Before closing I must say a word concerning ownership and kindred conceptions.  Following the order of analysis [245] which has been pursued with regard to possession, the first question must be, What are the facts to which the rights called ownership are attached as a legal consequence?  The most familiar mode of gaining ownership is by conveyance from the previous owner.  But that presupposes ownership already existing, and the problem is to discover what calls it into being.

One fact which has this effect is first possession.  The captor of wild animals, or the taker of fish from the ocean, has not merely possession, but a title good against all the world.  But the most common mode of getting an original and independent title is by certain proceedings, in court or out of it, adverse to all the world.  At one extreme of these is the proceeding in rem of the admiralty, which conclusively disposes of the property in its power, and, when it sells or condemns it, does not deal with this or that man’s title, but gives a new title paramount to all previous interests, whatsoever they may be.  The other and more familiar case is prescription, where a public adverse holding for a certain time has a similar effect.  A title by prescription is not a presumed conveyance from this or owner alone, it extinguishes all previous and inconsistent claims.  The two coalesce in the ancient fine with proclamations where the combined effect of the judgment and the lapse of a year and a day was to bar claims. 1

So rights analogous to those of ownership may be given by the legislature to persons of whom some other set of facts is true.  For instance, a patentee, or one to whom the government has issued a certain instrument, and who in fact has made a patentable invention.

[246] But what are the rights of ownership?  They are substantially the same as those incident to possession.  Within the limits prescribed by policy, the owner is allowed to exercise his natural powers over the subject-matter uninterfered with, and is more or less protected in excluding other people from such interference.  The owner is allowed to exclude all, and is accountable to no one.  The possessor is allowed to exclude all but one, and is accountable to no one but him.  The great body of questions which have made the subject of property so large and important are questions of conveyancing, not necessarily or generally dependent on ownership as distinguished from possession.  They are questions of the effect of not having an independent and original title, but of coming in under a title already in existence, or of the modes in which an original title can be cut up among those who come in under it.  These questions will be dealt with and explained where they belong, in the Lectures on Successions.

[247] LECTURE VII.

CONTRACT. —­ I. HISTORY.

The doctrine of contract has been so thoroughly remodelled to meet the needs of modern times, that there is less here than elsewhere for historical research.  It has been so ably discussed that there is less room here elsewhere for essentially new analysis.  But a short of the growth of modern doctrines, whether necessary or not, will at least be interesting, while an analysis of their main characteristics cannot be omitted, and may present some new features.