Ownership and Possession in the Early Common Law
Joshua C. Tate
Southern Methodist University - Dedman School of Law
American Journal of Legal History, Vol. 48, pp. 280-313, 2006
SMU Dedman School of Law Legal Studies Research Paper No. 5
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.
Number of Pages in PDF File: 34
Keywords: ownership, possession, legal history, advowson, writs, England
Date posted: October 19, 2006 ; Last revised: March 13, 2009