POSSESSION. In endeavouring to explain the meaning of this term, we shall use the following extracts from Savigny's work on the Law of Posses sion (Ns Recht des Besitzes, Giessen, 1827).
" All the definitions of possession are founded on one common notion. By the notion of possession of a thing we under stand that condition by virtue of which not only are we ourselves physically capable of operating upon it, but every other person is incapable. This condi tion, which is called Detention, and which lies at the foundation of every notion of possession, is no juristical notion, but it has an immediate relation to a juristical notion, by virtue of which it becomes a subject of legislation. As ownership is the legal capacity to operate on a thing at our pleasure, and to exclude all other persons from using it; so is detention the exercise of ownership, and it is the natural state which corre sponds to ownership as a legal state. If this juristical relation of possession were the only one, everything concerning it that could juristically be determined, would be comprehended in the following positions :—the owner has the right to possess; the same right belongs to him to whom the owner gives the possession ; no other person has this right.
"But the Roman law, in the case of possession, as well as of property, deter mines the mode in which it is acquired and lost ; consequently it treats posses sion not only as a consequence of a right, but as a condition of rights. Accord ingly, in a juristical theory of possession, it is only the right of possession (jus possessionis) that we have to consider, and not the right to possess (called by modern jurists, jus possidendi), which be longs to the theory of property.
" We now pass from the notion of mere detention to that of juristical pos session, which is the subject of this trea tise. The object of the first part, which is the foundation of the whole investiga tion, is to determine this notion formally and materially. Formally, by explain ing those rights which presuppose pos session as a condition, and conse quently determining the signification which the non-juristical notion of deten tion obtains in jurisprudence, in order to its being considered as something juristi cal, that is, Possession ; materially, by enumerating the conditions which the Roman law requires for the existence of possession, and consequently the posi tive modifications under which detention can be viewed as possession.
" The formal determination of the notion by force of which alone posses sion can become a subject of jurispru dence, is divided into three parts ; first we must determine the place which pos session, as a legal relation, occupies in the system of Roman law. We must then enumerate the rights which the Roman law recognises as a consequence of possession, and we must also examine the rights which are improperly consi dered rights of possession. It will then be easy to answer the questions whether possession is to be considered as a right, and whether as a jus in re. The first and simplest mode in which possession ap pears in a system of jurisprudence con sists in the owner having the right to possess; but we are here considering possession independent of ownership, and as the source of peculiar rights ; the former of these two questions therefore may be expressed thus—in what sense has possession been distinguished from ownership ? a mode of expression which has been used by many writers.
" In the second place we must deter mine how the different senses in which possession occurs in the Roman law are distinguished from one another by the mode of expression ; and particularly what were the significations of Possessio generally, and Possessio naturalis, and Possessio civilis, among the Roman ja rists.
"In the whole system of Roman law there are only two consequences which can be ascribed to possession of itself, as distinct from all ownership, and these are Usucapion and Interdicts.