”¹

1 Hypnotism, p. 142.

1 Hypnotism, p. 420. 2d ed., 1906.

3. The case. Titius thinks that the phenomena which theologians attribute to diabolical possession may be explained by the help of modern science. Thus in a recent case where a nun was said to have been wounded by the devil, Titius explains the facts by the force of the imagination. Theologians who are worthy of the name ask first for conclusive evidence of such alleged facts. If the wounds or other phenomena are certainly existent, theologians look for a natural explanation first, and only attribute them to the devil when all possible natural causes have been shown to be inadmissible. The nun's wounds may easily have been caused by some more ordinary means than her imagination, or in some special case the explanation of Titius might be the true one. Titius attributes to telepathy the nun's power to distinguish holy from common water, a consecrated from a non-consecrated host, the effect which exorcism produces on her, and her knowledge of languages hitherto unknown by her altogether. In this Titius has gone farther than science warrants. Whether telepathy exists or not in the very modest sense of transferring from mind to mind without the intervention of the senses the number of a playing card, or a geometrical figure, is still doubtful. Even granting that telepathy in this sense is vera causa, the gap from this to the applications of Titius is too wide for science to leap. Caius therefore will reject the explanation of Titius as being unscientific; but at the same time he will bear in mind the caution of the Ritual, which does not say that any one or two phenomena are indubitable signs of diabolical possession, but that when “very many such signs concur, they are surer indications” of diabolical possession.