Joshua C. Tate

Ownership and Possession in the Early Common Law

Much has been written on the possible influence of Roman or canon law on the early English common law of property. Maitland thought that the canonists actio spolii was the inspiration for the assize of novel disseisin. Sutherland argued that the assize borrowed from the Roman interdict unde vi. Milsom, by contrast, thinks that the early common-law writs must be understood within a feudal framework, and that the early common law took nothing from Roman law than the Latin language. This Article offers a new perspective on ownership and possession in the early common law. It examines the theoretical development of proprietary and possessory concepts in the ius commune as it would have been understood in England in the late twelfth century, taking into account the Liber pauperum and the early ordines as well as reports of ecclesiastical court cases. After surveying the current debate, the Article then turns to the advowson writs, which have not yet been studied as a possible example of Roman law influence. Finding some evidence of the ownership/possession distinction in the advowson writs, the Article comes to the conclusion that the possibility of influence from the ius commune is greater than Milsom thinks.

Christianity and the Legal Status of Abandoned Children in the Later Roman Empire

Late Roman imperial legislation relating to abandoned or exposed children has been the subject of much debate. Some have argued that the constitutions of Constantine relating to abandoned children marked a new Christian influence, and that the years between Constantine and Justinian merely refined and explained Constantines legislation. This paper argues that the legislation of Constantine was not distinctly Christian in content, but that some Christian influence can be seen in the rhetoric of imperial constitutions beginning in the fifth century, and that Christian ideas seem to have affected both the substance and the rhetoric of Justinians legislation. The paper examines ideas relating to adoption in the New Testament and the writings of the church fathers, and considers the extent to which these ideas may have made an impact on the constitutions of the late Roman emperors. Particular emphasis is given to the use of the word misericordia in a constitution of Honorius to refer to the actions of the collector of abandoned children, as well as the notion, in Justinians legislation, that adoption entails freedom. The paper concludes that the religious discourse of late antique Christianity shaped the theory, if not the practical effect, of imperial legislation relating to abandoned children.

Codification of Late Roman Inheritance Law: Fideicommissa and the Theodosian Code

It has long been known that most of the private law content of the Theodosian Code has not been preserved independently of the Lex Romana Visigothorum, or Breviary of Alaric. Certain constitutions, not contained in the Breviary but dating to the period covered by the Theodosian Code, have survived in the Code of Justinian. There has been debate, however, as to whether all of these constitutions were contained in the Theodosian Code. This Article discusses this problem with respect to a particular topic: fideicommissa. The Article considers whether a particular constitution, CJ 6.37.21, might have been included in the Theodosian Code either as part of a general rubric concerning inheritance or as part of a separate rubric on fideicommissa, and concludes by suggesting what the constitution might have looked like had it been included under a separate heading.

La Carta Magna y los orígenes del procedimiento judicial o legal

Este articulo pretende aportar al entendimiento de la relacion entre el procedimiento judicial y el proceso mediante jurado en Estados Unidos. Para ello, se analizar el origen tanto del procedimiento judicial como del juicio ante jurado en el siglo XII en el las decada previas a la promulgacion de la Carta Magna. Finalmente, se concluye con un analisis acerca la implementacion del derecho a un juicio a traves de jurado y se argumenta que esto no se debe Carta Magna per se, sino al Cuarto Concilio de Letran.