The History of English Law before the Time of Edward I. Frederic William Maitland

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Название The History of English Law before the Time of Edward I
Автор произведения Frederic William Maitland
Жанр Юриспруденция, право
Серия
Издательство Юриспруденция, право
Год выпуска 0
isbn 9781614871774



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is not recognized in early Germanic ideas. Possession, not ownership, is the leading conception; it is possession that has to be defended or recovered, and to possess without dispute, or by judicial award after a dispute real or feigned, is the only sure foundation of title and end of strife. A right to possess, distinct from actual possession, must be admitted if there is any rule of judicial redress at all; but it is only through the conception of that specific right that ownership finds any place in pure Germanic law. Those who have studied the modern learning of possessory rights and remedies are aware that our common law has never really abandoned this point of view.

      If the seller appeared, he had in turn to justify his possession, and this process might be carried back to the fourth remove from the ultimate purchaser. These elaborate provisions for vouching to warranty (A.-S. teám)118 or the custom on which they were founded, persisted for some time after the Norman Conquest,119 and are interesting by their analogy to the doctrine of warranty in the law [p.37]of real property, which afterwards underwent a far more full and technical development, and remained, long after it had been forgotten in practice, at the foundation of many parts of modern conveyancing. The dooms of Ine contain a curious archaic provision120 for a buyer clearing himself by an oath taken over the stolen property at the seller’s grave, in the case of the seller having died since the purchase of the slave, or other thing in dispute.