Ownership and Possession in the Early Common Law

American Journal of Legal History, Vol. 48, pp. 280-313, 2006

SMU Dedman School of Law Legal Studies Research Paper No. 5

34 Pages Posted: 19 Oct 2006 Last revised: 13 Mar 2009

Joshua C. Tate

Southern Methodist University - Dedman School of Law

Abstract

Much has been written on the possible influence of Roman or canon law on the early English common law of property. Maitland thought that the canonist's actio spolii was the inspiration for the assize of novel disseisin. Sutherland argued that the assize borrowed from the Roman interdict unde vi. Milsom, by contrast, thinks that the early common-law writs must be understood within a feudal framework, and that the early common law took nothing from Roman law than the Latin language.

This Article offers a new perspective on ownership and possession in the early common law. It examines the theoretical development of proprietary and possessory concepts in the ius commune as it would have been understood in England in the late twelfth century, taking into account the Liber pauperum and the early ordines as well as reports of ecclesiastical court cases. After surveying the current debate, the Article then turns to the advowson writs, which have not yet been studied as a possible example of Roman law influence. Finding some evidence of the ownership/possession distinction in the advowson writs, the Article comes to the conclusion that the possibility of influence from the ius commune is greater than Milsom thinks.

Keywords: ownership, possession, legal history, advowson, writs, England

Suggested Citation

Tate, Joshua C., Ownership and Possession in the Early Common Law. American Journal of Legal History, Vol. 48, pp. 280-313, 2006; SMU Dedman School of Law Legal Studies Research Paper No. 5. Available at SSRN: https://ssrn.com/abstract=938715

Joshua C. Tate (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States
(214) 768-2791 (Phone)

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