Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow Property in 17th-Century England - Literature of Liberty, Autumn 1981, vol. 4, No. 3

Return to Title Page for Literature of Liberty, Autumn 1981, vol. 4, No. 3

Search this Title:

Also in the Library:

Subject Area: Political Theory

Property in 17th-Century England - Leonard P. Liggio, Literature of Liberty, Autumn 1981, vol. 4, No. 3 [1981]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Property in 17th-Century England

G.E. Aylmer

  • St. Peter's College, Oxford

“The Meaning and Definition of ‘Property’ in Seventeenth-Century England.” Past & Present 86(February 1980):87097.

lf0353-15_1981v3_figure_007

Considering the crucial role which property has played in the history of English Law and its importance in the development of English society, it is surprising that the term was not given a legal definition until quite late. During the sixteenth century, the word “property” certainly appeared in English law books but, without any precise delineation of its meaning.

In the 1520s, for example, Christopher S. German's Doctor and Student refers to “that generall laws or generall custome of propretye wherby good's mouable and unmouable be brought in to a certayne propretye/so that euery man may knows his owns thynge.” An interesting historical, but hardly a legal definition. The successive editions of Rastell's book of legal terms includes a definition of “possession” but none of property.

The earliest explicit definition seems to be that of John Cowell in his law dictionary The Interpreter (first edition 1607). In a discussion contrasting Roman and English legal positions on dominium, Cowell pointed out that, in England, no one except the king has full lordship—both of ownership and of use—over nonmoveables (landed property). All other persons and institutions could only have some kind of “fee” (or feudum) in real property, not full dominion over it (plenum dominium or allodium). “Propertie,” he wrote, “signifieth the highest right that a man hath or can have to any thing; which is in no way depending upon any other mans courtesie. And this none in our kingdom can be said to have in any lands or tenements, but only the king in the right of his Crowne.”

At about the same time that Cowell published his Interpreter, Sir Edward Coke, the chief justice of Common Pleas, included in his Reports a case concerning a disputed flock of swans. In the course of his description, Coke defined the three types of property as “absolute,” “qualified,” and “possessory.” The 1624 edition of Rastell effects a curious piece of legal syncretism. The “possession” entry previously mentioned remains as before, but there is now a new entry for “propertie” which cites Cowell's definition verbatim and adds to it Coke's division of property into three types.

The first clear statement of absolute ownership of property by individuals as opposed to the king appeared, not surprisingly, under the Cromwell's Protectorate (1653–1659). In the law dictionary produced by William Sheppard, Cromwell's legal advisor, Chapter 129, “Of Property,” begins: “Property is the Right that a man hath to anything which no way dependeth upon another mans courtesie (echoes of Cowell): And he that hath this is called a Proprietary.” Any royalist restriction on absolute (private) property in lands has been dropped.

After the Restoration (1660–1688), royal privilege reappeared but in attenuated form, as in Style's collection of law reports. By the eighteenth century, however, a sweeping statement such as the following could appear in John Lilly's collection of abridged reports: “An absolute proprietor hath an absolute power to dispose of his Estate as he pleases, subject only to the Law of the Land.”

The law dictionary of Giles Jacob (first edition 1729) consolidates this development and gives it legal teeth: “And every Man (if he hath not forfeited it) hath a Property and Right allowed him by the Law to defend his Life, Liberty, and Estate; and if it be violated, it gives an Action to redress the Injury, and punish the Wrong-doer.” Thus, the definitional process which had begun both with Cowell and Coke's report of the swan case resulted in the idea of absolute ownership protected by legal sanctions—a concept which would become fundamental to the then developing industrial economy.