The majority have followed in the direction pointed out by Kant.  Bruns, an admirable writer, expresses a characteristic yearning of the German mind, when he demands an internal juristic necessity drawn from the nature of possession itself, and therefore rejects empirical reasons. 2 He finds the necessity he seeks in the freedom of the human will, which the whole legal system does but recognize [208] and carry out.  Constraint of it is a wrong, which must be righted without regard to conformity of the will to law, and so on in a Kantian vein. 1 So Gans, a favorite disciple of Hegel, “The will is of itself a substantial thing to be protected, and this individual will has only to yield to the higher common will.” 2 So Puchta, a great master, “The will which wills itself, that is, the recognition of its own personality, is to be protected.” 3

The chief variation from this view is that of Windscheid, a writer now in vogue.  He prefers the other branch of the declaration in the Bill of Rights.  He thinks that the protection to possession stands on the same grounds as protection against injuria, that every one is the equal of every other in the state, and that no one shall raise himself over the other. 4 Ihering, to be sure, a man of genius, took an independent start, and said that possession is ownership on the defensive; and that, in favor of the owner, he who is exercising ownership in fact (i. e. the possessor) is freed from the necessity of proving title against one who is in an unlawful position.  But to this it was well answered by Bruns, in his later work, that it assumes the title of disseisors to be generally worse than that of disseisees, which cannot be taken for granted, and which probably is not true in fact. 5

It follows from the Kantian doctrine, that a man in possession is to be confirmed and maintained in it until he is put out by an action brought for the purpose.  Perhaps [209] another fact besides those which have been mentioned has influenced this reasoning, and that is the accurate division between possessory and petitory actions or defences in Continental procedure. 1 When a defendant in a possessory action is not allowed to set up title in himself, a theorist readily finds a mystical importance in possession.

But when does a man become entitled to this absolute protection?  On the principle of Kant, it is not enough that he has the custody of a thing.  A protection based on the sacredness of man’s personality requires that the object should have been brought within the sphere of that personality, that the free will should have unrestrainedly set itself into that object.  There must be then an intent to appropriate it, that is, to make it part of one’s self, or one’s own.