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Sunday, October 7, 2007

Biancalana on the Writs of Entry

The Fall 2007 issue of Law and History Review has just been published, and it includes a noteworthy article on medieval English property law by Joseph Biancalana, entitled The Origin and Early History of the Writs of Entry.  Here is a summary of the article by David Tanenhaus, the editor of the Review:

In [this] article, Joseph Biancalana examines the origins and early history of the writs of entry, which were among the earliest writs to be invented after the legal reforms of Henry II.  The distinctive feature of a writ of entry was that it challenged what plaintiffs thought was the basis of defendant's claim to disputed land.  A writ of entry alleged that a defendant "had no entry" into the land other than by a transaction or taking that did not authorize him to hold the land.  Although writs of entry were invented to serve as supplements to the possessory assizes of novel disseisin and mort d'ancestor, it was not clear how to limit their substantive scope so that they would not become substitutes for the writs of right.  The solution was to limit the writs to three degrees and thus limit the generations of inheritance that could be included within the writ.  That precarious solution did not fare well as markets for land developed in the thirteenth century.  The degrees increasingly functioned to limit the number of conveyances linking defendant to entrant, which had nothing to do with the reason for the limitation to three degrees.  As Biancalana concludes, the authorization of writs of entry in the post in 1267 accommodated writs of entry to the market for land.

Joseph Biancalana, the Judge Joseph P. Kinneary Professor of Law at the University of Cincinnati, is the author of the leading work on the development of the fee tail.  His latest article is an important contribution on a topic that has engaged prominent English legal historians such as Maitland, Milsom, and Hall, and may significantly change our understanding of the early history of the common law of property.

Josh Tate

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