/1/
When a defendant in a possessory action is not allowed to set up
title in himself, a theorist readily finds a mystical importance
in possession.
But when does a man become entitled to this absolute protection?
On the principle of Kant, it is not enough that he has the
custody of a thing. A protection based on the sacredness of man's
personality requires that the object should have been brought
within the sphere of that personality, that the free will should
have unrestrainedly set itself into that object. There must be
then an intent to appropriate it, that is, to make it part of
one's self, or one's own.
Here the prevailing view of the Roman law comes in to fortify
principle with precedent. We are told that, of the many who might
have the actual charge or custody of a thing, the Roman law
recognized as possessor only the owner, or one holding as owner
and on his way to become one by lapse of time. In later days it
made a few exceptions on practical grounds. But beyond the
pledgee and the sequester (a receiver appointed by the court)
these exceptions are unimportant and disputed. /2/ Some of the
Roman jurists state in terms that depositaries and borrowers have
not possession of the things intrusted to them.
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