Property Before Property: Romanizing the English Law of Land

right.187 That is what has happened here. It has become a right of possession, a lesser right than the right of property. Gone is the Digest’s insistence, repeated elsewhere in the Bracton treatise, that possession and property have nothing in common.188 Here they exist on the same continuum. C. A Quantum of Right In the two-rights scheme, Ralegh associated the writ of right, the assize of mort d’ancestor, and the assize of novel disseisin with the concept of right, despite the fact that Glanvill associated only the writ of right with right and associated the two lower writs, mort d’ancestor and novel disseisin, with seisin.189 The idea that right exists even in some of the writs at the lower end of the scale is central to the third scheme we will examine, the “quantum of right” scheme. In the tractate on acquiring dominion over things, very close to several of the accounts of the causae possidendi we have already seen, one of the authors, probably Ralegh again, presents us with the following scheme: [1] There is possession which has nothing of right but something of possession, as where one is in possession by intrusion. [2] There is another kind that has something of possession but nothing of right, as where one is in possession as guardian or creditor and the like. [3] There is another that has much of possession [but] little of right, as the possession of an ancestor, [recovered] in a possessory action, where another has the pure right and the ancestor the fee and free tenement. [4] And another that has a great deal of possession and something of right, where it is changed into a proprietary causa, as where one holds for a term of life or years. [5] There is also possession that has much of possession and much of right, as where in some thing one has the pure right and the property, the fee and the free tenement with seisin. 190 187. See supra Part I.C. 188. See, e.g., 2 BRACTON, supra note 5, at 321; 3 id. at 325. 189. See supra Part II. 190. 2 BRACTON, supra note 5, at 122-23. I have modified the translation slightly from Thorne’s. For situation 3, Thorne has a “good deal of possession” but the Latin is “multum . . . possessionis,” the same phrase he translates as “much of possession” for situation 5. There is a second version 2012] PROPERTY BEFORE PROPERTY 1185 Ralegh places various types of land arrangements on a continuum based on how much possession and how much right each one contains. Right increases fairly steadily from 1 to 5. Possession generally increases as right increases, but this is not universally so. Situations 1 and 2 have something of possession, 3 has much of possession, 4 has a great deal of possession, and 5 reverts to much of possession. So, possession and right appear to be independent of each other. In one way, this list fits with the causae of possession very well. Apart from number 5, these are marginal cases, where the holder of the land holds by one causa, but not by another. In number 3, for instance, Ralegh has imagined a case where the possessor holds by fee, but not by right. Ralegh is thus finding ways to separate and distinguish categories of landholding. In other ways, however, the quantum of right conflicts directly with the causae and the two-rights schemes. In the causae of possession, right and property were comparable terms, of the same order. In the two-rights scheme, possession and property were comparable. In the quantum of right scheme, possession and right are the comparable terms. The author is taking the Roman binary between possession and property, which the author of Glanvill applied to the Anglo-French terms seisin and right, and hybridizing it into a binary between possession and right. This was not altogether new. The author of the Tres Ancien Coutumier de Normandie, written in parts over the course of the thirteenth century, had used the same distinction, as had William of Ralegh in a 1231 case recorded on his roll.191 David Seipp has shown that the possession-right dichotomy was also used in the law reports of the late thirteenth century to describe writs.192 of the quantum of right scheme in the treatise, in the introduction to the section of the treatise on civil actions. This version has six tiers. 3 Id. at 13. 191. See 1 COUTUMIERS DE NORMANDIE 23, 279-80 (Ernest-Joseph Tardif ed., 1881–1896); 2 BRACTON’S NOTE BOOK 437 (F.W. Maitland ed., 1887) (“[T]o be lord and heir pertains to right and not to possession . . . .”) (my translation) (“[E]sse dominum et heredem spectat ad ius et non ad possessionem . . . .”). 192. Seipp has shown that in the year books, the possession-right dichotomy was used in two, inconsistent, ways. See Seipp, supra note 131, at 9-26. First, it was used to create two, entirely separate categories of writs. Id. All writs of possession had something in common with each other, and all writs of right had something in common with each other, but never the twain shall meet. Id. at 22. 1186 BUFFALO LAW REVIEW [Vol. 60 The author’s patterns of thought about this binary are primarily Anglo-French. Possession and property, in conventional interpretations of Roman law circulating in Northern Europe, did not come in amounts. One could not have greater property than another.193 One could have greater right, however: the jurors in a grand assize were asked precisely who has the “greater right” in a piece of land.194 Although it would describe Roman law actions poorly, the quantum of right scheme actually describes English writs rather well because it does not require a binary classification. A writ like mort d’ancestor, which is higher in the hierarchy of writs than the novel disseisin, but lower than the writ of right, can be both a writ of possession and a writ of right. Situation three describes an assize of mort d’ancestor, or another writ of the mort d’ancestor family, which has “much of possession” and also a “little of right.”195 So the assize of mort d’ancestor is primarily possessory, but also has some of the aspects of an action on right or property. The quantum of right scheme causes at least as many problems as it solves, however. Situation 4, where the possessory causa turns into a proprietary one, shows some Second, it was used to describe writs in a relational way. Id. at 25. By Glanvill’s time, the courts had established a rule that there was a hierarchy of writs and, if one sued on a higher writ, he was barred from bring the same case on any writ beneath it in the hierarchy. Id. One could, however, bring his suit on a lower writ, lose, and bring the case again on a higher writ. Id. When faced with issues of whether the plaintiff was precluded from bringing his case, the lawyers of the late thirteenth century would use the possession-right binary, but in a relative way. Id. Thus, the lower writ was always denominated a writ of possession and the higher a writ of right. Id. Thus, when a person had sued on a writ of entry and later sued on a writ of right, the writ of right would be unsurprisingly, denominated a writ on the right and the writ of entry a writ on the possession, because it is lower. Id. at 25-26. But if the plaintiff had sued on a writ of mort d’ancestor and later wanted to sue on a writ of entry, the writ of entry would be denominated a writ on the right, because, of the two writs, it is the higher in the hierarchy. Id. Whether a writ was on the possession or the right was thus situational, based on the writ it was being compared to. Id. at 26. 193. Miller, supra note 88, at 45 (“[O]wnership is a distinct paramount right rather than a mere label attaching to the most compelling of two or more competing claims to a thing.”). 194. See EARLY REGISTERS, supra note 38, at 6. 195. See 2 BRACTON, supra note 5, at 122 (I have modified Thorne’s translation) (“Est et alia quae multum habet possessionis et parum iuris . . . .”). 2012] PROPERTY BEFORE PROPERTY 1187 of the contradictions inherent in Ralegh’s thinking.196 Ralegh is thinking about possession in two different ways: he uses the possession/right distinction of the quantum of right scheme, but also the possession/property distinction of the two rights scheme. So, in this situation, the plaintiff’s causa, here probably meaning a cause of action, “is changed to a proprietary causa.”197 This appears to be the two-rights scheme. The plaintiff’s cause of action, or his writ, has crossed the line from a possessory writ to a proprietary writ. He clearly thinks that one may have more or less of possession and right when thinking in terms of the quantum of right scheme, since he says this person has a great deal of possession and something of right. In the tworights scheme, there are no amounts of possession and property. An action is either possessory or proprietary. And yet an action that has crossed the line from possession to property still has “a great deal of possession” and, strangely, only “something of right.”198 Indeed, in this passage, Ralegh combines all three of the schemes. In situation 5, which is greatest of the five in right and property, he combines the quantum of right scheme with the causae possidendi scheme.199 A person in this situation holds the land under all of the causae possidendi except, perhaps, the usufruct and bare use: “the [pure] right and the property, the fee and the free tenement with seisin.”200 This sounds like absolute ownership, since the person has pure right and property in the land, but even this is only said to have “much of” right and “much of” possession.201 The author, in combining these schemes, uses the word right in two different ways. It is part of his hybrid binary of possession and right, but it is also a causa possidendi. One who has the purest right one can have has “much right” in the land. In the causae possidendi scheme, right is something one has or does not and, in this case, represents the highest and purest type of interest one can have in land. In the two-rights scheme, right is bifurcated,