§ 95 Corporeal and Incorporeal Possession
We have seen in a former chapter that ownership is of two kinds, being either corporeal or incorporeal. A similar distinction is to be drawn in the case of possession. Corporeal possession is the possession of a material object—a house, a farm, a piece of money. Incorporeal possession is the possession of anything other than a material object—for example, a way over another man’s land, the access of light to the windows of a house, a title of rank, an office of profit, and such like. All these things may be possessed as well as owned. The possessor may or may not be the owner of them, and the owner of them may or may not be in possession of them. They may have no owner at all, having no existence de jure, and yet they may be possessed and enjoyed de facto.
Corporeal possession is termed in Roman law possessio corporis. Incorporeal possession is distinguished as possessio juris, the possession of a right, just as incorporeal ownership is the ownership of a right. The Germans distinguish in like fashion between Sachenbesitz, the possession of a material thing, and Rechtsbesitz, the possession of a right. The significance of this nomenclature and the nature of the distinction indicated by it will be considered by us later.
It is a question much debated whether incorporeal possession is in reality true possession at all. Some are of opinion that all genuine possession is corporeal, and that the other is related to it by way of analogy merely. They maintain that there is no single generic conception which includes possessio corporis and possessio juris as its two specific forms. The Roman lawyers speak with hesitation and even inconsistency on the point. They sometimes include both forms under the title of possessio, while at other times they are careful to qualify incorporeal possession as quasi possessio—something which is not true possession, but is analogous to it. The question is one of no little difficulty, but the opinion here accepted is that the two forms do in truth belong to a single genus. The true idea of possession is wider than that of corporeal possession, just as the true idea of ownership is wider than that of corporeal ownership. The possession of a right of way is generically identical with the possession of the land itself, though specifically different from it.
This being so, the strictly logical order of exposition involves the analysis, in the first place, of the generic conception, in its full compass, followed by an explanation of the differentia, which distinguishes possessio corporis from possessio juris. We shall, however, adopt a different course, confining our attention in the first place to possessio corporis, and proceeding thereafter to the analysis of possessio juris and to the exposition of the generic idea which comprises both of them. This course is advisable for two reasons. In the first place, the matter is of such difficulty that it is easier to proceed from the specific idea to the generic, than conversely. And in the second place, the conception of corporeal possession is so much more important than that of incorporeal, that it is permissible to treat the latter simply as a supplement to the former, rather than as co-ordinate with it.