POSSESSION. In endeavouring to explain the legal meaning of this term, we shall commence with the following extracts from Savigny's work on the Bight of Possession ('Das Hecht des Besitzeii,' Giessen, 1827.) " All the definitions of possession are founded on one common notion. By the notion of possession of a thlug we understand that condition by virtue of which not only aro we ourselves physically capable of operating upon It, but every other person is incapable. This condition, which is called detention, and which Has at the foundation of every notion of possession, is no juriatical notion, but it has an iunneslisto relation to a juristicAl notion, by virtue of which it becomee 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 Mate which corresponds to ownership as a legal state. If this juristiad 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, determines the mode in which it is acquired and lost ; consequently it treats possession not only as a consequence of a right, but as a con dition of rights. Accordingly, in a juristical theory of possession, it is only the right of possession (pia poesessionis) that we have to consider, and not the right to possess (called by modern jurists jus possidendi), which belongs to the theory of property.
" We now pass from the notion of mere detention to that of juristieah possession, which is the eubject of this treatise. The object of the first pert, which is the foundation of the whole investigation, is to determine this notion formally and materially. Formally, by explaining
those rights which presuppose possession as a condition, and 'sense quently determining the signification which the non-juristical notion of detention obtains in jurisprudence, in order to its being considered as something juristical, that is, l'ossession ; materially, by enumerating the conditions which the Roman law requires for the existence of possession, and consequently the positive modifications under which detention can be viewed as possession.
"The formal determination of the notion by force of which alone possession can become a subject of jurisprudence, is divided into three parts; first we must deterinine the place which possession, as A legal relation, occupies in the system of Roman law. We must then enume rate the rights which the Roman law recognises as a consequence of possession, and we must also examine the rights which are improperly considered 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 Appears in a system of jurisprudence consists in- the owner having the right to possess ; hut 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 I a mode of expression which has been used by many writers.
"In the second place we must determine how the different acmes in which possession occurs in the Roman law are distinguished from ono another by the mode of expression ; and particularly what were the signification of possessio generally, and possessio naturalis, and poesessio civilis, among the Roman jurists.
"In the whole system of Roman law there are only two consequences which can be ascribed to possession of itself, as distinct from All owner ship, and these are usueapion and interdicts.