The law is nine-tenths of possession: An adage turned on its head

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Abstract

Introduction “Possession is nine-tenths of the law.” So says the proverb. But is it so? The saying seems to mean that a possessor has an advantageous legal position in claiming property, but it has a distinctly uncertain pedigree. Its origin sometimes is attributed to sixteenth- and seventeenth-century essayists and commentators, but it is not entirely certain how the phrase was parsed in those early days (Erickson 2007: 370). The saying sometimes appears as possession is “nine points” of the law, leaving a question what the other point or points might be; or “eleven points” out of twelve, once again leaving open the question of the other point. Aside from the issue of the missing point, in that early modern era of European history in which the saying seems to have arisen, “possession” included one particularly unattractive meaning: the takeover of the person by witch-craft, causing the satanically possessed individual to shriek and spin, speak in unfathomable languages, and in one litigated case, vomit pins (Levack 1995: 1618). If Satan had only nine-tenths of the soul, presumably it was because some glimmer of godliness remained to fight him off. Lawyers, however, generally maintain that the phrase was inspired by a medieval English statute that long predated the usages that apparently began in the sixteenth century, namely the Forcible Entry and Detainer (FED) statute, which outlawed the forcible ejection of anyone who was in peaceable possession of a property. But if the FED statute and its successors are the inspiration of the phrase, then the phrase has it wrong: possession should have been all ten points. The FED statute aimed entirely to protect a person who claimed to be the possessor in place, whether he was there by rightful title or not. The statute did not aim at settling title at all but simply at keeping the peace until title could be determined by the courts, rather than by the owner's forcible self-help, which might well lead to protracted violence.

Original languageEnglish (US)
Title of host publicationLaw and Economics of Possession
PublisherCambridge University Press
Pages40-64
Number of pages25
ISBN (Print)9781316017814, 9781107083547
DOIs
StatePublished - Jan 1 2015
Externally publishedYes

ASJC Scopus subject areas

  • Social Sciences(all)

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