The grounds for rejecting the criteria of the Roman law have been shown above.Let us begin afresh.Legal duties are logically antecedent to legal rights.What may be their relation to moral rights if there are any, and whether moral rights are not in like manner logically the offspring of moral duties, are questions which do not concern us here.These are for the philosopher, who approaches the law from without as part of a larger series of human manifestations.The business of the jurist is to make known the content of the law; that is, to work upon it from within, or logically, arranging and distributing it, in order, from its stemmum genus to its infima species, so far as practicable.Legal duties then come before legal rights.To put it more broadly, and avoid the word duty, which is open to objection, the direct working of the law is to limit freedom of action or choice on the part of a greater or less number of persons in certain specified ways; while the power of removing or enforcing this limitation which is generally confided to certain other private persons, or, in other words, a right corresponding to the burden, is not a necessary or universal correlative.Again, a large part of the advantages enjoyed by one who has a right are not created by the law.The law does not enable me to use or abuse this book which lies before me.That is a physical power which I have without the aid of the law.What the law does is simply to prevent other men to a greater or less extent from interfering with my use or abuse.And this analysis and example apply to the case of possession, as well as to ownership.
Such being the direct working of the law in the case of possession, one would think that the animus or intent most nearly parallel to its movement would be the intent of which we are in search.If what the law does is to exclude others from interfering with the object, it would seem that the intent which the law should require is an intent to exclude others.I believe that such an intent is all that the common law deems needful, and that on principle no more should be required.
It may be asked whether this is not simply the animus domini looked at from the other side.If it were, it would nevertheless be better to look at the front of the shield than at the reverse.
But it is not the same if we give to the animus domini the meaning which the Germans give it, and which denies possession to bailees in general.The intent to appropriate or deal with a thing as owner can hardly exist without an intent to exclude others, and something more; but the latter may very well be where there is no intent to hold as owner.A tenant for years intends to exclude all persons, including the owner, until the end of his term; yet he has not the animus domini in the sense explained.Still less has a bailee with a lien, who does not even mean to use, but only to detain the thing for payment.But, further, the common law protects a bailee against strangers, when it would not protect him against the owner, as in the case of a deposit or other bailment terminable at pleasure; and we may therefore say that the intent even to exclude need not be so extensive as would be implied in the animus domini.If a bailee intends to exclude strangers to the title, it is enough for possession under our law, although he is perfectly ready to give the thing up to its owner at any moment; while it is of the essence of the German view that the intent must not be relative, but an absolute, self-regarding intent to take the benefit of the thing.Again, if the motives or wishes, and even the intentions, most present to the mind of a possessor, were all self-regarding, it would not follow that the intent toward others was not the important thing in the analysis of the law.But, as we have seen, a depositary is a true possessor under the common-law theory, although his intent is not self-regarding, and he holds solely for the benefit of the owner.
There is a class of cases besides those of bailees and tenants, which will probably, although not necessarily, be decided one way or the other, as we adopt the test of an intent to exclude, or of the animus domini.Bridges v.Hawkesworth will serve as a starting-point.There, a pocket-book was dropped on the floor of a shop by a customer, and picked up by another customer before the shopkeeper knew of it.Common-law judges and civilians would agree that the finder got possession first, and so could keep it as against the shopkeeper.For the shopkeeper, not knowing of the thing, could not have the intent to appropriate it, and, having invited the public to his shop, he could not have the intent to exclude them from it.But suppose the pocket-book had been dropped in a private room, how should the case be decided? There can be no animus domini unless the thing is known of; but an intent to exclude others from it may be contained in the larger intent to exclude others from the place where it is, without any knowledge of the object's existence.
In McAvoy v.Medina, a pocket-book had been left upon a barber's table, and it was held that the barber had a better right than the finder.The opinion is rather obscure.It takes a distinction between things voluntarily placed on a table and things dropped on the floor, and may possibly go on the ground that, when the owner leaves a thing in that way, there is an implied request to the shopkeeper to guard it, which will give him a better right than one who actually finds it before him.
