THE MEANING AND DEFINITION OF “PROPERTY” IN SEVENTEENTH-CENTURY ENGLAND*

Abstract

advanced in seventeenth-century legal dictionaries suggests two important developments.' The first is emergence of a definition of absolute individual ownership, resting on notion of the greatest interest attributed to person who had property. The second is erosion of distinction between real and personal property. It may be worthwhile to supplement this account by reference to a controversy generated by Holdsworth's remarks on emergence of a concept of ownership in seventeenth century, which brings together two points about the greatest interest and distinction between realty and other property. Holdsworth's thesis was that concept of ownership changed in seventeenth century, as a result of developments in actions of trover and ejectment. In trover and ejectment, he claimed: the common law had come to recognize that ownership was an absolute right as against all world, and not merely better right of a plaintiff as against defendant to possession.2 The argument put forward to explain this is as follows. Both trover and ejectment were relevant actions when plaintiff was out of possession (when another had his goods or was on land to which he was entitled). The plaintiff alleged a claim superior to that of defendant in order to recover. But it was now open to defendant to attack plaintiff's claim to land or goods by saying that it belonged to a third party. Holdsworth placed change of opinion which allowed such a response, and thus change in what plaintiff might need to show, in period towards end of seventeenth century. The consequences of this, in Holdsworth's view, were profound: If plaintiff need only prove a better right than defendant's, then, modern English law would, like mediaeval law, have continued to refuse to recognize anything like an abstract dominium or ownership which is good against all world. If, on other hand, plaintiff, in order to succeed in this action must prove an absolute right, then it would be true to say that through this action conception of an abstract dominium or ownership, which is good against all world, has come into English law.3