Law, being a practical thing, must found itself on
actual forces. It is quite enough, therefore, for the law, that
man, by an instinct which he shares with the domestic dog, and of
which the seal gives a most striking example, will not allow
himself to be dispossessed, either by force or fraud, of what he
holds, without trying to get it back again. /1/ Philosophy may
find a hundred reasons to justify the instinct, but it would be
totally immaterial if it should condemn it and bid us surrender
without a murmur. As long as the instinct remains, it will be
more comfortable for the law to satisfy it in an orderly manner,
than to leave people to themselves. If it should do otherwise, it
would become a matter for pedagogues, wholly devoid of reality.
I think we are now in a position to begin the analysis of
possession. It will be instructive to say a word in the first
place upon a preliminary question which has been debated with
much zeal in Germany. Is possession a fact or a right? This
question must be taken to mean, by possession and right, what the
law means by those words, and not something else which
philosophers or moralists may mean by them; for as lawyers we
have nothing to do with either, except in a legal sense.
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