(I) Mine and Thine
This morning I am, for my better edification, engaged in
reading Roscoe Pound’s classic Introduction to the Philosophy of Law
(1922; revised and augmented edition 1959). It is rather dry; only a concurrent reading of
Cozzens’ law-soaked novel By
Love Possessed (most gripping, precisely, in its legal passages) led me to
once again pick up this monograph.
In the penultimate chapter, Pound arrives at the question of Thine and Mine. To get some
clarity on this vexed subject, he begins with a clean desktop by doing what we
all should do whenever tackling a difficult problem: arranging the data into six convenient groups:
Theories by which men have sought
to give a rational account of private property as a social and legal
institution may be arranged
conveniently into six principal groups, each including many forms. These groups may be called:
(1) Natural-law theories;
(2) Metaphysical theories;
(3) Historical theories;
(4) Positive theories;
(5) Psychological theories; and
(6) Sociological theories.
-- (p. 114)
There! And now (in
the word’s of Portnoy’s psychoanalyst, at the end of the book) -- Now we can
begin!
Our interest here lies chiefly in the metaphysical theories, which
began with Kant. And Kant began
with this:
He begins with the inviolability of
the individual human personality. A thing is rightfully mine, he says, when I
am so connected with it that
anyone who uses it without my consent
does me an injury.
-- (p. 117)
Ordinarily, philosophical argument is supposed to start with
what is self-evident, or at least colorable, and to proceed by ever-cleverer
reasoning to some conclusion the path to which was not initially
plain. Yet here we find ourselves
in quicksand, before the journey is quite begun.
For consider:
Little Timmy is playing happily with his new toy dinosaur,
bought for him by his grandmother the day before. Along comes Tommy and seizes the object by main force. Timmy is dismayed, his playtime ruined;
tears well in his eyes.
But now consider Tommy, happily at play with his newfound
fun dinosaur. Let Timmy, or Bobby,
or anyone else, come along and likewise appropriate the coveted item, and --
now Tommy is dismayed, his playtime
in tatters; salt tears sting his
eyes.
The only way we might distinguish between the sense of
grievance of the two boys, is in light of some antecedent theory of ownership and notions of justice attached thereto, held by one or both
boys: quod erat demonstrandum, sed
demonstratum non est.
That, alas, is an actual incident, from America’s tragic
past. Here, ladies and gentlemen
of the jury, are the facts (David v. The Cruel World, 1955):
~ The Case of the Purloined Dinosaur ~
I was not quite five years
old, temporarily living with my maternal grandmother
in Garden City, Long Island, while my parents, having moved from Tennessee,
were off house-hunting in New Jersey.
In the course of a visit to the Museum of Natural History (fondly
recalled
here) she had bought me a lovely little bronze statuette of a
brontosaurus;
I had few or no toys
dating from the time of our rather exiguous existence in Oak Ridge, and this
brontosaurus
was by far my most
precious possession.
I was outdoors alone, playing with this wondrous toy, when
along came a neighborhood boy and, liking what he saw, calmly possessed himself
of the animal and began walking home.
Stunned at this calamity, I trailed along after him, alternately remonstrating,
threatening replevin or trover, and expostulating, citing seriatim the old
Roman (“natural law”) theories of possession, along with the metaphysical, the
historical, the positive, the psychological, and the sociological -- finally
adducing canon law and the opinions of the early Church fathers concerning
matters of tortious conversion -- or would have, had I heard of any of
that. He merely shrugged -- then trumped me, with a legal axiom of
his own -- and one which stood irrefutable, as it rhymed:
~ Finders
keepers, losers weepers ~
That adage took me aback. I was amazed that the world here below should be so
ill-ordered, but such apparently was the case.
Later that day, I appealed to the local areopagus, in the
form of my grandmother -- herself the daughter of a clergyman, and pretty clear
on matters of right and wrong.
She phoned the boy’s mother, who then tried to recover the object from
her child’s well-stocked toybox;
but by then it had been lost and forgotten.
~
Had we each, I and that larcenous lad (who now, if he yet
live, is even older than I am, if such a thing may be conceived) -- had we, I
say, myself and that Barabbas rapscallion (prior to his eventual death in the
monastery
whither he had
no doubt
latterly repaired, in penance of his depredations, dying
finally in an odor of sanctity, his palms emblazoned with stigmata
in the shape of brontosaurs):
had we, say I, either of us, possessed
a copy of Pound’s treatise (necessarily the original edition, since the second
was not yet out) -- had the two of us sat down, like men of reason, and conned
its pages
for guidance in our
perplexity -- I might not (contrary to intuition) have been the gainer
thereby.
For in that work, does not the author refer to “the maxim possession vaut titre in continental
law” (p. 128); and does he not
likewise allege, that
when one appropriates a thing,
fundamentally he manifests the majesty of his will by demonstrating that external objects
that have no wills are not
self-sufficient
(-- p. 120)
?
Our light-fingered adventurer might well take that as
praise.
~
Already I
sense, you are reaching for your well-worn, dog-earned, espresso-
or brandy-stained copy of The Common Law, by Mr. Oliver Wendell Holmes,
Jr., Esq. (1881; which surely graces your night-table) for help in ascertaining
what night lie aback of all of this.
To that work, therefore, we now repair.
Holmes’ tract is
if anything even drier,
even more nose-to-the-grounds-of-precedents (some quite ancient) than
Pound’s. Yet he claims to have his
eyes as well on higher (or deeper) things:
The interest attaching to the
theory of possession does not stop
with its practical importance in the body of English law. The theory has fallen into the hands of
the philosophers.
-- chapter “Possession”
And not merely
for their own abstract amusement; for Pound goes on to declare the influence bidirectional:
Nowhere is the reciprocal
action of legal rules and philosophical theories more strikingly manifest than in our law of contractual
liability.
-- Pound, op. cit., p.
Anyhow, readers hoping for sure philosophical guidance from
Holmes’ book
might be
disappointed.
As, consider the
following hypothetical case:
A pocket-book was dropped on the
floor of a shop by a customer, and picked up by another customer before the
shopkeeper knew of it.
-- Holmes, op. cit., p. 222
(And, be it understood, made off with it; that is not stated in the text, but
apparently was the expected behavior of a shopper.)
Now, for fifty points -- answer this simple quiz from
WDJ. The appropriate holding would
be:
(1) The purloiner of the
pocket-book is a common thief, and should be prosecuted as such, regardless of
whether he repents and returns the stolen item.
(2) In the event that, unprompted, the purloiner of his own accord return the lost property to its owner,
no charges should be larged.
(3) Screw the owner -- the perp gets to keep it, free and clear.
(4) Actually the shopkeeper
gets to appropriate the mislaid item.
(Pause for reflection;
then read on.)
If you answered (1) or (2), you are (according to Bridges v.
Hawkesworth), a patsy, a loser.
“Finders keepers, losers weepers” rules -- the correct answer is (3):
Common-law judges and civilians
would agree that the finder got possession first, and so could keep it as against the shopkeeper.
-- id.
~
After that little Gedankenexperiment,
we gloomily wonder why a table-sweeping fifth option was not added:
(5) Property is theft. (La propriété, c'est le vol. -- Proudhon.)
And indeed, Roscoe Pound does cite that 18th-century
ideological Brandstifter J-J Rousseau, to much that effect:
Rousseau held that the man who
first laid out of plot of ground and said, “This is mine”, should have been
lynched.
-- Pound, op cit., p. 119
To that we might merely observe that … he probably was. As was any man who, outside the receptive and
self-developing Greco-Roman-Christian current of history, presumed to invent or
discover anything (or at best, he was ignored, and his find died with him). “No such constitutional
framework of contractual security as the Roman was evolved by any other people in the ancient world.” -- Adda Bozeman, Politics and Culture in
International History (1960), p. 201. (See also Lord Raglan, How Came
Civilization.)
(II) Adverse Possession
Apart from simply seizing someone else’s property and
walking off with it, or invading it by main force, there is a subtler way of
annexing the same, which can even cadge recognition by the law. This trick is called: Adverse Possession.
Thus, Princeton University owns a bit of woodland,
containing a birdwatchers tower, to which access is unrestricted. Yet one day a year, they bar the
access-road and say No Trespassing:
this, lest their title lapse.
[TBC]
