As a legal concept, “possession” (possessio) in the Roman sense is not a term of art in the Anglo-American legal tradition. The nearest equivalent is the now antiquated term “seisin,” which in early English law described the landholder’s interest in a freehold estate. Among the very first of the common law writs, dating to 1166, was the writ (or assize) of “novel disseisin,” meaning essentially “recent dispossession.” The remedy provided by the writ was to restore the disseised landholder to seisin of the property in dispute, irrespective of any claim of right. To that extent the writ was similar in purpose and effect to the Roman interdict quod vi aut clam (discussed at Chapter IV, section “D” of the Casebook), and indeed the remedy itself may have Roman roots, since it has no organic place in the common law system of feudal tenures.1 In any event, the civilian word “possession” has largely supplanted the term “seisin” in common law settings and is commonly used in phrases like “actual possession” and “constructive possession,” where it refers to a “right of entry” incident to ownership, or still more loosely to the mere fact of physical control or occupation of property. In Roman law, however, “possession” describes a technical legal relationship between a person and property, not merely a factual one. How one acquires control of property is crucial to whether the legal relationship of “possession” has been established. Chapter 1 of the Casebook deals with that question.
At common law,2 the circumstances of how control of property has been acquired may be relevant to whether the property is held lawfully, and possibly also to determining the issue of ownership; but the fact of control, “actual possession,” in and of itself, is of quite limited legal significance. There are two important exceptions, however, and both are ultimately due to the influence of Roman law. The first exception arises under the doctrine of “prescription,” meaning acquisition of a property right through continuous use for a requisite period of time. At common law the term “prescription” typically refers to the prescriptive acquisition of easements, while the term “adverse possession” refers to exclusive control of a kind required to effect the prescriptive acquisition of full-blown ownership. Sometimes the term “prescription” is used indifferently for either the acquisition of rights of use or the acquisition of ownership. In Roman law usucapio (“usucapion” or “usucaption”) literally means “taking through use.” Originally the term could refer to the prescriptive acquisition of either movable or immovable property, but in the Justinianic restatement it was restricted to acquiring movable property, while the term praescriptio (“prescription”) was used for the prescriptive acquisition of immovable property.
Both “adverse possession” at common law and praescriptio in Roman law require exclusive and uninterrupted possession for a requisite period of time in order for the ownership interest to ripen de facto. Technically at common law the interest does not ripen into ownership per se, it merely becomes immune to a suit for ejectment by the running of a statutory limitations period. The effect is to secure title in the adverse possessor. The mechanism at Roman law is different. The running of the limitations period is deemed a constructive abandonment by the former owner, thereby turning the adverse possession into original possession and ownership of what has become ownerless property (res nullius). At common law the possession must also be “actual, open and notorious, and hostile” — i.e., clearly adverse to the possessory interest of any other party. It may also require some form of good faith, as noted under Case 1 below. In Roman law, however, the character of the exclusive possession is of less importance than whether the adverse possession was pursuant to a “just cause” ( iusta causa) and in good faith ( bona fides).
The second area in which “possession” in the Roman sense entered the common law concerns the concept of res nullius, or “ownerless property,” another topic that is introduced in Chapter I of the Casebook but addressed in more detail in Chapter III. The Roman/civilian doctrines of “original possession” and “first occupation” were indispensable in providing legal justification for the claims of European sovereigns, including those of England, to acquisition of overseas territories. See Johnson v. M’tosh 21 U.S. (8 Wheat.) 543 (1823). The doctrine of “first occupation” also figures prominently in classical theories of property rights based on concepts of natural law. The common law “rule of capture,” in turn, is essentially borrowed from the Roman rules relating to acquiring first possession of wild animals.
An area where the common law differs significantly from the civil law is in how property rights in land — called “real” property in the common law, “immovable” property in the civil law — are conceptualized. The legacy of medieval feudalism is still evident in the common law concept of “estates” in land, with title ultimately descending from the sovereign. In the civilian tradition, however, feudal customary law was progressively supplemented and ultimately supplanted by Roman-based doctrine, according to which ownership of land is absolute, even if non-owners may have concurrent rights of use in land that belongs to another.
“Personalty” or “chattels” in common law roughly correspond to “movable” property in the Roman tradition, and in this area of the common law something like the civilian concept of “possession” is also evident. One sees it particularly in the rules concerning “delivery” of movable property from one person’s control to another’s. At common law the moment of delivery is relevant to establishing whether ownership has passed, or a gift has been made, or a contractual obligation has been satisfied. In Roman law, the circumstances of delivery (traditio) determine whether there has been a valid transfer of “possession.”
Further reading on the concept of seisin, its relationship to possession, and the doctrine of adverse possession:
Bordwell, Percy. “Seisin and Disseisin.” Harvard L.R. 34.6 (1921): 592–624.
______. “Seisin and Disseisin (Concluded).” Harvard L.R. 34.7 (1921): 717–740.
______. “Disseisin and Adverse Possession.” The Yale L.J. 33.1 (1923): 1–13, 141–158, 285–301.
The ius commune doctrines of possession, prescription, and good faith figure recurrently in one of the most famous and influential products of Humanistic scholarship: Lorenzo Valla’s treatise demonstrating the inauthenticity of the Donation of Constantine: De falso credita et ementita Constantini donatione declamatio, written c. 1445. The “Donation,” which had been incorporated into texts of the Decretum of Gratian, purported to be a grant of dominion over the Western Roman Empire by the Emperor Constantine (312–337) to Pope Sylvester (314–335). Although its authenticity had been questioned before, Valla’s treatise ultimately became the definitive collection of arguments that proved it a forgery. In addition to identifying numerous anachronisms, internal contradictions, and linguistic impossibilities in the text of the “Donation,” Valla made use of legal arguments. He states that even if such a grant had been possible, which it was not, because the Empire was not Constantine’s to give (see Case 67 of the Casebook), the gift would have been ineffective for lack of “delivery” (traditio) by the donor (Constantine or his agent), lack of “acceptance” (accipere) by the donee (the Pope or his agent), and consequently for failure to take possession (possessio) by the donee. (The concepts of delivery, acceptance, and possession are set forth in Chapter I of the Casebook.) To effect delivery, Valla argues, would have required conducting the Pope or his agent over all of Italy, the Gauls, the Spains, the Germanies, and the rest of the West. (But see Case 1 of the Casebook.) Later in the treatise Valla considers a possible counter-argument regarding the acquisition of possession: namely that the Papacy had acquired possession and ownership by prescription (praescriptio). But, answers Valla, there can be no prescription where there is “bad faith” (mala fides)—a concept explored in Section “B(b)” of Chapter III of the Casebook. It is true that supervening bad faith does not invalidate prescription—see Case 103, but even if there had once been a good faith belief in the validity of the “Donation,” which Valla doubts, that belief necessarily entailed an error of law (as well as of fact), and therefore was not excusable (see Case 84 of the Casebook.) Further, it is not possible to acquire ownership of either men or animals by prescription, and even were it possible, they would return to their natural state of freedom when control was lost (Cases 94–95 of the Casebook).3
1 Milsom’s well-known conjecture that the remedy was originally aimed at curbing abuse in manorial courts is not inconsistent with a Roman source, as he himself acknowledges. S. F. C. Milsom, The Legal Framework of English Feudalism, Cambridge: Cambridge University Press, 1976, 11.
2 Unless the context indicates otherwise, the phrase “common law” as used in these notes is meant to refer generically to the case-law tradition of the English common law and equity jurisprudence, including the receptions and adaptations of that tradition in the United States and elsewhere. One form of reception is statutory enactment, and in recent decades statutes have played an increasing role in codifying substantial areas of the law. Therefore, as used in these notes and unless otherwise indicated, the phrase “common law” also includes statutory expressions of rules that essentially were already recognized or developed within the common law tradition.
3 The Treatise of Lorenzo Valla on the Donation of Constantine: Text and Translation into English by Christopher B. Coleman, New Haven: Yale University Press, 1922, rep. Renaissance Society of America, Toronto: University of Toronto Press, 1993, pp. 62, 170, 172.