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In an article in the American Law Review /4/ I referred ＇232＇ to an expression of Godefroi with regard to agents； eadem est persona domini et procuratoris。 /1/ This notion of a fictitious unity of person has been pronounced a darkening of counsel in a recent useful work。 /2/ But it receives the sanction of Sir Henry Maine； /3/ and I believe that it must stand as expressing an important aspect of the law； if； as I have tried to show； there is no adequate and complete explanation of the modern law； except by the survival in practice of rules which lost their true meaning when the objects of them ceased to be slaves。 There is no trouble in understanding what is meant by saying that a slave has no legal standing； but is absorbed in the family which his master represents before the law。 The meaning seems equally clear when we say that a free servant； in his relations as such； is in many respects likened by the law to a slave （not； of course； to his own detriment as a freeman）。 The next step is simply that others not servants in a general sense may be treated as if servants in a particular connection。 This is the progress of ideas as shown us by history； and this is what is meant by saying that the characteristic feature which justifies agency as a title of the law is the absorption pro hac vice of the agent's legal individuality in that of his principal。
If this were carried out logically； it would follow that an agent constituted to hold possession in his principal's name would not be regarded as having the legal possession； or as entitled to trespass。 But； after what has been said； no opinion can be expressed whether the law would go so far； unless it is shown by precedent。 /4/ The nature of the case ＇233＇ will be observed。 It is that of an agent constituted for the very point and purpose of possession。 A bailee may be an agent for some other purpose。 A free servant may be made a bailee。 But the bailee holds in his own as we say； following the Roman idiom； and the servant or agent holding as such does not。
It would hardly be worth while； if space allowed； to search the books on this subject； because of the great confusion of language to be found in them。 It has been said； for instance； in this connection； that a carrier is a servant； /1/ while nothing can be clearer than that； while goods are in custody； they are in his possession。 /2/ So where goods remain in the custody of a vendor； appropriation to the contract and acceptance have been confounded with delivery。 /3/ Our law has adopted the Roman doctrine； /4/ that there may be a delivery； that is； a change of possession； by a change in the character in which the vendor holds； but has not always imitated the caution of the civilians with regard to what amounts to such a change。 /5/ Bailees are constantly spoken of as if they were agents to possess；a confusion made ＇234＇ easier by the fact that they generally are agents for other purposes。 Those cases which attribute possession to a transferee of goods in the hands of a middleman； /1/ without distinguishing whether the middleman holds in his own name or the buyer's； are generally right in the result； no doubt； but have added to the confusion of thought upon the subject。
German writers are a little apt to value a theory of possession somewhat in proportion to the breadth of the distinction which it draws between juridical possession and actual detention； but； from the point of view taken here； it will be seen that the grounds for denying possession and the possessory remedies to servants and agents holding as suchif； indeed； the latter have not those remediesare merely historical； and that the general theory can only take account of the denial as an anomaly。 It will also be perceived that the ground on which servants and depositaries have been often likened to each other； namely； that they both hold for the benefit of another and not for themselves； is wholly without influence on our law； which has always treated depositaries as having possession； and is not the true explanation of the Roman doctrine； which did not decide either case upon that ground； and which decided each for reasons different from those on which it decided the other。
It will now be easy to deal with the question of power as to third persons。 This is naturally a power coextensive with the intent。 But we must bear in mind that the law deals only or mainly with manifested facts； and hence； when we speak of a power to exclude others； we mean no more than a power which so appears in its manifestation。 ＇235＇ A ruffian may be within equal reach and sight when a child picks up a pocket…book； but if he does nothing； the child has manifested the needful power as well as if it had been backed by a hundred policemen。 Thus narrowed； it might be suggested that the manifestation of is only important as a manifestation of intent。 But the two things are distinct； and the former becomes decisive when there are two contemporaneous and conflicting intents。 Thus； where two parties； neither having title； claimed a crop of corn adversely to each other； and cultivated it alternately； and the plaintiff gathered and threw it in small piles in the same field； where it lay for a week； and then each party simultaneously began to carry it away； it was held the plaintiff had not gained possession。 /1/ But the first interference of the defendant had been after the gathering into piles； the plaintiff would probably have recovered。 /2/ So where trustees possessed of a schoolroom put in a schoolmaster； and he was afterwards dismissed； but the next day （June 30） re…entered by force； on the fourth of July he was required by notice to depart； and was not ejected until the eleventh； it was considered that the schoolmaster never got possession as against the trustees。 /3/
We are led； in this connection； to the subject of the continuance of the rights acquired by gaining possession。 To gain possession； it has been seen； there must be certain physical relations； as explained； and a certain intent。 It remains to be inquired； how far these facts must continue ＇236＇ to be presently true of a person in order that he may keep the rights which follow from their presence。 The prevailing view is that of Savigny。 He thinks that there must be always the same animus as at the moment of acquisition； and a constant power to reproduce at will the original physical relations to the object。 Every one agrees that it is not necessary to have always a present power over the thing； otherwise one could only possess what was under his hand。 But it is a question whether we cannot dispense with even more。 The facts which constitute possession are in their nature capable of continuing presently true for a lifetime。 Hence there has arisen an ambiguity of language which has led to much confusion of thought。 We use the word 〃possession；〃 indifferently； to signify the presence of all the facts needful to gain it； and also the condition of him who； although some of them no longer exist； is still protected as if they did。 Consequently it has been only too easy to treat the cessation of the facts as the loss of the right； as some German writers very nearly do。 /1/
But it no more follows； from the single circumstance that certain facts must concur in order to create the rights incident to possession； that they must continue in order to keep those rights alive； than it does； from the necessity of a consideration and a promise to create a right ex contractu； that the consideration and promise must continue moving between the parties until the moment of performance。 When certain facts have once been made manifest which confer a right； there is no general ground on which the law need hold the right at an end except the manifestation of some fact inconsistent with its continuance； ＇237＇ the reasons for conferring the particular right have great weight in determining what facts shall be to be so。 Cessation of the original physical relations to the object might be treated as such a fact； but it never has been； unless in times of more ungoverned violence than the present。 On the same principle； it is only a question of tradition or policy whether a cessation of the power to reproduce the original physical relations shall affect the continuance of the rights。 It does not stand on the same ground as a new possession adversely taken by another。 We have adopted the Roman law as to animals ferae naturae； but the general tendency of our law is to favor appropriation。 It abhors the absence of proprietary or possessory rights as a kind of vacuum。 Accordingly； it has been expressly decided； where a man found logs afloat and moored them； but they again broke loose and floated away； and were found by another； that the first finder retained the rights which sprung from his having taken possession； and that he could maintain trover against the second finder； who refused to give them up。 /1/
Suppose that a finder of a purse of gold has left it in his country…house； which is lonely and slightly barred； and he is a hundred miles away； in prison。 The only person within twenty miles is a thoroughly equipped burglar at his front door； who has seen the purse through a window； and who intends forthwith to enter and take it。 The finder's power to reprod