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the Kantian theory required him to say； that this is a sacrifice of principle to convenience。 /2/ But I cannot see what is left of a principle which avows itself inconsistent with convenience and the actual course of legislation。 The first call of a theory of law is that it should fit the facts。 It must explain the observed course of legislation。 And as it is pretty certain that men will make laws which seem to them convenient without troubling themselves very much what principles are encountered by their legislation； a principle which defies convenience is likely to wait some time before it finds itself permanently realized。
It remains； then； to seek for some ground for the protection of possession outside the Bill of Rights or the Declaration of Independence； which shall be consistent with the larger scope given to the conception in modern law。
＇212＇ The courts have said but little on the subject。 It was laid down in one case that it was an extension of the protection which the law throws around the person； and on that ground held that trespass quare clausum did not pass to an assignee in bankruptcy。 /1/ So it has been said； that to deny a bankrupt trover against strangers for goods coming to his possession after his bankruptcy would be 〃an invitation to all the world to scramble for the possession of them〃； and reference was made to 〃grounds of policy and convenience。〃 /2/ I may also refer to the cases of capture； some of which will be cited again。 In the Greenland whale…fishery； by the English custom； if the first striker lost his hold on the fish； and it was then killed by another； the first had no claim； but he had the whole if he kept fast to the whale until it was struck by the other； although it then broke from the first harpoon。 By the custom in the Gallipagos； on the other hand； the first striker had half the whale； although control of the line was lost。 /3/ Each of these customs has been sustained and acted on by the English courts； and Judge Lowell has decided in accordance with still a third； which gives the whale to the vessel whose iron first remains in it； provided claim be made before cutting in。 /4/ The ground as put by Lord Mansfield is simply that； were it not for such customs； there must be a sort of warfare perpetually subsisting between the adventurers。 /5/ If courts adopt different rules on similar facts； according to the point at which men will fight in the ＇213＇ several cases； it tends； so far as it goes； to shake an a priori theory of the matter。
Those who see in the history of law the formal expression of the development of society will be apt to think that the proximate ground of law must be empirical； even when that ground is the fact that a certain ideal or theory of government is generally entertained。 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。 If this
had always been borne steadily in mind； the question would hardly have been asked。
＇214＇ A legal right is nothing but a permission to exercise certain natural powers； and upon certain conditions to obtain protection； restitution； or compensation by the aid of the public force。 Just so far as the aid of the public force is given a man； he has a legal right； and this right is the same whether his claim is founded in righteousness or iniquity。 Just so far as possession is protected； it is as much a source of legal rights as ownership is when it secures the same protection。
Every right is a consequence attached by the law to one or more facts which the law defines； and wherever the law gives any one special rights not shared by the body of the people； it does so on the ground that certain special facts； not true of the rest of the world； are true of him。 When a group of facts thus singled out by the law exists in the case of a given person； he is said to be entitled to the corresponding rights； meaning； thereby； that the law helps him to constrain his neighbors； or some of them； in a way in which it would not； if all the facts in question were not true of him。 Hence； any word which denotes such a group of facts connotes the rights attached to it by way of legal consequences； and any word which denotes the rights attached to a group of facts connotes the group of facts in like manner。
The word 〃possession〃 denotes such a group of facts。 Hence； when we say of a man that he has possession； we affirm directly that all the facts of a certain group are true of him； and we convey indirectly or by implication that the law will give him the advantage of the situation。 Contract； or property； or any other substantive notion of the law； may be analyzed in the same way； and should be treated in the same order。 The only difference is； that； ＇215＇ while possession denotes the facts and connotes the consequence； property always； and contract with more uncertainty and oscillation； denote the consequence and connote the facts。 When we say that a man owns a thing； we affirm directly that he has the benefit of the consequences attached to a certain group of facts； and； by implication； that the facts are true of him。 The important thing to grasp is； that each of these legal compounds； possession； property； and contract； is to be analyzed into fact and right； antecedent and consequent； in like manner as every other。 It is wholly immaterial that one element is accented by one word； and the other by the other two。 We are not studying etymology； but law。 There are always two things to be asked： first； what are the facts which make up the group in question； and then； what are the consequences attached by the law to that group。 The former generally offers the only difficulties。
Hence； it is almost tautologous to say that the protection which the law attaches by way of consequence to possession； is as truly a right in a legal sense as those consequences which are attached to adverse holding for the period of prescription； or to a promise for value or under seal。 If the statement is aided by dramatic reinforcement； I may add that possessory rights pass by descent or devise； as well as