Front Page Titles (by Subject) PART 1: PROCEDURE - A Concise History of the Common Law
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PART 1: PROCEDURE - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE FORMS OF ACTION
The forms of action are in themselves a proof that the King’s Court only intended to intervene occasionally in the disputes of his subjects. It was no doubt possible to argue with perfect justice that the country was well provided with competent courts for all ordinary purposes, and that the King’s Court was only concerned with matters of state and matters of special difficulty which could not be otherwise determined. A few classes of cases with which the King’s Court concerned itself were therefore most naturally treated along formulary lines. They constituted one or two of the several routines of government which the administration had developed, and in order to handle them more easily it was a simple device to standardise the forms which were used. As long as this condition of things lasted a formulary procedure was clearly an advantage, and for a while it may have limited the activities of the administration and prevented them from overstepping the proper boundaries of their jurisdiction.
THE RELATION OF WRIT AND REMEDY
Whenever it became necessary to enlarge the scope of the King’s Court, the change could be effected simply by the invention of a new set of forms, and so the early development of the jurisdiction of the King’s Court very closely resembles the enlargement of the sphere of an administrative body by means of the invention of new administrative routines. Once the habit was formed, future development for a long time seemed simple. Glanvill had described a royal court which had very little interest in enlarging its jurisdiction beyond certain matters. Two generations later Bracton described this same court and shows us how greatly it had elaborated its machinery; indeed, Bracton was even ready to contemplate an indefinite expansion of the common law in virtue of which the King’s Court was to administer a law as rich in its variety and as wide in its extent as the Roman law itself. The means whereby such a prodigious expansion was to be effected (and indeed had already been begun) was the invention of new forms of action; many new forms were invented by Bracton’s hero Raleigh, and Bracton had no hesitation in saying that there will be as many forms of action as there are causes of action. “There ought to be a remedy for every wrong; if some new wrong be perpetrated then a new writ may be invented to meet it.”1 This was a bold programme. It contemplated special sets of forms through which the King’s Court would exercise general jurisdiction and afford a remedy for every wrong. One would expect that so ambitious a scheme would emanate from some great monarch such as Henry II, and in truth he may have taken the first steps in that direction; but it was under the comparatively weak rule of Henry III that the greatest progress was made—and here we have a striking example of the way in which organisations such as the King’s Court and Council could do effective and even constructive work although their nominal head was undistinguished. The secret seems to lie in a little group of lawyers whom we can only see, at this distance of time, in the appreciative pages of Bracton. As Maitland has observed, this formulary system is distinctively English,—
“but it is also, in a certain sense, very Roman. While the other nations of Western Europe were beginning to adopt as their own the ultimate results of Roman legal history, England was unconsciously reproducing that history; it was developing a formulary system which in the ages that were coming would be the strongest bulwark against Romanism and sever our English law from all her sisters.”2
THE BEGINNINGS OF ROYAL INTERVENTION
It was, of course, civil business—common pleas—which was most susceptible of this treatment; pleas of the Crown, which at this time were mainly criminal, had already been provided with a different machinery necessarily based upon the system of local government. Of these civil pleas, then, those which first received the attention of the King’s Court were pleas of land. Reasons of state demanded that the Crown through its court should have a firm control of the land; the common law, therefore, was first the law of land before it could become the law of the land. But here, too, it was possible to argue that the existing local jurisdictions, communal and seignorial, were numerous enough and competent enough to administer real property law. In a sense this was true. Each landowner could litigate concerning his land in the court of his feudal lord; if, as often happened, it was part of the dispute who was the feudal lord (such as when A claims to hold a piece of land of X while his adversary B claims to hold it of Y), then recourse was had to the lord who had feudal jurisdiction over both X and Y, and in this way such litigation would very likely come before the court of the King himself. Again, it may be that there were practical difficulties; the feudal court may be weak or partial, and then, too, recourse will be had to a higher court. Frequently it seems that a writ from the King will facilitate matters in seignorial courts, and the Crown at an early date would issue sharp admonitions commanding feudal lords to do immediate justice or else to explain their action in the King’s Court. Such intervention was at first of a political or administrative character. The King used his influence, sometimes in the form of a threat, to set his vassal’s judicial machinery in motion. For this there was Anglo-Saxon precedent,1 and the early Anglo-Norman writ is undoubtedly continuous with the Anglo-Saxon writ (and here it must be remembered that the word “writ”, in Latin breve, means nothing more than a formal letter of a business character; it does not necessarily imply either a court or court procedure).2
THE NATURE OF THE EARLIEST WRITS
Some of the earliest of our writs, therefore, are not, strictly speaking, documents directly instituting litigation. They are in form administrative commands to an alleged wrongdoer or to some inferior jurisdiction to do justice in a particular matter in such wise that the King shall no more hear complaints concerning it; disobedience of this writ will be punished in the King’s Court unless a satisfactory explanation can be given. A writ of right, for example, may be in various forms. It may command the feudal lord of two contestants to do justice between them;3 but the Crown deliberately encroached upon seignorial jurisdiction when it devised a new variant which is called the writ of right praecipe quod reddat, which soon became the most usual form. This writ completely ignores the feudal lord and is directed to the sheriff of the county where the land lies; he is instructed to command the defendant to render to the plaintiff the land which he claims, justly and without delay, and if he fails to do so the sheriff is to summon him before the King or his justices to show cause, and the sheriff is to return the original writ together with the names of the summoners who witnessed its service. By the time we get to this form it is clear that we have only a slight disguise for a writ virtually initiating litigation in the King’s Court in complete disregard of the lawful rights—property rights as they then were—of the feudal lords. The writ of right praecipe quod reddat, therefore, has its beginning in somewhat discreditable circumstances; the Crown, by these writs, deprived feudal lords of their rightful jurisdiction.1 Thus it was that the insurgent barons extorted from King John a promise in the Great Charter2 that henceforward the writ called praecipe should not issue in such wise that a lord lost his court; though retained in all succeeding charters, this clause had little effect. The feudal court of freeholders was already declining; many lords voluntarily waived their rights in particular cases.3 Those who wished to assert their jurisdiction when it was imperilled by a praecipe, could obtain a writ for that purpose.4 As law became complicated, both lords and their tenants were disposed to avoid the responsibility of having to try writs of right,5 and so there was little serious opposition when, in the early years of Henry III, the Crown invented a variety of other writs in the form praecipe quod reddat—notably the very popular writs of entry.
Whatever its form, the original writ was not the assertion of the jurisdiction of the court, but rather a royal commission conferring on the judges the power to try the matters contained in it. For every case a separate ad hoc authority was thus conferred, and Bracton naturally compared the jurisdiction of the common pleas to that of papal judges delegate.6 The results of this situation upon pleading will be considered later.7
NEW WRITS UNDER HENRY II
At the same time it became an established principle that no freeman need answer for his land without a royal writ unless he chose. This rule is well known in the reign of Henry II and may date from the reign of Henry I.1 Its effect was drastic; any defendant if he chose could have real property cases removed from seignorial courts into the King’s Court. The steps were (1) a procedure called tolt which removed a plea from a seignorial court to the county court, and (2) a writ of pone which moved it from the county into the common pleas.2 On the accession of Henry II, therefore, the operation of this principle, combined with the growing practice of issuing the writ of right called praecipe, had already given to the King’s Court the basis of a very wide jurisdiction over land. Henry II improved the occasion by devising some new forms of action which again deliberately attacked the position of the lords. He modified the proceedings on a writ of right by allowing the defendant (or, more technically, the “tenant”) to choose if he wished trial by a Grand Assize, which was a jury of twelve knights, instead of trial by battle. The principle of recognition, or jury trial, was further extended by Henry II in the establishment of the petty assizes.3 These were all modelled on the general principle that a person who had recently been evicted from the quiet enjoyment of his land was entitled to be restored.
PETTY ASSIZES, SEISIN AND POSSESSION
Bracton set the fashion of regarding these actions as definitely designed for the protection of possession as distinct from ownership, but it has recently been objected with a good deal of force that Bracton’s use of these Roman terms “ownership” and “possession” does not accurately fit contemporary English law. Into this question we cannot enter in any detail, but it is clear that the petty assizes (which Maitland and Holdsworth, following Bracton, call “possessory assizes”) were based upon more than one consideration. “Disseisin”, as such wrongful ejection was technically called, was viewed partly as a crime, and so a defendant who was found guilty would be fined and occasionally imprisoned.4 The maintenance of peace and order was, therefore, one element in the petty assizes; but there was also a strong element of tort, for the plaintiff very soon recovered damages; at the same time it was a thoroughly real action, giving recovery of the land. In short, these assizes were designed to protect “seisin”, which was a conception peculiar to the middle ages; it is an enjoyment of property based upon title, and is not essentially distinguishable from right. In other words, the sharp distinction between property and possession made in Roman law did not obtain in English law; seisin is not the Roman possession, and right is not the Roman ownership.1 Both of these conceptions are represented in English law only by seisin, and it was the essence of the conception of seisin that some seisins might be better than others. The most solemn action in real property law, the writ of right, merely ascertained whether the demandant or the tenant had the better right (without prejudice to third parties), by investigating which of them claimed on the older and better seisin.
NATURE AND ORIGIN OF NOVEL DISSEISIN
Although the writ of right would answer the serious question of the relative merits of the two titles according to the antiquity of the seisin from which they were derived, there seemed room for the invention of forms of action of more limited scope. If A unjustly and without a judgment disseised B of his free tenement, then it seemed reasonable that B should be restored to the enjoyment of his property upon satisfactory proof, first, that he was in quiet enjoyment (that is to say, seised), and secondly, that A had turned him out. There was surely no need in a situation such as this, which in fact was usually brought about by acts of violence, to compel B, merely because he had been wrongfully evicted, to make out a title good enough and old enough to sustain a writ of right, and to compel him, if A so elects, to wage battle on it. It seems that we get at this point a trace of the influence of the canon law. The tenant (i.e. defendant in a real action) had marked advantages over the demandant (plaintiff); he could interpose almost interminable delays, and even when the case finally came to be argued the demandant had to sustain a heavy burden of proof. Hence, one who had been disseised and attempted to recover by a writ of right was at a great disadvantage.2
This problem of preventing a disseisor, spoliator, from acquiring procedural advantages from his own tort, was not local to England, nor peculiar to the twelfth century. The solution was in fact ancient. It consisted in the requirement that the spoliatus should be restored at once to his possession, and that he be not called upon to defend his title while he is out of possession. From the Sentences of Paul,3 early in the third century, the idea passed to the Theodosian Code (ad 319).4 It appears in the False Decretals of the mid-ninth century,1 and thence passed to our own Leges Henrici Primi2 and a little later to the Decretum of Gratian.3 The False Decretals which announced this principle also appear in the collection of canon law which Lanfranc4 introduced into England. The general principle had therefore long been common knowledge, and both the Conqueror and Henry I forbad the disturbance of the status quo until their court had pronounced on the rights of the dispute. In other words, novel disseisin was designed to redress the situation created by one party who had had recourse to self-help.
Such a policy is so obvious, that it is hardly necessary to look to canon law for its origin.5 The famous actio spolii in which the canonists finally enshrined their ancient principle seems actually later in date to the assize of novel disseisin.6 It is also to be remembered that “it is said that German Law without foreign help” went a good deal of the way towards novel disseisin.7
Henry II’s new action, the assize of novel disseisin, worked on these lines. One who had been ejected from his land was first of all to be restored. When he has been restored, and not until then, the rights and the wrongs of the case can be brought into question. If the ejector wished to raise questions of title he could then proceed later on as demandant in a writ of right.8 Henceforth he could not pursue his claim by the too-simple device of forcibily ejecting the tenant in seisin, thereby compelling him to assume the difficult rôle of a demandant in a writ of right. In its earliest form the assize of novel disseisin was thus subsidiary and preliminary to a writ of right. It was only natural, however, once the assize had passed, that the parties should in many cases be content with its verdict, and therefore the petty assize becomes a complete form of action and not merely a subsidiary to the writ of right. This idea was so attractive that Henry II applied it to several different situations, and by the end of his reign there were three petty assizes all fashioned on the same model. There can be very little doubt that one of his strongest motives was the desire to treat disseisin as an offence which should be cognisable solely in the royal courts. In France the same policy was pursued, in spite of protests from lords who found that their jurisdiction suffered serious prejudice thereby.1
SCOPE OF THE PETTY ASSIZES
In the case of the assize of novel disseisin the original writ was directed to the sheriff of the county where the lands lay, commanding him, if the plaintiff gave security for prosecuting, to summon twelve free and lawful men who should view the lands in dispute and be ready to recognise before the King’s justices whether the defendant had unjustly and without a judgment disseised the plaintiff of his free tenement since the period of limitation. In the assize of mort d’ancestor set up in 1176 by the Assize of Northampton,2 the assize of twelve is to recognise whether the plaintiff’s ancestor died seised3 in his demesne as of fee of the tenements in dispute, whether he died since the period of limitation, and whether the demandant is his next heir. The assize of darrein presentment applied the principle of novel disseisin to the difficult case of advowsons, and called upon the assize to say whether the plaintiff was the last patron in time of peace who presented a parson to the church in dispute.4 If so, he was seised, and is therefore entitled to present again. All three of these petty assizes ignored the court of the feudal lord; the assize of mort d’ancestor seems to have been definitely directed against the lords, for the defendant was frequently a feudal lord who refused to admit the heir of his deceased tenant to succeed him, and this assize therefore played a large part in the final establishment of the hereditary principle. A fourth assize called utrum also began as a preliminary proceeding in order to ascertain whether litigious land fell under the jurisdiction of the Church or the Crown, but in course of time the decision in this preliminary question became in effect a decision upon the principal question.5
THE ASSIZES SUPPLEMENTED
By the time we come to the reign of Henry III we find the beginnings of the Register of Writs; the forms of action are numerous enough to be collected in a formulary. Some new actions were invented about 1237 expressly to supply the place of gaps in the assize of mort d’ancestor; originally the only ancestor from whom one could claim was father, mother, brother, sister, uncle or aunt. Special actions which were not assizes, but variants of the writ of right, were now provided for claims based upon the seisin of grandfather (aiel) and great-grandfather (besaiel) and from “cousins”, which in law means all other relations (cosinage).1 “Great-great-grandfather by the use of the Chancery is called cousin.”2
THE WRITS OF ENTRY
By this time, however, it is abundantly clear that the King’s Court began to dream of something like a general jurisdiction over land without the slightest reference to the existing feudal courts.
We have seen that the petty assizes were based on the allegation that the tenant had obtained the land recently and wrongfully. The next step is to be seen in the writ of gage (which was another praecipe) demanding restitution of land which the tenant held lawfully at first, although later this title failed. In the case of the writ of gage it was alleged that the plaintiff made over his land to the defendant as security for a debt, and that since he is now ready to pay the debt the defendant has no more right to the land, but must restore it. The result was the pattern for a new and important group of writs called writs of entry.3 Like the writ of gage, they expressly alleged that the tenant only had entry into the land by a particular means which is set forth, thereby acquiring only a defective title. As time goes on a great variety of writs of entry is devised. At first the writ recounts all the hands through which the land has passed since the original defect, although there were limits placed upon the number of changes (whether alienations or descents) which could be alleged; finally, by statute demandants were allowed to say that the tenant had no entry save after (post) a particular defective title; dealings in the land subsequent to that event and leading down to the entry of the tenant no longer need be specified in the writ.4 Of these numerous varieties of writs of entry it will only be necessary to say that they all ignore the lord’s court and begin with the formula praecipe quod reddat. They were common in the time of Bracton,5 and the fact that it is impossible to say whether they are possessory or proprietary6 is only proof that these terms imported by Bracton really did not fit contemporary English law.
In one or two cases they supplement the assize of novel disseisin. That assize only lay between the disseisor and the disseisee. If in the meantime the disseisor had died and his heir entered by descent, the assize did not lie against the heir. So in 1205 a writ of entry sur disseisin was established to cover this case. If, on the other hand, the disseisee died, the assize again was not available to his heir, and so the writ of entry called “de quibus” or “entry in the nature of an assize” filled the gap.1 Other varieties were entry ad terminum qui praeterit, which lay to recover lands against one who held them originally for a term of years, which term had expired.2 An action which was very common during the middle ages was entry cui in vita, which lay for a widow to recover lands which were her own property, but which had been alienated by her husband, since she during his lifetime could not prevent his dealing with her property. If, however, the wife predeceases her husband, her heir can recover such lands by a writ of entry sur cui in vita. It frequently happened that a doweress wrongfully alienated her dower, and by a writ of entry “at common law” the reversioner could recover such lands only after her death. By statute, however, it was enacted that if a doweress alienated her dower the reversioner might obtain immediate entry (virtually a forfeiture) by a writ to be devised in the Chancery;3 this was called entry in casu proviso. But it did not apply to alienations by other life tenants, and so, after a famous incident between Chief Justice Bereford and the Chancery officials,4 a writ of entry in consimili casu was devised for use by reversioners and remaindermen against the alienees of tenants for life, and by the curtesy, immediately after such an alienation.
THE EARLIEST FORMS OF PERSONAL ACTIONS: DEBT
In one or two rare cases the King’s Court was prepared to intervene in matters which did not involve land, although the forms which it used were almost identical. The writ of debt, for example, was in the same form as the praecipe quod reddat, and at first looks very much as if it were a real action; as Maitland remarks, “We are tempted to say that Debt is a ‘real action’, that the vast gulf which to our minds divides the ‘give me what I own’ and ‘give me what I am owed’ has not yet become apparent”.1 There is fairly old authority for the theory that a contract consists of “mutual grants”—a view which seems to be merely a deduction from the consensual character of the sale of chattels in the later common law.2 Such reasoning, however, is really a sixteenth-century phenomenon; it is not to be found in the early days of the action of debt. Still more modern is the belief that because many actions for land beginning with a writ in the form praecipe quod reddat are real actions, therefore all actions so commenced are real actions, and among them the action of debt. There are no historical grounds for this view. Twelfth-century lawyers in the King’s Court were not given to metaphysical speculation, but were just practical administrators who saw a need for enforcing some of the commoner types of debt in the King’s Court. They propounded no theory of obligation; they said nothing about mutual grants, consent, consideration or any other theory of contract. All they did was to establish a procedure for compelling debtors to pay their obvious dues. It so happened that original writs at this critical moment were framed on a uniform pattern:3 the King tells the sheriff to order the defendant to do what he ought to do, and if he does not, then to summon him to the King’s Court. The only significance attaching to the words praecipe quod reddat is their indication of the date of origin of the writ, and its nature as a “demand” rather than a “complaint”; it is only the oldest actions which are cast in this form. The numerous writs praecipe quod permittat may be proprietary or possessory according to circumstances. As we shall see, later forms of action are based on a different model.
The writ of debt existed already in Glanvill’s day, and follows precisely the same form as the writ of right and was available for a number of purposes. It could always be brought upon “obligations”, that is to say, debts acknowledged by deed under seal, and in such cases the establishment of the genuineness of the deed was conclusive. Where there was no deed under seal, debt could still be used to recover a loan, to collect the rent due upon a lease, the price upon a sale, and, later on, to enforce various statutory penalties. The action of debt, therefore, was fairly comprehensive, but as time went by the defects of the action became more apparent. In the first place, trial was by compurgation (wager of law)1 , and as the middle ages proceed this was felt to be increasingly irrational; although decisions substituted trial by jury in a number of cases, the place left for compurgation still remained considerable. And secondly, as with all the oldest groups of actions, a particularly complicated system of pleading grew up around it. As a result, from the beginning of the fifteenth century we see a tendency to avoid using the writ of debt and to make other forms of action serve its purpose.
The action of detinue was very similar, and it is evident that the two actions were originally one. Glanvill describes but one action, which covers the field later divided between debt and detinue. The form of writ he gives is that of debt, the demand being for a sum of money, but he goes on to say that the “debt” may be demanded for various reasons, such as a loan of money, the price on a sale, the loan of a chattel, a letting to hire or a deposit. The writ was also available for a creditor against a surety on the default of the principal debtor. In his discussion of it, Glanvill speaks simply of “debt” and the writ is designed to secure to the plaintiff his debitum, his due, whether it be money or chattels. Even in the Year Books we sometimes find it expressed as “duty”. The basic idea of the action, therefore, is not confined to contract, or tort, or property concepts, but is simply the enforcement of what is “due”.
Superficially, then, it might seem that Glanvill’s undifferentiated action of debt-detinue will enforce any sort of obligation, but as with several other of our writs, the form is in broader terms than the practical scope of the action. In spite of a few sweeping words, Glanvill’s real meaning is to be found in the enumeration of situations in which the writ can be used. In the course of the succeeding half-century these are classified into two groups, one of which we have already described as the province of debt, while the remainder are allocated to detinue with a slight modification in the terms of the writ. A broad distinction grew up which treated detinue as the particular remedy of a bailor against his bailee—i.e. where the defendant acquired the chattel with the plaintiff’s consent. If the defendant had acquired the chattel by violating the plaintiff’s possession, however, the remedy was obviously trespass de bonis asportatis. A third situation was that classified by later lawyers as trover; here there was some hesitation.2
In their subsequent history, debt becomes an important factor in the history of the contract, while detinue contributes much to the development of the rules of personal property law. It is also worth remembering that a frequent use of detinue was to obtain possession of charters, on the principle that one who was entitled to land was thereby entitled to bring detinue for the deeds relating to it. Cases of detinue of charters, therefore, may contain important discussions of the law of real property.1
The action of account is particularly interesting and its history deserves more investigation than it has yet received. It appears on the plea rolls from 1200 onwards. In form it is a praecipe quod reddat, and is based on the existence of a duty to render a “reasonable account”.2 Originally it was used between a lord of a manor and his bailiff in order to compel the latter to account for the profits of the manor. The word “bailiff”, however, gradually shifted its meaning, and by the end of the fourteenth century account could be used against certain types of bailees who had to be described as “bailiffs”, although this allegation was not traversable.3 This transition was assisted, no doubt, by the fact that quite early in its career the action of account could also be used between partners; when commercial matters appear in the Year Books, it is usually in actions of account.
Account could also be brought against one who had received money to the use of the plaintiff. Here (as with the bailiff), the earlier law only concerned itself with the “common receiver” who was authorised to act as such for a period of time.4 Soon, a casual receiver, like a casual bailee, came within the action.
The action of covenant appears soon after the time of Glanvill, and is stated in some of the earlier sources to have very wide scope over contractual matters. The Statute of Wales in 1284 informs us that land or chattels may be demanded by the writ of covenant according to circumstances; “and forasmuch as contracts in covenants are infinite in their variety, it is impossible to mention each one in particular, but judgment is to be done according to the nature of each covenant and according to the statements and denials of the parties”. It would therefore seem that covenant almost became a general contractual action. In local jurisdictions it remained so until comparatively late. In the county court we find it used as late as 1333 to obtain damages for breach of a covenant to use care in handling a borrowed fishing boat.5 In the King’s Court it is mostly a covenant concerning land, apparently,1 and very often the writ seems brought merely in order to proceed to a fine, or final concord, which already was a popular conveyancing device. It had one other function—a minor one—and that was to afford a modicum of protection to lessees against their lords. Like the other writs we have mentioned, it was on the ancient pattern, slightly modified: praecipe quod teneat conventionem. It ceased to be of much importance after the reign of Edward I, when the rule became established that covenant would only lie on a deed under seal.
THE NEW PATTERN OF WRIT
So far, the writs we have considered have been either summary, like the petty assizes, or else based on a single pattern, that of the praecipe quod reddat, and as we have seen, this same pattern is used whether the action is real or personal.
At the end of the twelfth century a new formula appears, and many of the newer actions are commenced with writs of the new model. Instead of the archaic demand for restitution which was the essence of the praecipe quod reddat, we have a much more modern form which begins immediately with an order to summon the defendant (if the plaintiff has given security to prosecute) to come before the justices to show why he had done a particular act. The change is partly one of arrangement, for even a praecipe quod reddat concludes with a summons to show why the defendant has not made restitution; the new model begins with the summons, and the defendant is called on to explain his action, instead of his inaction as in the praecipe quod reddat. If the old model emphasises the failure to do what is due, the new one rests on a positive misdeed. This misdeed, moreover, is frequently described in the writ as being a breach of the peace.
THE ACTION OF TRESPASS
The summons ostensurus quare, to show why the defendant did something to the damage of the plaintiff and the breach of the King’s peace, was a momentous development, for it gave us the action of trespass. The breach of the peace, however, was not always alleged, and there are numerous examples of summonses to show why the defendant had done something which damaged the plaintiff where the phrase does not occur.
In accordance with a constant tendency, the commonest cases give rise to well-settled forms. Thus we get distinct varieties of trespass for assault, imprisonment, for taking away chattels, and for unlawfully entering upon land, and by 1249 we get a trespass case enrolled in what seems already a settled form. By the thirty-fifth year of Henry III (1250-1251) payments for writs of trespass become numerous on the Fine Rolls.1 Besides these, however, it is important to remember that in the early years of the thirteenth century there were numerous unclassified cases where defendants were summoned to show why they had caused damage to the plaintiff, with or without a breach of the peace, and with or without the allegation that the act was done vi et armis, with force and arms.2
Trespass is therefore one variety of the great class of writs which call upon the defendant to come before the justices ostensurus quare, to show why he caused damage to the plaintiff. We may note that the allegation of a breach of the peace is not necessarily present, and that the King’s Court takes jurisdiction over these cases, therefore, on broader grounds than a mere technical breach of royal peace. It is, however, quite clear that if a breach of the King’s peace is mentioned, no court save the King’s Court dare proceed. The great importance of trespass and its related quare actions is abundantly clear, but it is a great misfortune that Bracton, whose official career coincides with its formative period, did not live to write upon it the systematic treatise which he had planned.3
At first sight it seems strange that trespass begins to appear in the King’s Court only in the middle of the thirteenth century, and does not become common there until the middle of the fourteenth century. There is nevertheless good reason. The King’s Court was interested in land, in the first instance, for feudal reasons only; and it was interested in trespasses for criminal reasons only. Hence it was the felonies and indictable trespasses (later called misdemeanours) which received attention at Westminster. From the point of view of litigants, trespasses usually involved much less valuable stakes than real-property cases, and so it was much more difficult to persuade juries to trudge across the country to give their verdicts in the King’s Court. The issues would almost always be trivial in comparison with the trouble and expense. Trespass could not become a common action in royal courts until means were found to try it locally. In the late thirteenth century the baronial governments made extended use of judicial eyres; early in the fourteenth century the invention of the nisi prius system allowed juries to try issues reached at Westminster without going out of their counties. It is just at those moments that we find the action of trespass making sudden advances in the King’s Court.4
THE ACTION OF REPLEVIN
The continuous history of trespass to the person, to goods and to land stands out clearly from among the scores of quare actions in use at the beginning of the thirteenth century. But what became of the others? Some of them vanished, to be revived later under somewhat different circumstances; but many in their turn crystallised into distinct forms of action. This happened to quare ejecit (as we shall see later) which became an important remedy for lessees.
Still another became the action of replevin, and one of the most valued defences of the feudal tenant against his lord. In the thirteenth century this was often a quare action, calling on the defendant to show why he took cattle in distress and kept them in spite of the owner’s offer of gage and pledge. The final form of the proceedings was greatly modified,1 for the Crown realised the urgent necessity of moderating this powerful relic of self-help which still survived, as distress, in daily use.
The action of replevin was greatly used in the middle ages in circumstances such as these. When a lord distrained his tenant to perform services and the tenant desired to dispute his liability to do them, he could recover possession of the chattels distrained by giving security to the sheriff for maintaining his contention in a law court. The procedure was then for the tenant to declare that his beasts were taken, to which the lord might reply by denying that he took them, or else (and this was almost universally the case) by admitting the distress and disclosing the reasons—such as services and rents in arrear, homage not performed, relief unpaid, etc. This is technically called an “avowry”, and in this form of action a great number of questions relating to the feudal relationship could be conveniently raised. If the lord’s case is proved, judgment is given that he shall “have the return”; that, is the chattels which he originally distrained and which the sheriff restored to the tenant are given back to the lord by judgment of the court to hold again as a distress. In early times, if the question of the ownership of the chattels was raised in replevin, it was determined by interlocutory proceedings called de proprietate probanda. In the early fourteenth century the convenience of the action of replevin led to determined attempts to make it serve the purpose of certain other actions, and these attempts were nearly successful; in the fifteenth century we have this distinction drawn by Chief Justice Newton: “If you have taken my beasts, it is in my choice to sue replevin (which proves property in me), or to sue a writ of trespass (which proves the property in him who took them); and so it is in my will to waive the property or not”.2 By this time it was settled doctrine that even a thief acquired property in the stolen goods. We therefore have here in the choice between replevin and trespass a curious parallel to the doctrine of disseisin at election in real property law. In England replevin was generally restricted to its proper field of testing the legality of a distress, but in America it was frequently used instead of detinue.
THE ORIGIN OF TRESPASS
There has been much controversy over the origin of trespass. The question is certainly one of the greatest importance, for the later history of trespass has grown so wide as to cover the largest part of the field of law. This is not the place to undertake a fresh investigation into a very debatable subject, but some reference to it is unavoidable.
According to one theory the action of trespass developed from the old appeal.1 According to this view the changes which took place were as follows: the appeal of larceny (like the appeals of murder, mayhem or other felony) was in very truth a “form of action” for criminal matters. The injured party pursued the trail, caught the criminal and then formally charged him with the crime; if he denied his guilt, the action concluded with trial by battle; if the plaintiff was successful he recovered the stolen property, and if he had not already slain the thief in battle he was expected to hang him. Gradually, means were found for substituting jury trial upon the appellee’s allegation that the appeal was only brought by hate and spite (de odio et atia). Technically a side issue tried by jury, in fact it went to the root of the case.2 If trespass developed from the appeal, then the changes must have been these: first, where the stolen goods were no longer forthcoming, or would have gone to the king,3 the plaintiff in trespass is now able to recover their money value from the defendant; this seems to have been impossible by the appeal. Secondly, words of felony must be omitted; this was already optional in an appeal, which could thus be changed from a criminal into a civil action.4 This, it is suggested, naturally led to the idea of trespass.
Another theory would regard the action of trespass as having its origin in the assize of novel disseisin.5 The assize only gave recovery of the land; it was always uncertain whether chattels which had been on the land (most commonly crops) could be recovered—if they had been consumed, at first there was to remedy. Hence the assize of novel disseisin was modified so as to give damages representing the value of those chattels removed in the course of the disseisin whose restoration was impossible. And so in this way, too, the element of damages in trespass has been accounted for, although Woodbine insists that the idea of damages was borrowed from Roman law.
A third theory suggests that “Roman law was a solvent acting upon the appeal of larceny, from which the action of trespass by almost insensible stages separated itself”.1
THE PROBLEM RESTATED
These theories were framed with special reference to trespass for taking away chattels, but, as we have suggested, the problem is much wider than that. The origin of trespass de bonis asportatis is part of the larger question of the origin of all the actions which were directed against a defendant who had done damage to a plaintiff. The original writ in all these cases is in the same form ostensurus quare, and the origin of that form is the real root of the matter. If we may be so rash as to confound the confusion by offering yet another theory, it would be to suggest that in this, as in other matters, the King’s Court was adopting methods already in use in the local courts. From local customs which are still extant we can trace the gradual change (which in fact was not a very great or fundamental one) between the Anglo-Saxon bot and the later damages.2 The idea of damages, therefore, has no necessary connection with trespass as a form of action, being indeed much older, and there is no doubt that there was forms in use in the local courts whereby these damages could be obtained. If this would explain the nature of the remedy, it still remains to determine the origin of the form which the royal courts adopted. In the writs of trespass there is a constant formula. The King orders the sheriff to summon the defendant (or else to take pledges for his appearance) to show in the King’s Court why (ostensurus quare) he did certain things. In the enrolment of such cases upon the plea rolls the recital of the writ is immediately followed by the words “whereof A. B. (the plaintiff) complains that . . . (unde queritur quod . . .)”. It may be that in these words we have a clue to the origin of the form through which the royal courts gave remedy by damages. The origin of quare actions in the King’s Court lies near the year 1200, but many writs were granted at first only as a matter of favour. Even the writ of debt might be purchased at the cost of a champertous bargain to give the Crown a large percentage of the sum recovered.
A complaint might be pursued by means of a writ,3 and, indeed, Bracton constantly refers to novel disseisin as a querela. The writ does in fact use the phrase questus est nobis . . . to introduce the crucial words alleging the disseissin. But it is clear that a writ was not always necessary, and that many complaints were dealt with without an original writ.
We may well suspect that the earlier summonses to show quare were granted only of grace, but the political crisis in the middle of the thirteenth century coincided significantly with the final settlement of the form of trespass, and no doubt contributed largely to its popularity. In the course of the inquiries into abuses by royal officials which then took place, great use was made of a vague procedure of complaint (querela). In these circumstances anyone could complain of the oppressions of public ministers, and the enrolment of these complaints is curiously similar to that of an action of trespass.1 It is not without significance that in France, too, the Crown was developing machinery whereby such complaints could be heard.2 According to this hypothesis the procedure of complaint against public officials was extended to complaints against any wrongdoers in general, and this, combined with the already existing idea of damages in local jurisdictions, as well as the existing practice of the summons to a royal court ostensurus quare, would give us all the elements of trespass. However, no final settlement of these controversies is possible until more plea rolls of the earlier thirteenth century are available in print.
We have spoken of trespass as a newer type of remedy in the King’s Court, appearing at a slightly later date than the praecipe quod reddat type; but the first appearance of trespass on the rolls is by no means the actual beginning of the remedy. The King’s Court was a newcomer among much older institutions, and although it did invent some things (such as the petty assizes) it borrowed many more, and among these borrowings, the complaint, or querela, must be numbered. Moreover, even the Crown’s first venture into the field of general adjudication was likewise no new invention. There was litigation for land long before the King’s Court threw open its doors to litigants, and we have reason to believe that the writ of right also was derived from the older but unwritten procedure of the ancient courts of the shire and hundred.
The two main types of action in the King’s Court may both be traced back therefore to the age before the common law. In that age England still lived under a customary law which can be conveniently described as “Germanic”, and which was matched in many other European countries with similar customs; “in all probability neither the victors nor the vanquished on the field of Hastings knew any one legal formula or legal formality that was not well known throughout many lands”.1 Now this old Germanic custom had two main types of procedure. One was a demand for a thing or the enforcement of a due; the other was a complaint against a wrong. The former looked forward to specific relief; the latter to compensation, bot or some similar form of settlement.2 Here, then, we already have the prototypes of the two great groups of actions, the demand becoming the writ of right, and the complaint the action of trespass.
TRESPASS AND CASE
We must now examine these complaints. They are extremely varied, but those most persistently recurring will naturally turn into settled forms. The assizes of novel disseisin and nuisance (beginning Quaestus est nobis) separated under Henry II.3 In the thirteenth century the Crown will show a special interest in complaints of wrongs done vi et armis and contra pacem; in the days of Bracton, these complaints will involve outlawry,4 and will become familiar with their recurrent allegations of assault and battery, asportation of chattels, and breach of close. These also become separate actions. So too did quare ejecit infra terminum, about 1235.5 At first, the King’s Court concentrated upon these real or supposed breaches of the peace, and only occasionally troubled itself with other complaints. Local courts, however, preserved the undivided field of tort; in such courts “trespass was a rough equivalent of our modern tort in general; under it were included many wrongs (such as defamation) that the royal courts were later to reserve for the action of case. It was not limited to direct wrongs.”6
As forms became settled, it was evident that writs of trespass for assault, breach of close, and asportation were practically common form; the others were an unclassified mass of instances where the writ had to be specially drafted so as to include a good deal of narrative matter. Such writs were said to be “upon the case”—an expression constantly used of writs (and also of pleadings) which set out particular circumstances in unusual detail.7 In some (but not all) of these cases, the narrative was prefaced by an important preamble introduced by cum. This may recite the “custom of the realm” (as against innkeepers), or it may recite one of scores of statutes, the breach of which caused loss to the plaintiff; later still, it will recite the assumpsit which played so large a part in the history of contract. The ancient formula summone A. ostensurus quare . . . is thus immensely expanded (and complicated) by inserting the lengthy clause cum . . . immediately after quare.
This orderly development in the science of diplomatic took many years to accomplish. At the same time legal habits were growing up which attached certain forms to certain circumstances, and often hardened into law without much regard for formal propriety. Many anomalies were created, particularly in the use, or omission, of the words vi et armis and contra pacem. It was always necessary to distinguish trespass from case, because the defendant could be arrested or outlawed in trespass, but not in case (until 1504); but the line came to be drawn without close reference to the form of the writ, or to the nature of the complaint. Trespass and case are clearly distinguished as early as 1368,1 but for a long time every situation had to be considered separately in order to decide (a) whether the remedy was to be in the nature of trespass or case, and (b) in either event, what the form of the writ should be.
There seems to be no foundation for the belief that the action of case has any connection with the Consimili casu clause of the Statute of Westminster II, c. 24 (1285).2
THE RISE OF EJECTMENT
Another special form of trespass is de ejectione firmae. This lies for a lessee against anyone3 who ejects him, and at first gives him damages, although not the recovery of his term. This writ is therefore the termor’s equivalent for the freeholder’s quare clausum fregit. The distinction between them is nevertheless clear: the freeholder speaks of the breach of “his close”, but the lessee uses no such proprietary language; instead, the writ recites the lease to the plaintiff of the premises, and his ejection from his term (firma sua).4 At the end of the fifteenth century it would seem the courts finally decided to allow the lessee to recover his term as well by this writ,5 and soon afterwards this great change enabled it to be used instead of most of the old forms of real action. When two parties wished to try the title to a piece of land, one of them leased it to an imaginary person (John Doe), and the other similarly leased to another (William Styles). One lessee ejects the other (this will be all fiction), and in order to try the rights of the rival lessees the court has to enter into the question of the rights of the lessors. This procedure was known as ejectment, and after the close of the middle ages was the principal method of trying title to land. The nominal plaintiff in such actions was the fictitious John Doe on the demise of the real plaintiff; and so an action which to-day would be called A v. B used to be described as Doe d. A (that is, Doe on the demise of A) v. B. The fictitious William Styles was usually replaced by his lessor, for in the earlier proceedings the plaintiff’s solicitor writes a letter to the defendant in the name of “your loving friend, William Styles”, asking the defendant to defend Styles’s interest. This development took place in the seventeenth century, but it was not until late in the eighteenth that a judgment in ejectment became really definitive. Until then, a persistent but unsuccessful plaintiff could start a new action as often as he liked. Useful as it was, ejectment did not entirely supersede the old real actions. In 1852 the fictitious John Doe was abolished by statute, and in 1875 this, together with all other forms of action, was abolished.
We have already mentioned1 that the preamble introduced into quare writs by the word cum may allege that the defendant undertook (assumpsit) to do something. This is a development of the highest importance, and it will be discussed in due course.2
Another (and the latest) of these clauses contains the allegation of trover, and deals with situations which involve neither bailment nor a trespassory taking. In Bracton’s day the appeal of larceny could be converted into an action de re adirata by omitting the words of felony. By this means a chattel could be recovered against a finder.3 Proceedings of that sort were typical of manorial courts, but an obscure note in a Year Book4 suggests that in 1294 detinue could be brought against a finder. Cases on stray cattle are not quite in point, for the franchise of estray had rules of its own, but detinue against the finder of charters seems to have been possible in 1389.5 But charters, like strays, have peculiar features, and these actions deal principally with executors who withhold the heir’s title deeds which came into their hands (devenerunt ad manus) with the ancestor’s chattels. In 1455 Littleton explained the “new-found haliday” which consisted in counting upon a finding (invencio) instead of the traditional devenerunt.1
The preoccupation of detinue with the two special cases of estrays and title-deeds persisted, and the general problem of recovering chattels which had neither been stolen nor bailed was only solved when a new start was made by inventing a new preamble to be inserted in the writ ostensurus quare. This preamble alleged that the plaintiff casually lost possession of the chattel, that the defendant found it, refused to restore it, and converted it to his own use. This development of case for trover and conversion had begun by 1510.2 Just as forms of assumpsit replaced debt, so in the seventeenth century trover3 replaced detinue.
By the end of the seventeenth century, therefore, the great bulk of the litigation of the kingdom was conducted through the various forms of action which had developed from trespass, and this remained the case until the nineteenth century, when first of all the real actions, and finally, in 1875, all remaining forms of action, were abolished by statute and replaced by a single uniform writ of summons upon which the plaintiff endorses his statement of claim. At that moment, the change was purely procedural, but it has undoubtedly affected the development of substantive law by freeing it from the mediaeval classification imposed by the old forms of action, and permitting broad general concepts (such as liability in tort) to aid in the development of a field which was formerly subdivided on lines which were traditional rather than rational.
ACTIONS REAL AND PERSONAL
As long as the forms of action were living things, this was the only classification which really fitted them. The writs praecipe quod reddat had a system of procedure and pleading quite different from that applicable to those which summoned the defendant to show why (quare) he had damaged the plaintiff.
The study of Roman law, especially in the pages of Bracton, introduced much confusion. Instead of this Germanic classification based on the nature of relief sought, the Roman classification was based upon the nature of the right asserted, and Bracton attempted to apply this classification to the existing English material. In the Romanesque introduction to his treatise he regards the assize of novel disseisin as a personal action because it is based upon tort, and because the procedure in it is directed against the person of the disseisor and not against the land,4 but when he comes to the detailed discussion of English law he changes his mind and says that novel disseisin is a real action because the judgment is for the restitution of a res, a specific piece of land.1 This latter decision brings him nearer to the old Germanic notion than to the Roman, but still it is not quite the same thing. The difference appears when the action of detinue is considered. On the old Germanic plan detinue belongs exactly where we find it, in the praecipe quod reddat group, because it is a demand for something which is the demandant’s right or due. Bracton discusses the nature of detinue in a well-known passage,2 and asks whether it is a real action since the writ demands the restitution of a specific chattel. He concludes that it is not a real action because in practice the defendant can elect between restoring the chattel or paying its price.
This was the test which was finally adopted in England: an action is real if it compels the specific restitution of the res. Littleton adopts the rule3 and since his day it has become current. The words “real” and “personal” in later ages came to be applied (or misapplied) in a very curious fashion to property. It became customary to call land “real property” while chattels were “personal property”, apparently because land could be recovered specifically in a real action, but chattels could only be made the subject of an action for damages.4 This usage becomes common in the late seventeenth century, after the time of Coke.5 The use of these distinguishing terms is not, of course, the origin of the distinction between the two different types of property; the differences between them are much older and deeper than these unhappy attempts to apply Roman terminology to English law, and will be mentioned later.
ACTIO PERSONALIS MORITUR CUM PERSONA
Our remarks about this famous brocard can happily take the form of an obituary notice. Although of mediaeval origin,6 the maxim owes its currency to Coke and is thus one of those fioretti which the faithful Ashe collected in his Fasciculus Florum: or, a Handfull of Flowers (1618). When Coke propounded it, the maxim certainly did not correspond with the state of the law of the reign of James I. There may have been a time, however, when such words as these would have summed up the situation with rough accuracy; rather curiously, however, the maxim certainly did not then exist.
Even as early as Glanvill, however, the heir is liable for his ancestor’s debts,1 and in Bracton we are told that an heir can enforce his ancestor’s credits.2 It would almost seem as if this were a twelfth-century innovation made with the deliberate intention of competing with the Church; if so, its success was bought at the cost of some inconvenience, and only in the reign of Edward I3 did the common law courts allow executors to appear before them in their representative capacity. This therefore did away with the cumbrous machinery of making the heir party to the litigation although the chattels were in the hands of the executors. Without legislation, therefore, the courts granted actions of debt by and against executors, and before the death of Edward I Fleta was able to say that the heir was not liable unless under a deed which expressly bound him.4 Statute soon afterwards gave executors an action of account.5
A certain amount of provision had therefore been made by the end of Edward I’s reign for the survival of personal actions, especially those of a contractual nature. Even so, serious limitations affected them; where the testator could have waged his law as a defence, the executors escaped liability, for they could not wage law in their testator’s name. Hence cases of this sort (and they were common) had to wait for equitable relief, which only came late in the fifteenth century.6
Actions of tort had a curious history. Trespass certainly died with the person, until the first tentative inroad upon the simplicity of the rule was made in 1267, when abbots were allowed to sue upon trespasses done to their predecessors during the Barons’ War.7 Sixty years later, the civil wars of the reign of Edward II resulted in the defeat of the Despenser faction, the deposition of Edward II and the accession of Edward III. The victorious Mortimer party secured a statute to the effect that the executors of those who were slain “in the said quarrel” should have an action in respect of the goods and chattels of their testators, if they had been members of the party.1 That was in 1327, and for the moment was merely an example of politicians, flushed by victory, sweeping aside established rules of law for their personal benefit. It did not rest there, however, for the reform seemed so beneficial that it was extended in 1330 to the world at large by the enactment that executors for the future shall have an action for damages against those who had taken the chattels of their testators during their lifetime.2 From these two beginnings the law by devious paths gradually abandoned portions of the principle that personal actions died with the person, but progress was much faster in the field of contract than of tort. The replacement of the old actions of debt and detinue by assumpsit and trover brought further complications by confusing the two lines of mediaeval development.3 In our own day the ravages of the automobile have completed the work begun by the feud of the Despensers and the Mortimers. The Chancellor, Lord Sankey, referred the rule to the Law Revision Committee over which Lord Hanworth then presided, and their recommendation4 to abolish the rule (except in cases of defamation and seduction) has now been carried out.5
It is universally observed that in old legal systems the place of procedure is especially prominent. In general, this is true. In repeating that statement, however, it should be added that procedure is by no means negligible even in modern law, and that if the observation is to be valuable, we must search for the reasons for its position in early law and in modern law respectively.
Superficially, our oldest sources speak mostly of procedural matters—especially the best sources. An orderly discussion of writs such as we find in Glanvill is more illuminating to the reader than the heroic (though hopeless) attempt of Bracton in the earlier part of his book to state the law in terms of general principles. To a historian, it is the practical detail of old sources which gives him his richest material. If historians prefer the precise detail of the plea rolls and Year Books to the obscure generalities of Bracton’s first hundred folios, it is because they are seeking the old law in action, rather than old law in theory. We may well believe that old lawyers themselves felt the same. The details of process and the practical side of pleading were as vital to them as recent cases or new statutes are to-day.
THE SLOWNESS OF OLD PROCEDURE
There is, however, a real difference between the place of procedure in the thirteenth and the twentieth centuries. Old procedure had to grow as it could. Much of it was ancient and traditional, but the very fact that it was not written in authoritative codes of rules left room for modification. Old procedure is therefore full of uncertainties, as a glance at any Year Book will show. Then, too, it has to contend with many difficulties which modern mechanical progress has eliminated. Most of the people whom it touched could neither read nor write, and so were easily victimised by dishonest officials. It could not rely on upright sheriffs, and sheriffs’ underlings were a by-word in the middle ages. Considering their difficulties, the middle ages achieved remarkably good communications, but at their best, those communications were apt to be slow and uncertain. Their system of sending out writs into the country, and the sheriff returning them with an endorsement, was based on sound principles of business routine, and it is now clear that these writs and returns were filed, and could be handled with comparative speed.1 But however good the system at the centre, there was always the peril of delay, mistake and fraud in the country. Procedure therefore had to be slow,2 allowing for accidents, taking an irrevocable step only after abundant precautions, and providing means for correcting blunders as it went along.
PROCEDURE AS A CONSTITUTIONAL SAFEGUARD
This slow and cautious procedure was therefore regarded as a valuable safeguard by litigants. Where modern public opinion would insist upon a trial which was substantially fair, the mediaeval public looked rather at the procedure and inquired whether all the steps in it were properly carried out.3 As a result, there is ample material for a history of mediaeval procedure, in the sense of process, for it was carefully recorded and widely studied, but very little light upon what actually went on before the eyes of a jury.
Procedure, considered as a safeguard, played a large part in constitutional struggles. Arbitrary action by the Crown or its officials necessarily involved a breach of procedural rules sooner or later. In 1215 the barons at Runnymede appealed to procedure as the only effective protection for their persons and property, and nearly two centuries earlier the same principle had been formulated in an edict of the Emperor Conrad II (1037) for the Holy Roman Empire. It is represented to this day in the due process clauses in the federal and state constitutions of America.
PROCEDURE AND SUBSTANTIVE LAW
The previous chapter has described the rise of the original writs and the forms of action which they initiated, and it will already be apparent that substantive law was discussed in terms of procedure. The rights of the parties will be expressed in the form of writs and pleading: the plaintiff in given circumstances can bring a particular writ, but if he does, the defendant in certain other circumstances may use a particular plea. Gradually there will come slight modifications as cases a little outside the ambit of the traditional forms are brought in, either by construction or by a modification of the forms. The result is a change in substantive law, but the machinery of the change, and its technical expression, will be in the rules about writs and pleadings.
THE SEPARATION OF LAW AND PROCEDURE
One of the most significant themes in the study of legal history is the growth of the power to think of law apart from its procedure. This power naturally can only develop when civilisation has reached a mature stage. It is essentially the statement of the results which have emerged from long and extensive experiment. Roman law, at the end of its long history, had reached this stage, and the results it obtained served in the middle ages as a valuable body of principles for the guidance of the younger national laws. In England, as elsewhere, premature attempts were made to express law in abstract terms by separating its principles from its practice. As we have already noticed, the failure of these attempts is clear evidence that the law was not yet strong enough to stand alone, for obscurity rather than clarity was the outcome. Glanvill is lucidly written wherever the author deals with writs, and it is only when he endeavours to generalise that he becomes obscure. Bracton’s first hundred and seven folios have caused endless discussion and are little use as a historical source unless their statements can be verified from the mass of valuable detail which fortunately forms the bulk of his treatise. Littleton, however, wrote at a time when it was just becoming possible to state some general propositions about real property; but the statute of uses soon robbed real property law of any trace of clarity, and thenceforward no attempt was made to write a text-book (apart from beginners’ manuals) on general lines.
Inspiration finally came, once again, from abroad. The middle of the eighteenth century is distinguished by the interest English lawyers took in French and Dutch works, and under this stimulus they attempted to think in terms of substantive law rather than merely of procedure. Mansfield on the bench set the example, and Blackstone at Oxford improved upon it by achieving the astonishing feat of writing his commentaries. At this time it is difficult to appreciate the daring of Blackstone. It can best be realised by looking at Viner’s Abridgement which then held the place of honour in legal literature. To abandon all the time-honoured titles from “Abatement” to “Withernam” and replace them by a logical and analytical scheme required great courage and great skill. Blackstone had both, and in his pages we find the first comprehensive attempt to state (as far as was then possible) the whole of English law in the form of substantive rules.
The procedure was still there, however; in actual fact, the law was still entangled in it, and Blackstone’s venture could be plausibly dismissed by conservatives as a mere literary device. In the course of the succeeding century the great revolution took place. With the abolition of forms of action and the unification of courts and procedure, it became possible for law to flow more freely and to escape the confinement of the old procedural categories. Only then did it become possible to consider the law in practice as being the application of substantive, rather than procedural, rules.
PROCEDURE IN MODERN TIMES
The separation affected procedure as well. Its position was more lowly henceforth, but its functions were more clearly defined, and its details could be more freely modelled in order to fulfil its objects. In the middle ages the rights of a party were the right to enjoy certain procedures, just as in the United States the citizen has a constitutional right to due process. In the newer order the place of procedure is purely ancillary—a means to an end. There is consequently growing up a science of procedure, based on an analysis of its functions, and a search for the quickest, cheapest and most reliable methods of organising the practical side of the law. Much experiment is going on, both in England and America.1
Confining our attention, for the moment, to contested litigation, any system of procedure must contain first of all a means whereby the plaintiff sets the machine in motion. Next the defendant must be notified and brought into court. Then we come to one of the most difficult problems—the discovery of the precise nature of the dispute between them, and its termination by judgment. In the more advanced systems there will have to be means of reviewing the first decision, and in all systems there will have to be some method for enforcing whatever ultimate decision is reached.
Bearing in mind these general remarks on the history of procedure, we may now turn to an examination of some of its characteristics.
THE INITIATION OF PROCEEDINGS
A good many relics of Anglo-Saxon procedure are preserved in mediaeval borough customs; thus we find that in the time of Glanvill, Whitby had this custom:1
“If any complaint (querimonia) should arise between burgesses, the plaintiff ought to demand thrice at the defendant’s house that he should do him right and whatever law requires; and if at the third demand satisfaction is refused, let him at length make a reasonable complaint to the justice of the town.”
The object of the provision was to prevent matters coming into court before it was clear that private negotiations had been tried and had failed. Several legal systems at the present day pursue the same end by a regular procedure of “conciliation” which is a necessary stage before litigation proper.
As we have already observed,2 the King’s Court adopted a similar principle in the writs praecipe quod reddat, the main difference being that the sheriff, instead of the party, made the demand for restitution.
In some circumstances a party could do much more than merely demand his right. The ancient procedure of distress enabled him to take security from one who owed him services or rent arising out of freehold or leasehold tenure. There were rules, both of common law and statute, which prescribed the method. The distress must be made within the lord’s fee, and not on the King’s highway. Cattle were most usually taken, but plough beasts and certain essential implements of agriculture were privileged. If the tenant offered gage and pledge to contest the lord’s claim, then the cattle had to be restored pending an action of replevin. Throughout the middle ages the lord had no right to dispose of the things taken. They were merely security and the property remained in the tenant; if the lord misused the chattel he became guilty of trespass—and some thought, of felony. The right of distress was immensely enlarged when a statute of 1690 gave the distrainor power to sell the distress.3
SECURING THE DEFENDANT’S APPEARANCE
If private endeavours failed, the next step was to get the defendant into court. The coercive power of the State generally has no difficulty in doing this under modern conditions, but early law found it immensely difficult. It first resorted to long and patient persuasion, in the hope that the adversary would promise to come into court. Appearance, in fact, was contractual—one of the earliest contracts which the law undertook to enforce.1 Slowly, however, the State assumed coercive powers and undertook to compel appearance, but even when this was accomplished the forms were still relics of the earlier method. Instead of the party voluntarily giving gages and finding friends who would be his pledges, the sheriff is sent to take them, and if they are not forthcoming he will in the end seize the recalcitrant one’s property as a security for his appearance.
In the King’s Court we find a compromise between the old oral procedure and the newer machinery of written documents. The plaintiff began the proceedings by purchasing an original writ suited to his case. We find little more trace of the actual requirement of previous demands for right, although formal words long survived in the declaration on writs of debt saying that “the defendant though often requested has not paid the said sum to the plaintiff, but has so far refused, and still refuses”. If the older writs require the sheriff to urge the defendant to do right, the more modern type, represented by novel disseisin and trespass, begins at once with an order to summon.
Most original writs were not “served”; they went to the sheriff, and he carried out the order through machinery which looks very old. He appointed two “good summoners” (and at first they were certainly not officials) who went to the party and summoned him. In Glanvill’s day they had to come to court in order to testify whether they had properly summoned the defendant.2 Thrice was the party summoned, and if he had not yet appeared, process issued to take his land. This oral summons was a weak point, and disputes whether summons had been duly made were frequent. The early stringent proof of summons by the testimony of the summoners was soon relaxed, and it became general to allow wager of law—an easy “proof” of non-summons—as a means of “curing a default”.
Instead of merely failing to appear, the defendant might send certain excuses called “essoins”. A number of “essoiners” were sent to explain that the party was sick, abroad, on the King’s service, cut off by a flood, a broken bridge, and so forth. These secured delays of varying length, and in early times were verified. The court would send four knights to see whether the party was actually in bed. As one was entitled to an essoin if one had previously appeared, it was possible to spin out a long series of appearances and essoins. Worse still, in certain actions, especially debt, it was necessary to have all the co-defendants in court together. This might never happen if they arranged to cast essoins in turn. This practice of “fourcher” was particularly favoured by executors, until it was stopped by statute.1
The distinction already noted2 between “demands” and “complaints” was extended to the procedure. Upon writs of praecipe quod reddat the process consisted of a long series of distresses directed against the tenant’s land; upon writs ostensurus quare the process was a series of summonses, attachments, and possibly arrest (capias) and even outlawry.
OUTLAWRY IN CIVIL PROCESS
The dreadful penalty of outlawry was originally the last resort of criminal law. In the time of Bracton, however, it makes its appearance in civil procedure, and it is not surprising that the first form of action to involve outlawry was trespass. Further extensions of outlawry were made by statute to actions of account3 in 1285, debt, detinue and replevin4 in 1352, and to actions of case5 in 1504. Necessarily, this procedural outlawry had to be in a much mitigated form, and so what was once equivalent to a death sentence was shorn of such terrors as peril of life, corruption of blood and escheat of lands;6 the insurgent peasants demanded its abolition, both in civil and criminal proceedings, but without success; down to 1870 it still involved forfeiture of chattels.7 Moreover, the use of outlawry was hedged about with procedural precautions which left many chances of getting it reversed upon a writ of error.
JUDGMENT BY DEFAULT
The common law was reluctant to give judgment by default. The principle of the petty assizes, however, made it necessary, and so we find that, as part of the very summary procedure of the assize of novel disseisin, the twelve recognitors were summoned at the same time as the defendant; if the defendant persistently defaulted, then the verdict of the assize would be taken even in his absence, and judgment given. In other real actions judgment could be given against a tenant who had exhausted his liberal allowance of defaults. A tenant who lost by default was not for ever barred, but could regain his land if he succeeded in a writ “of a higher nature”; thus, if he had lost by default in an assize he could still recover (if his title was sufficient) in a writ of entry, or if he had lost by default in a writ of entry, he could resort to a writ of right. Even in a writ of right, a judgment by default will not bar a future writ of right except in certain circumstances.1
In personal actions the situation was rather different. The subject matter of the dispute was not indestructible like land, and there was the additional factor of the rights of the Crown. Especially in trespass, there was the idea that people ought to be punished for their torts as well as making reparation, and where the Crown and a subject were in competition, the issue was inevitable. Bracton indeed had argued that debts and damages ought to be levied from a defaulter’s personal property, but (as Maitland remarked) it took six hundred years for his view to prevail.2 There was a time when something of the sort could be done in actions of debt,3 but the experiment was abandoned and the common law clung to the principle that no judgment should be given in personal actions against an absent defendant. The Crown did, indeed, pursue him with rigorous process, but the resulting attachments and forfeitures only benefited the Crown and not the party.
THE NEW CONVENTIONAL PROCEDURE
In the course of the seventeenth century the courts and the profession combined to evolve a remarkable reform in procedure. This revolution—it was nothing less—was effected by a series of fictions, and had for its object nothing less than the abandonment of the old system of original writs.
We have already noticed the fact that the common law courts were often rivals for business, and this rivalry was no doubt the main motive of these reforms, for their primary object was not so much the relief of litigants as the attraction of business from one court into another.
PROCEEDINGS BY BILL
It had long been a principle with the mediaeval courts that proceedings could be taken by bill, without further preliminaries, against an officer of the court or against a person who for any reason was already within the jurisdiction of the court; particularly, the King’s Bench would hear bills based upon causes of action arising in the county where the court happened at the time to be sitting.4 The exploitation of this rule had far-reaching results. In the middle of the fifteenth century the King’s Bench allowed a real or fictitious bill of Middlesex to be proffered against a person, supposing him to have committed within that county (where the court had by now settled down) a trespass with force and arms. This was within the court’s normal jurisdiction, and if the defendant surrendered and was committed or bailed he was sufficiently within the court’s jurisdiction to be put to answer any other bill proffered against him while in custody. If the defendant did not come in, process called latitat issued, and eventually he might find himself in contempt. An ingenious but complicated system of bail gave some reality to the proceedings, but the Court of Common Pleas procured a statute in 1661 which rendered the device ineffective by enacting that arrest and bail could only be had if the process disclosed the true cause of action.1
The bill of Middlesex only alleged a fictitious trespass, and so was useless after the statute, until the King’s Bench took the simple course of adding to the fictitious trespass (which gave it jurisdiction) a clause ac etiam, “and moreover”, which set out the real cause of action. The King’s Bench therefore regained the use of this device to capture business (but not real actions) from the Common Pleas. Retaliation followed when the Common Pleas used its ancient writ of trespass quare clausum fregit with an ac etiam clause containing other matter, which enabled it to compete with King’s Bench.
In both cases the commencement of the proceedings was a document whose contents were completely fictitious, and in practice neither the bill of Middlesex nor the writ of trespass quare clausum fregit was issued. Process therefore began immediately with the latitat (in the King’s Bench) or with the capias (in the Common Pleas).2
In the eighteenth century this omission was extended to trespass actions which did not have a fictitious origin, with the result that most actions, apart from the older real actions, began with a capias instead of an original writ. By such devious means the courts achieved a considerable measure of reform, which paved the way for the more thorough simplification effected in 1832.3
The proceedings between appearance and judgment will be described in the next chapter in so far as they are pleadings; modes of trial and the nisi prius system have already been described.
The hierarchy of ecclesiastical courts—archdeacon, bishop, archbishop, pope—gave English lawyers their first sight of appeals being carried from court to court. Within the limits of their own system they copied it, at least in externals. Bracton likened the King to the Pope, and, like the Pope, the King could call into his court cases which were in progress in inferior tribunals. By means of tolt a plea could be removed from a seignorial court into the county, and by a writ of pone it could be thence transferred to the Common Pleas. It is interesting to observe that by 1294 these were merely paper proceedings, so to speak, and that such a case did not in fact come before the county court on its way to Westminster.1
If a plea in the local court had proceeded to judgment, it could be reviewed only in the King’s Court. There was thus no possibility of pleas moving up through a hierarchy of feudal courts, for as early as the reign of Henry I the principle was formulated that “false judgment is a royal plea”.2 The proceedings in the local courts were oral, and so they had to be committed to writing before the King’s Court could examine them. A writ of recordari facias loquelam in the form of an accedas ad curiam ordered the sheriff to go to the court of a lord and cause its proceedings in the case to be recorded; this record was then brought into the King’s Court by four suitors of the court below—or four knights if the case came from the county court. If one of the parties disputed the accuracy of the record, battle might be waged. The record being settled, the King’s Court would hear the objections to it and act accordingly; it might even continue the remaining stages of the case itself, for the error below will amost certainly have been a procedural one.3
The expression “false judgment” is not one which any prudent person would apply to the decision of a royal court. The proper expression will be “error on the record” if the acts of the Common Pleas are to be reviewed, and the procedure will be a writ of error to move the record (or rather, a copy of it) into the King’s Bench,4 and thence maybe to Parliament.5 Like false judgment, the writ of error will only secure a review of whatever appears on the record of the court below. This will be largely concerned with matters of procedure, although implicit in them there may well be a question of substantive law. Questions of fact, however, were definitely outside the operation of a writ of error.6
The successful demandant in a real action obtained a writ directed to the sheriff, who was thereby authorised to put him into seisin.1
The final process in personal actions, however, was not so simple a matter. The plaintiff had judgment for a sum of money as a debt, or damages, or both. Different possibilities have been open to such creditors at different epochs of our legal history. Obviously there are three principal types of execution to be considered, which may be directed against the defendant’s person, his chattels, and his land respectively.
Personal slavery in satisfaction of debts is an ancient institution and undoubtedly formed part of Anglo-Saxon law,2 as also of old German law.3 It disappeared, however, after the Conquest, with the result that for a time our law did not issue process against the person of a judgment debtor. Its reappearance is largely statutory. The King could always use it for Crown debts, but in 1285 masters, without judicial proceedings of any sort, were authorised by statute—one of the most drastic enactments in our history—to commit to gaol servants and bailiffs whose accounts were in arrears.4
Meanwhile, the statutes of merchants (to be mentioned later) gave similarly stringent execution against the persons of merchants, who, it must be remembered, were a well-defined class or estate, subject to peculiar rules of law, and against such others as had expressly placed themselves within the terms of the statutes. “Common persons” could not be imprisoned for debt until after 1352, when the initial process of actions of debt was assimilated to that of account.5 In terms the statute only dealt with mesne process, but by this time there was a common law rule that if a defendant could be imprisoned on mesne process, then he could also be imprisoned on final process; indirectly, therefore, the result was to introduce imprisonment for debt.6 The rule in question no doubt derived from trespass vi et armis to which it originally applied. Imprisonment was not extended to actions on the case until 1504.7 It seems early to have been established that if the plaintiff takes a capias ad satisfaciendum he must abandon all other modes of execution, and so (as a general rule) cannot proceed against the defendant’s property if once he has proceeded against his person.
It is not surprising, then, that the majority of creditors saw more chances of satisfaction by proceeding against the debtor’s property. Down to the reign of Edward I only the debtor’s chattels could be reached by the two common law writs available. Of these, fieri facias authorised the sheriff to “cause” the sum due “to be made up” from the debtor’s goods and chattels; levari facias went a little further and allowed it to be levied out of the produce of his land as it became available. This included crops, rents and the like, and leases,1 all of which the sheriff could take and realise.
These writs of execution were only available upon judgments in the King’s courts. In local courts “of wapontakes, hundreds, and courts of barons” it was only possible to distrain the defendant. This caused him harm, but it did no good to the creditor; a petition in 1348 that such distresses might be sold in order to satisfy the judgment was rejected.2 This archaic procedure must have had much to do with the decline of the local courts.
STATUTORY PROCESS OF ELEGIT
We have already hinted that dealings with, and through the medium of, the sheriff were not always entirely satisfactory in the middle ages. The levying of judgment debts could no doubt be done quicker and cheaper by the creditor himself than by the ancient machinery of the county executive. It took the common law some time to get over its repugnance to putting a creditor in possession of a debtor’s lands, and the restrictions on alienation may also have proved an obstacle. However, as early as 1215 the first step in this direction was taken. The Great Charter enacted that if a surety had discharged his principal’s debt to the Crown, then the surety could be put into possession of the principal’s lands, to hold them until he had levied the debt from the issues.3 The courts themselves made one more effort in this direction, in a situation which has already been mentioned,4 but a general procedure allowing the creditor to reach the proceeds of land without the intervention of the sheriff only appears in 1285. By the Statute of Westminster the Second,
“When a debt has been recovered, or acknowledged, or damages awarded in the king’s court, it shall henceforth lie in the election of the plaintiff to sue a writ to the sheriff ordering that he cause to be made (fieri facias) out of the lands and chattels; or, that the sheriff deliver to him all the chattels of the debtor (except cattle and beasts of the plough) and one half of his land (according to a reasonable price or extent) until the debt shall have been levied. And if he is ejected from the tenement let him recover by novel disseisin. . . .”1
The alternative procedure here provided was called elegit because the writ recites that the creditor “has chosen” it instead of fieri facias. A jury was summoned to make the “extent” or valuation of the land, and to fix a fair price for the chattels. The concluding clause of the statute is interesting, for it contemplates the creditor entering into possession of the lands, and protects him by novel disseisin, although it would clearly be anomalous to describe him as “seised”; we have here, therefore, an early example of a statutory estate which will not fit into the common law system of seisin.2 Leases held by the debtor were also in an anomalous position, for the sheriff might deliver them to be sold by the creditor as “chattels” or he might extend them as “lands”, in which case the creditor merely takes over the remainder of the lease from the debtor.
DEBTS OF RECORD
So far, this chapter has been concerned with contentious litigation. Many persons, however, desired to obtain the benefits of a judgment without the hazards and delays of a long process; particularly, lenders wished to have judgment entered at the moment the loan was contracted, and thus avoid the difficulties of getting the debtor into court, and also the further risks of meeting a defence of wager of law, of depending on the appearance of witnesses, or the risk of losing a bond under seal—for if it were lost or defaced, the action was extinguished. Prudent lenders in the early thirteenth century almost always solved these difficulties by bringing an action of debt and pursuing it as far as judgment against their prospective debtors—“and we may be pretty certain that in many cases no money has been advanced until a judgment has been given for its repayment”.3 Many actions, collusive no doubt, did not proceed to judgment, but concluded with a compromise which was recorded on the plea rolls, often with a covenant that the sheriff may levy the debt if it is defaulted. Still other cases are to be found on the close rolls of Chancery. These were not judicial records, but merely copies of State correspondence for official reference, but on the backs of the rolls numerous private deeds are to be found, generally concerned with debts. Private debts might also be acknowledged in the Exchequer.
The principal advantage of these measures was the ease with which the debt could be proved from documents which were kept in official custody with great care. Moreover, such a recognisance enrolled in a court of record operated immediately as a charge upon the debtor’s lands. Upon default fieri facias or elegit could be had.1 The Statute of Westminster the Second enacted that matters enrolled by the chancellor or judges, whether they concern land or debts, ought not to admit of further pleading, and that the plaintiff at any time within a year of the record may henceforth have a writ of execution upon them; if more than a year has elapsed, he may have a scire facias calling on the defendant to show cause why execution should not be issued.2
The class of merchants were particularly interested in procedures of this sort, and at this same moment were procuring legislation especially adapted to their requirements. Speed, ease of proof and drastic execution were the principles which they incorporated into the traditional deed enrolled and the recognisance. In 1283 the Statute of Acton Burnell made special provision for the enrolment of mercantile debts in the principal towns, where the mayor was to keep a roll, and a clerk appointed by the Crown was to enter upon it the details of recognisances; the clerk was also to draw a deed and give it to the creditor, sealed with the debtor’s seal and his own official seal. Upon default, the mayor was to order the sale of the debtor’s chattels and devisable burgage lands; if there were none within the jurisdiction, the Lord Chancellor was to make suitable process. If the debtor had no such property he was to be imprisoned, the creditor providing him bread and water only.3
Defects in the working of the statute soon became apparent, and there was talk of “malice and delay”. The matter was therefore taken up again two years later and the result was the great Statute of Merchants of 1285.4 The details of enrolment and sealing were changed so as to leave less room for fraud by the local officials, but the greatest change was in the execution allowed. The process was to begin with the imprisonment of the debtor, instead of using imprisonment as a last resort. There was to be no escaping this; if the gaoler did not accept the prisoner he (or failing him, the owner of the gaol) became liable for the debt. During the first three months the debtor was to have facilities for selling not only his chattels but also his land. If the debt had not been settled within those three months, the chattels were delivered to the creditor for sale and all the land (not merely half as by elegit) was to be held by the creditor, who was to be “seised” of it until the debt was levied from the issues. A very peculiar feature of the statute is that it makes all lands held at the time of the recognisance liable to execution, even if they had since been alienated.1
The object was clearly to circumvent the prejudice against compulsorily stripping a debtor of his land by selling it. The statute did not venture to do this, but the drastic process of immediate close imprisonment was evidently meant to compel the debtor to sell. A clause was necessary to declare that such sales should be valid, no doubt because at common law a deed made in prison could generally be avoided.
Recognisances entered into in accordance with this act were called shortly “statutes”, and a creditor who was in under the act was called a “tenant by statute merchant”. It remained the principal form of security during the middle ages, and even for centuries afterwards it was in very general use.
Similar machinery was set up in every staple town by Edward III in 1353 for the special convenience of the members of those particular communities of merchants.2 The law and the forms were the same as for statutes merchant, the only difference being that the officials who took the recognisances were the staple officers, and that (at first) the recognisances were practically confined to operations in the “staple” commodities of wool, leather, etc.
In later times both statutes merchant and statutes staple were used by non-merchants.
The principle behind all these devices was that no defence could be possible to a recognisance made under these forms. No provision therefore was made for pleadings or defences by the debtor.
It soon became clear that the legislature had been too optimistic in this respect. The resources of mediaeval fraud and forgery were considerable, and the complication of the land law introduced many nice points in the execution of “statutes”. We therefore find that the necessary procedure finally appears, taking the form of the writ auditaquerela.1 It issued out of Chancery and was directed to the judges of the King’s Bench or Common Pleas, ordering them to do speedy justice to the debtor, after having heard his complaint (audita querela) and the reasons of the parties. There is good ground for believing that this writ was first authorised by Parliament in 1336 as a remedy in these circumstances.2
The scope of the writ was, in general, to permit the defendant to raise matters which in ordinary cases he could have raised by way of plea in common law actions. It replaced the action of deceit and the writ of error to a large extent in matters arising under the statutes of merchants and staple, and later in the middle ages was used as a general remedy for those who had been the victims of the forgery or fraudulent manipulation of any type of procedure and records.3 It may be added that the defences available do not seem to extend beyond the common law’s traditional relief against the abuse of legal procedure, and that there seems to be no ground for regarding audita querela as being particularly “equitable” in its nature.4 It seems that the words of Stonor, C.J., “I tell you plainly that audita querela is given rather by equity than by common law”,5 simply mean that the writ allows the debtor to plead common law defences, although the statutes deliberately deprived him of that opportunity.
The writs mentioned here and in the last chapter have been essential parts in the conduct of litigation; but the primary function of a writ was merely to convey the King’s commands to his officers and servants, of whatever nature those commands might be.6 The Register of Writs shows in fact a large variety of writs whose nature was administrative rather than judicial. Some of these writs acquired the name of “prerogative writs” in the seventeenth and eighteenth centuries.7 A few of them have been the subject of special study.8 At the present time, writs on administrative matters are of importance in local government matters, mandamus and certiorari for example; in the middle ages prohibition played an important part in the conflict of church and state,1 and could be used against the admiralty and local courts as well.2 Occasionally it happened that the constant issue of prohibitions would result in the creation of a new form of action.3
THE ISSUE OF WRITS
The precise functions of chancery in the drafting and issuing of writs leave room for controversy.4 The ambiguity of the word “writ” is a source of trouble, for it has led some historians to regard restrictions upon the issue of “writs” by the council’s authorisation as if they were restrictions upon its supposed power to create new writs for judicial use,5 and the efforts of Bracton and Fleta to explain the procedure are hardly successful. The statute in consimili casu of 1285 shows that chancery had important functions,6 and a famous year book passage shows how those functions were carried out.7 It was confessedly the aim of the writ-system to cover the whole field of law,8 and the responsibility of chancery in controlling so vast a movement was of the gravest—in effect it threatened to be the supreme legislator of the common law. But one great check was maintained over its activities: the common law courts could, and did, quash writs of which they disapproved.9 The ultimate decision to quash or to sustain a novel writ therefore lay with the common law judges.
Royal justice was so good that it could overcome the inherent defect that the issue of writs was almost a monopoly of the chancery—a distant and peripatetic office. Certain prudent concessions had, indeed, been made—plaints could be brought in local courts, and even in the King’s Court,10 and on the occasion of a general eyre some original writs could be got from the court (as judicial writs regularly could11 ). Some alleviation could thus be brought lest the writ-system become impossibly difficult, but the erection of local branches of the chancery never took place.1
There have been two main lines of procedure, therefore, the one concerned with contested litigation, and the other with uncontested forms in which the proceedings consisted of final process issuing out of records upon which the parties had voluntarily enrolled their obligations. Parties who had not taken the preliminary precautions of entering into recognisances had perforce to go through all the forms of contested litigation, but as early as Coke’s day this was made less formidable by the practice of the profession.2 It had already become impossible, and indeed unnecessary, to pronounce judgment in open court upon the thousands of cases in which there was actually no defence. In such circumstances, where the functions of the court were purely ministerial, the attorneys carried on the proceedings between themselves, making up the record and procuring its enrolment, even going so far as to enter judgment in multitudes of cases which had never been mentioned in court. Of course, the record, if erroneous, was liable to be quashed if the defendant brought a writ of error, but the careful copying of approved forms out of the current books of practice (of which there was a great number) was almost always a sufficient precaution. The way was therefore well prepared for the still speedier and easier summary judgment which we owe to nineteenth-century statute law.
The conventional procedure of the seventeenth and eighteenth centuries likewise achieved a very large measure of reform which made the work of the legislature much simpler, for it constituted a substantial advance towards uniformity of process by its extended use of the capias in initiating all sorts of actions.3
METHODS OF REFORM
It is not without interest to notice the different methods of law reform which are illustrated by various episodes in the history of procedure (and for that matter, of other branches of the law as well). If a rule, a procedure or an institution is working unsatisfactorily, there are several courses from which to choose. The simplest is to abolish it and substitute something better. It is natural that so straightforward a remedy should only be employed when there are men with vigour and courage to carry it out. It is apt to be characteristic of the great moments of the common law, therefore, rather than of those less heroic times when the system is in repose. The last years of the thirteenth century may be rightly regarded as the golden age of the common law, and it was a moment when some things were being abolished by statute (especially in the field of procedure) and other new things were being established. It is not a little curious that the most conservative minds, looking back to a distant golden age, are apt to light upon a period which was distressing to the conservatives who lived in it; “new king, new laws, new judges, new masters” is the lament of a Year Book in reporting a case decided by Chief Justice Bereford, who is the brightest figure in the brightest period of the Year Books.1
A less drastic policy is to diminish the importance of the offending member without excising it. The long line of statutes of jeofail is an example. These statutes adopted the policy of enacting that certain minute slips in enrolling should not for the future invalidate the record.2 They began with slips of spelling, and proceeded by cautious stages to defects slightly less trivial. The result was disastrous. By excusing some slips, the others were by implication rendered still more grave, with the inevitable result that pleadings as a whole became still more dependent upon minute accuracy for their effect than they were before.
A third policy was to neutralise the wrong done at one point by introducing a new mechanism to counteract the old. This is surely the most tempting, and the most fallacious, of all. It is also the most frequent, for the courts must make their own reforms if the legislature will not, but the courts cannot (as a rule) abolish anything. Their efforts are therefore confined to providing safeguards against other legal rules. We thus get as a result an increase in the bulk of the law, for the old subsists with the new, and an increase in its complexity because the question of the relationship between the old and the new is bound to arise. Nor is this situation confined to judicial legislation, for even the statutes of Edward I raised the question by their failure to complete their work by abolishing unsatisfactory law. One of the most notorious examples, however, is the law of outlawry. Its traditional machinery was slow, but crushing. When it was felt that it was too severe, reform took the shape, not of modifying the nature of mesne process, but of insisting upon extraordinary accuracy in every detail of the outlawry procedure.3 This terrible engine was fitted with prodigious brakes, therefore, and so its energy, which might have been usefully applied, was carefully neutralised. The result frequently was that when it ought to have moved it did not, while at other times it might unexpectedly get out of control. The law of outlawry thus became notoriously tricky and ineffective.1 Another example we shall find later in the history of defamation. Early in the seventeenth century the courts felt that the law of slander was unsatisfactory because a great many persons invoked its protection. Such reasoning is not very promising, and the remedy devised was worthy of it—the courts insisted upon a fantastically strict observance of pleading and other technicalities. The greatest of all examples is of course the history of the conventional and fictitious procedure which we have just related, while nearly as remarkable is the development of vast masses of law dealing with “falsifying recoveries”, “counterpleas of voucher” and similar matters in real property law, where one procedure is piled on another in the hope that the last will counteract the defects of the earlier ones.
In the well-known words of Littleton1 in his advice to his son, “it is one of the most honourable, laudable, and profitable things in our law to have the science of well pleading in actions real and personal; and therefore I counsel thee especially to employ thy courage and care to learn this”. Care and courage were indeed necessary to master the science of pleading as it flourished in the seventeenth and eighteenth centuries, though we may perhaps think that the pleading of Littleton’s day was sufficiently accurate and commendably free from the later subtleties which finally compelled its abandonment. Littleton’s words had the fortunate result of prompting Coke to write in his most concise style a little manual of the elements of pleading which is a useful introduction to the subject.2
THE ORIGINS OF PLEADING
It is clear that the origins of pleadings were oral altercations between the parties which took place in court. They were not preliminaries, nor were they part of process, but a distinct stage—indeed, the central stage—of the litigants’ progress. It may be conjectured that in their earlier form they consisted entirely of sworn statements, and so were part of the machinery for adducing proof. Thus in debt, the plaintiff swears:1
“In the name of the living God, as I money demand, so have I lack of that which N promised me when I mine to him sold.”
To this the defendant replies:
“In the name of the living God, I owe not to N sceatt nor shilling nor penny nor penny’s worth; but I have discharged to him all that I owed him, so far as our verbal contracts were at first.”
These forms therefore serve a double purpose: first, they make clear the nature of the dispute between the parties, and secondly, they contribute towards the proof. Upon a consideration of these pleadings, as we may call them, the court awarded the benefit of making the final proof by compurgation or ordeal.
For the period between the Conquest and the appearance of the first plea rolls the evidence is somewhat scanty and especially difficult to interpret. Changes undoubtedly took place, and the formulae, which are often described as rigid and invariable, suffered considerable modification. The position of the courts was strengthened, and so pleadings were expressly addressed to the court; the oath, on the other hand, is either eliminated or postponed to a later stage, and so the new type of pleading concludes with an offer to prove it, instead of opening with an oath. The steps in this development are obscure, but when we reach the thirteenth century, forms are once again well settled, both in local and royal courts, and specimens of them are easily available in contemporary treatises. Considering the relative activity of the royal and the communal courts during this period, it seems reasonable to conclude that the change took place in the hundreds and counties, and that when the King’s Court needed forms, it simply adopted those in common use.
THE LANGUAGE OF PLEADINGS
Two further changes took place—the introduction of French as the language of the courts at the time of the Conquest, and then its replacement by English in 1362,2 without substantially changing the forms, however. We thus find counts (i.e. tales, contes, or declarations) in such forms as this:
“This sheweth unto you Walter of Ferlang by his attorney, who is here, that Richard Bremel, who is there by his attorney, wrongfully deforces him of the manor of Folham with the appurtenances, a messuage . . . (long enumeration of parcels) . . .; and wrongfully for this, that they are his right and heritage of which one A his ancestor was seised in his demesne as of fee and of right in time of peace in the time of king Richard, cousin of the king who now is (whom God preserve), taking the esplees,1 as in homage, rents, rolls . . . (enumerated); and from A the right descended . . . (all descents traced down to) Walter who now demands. And that such is the right of Walter, he has suit and good proof.”2
The example from which the above is abbreviated is particularly long, as it was drawn for teaching purposes and contains every imaginable complication. The outline, however, is clear. The whole count is addressed to the court, and the demandant “who is here” solemnly claiming lands from the tenant “who is there” reminds one of the ancient demand of right, and of the necessity of both parties being present. The statement of the demandant’s title drawn from an ancestor who took “esplees” looks more modern, although the claim that the lands are “his right and heritage” preserves, perhaps, one of the older and vaguer forms. The “suit” is the group of friends who are prepared to assert that the demand is just;3 as late as the reign of Edward III we find examples of the suit, or secta, being demanded,4 and Magna Carta confirmed the principle that no one should be forced to answer a bare demand unsupported by suit.5
The example just given is a count or declaration on a writ of right. The plea or defence would run as follows:
“X who is here, denies (defende) tort and force and the right of Y who is there, entirely and completely (tut attrenche) and the seisin of his ancestor called N of whose seisin he has counted as of fee and of right, to wit, of a messuage . . . (long enumeration of parcels as before) . . .; and he is ready to deny it by the body of one J his free man who is here ready to deny it by his body, or by anything that this court may award that he ought; and if any evil betide this same J (which God forbid), he is ready to deny it by another who ought to and can.”
The demandant then replies that “wrongfully he denies etc.”, repeats the title and descent as in his count, and offers to substantiate (technically “deraign”) his right by his own free man, and so the “mise,” or issue, is joined.
PLEADINGS AND THE PLEA ROLL
It is essential to remember that these forms are oral, and that they were oral in their origin. It is only later that they became written, and it is clear that the change was brought about by the influence of the enrolling practice of the King’s Court. This is a peculiarity of the English system of “records”, and one of its features is the absence of any serious influence of canon law, whose method of pleading was different, and only adopted as a finished system in several other countries.
If we look at the earlier plea rolls, we shall find that they are brief and informal. Their object is merely to serve as memoranda of the proceedings for official use. They were not for the use of the parties, and the parties had no control whatever over the form in which their case was enrolled. The pleadings which we have set out above will be represented on the roll merely by a word or two, and that in a simple narrative form. Thus an action on a writ of right is briefly enrolled like this:
“T demands two hides of land in Battersea and Wandsworth against R as his right and inheritance, whereof A his father was seised as of fee and right the day and year in which King Henry I died, taking esplees to the value of five shillings and more. Richard comes and denies his right and puts himself on the grand assize as to which of them has the greater right to that land. . . .”1
It will be seen that the record is merely a brief narrative of the proceedings which sweeps aside the forms of the pleadings and confines itself to their substance.
The next stage is the result of the establishment of a permanent and numerous organisation of enrolling clerks. The entries become much longer, and tend to become settled in their wording; what is still more important, they bear a fixed relationship to the oral forms which were used in court. By the early years of Henry III the change is complete and the forms remain substantially the same for the next six hundred years. The distinctive features of the final form of English enrolment can be seen by contrasting it with a continental roll, such as we find in Normandy. The Norman roll seems to compare most easily with the older type of English enrolment such as we have just described it. It is narrative, and ignores the forms used by the parties in an effort to state the substance in as few words as possible.2
THE CLASSICAL PLEA ROLL
The contrast of this with what we may call the classical style of English enrolment is unmistakable. Examples are easily found in Bracton’s Note Book, in the notes from the records printed by the editors of the Selden Society’s edition of the Year Books, in many old reporters who reproduce pleadings, notably Plowden and Coke, and above all, in the Books of Entries which consist of choice specimens of enrolments, collected for the use of pleaders in the days when pleadings were settled by the parties out of court, and merely copied on to the rolls.3
The new model begins with a reference to the original writ and the state of the process: “B is summoned” (or “attached” as the case may be) “to answer A in a plea that he render him” money (or chattels). Then comes a novelty: “whereof he says” (or in trespass “complains”) that—and here follows the substance of the count. The old oral count is therefore directly represented for the first time on the roll. It soon becomes clear that this carefully recorded Latin declaration on the roll is sharing the importance of the old French conte which was orally delivered in court. As we shall see, it became even more important at the close of the middle ages.
A slight, but significant, innovation is the fact that the rolls of the new model commence a new paragraph for the defendant’s plea, the plaintiff’s replication, and so on. The result is greater clarity from the point of view of the reader, but ultimately much more important consequences followed.
In the first place, there was undoubtedly a deliberate attempt to put on the roll all the essential details, and not merely the general substance of the parties’ allegations. Hence it will be increasingly possible to decide a case merely from the enrolment, now that the roll contains all that is necessary for that purpose.1
Secondly, lawyers will be driven to the conclusion that what really matters henceforth is not so much what they say (as under the old system), as what the clerks write on the roll.2 This led to two different results. On the one hand, lawyers could free themselves from the old bonds of the spoken forms and indulge in tentative pleadings and arguments, trusting that nothing will be recorded until the informal altercation has finished, and the parties have reached definite positions—the early Year Books are in consequence full of instances of counsel “licking their plea into shape” (as Maitland put it3 ) in open court. This was clearly an advance from the old system where the oral forms were binding. On the other hand, there are plenty of cases (and even statutes4 ) which testify to the great uneasiness felt by lawyers about the roll, for they could not get access to it, and could only guess what was on it.5 Their new freedom was thus limited by the fear of the mysterious roll, and they could not expect every judge to be as kindly as the one who warned counsel “mind what you say, for henceforth we shall record”.
Thirdly, it would seem that for a time the lead passed from the hands of the bar to those of the clerks. The future of pleading, and the settlement of its forms, became a matter for the people who drew up the rolls; in later times they were a distinct body of officials, headed by the prothonotaries, and under the control of the courts, but their early history is unknown. What is still more serious, we do not know what was their relationship to the bar on the one hand, or to the general body of royal clerks on the other. Some light is now to be had on the relationships between chancery clerks and law students,1 and a stage in the “inns of chancery” was normal for lawyers in the later middle ages, but how far there was contact, openly or secretly, between lawyers and court clerks is not yet known. For a moment, in the troubled years of Edward II, the office of chief clerk in the common pleas was a political issue,2 and at least once a chief clerk and keeper of the rolls of the common pleas was raised to the bench.3
Fourthly, as with almost every question which touches the general development of the law in this period, we must consider the matter from the point of view of Bracton’s treatise. We have already spoken of Bracton’s use of cases, and it now remains to insist that those cases were in fact enrolments. The examples he gave, and his discussion of “exceptions”—that is to say, defences—must have some bearing on the present subject. Was the plea roll in his day already such a vital document that a real understanding of the law depended upon understanding it? If so, Bracton’s book must have been a welcome revelation of the form which the old oral pleadings might take when the clerks enrolled them, and the eager study of Bracton’s book is easily explained. Or, was it the accident that Bracton had plea rolls at hand, and so used them, which first directed attention to enrolling practice, and so enhanced its importance? In short, was Bracton’s use of plea rolls the result or the cause of their importance as pleadings? To these questions there is no answer at present, but an appreciation of the Bractonian problem will be very helpful, we believe, in putting the common law system of pleading into its historical perspective.
THE PROFESSION AND THE PLEA ROLLS
Although lawyers had a glimpse, thanks to Bracton, of what the plea rolls might contain, those rolls in theory were closed to them, and in practice were not subject to their control. An awkward situation, undoubtedly, and what informal arrangements made it workable, we shall perhaps never know. The Year Books very occasionally note the clerks of the court as joining in the forensic conversation, and sometimes we read a note of what the clerk told the compiler. This sort of evidence may be just enough to suggest that the bar contrived to win the favours of the clerks by some means or other. It is certainly clear from the fourteenth-century Year Books that counsel no longer directed their attention solely to the oral words; on the contrary, it is plain that their great concern was to get some things on the record, and to keep other things off. Pleading was therefore the art of saying things in court in such a way as to produce a particular result on the roll,1 it being well understood that judgment would be on the basis of the enrolled pleadings, and not of the oral pleadings which in the course of the hearing might be advanced, withdrawn, modified—or just forgotten.
Granted that the enrolling clerks were in cordial relations with the bar, the system worked remarkably well. It demanded great learning and still greater skill from the serjeants, for they were in effect settling the pleadings in the heat of battle and in the presence of the adversary. On the other hand, there was the substantial advantage that the court joined in the discussion, which thus sometimes became a round-table conference of judges and counsel who joined in trying to find a way of pleading a case which would bring out the real points. We thus find in these cases a discussion of the legal effect of many proposed pleas which in the end were abandoned—which of course explains why the Year Books give us so much matter which is not matter of decision from the modern point of view. Later ages concur in regarding the age of Edward III as the golden age of common law pleading, and the Year Books 40-50 Edward III as being the best place to study it; hence the renown of this volume (familiarly called Quadragesms) as a text for the students of later centuries.2 The fifteenth century saw the beginning of a decline which became marked in the sixteenth; at the beginning of the seventeenth century Coke lamented the change, but his decisions actually accelerated it, and after the Restoration pleading became so subtle that a special branch of the profession grew up to guard its mysteries from the profane.
In the early days of its decline, a remarkable change took place. On the institutional side, it may be regarded as ultimately a victory of the bar over the clerks of court. We have already suggested that the root of the trouble was the gradual shift of emphasis from the spoken plea to the written enrolment, and the resulting anxiety of the bar as to what was put on the roll. We have also suggested that although there was occasional friction, yet in general the bar and the clerks contrived to work together in tolerably good relations. This relationship between the bar and the clerks took the form of the clerks acting as attorneys for litigants. This inevitably established contact between the clerks on the one hand, and the litigants (and their advisers) on the other. The situation was known to be dangerous, as affording opportunities for frauds of various sorts;1 but from the reign of Edward I it seems established as a permanent feature. The early fears that the system put too much power in the hands of the clerks had died down as the fifteenth century proceeded.
Then a change took place: instead of leaving it to the clerks to enrol a case in accordance with their own ideas of the way it was pleaded, the legal profession provided the clerks with drafts of the entries they desired to have, and so the clerks, in general, had nothing to do but to copy the drafts provided by the litigants’ advisers on to the roll. By this means the lawyers secured absolute control of what was written on the rolls, and were for ever relieved of the fear that the roll might contain unpleasant surprises—as, in the past, it sometimes did.2
On the obscure steps by which this revolution was effected, we have some valuable material collected by Reeves and Holdsworth.3 It seems that the first stage was reached when in the fourteenth century permission was gained (under certain circumstances) to amend the roll.4 This established professional contact between the bar and the clerks. The second stage is marked by the entry of the clerks of court into competition with the outside branches of the profession. There thus existed in the later fifteenth century two modes of proceeding: either counsel might be instructed to plead in a particular fashion, or the clerks of the court would be asked to draw pleadings on paper which were brought before the court by the parties (or their attorneys, perhaps) but certainly without counsel. The original motive of this departure may have been to plead simple cases, or undefended cases,5 without the expense of engaging a serjeant. Finally it became possible for the attorneys, with or without the advice of counsel, to draft the pleadings by exchanging papers, as far as an issue or a demurrer. In the case of an issue, the whole would be enrolled so as to serve as the record for the trial; in the case of a demurrer, the argument in court would take place on the basis of pleadings which had been settled out of court.
More than this it is impossible to say without indulging in speculation.1 The questions which arise, however, may be mentioned here, for they will indicate the importance of the change. For example, were pleadings drawn out of court at first for simple cases, or for difficult cases? It might seem natural that straightforward cases would be the first in which parties would dispense with counsel and allow the clerk or attorneys to make up a record concluding to a common issue for a jury. If this is so, it would no longer be necessary to see in the new system the result of the growing complexity of pleading.2 The reverse might even be possible, for it is easier to introduce subtleties in documents drawn at leisure, than in impromptu debate. It must certainly have been less costly in simple cases to have written pleadings, than to have serjeants to plead orally.
THE CONTINUITY OF PLEADING
However these questions may be answered in the light of future research, the main outlines given above can be regarded as established. Their principal significance is the continuity of common law pleading from the beginning to the end, in spite of changes of practice. From the Anglo-Saxon sworn demand and defence, through the Anglo-Norman conte and plee, to the Latin entry on the plea roll, the line is unbroken.3 The plea roll, however, came to be distinctive of English procedure, and it was inevitable that the main problem should centre round it. The roll underwent the attraction of the oral forms, and strove to represent them in its own idiom. But the more accurate and skilful the roll became, the more necessary it was for the legal profession to control the entries that were put upon it, and when they won that victory, it was a victory for the methods (based on oral tradition) of the old serjeant-conteur against the newer rationalism of ink and parchment.4 As Sir William Holdsworth has remarked, the sixteenth century was a time when the canonical system of procedure—which was very much written—seemed to some a tempting novelty. In Chancery and Star Chamber it had some influence, but the plea roll protected the courts of common law from so drastic an innovation, and the drawing of pleadings out of court perhaps seemed to most lawyers a sufficient concession to the idea of trial by paper. So the old counts, pleas, replications, rejoinders and the rest, with the accompanying issues and demurrers, continued in use, and, consequently, the substantive law which was implicit in them.
THE ORIGINAL WRIT
Pleadings begin with the original writ, and from the earliest days of the common law the writ assumed a position of great importance. Unlike the civilian and canonical procedure, the course of the common law started with a statement of the nature of the claim which was largely common form, prepared in the royal chancery and not by the plaintiff’s advisers. The fact that the writ was a royal writ made it for a time, at least, a formidable and rather cumbersome piece of machinery. On the one hand, it was regarded as the source of the jurisdiction of the court. The Court of Common Pleas was historically, and in legal theory, a court of delegates whose authority was not general, but derived from an ad hoc commission separately given for every individual case. Hence the court had no powers beyond those conferred by the original writ and could not go beyond the four corners of that document. It will not be surprising, therefore, that there should have been so rigid a boundary between the different forms of action, although we may expect the exercise of some ingenuity in the endeavour to make the system more elastic. On the other hand, this vital document remained for some years beyond the control of the parties: they had to take the writ ready-made, whether it quite fitted their case or not. Throughout the middle ages, therefore, the writ was largely a conventional document which generally throws little light on the real nature of the case. It is to the count that we must look for further information, and the very insufficiency of the writ must have compelled the continuance of the older system of the solemn declaration orally delivered in court.
The original writ, therefore, did not become anything like so informative as a libellus, for the good reason that it was drawn primarily in a public office and not by the plaintiff. Such a situation could not last if the use of the common law was to spread, and so we find traces of successful endeavours by the profession to influence the contents of the original writ. We have, in fact, in the thirteenth century, an anticipation of the problem we have already mentioned as arising late in the fifteenth century—the problem of the relationship between the legal profession and the clerical establishments of the State. Just as pleaders at the end of the middle ages succeeded in controlling what was entered upon the rolls of the courts, so in the thirteenth century they tried to influence the drafting of writs in the chancery. We find about the years 1285-1307 a little treatise which already has the suggestive title of Modus Componendi Brevia, “the way to compose writs”,1 and certain forms of action (such as writs of entry) clearly show that the parties themselves must have had considerable influence in drafting them. When this becomes possible, the attitude of the court towards these documents had to be modified. The great seal, no doubt, was there, but it was no longer possible to suppose that the document represented in all its details a direct command in considered terms by the Crown. The courts will therefore have to scrutinise the writ closely, and countless cases in the Year Books show that writs could be “abated” if their contents erred too much on the side of originality.
At the same time, there were certain old rules which disabled persons from being litigants; an outlaw is not entitled to be heard, neither is an outlaw from the Church, in other words, an excommunicate. Persons under age were often under a temporary disability. Here, then, was a fairly large assortment of “dilatory exceptions”, and Bracton’s treatise completed the tendency, already apparent, to fix the order in which they should be used. If they were unsuccessful, the court would order the defendant to “plead over” or to “say something else”, whereupon the proceedings get nearer the merits of the case.
The pleading not only explores the law of the case; it also serves to introduce new facts. As we have seen, the original writ contains the barest statement of the nature of the claim; the count amplifies this statement to some extent, but it is still mainly concerned with supporting the writ, for any variance between the writ and the count will be a serious matter.
The defendant may take an exception to the writ, and urge that under the circumstances some different writ ought to be used (and if he does so, the plaintiff will call upon him to “give us a better writ”). It sometimes happened, however, that in doing so the defendant came near to saying that the plaintiff had no remedy by this or any other writ. The plaintiff may then point out that “that is an exception to the action”. Usually the defendant became cautious at this point, and took care to withdraw from the general question so as to take up a defence based upon the particular circumstances of the case. In simple cases this often took the form of traversing some essential statement in the writ or the count. Thus, if A. alleges that B. disseised him of his free tenement (novel disseisin), B. may say that A. was never seised, and so could not be disseised, or that the tenement is not “free” (because, perhaps, it is in villeinage, or a term of years); some writs, such as the writs of entry, contain so many statements of fact that most defences will involve a denial of one of them.
The defence may rest upon facts which are not even hinted at in the writ or the count. Various methods were available for bringing such new facts into the discussion. The defendant may “confess and avoid”, admitting the plaintiff’s statements, but alleging other matters which will rob them of their importance. Or he may introduce new material followed by the clause absque hoc (on the roll), sans ceo que (in the oral plea), in which he formally denies the plaintiff’s allegations. This is called a “special traverse” and the plaintiff (as a rule) must answer the special or new matter so introduced.
RULES OF PLEADING
From the middle of the fourteenth century onwards there is an increasing rigidity of the rules of pleading; within limits this was all to the good. It clearly made for convenience when pleaders were excluded from “pleading evidence” and were driven to plead the fact itself, and not other facts which might or might not establish it. Rigidity had other effects, however, when it was combined with the fact that these pleadings were inscribed upon a public record. Under this rule it was impossible to deny facts which had been admitted in a previous case. Now as all facts not denied expressly were held to have been admitted, great caution was necessary. Hence we find long clauses protestando that the defendant does not admit numerous facts which the strict rules of pleading prevented him from denying in the ordinary way.
There were masses of rules1 to produce particularity, balanced by other rules against surplusage, and rules tolerating general pleadings where the record would otherwise be too long. Pleadings should not be argumentative; thus to an action on a bond to warrant lands, the defendant cannot merely say that the plaintiff has had peaceful enjoyment, but ought to plead that he has warranted and that the plaintiff has not been damaged.2 Nor must pleadings be double. One point must be selected and will be sufficient to decide the case; the rest can be eliminated as vexatious. This was an admirable principle, but in practice the rule against duplicity was difficult to apply, and in 1706 a statute3 allowed double pleas by leave of the court. Another vice of pleading was “departure”, and was analogous to duplicity save that the several matters were not in the same plea but in successive ones; thus if the plaintiff has counted on an action at common law, he cannot turn it into an action on a statute in his replication. Among the most curious of rules are those concerning “negatives pregnant with an affirmative”; Reeves has pointed out that this is the converse case of an “argumentative” plea, which is in fact an affirmative pregnant with a negative.4 Thus where a gift by deed is alleged, the reply that “he did not give by the deed” is bad (for the negative is pregnant with the affirmative that he gave by parole).
CERTAIN PLEAS IN REAL ACTIONS
Real actions were generally more complicated than personal ones, not only because they were older, but also because many persons were often concerned with the same piece of land. There was an old rule that all joint-tenants must be made defendants (or “tenants”) in a real action. Much use was made of it (by hasty feoffments to a friend who re-enfeoffed the tenant jointly with others) to obtain delays. Statutes finally stopped this manœuvre.1 A further means of delay, sometimes necessary, but not always so, was the demand for the “view”.2 If this is granted, an elaborate inspection of the land is made in order to identify precisely the property in dispute. Such an identification was not always easy when it consisted of scattered strips in open fields.
There were other pleas which had for their effect the joinder or substitution of new parties to the action. The need for such a procedure was largely the result of the old rule that a demandant must bring his writ against the person who is seised; this may be a tenant for life, and if so, the tenant for life may defend the action. He ought to “pray aid” of the reversioner, however, and if he does so, the reversioner will be summoned by the court and undertake the defence. Many tenants for life, acting in collusion with demandants, allowed judgment to be given against themselves by default, thus alienating the land and leaving the reversioner no remedy save a writ of right. It was therefore enacted that if a particular tenant is about to lose land by default, the reversioner may come any time before judgment and pray to be received to defend his right.3 This is called “receipt” in the old books and both aid-prayer and receipt are illustrated by thousands of cases. An understanding of the main principles of these two pleas is necessary, for discussions upon them contain very illuminating material on the nature of estates.
Finally, there is voucher to warranty.4 Deeds frequently contained a clause whereby the grantor binds himself and his heirs to warrant the grantee and his heirs;5 besides this, every lord owed warranty to his freehold tenant who has done homage, and the tenant in fee who has created entailed estates owes warranty to the tenants in tail by statute.6 Many tenants in real actions therefore “vouched to warranty” and numerous pleas might ensue. The demandant might urge that the tenant could not vouch at all, and the vouchee when he came might urge that he was not bound to warrant. The subject, already complicated, was rendered still more so by the misuse of vouchers for purposes of fraud or delay, with the result that several statutes established special procedures in certain cases.1 If the voucher was allowed and the vouchee defaulted or lost by judgment, the demandant had judgment against the tenant, but the tenant had judgment against the vouchee which entitled him to recover from him lands of equal value. If a voucher to warranty failed, then there was usually nothing lost but time, and the case proceeded.
Of all the curiosities of pleading, colour is the strangest; its history is worth examining, however, for it illustrates several important themes. In the early days of the assize of novel disseisin there was need for a summary action which would repress resort to self-help in disputes as to land. The assize therefore gave remedy to one who had been ejected from land, irrespective of the lack of title in the disseisee or the presence of title in the disseisor. Whatever the rights or wrongs of the parties, they must not resort to force. Hence in novel disseisin the demandant need not make out any title, save the fact that he had been seised and disseised.
With the progress of time this action, with its attractive rapidity, came to be used for trying questions of title as well as questions of seisin, and so both parties took to the practice of pleading title. A frequent situation was one where A., claiming land by a particular title against B., ejected B. B. then in turn ejected A., and A. brought the assize.
This situation was so common that it left its mark on the history of pleading. Under the old system the only course for B. in answer to the assize would be to say (if he could) that A. was never seised, or that B. never disseised him. Under the newer system, however, he was allowed to set out his own title and to plead that A. had entered under a certain pretence of title which was in fact bad, and that B. ejected him. Cases in Bracton’s Note Book seem to be half-way between these two systems. The new mode of pleading may therefore be regarded as a product of the early fourteenth century. The principal advantage was this: under the old system such a plea would be treated as amounting to the general issue, and so the case would go to the jury; under the new rules, the plea was regarded as raising a matter of law which might confuse the “lay gents” who were on the jury, and so it was reserved for the court. As time goes on, it is regarded as more and more desirable to leave for the court as matters of law many things which in older days were sent to the jury under the general issue. The defective title which the defendant attributes to the plaintiff is called “colour”, and in the earlier cases it seems that it really did represent the facts.2 It soon became the practice, however, to give feigned colour of a purely fictitious character; this raised a fictitious question of law not amounting to the general issue, and served as an excuse for leaving the whole case to the court—including, of course, the real question of law which under the old system would have been treated as merely an argumentative denial of the points of the assize.
The history of trespass was very similar to that of the assize of novel disseisin; both began as actions founded on tort, with a strong criminal element, and both became in the course of time actions for the trial of right to land or chattels respectively. The same line of reasoning which led to the use of “colour” in novel disseisin (and in its equivalent, entry in the nature of an assize) led also to its use in trespass. By 1440 we find a little treatise on the subject in the Year Books1 which seems to imply that the system was in full use at that date.
The object of pleadings is to explore the law and the facts of a case by means of the assertions and denials of the parties until an issue has been reached. If it is an issue of fact, then the parties will have ascertained a material fact which one asserts and the other denies in terms so precise that a jury will have no difficulty in hearing evidence on the matter and finding the truth of it. If it is an issue of law, the parties will have admitted the relevant facts, leaving it to the court to decide whether the law applicable to them is as the plaintiff or as the defendant maintained. This is called a “demurrer” because one of the parties has pleaded that he is entitled to succeed on the facts admitted by the other, and is willing to rest (demourer) at that point. If his opponent does the same, then the demurrer is joined, the pleadings are at an end, and the court hears the arguments on the point of law, and decides it.
This appeal by both parties to the court’s “consideration” on a point of law is very common in the thirteenth century as an answer to dilatory pleas—questions of view, age, aid, voucher, and the like. It is only later that we find the main question of a case raised in a demurrer, and so as a means of concluding the pleadings we must regard the demurrer as a fourteenth-century device. The demurrer was frequently used to draw attention to trifling defects in form in the pleadings, which could thus be amended by consent, and with all the more ease when the pleadings were oral. They might be insisted upon, however, and then the case would have to be decided upon very technical points.
Several kinds of demurrer are distinguished, one of which may be mentioned here. Juries could often be persuaded to bring in special verdicts (sometimes drafted by counsel) without, however, giving a verdict for either party; the facts so found would be generally complicated and of such a nature that points of law were raised which the court would have to decide. But a jury was always at liberty to give a general verdict if so inclined, and so pleaders took steps to secure the advantages of a special verdict without its delay by means of a demurrer to the evidence. The evidence (documentary or parole) is thereby admitted to be true, but the question of its legal implications is referred to the court.1
In post-mediaeval times the demurrer required a good deal of regulation by statute. In 1540 a statute enacted that a number of highly technical flaws in the pleadings would be “cured by verdict” (as old books put it).2 In 1585 an important act commanded judges who gave judgment upon demurrers to decide “according to the very right of the cause and matter in law” without regard to various technical defects in the pleadings, unless those defects were specifically mentioned in the demurrer.3 In consequence of this act a sharp distinction was drawn between special demurrers which alleged a particular defect in the pleadings (which the court therefore had to adjudge), and general demurrers in which case the court’s judgment was based upon a consideration of the record as a whole. A much more radical inroad upon the principles of common-law pleading was made in 1705 when a statute allowed defendants, by leave of the court to plead multiple defences4 —a provision which the bench interpreted with considerable strictness.
THE GENERAL ISSUE
When the plaintiff has counted, the defendant can choose between two courses: he can make a special plea, or he can at once conclude the pleadings by taking the general issue. The latter course was the one most frequently taken in the earlier times of the common law, and always remained a valuable alternative, for by it the endless complexities and pitfalls of special pleading were avoided. It is very significant that when great trading companies were set up by Act of Parliament, they frequently procured a clause in their act empowering them to plead the general issue at all times, putting in their special matter as evidence;5 occasionally the same privilege was accorded to natural persons as against the Crown.6 Legislation of the Commonwealth had moved in that direction, and had been confirmed at the Restoration.1 The origin of the general issue is therefore to be found in the age when special pleading was little used, and consequently when the general issue was employed for most ordinary purposes. The scope of the general issue is therefore unexpectedly wide, and in order to understand old cases it is necessary to know what matters could be proved by evidence to a jury which was trying a general issue.
The two pleadings with which this chapter opened are illustrations of the count in a writ of right, followed by a plea of the general issue (which, in writs of right, was called the “mise”)2 —that is, the issue of the better right. In formedon, the general issue was ne dona pas; in debt on a specialty, non est factum (and on this issue the plaintiff is put to the proof of the whole of his declaration, while the defendant may show that the deed is void or obtained by fraud, but matters making it only voidable must be specially pleaded);3 in debt on a simple contract, nil debet, which denies the existence of the debt and permits the defendant to prove performance, release or other matter in discharge of the action;4non assumpsit similarly denies the existence of the contract, either in fact or in law. Thus matters of capacity, duress, want of consideration, the statute of frauds, payment, may all be proved under this general issue.5 In trespass and case, the general issue is not guilty. This plea in trespass denies the plaintiff’s property in the chattels (just as it denies his title in ejectment) and also puts the alleged acts in issue.6
THE HILARY RULES, 1834
It will be seen that the general issue relieved the pleader, at least, of most of his difficulties. Those difficulties, however, were apt to reappear at the trial. The scope of the general issue was often wide, and by it the defendant not only forced the plaintiff to prove the whole of his case, but could also compel him to come prepared to answer any or all of several defences. The trial was therefore a costly and difficult matter, possibly involving large masses of evidence on a large number of points which might, or might not, turn out to be necessary. There seems to have been no way of compelling a defendant to disclose more precisely what part of the plaintiff’s case he proposed to attack, nor which of the defences possible he proposed to raise. General pleading, as well as special pleading, therefore had its defects.
Just about a hundred years ago, the whole question came up for discussion, and the Civil Procedure Act of 1833 delegated to the judges the power to draw up a new set of rules; this they did, and the new scheme, because it came into force in Hilary Term, 1834, was called “the Hilary Rules”. The policy of the scheme was to strike a balance between the extreme precision of special pleading and the extreme vagueness of the general issue. On the one hand, they limited the general issue to the actual meaning of the words used—thus the general issue of non assumpsit was to mean henceforth just what it said, “the defendant did not undertake”, and was no longer available if the defence rested on matters of contractual capacity, discharge, voidance and the like. These matters must for the future be specially pleaded.
The policy was the right one; a plaintiff ought to be told as clearly as possible what defence he will have to meet, and to be informed what facts the defence admits, and what facts it disputes. In principle, there could be little objection to requiring a defendant to plead specially, and the attempt to make such expressions as non assumpsit, non est factum, and others, mean exactly what they said and not something entirely different, surely deserves commendation. The failure of the Hilary Rules, in spite of these merits, lay in their insistence on special pleading as it was understood late in the eighteenth century. That parties should plead precisely, and clarify as far as possible the issues between them, is one thing; that their endeavours to do so should be judged by the extremely artificial standards of the old system, was quite another. Unfortunately, the result of the rules was to extend the necessity of conforming to that system to a great many cases which heretofore had not been encumbered with it. It is not surprising that substantive law felt the effects of this change.1 The vagueness of the general issue permitted a certain flexibility in the law which Lord Mansfield, for one, had taken advantage of. Now that special pleading was required in such cases, this vagueness had to yield before statements so precise that subtle changes which had taken place in substantive law were forced into light, and found to be inconsistent with older authorities which now became of great importance. Hence the doctrine of consideration hardened along seventeenth-century lines, and the distinction between different forms of action was emphasised anew, although in the preceding century it had become of less vital importance.
The Hilary Rules only aggravated the situation, and it remained for the various Common Law Procedure Acts of 1854 and onwards to prune the luxuriant growth of pleading, and finally for the Judicature Acts to substitute a new system2 which, in the view of some, leans to the other extreme of laxity.
LAW AND FACT
Gradually there is a growing recognition in English law of the distinction between law and fact.1 It is so familiar as to seem obvious to modern English lawyers, yet there was a time when it did not exist, and the distinction, even when it was recognised, was not always drawn at the same point. If we look back to the days of the ordeal we find that the ordeal or the oath decided the whole case, and the case had not yet been analysed into its components of law and fact. Even the early common law retained the same attitude. In the writ of right the question at issue is whether the demandant or the tenant has the greater right to the land, and this issue was decided one way or the other by the outcome of the battle. Even if trial were by the grand assize, the members of the assize find for the demandant or the tenant without any discussion whether this is in consequence of a particular state of facts, or of a particular rule of law.
Even the jury system, therefore, existed for a while without forcing lawyers to recognise this distinction. The growth of formalism soon gave opportunities, however, for judgment to be given without a verdict—defects in writs, inconsistencies between writs and pleadings, reliance by a party upon a previous judgment—all these are common grounds of judgment in the earliest years of the thirteenth century. It thus became apparent that there were matters (generally preliminary matters) which might put an end to a case before the question of right or wrong had been formulated. Litigants who betake themselves to matters of this sort are generally raising what we should call matters of law. The commonest examples are those where a party rests his case upon the default of his opponent; as the law of process grew more elaborate, extremely difficult points of law were involved, as every reader of the year books knows.
Jurors as well as parties felt that some things were fact and others were law, and the assize of novel disseisin constantly forced it upon their attention. As early as 1202 an assize said “we will speak the truth of the matter, and having heard it, let the justices judge”.2 Half a century later (in discussing novel disseisin) Bracton3 declared that “truth is to be had from the juror, justice and judgement from the judge”. In the next line he had to admit, however, that the verdict of an assize is often upon law as well as facts. By 1285 statute4 is clearly distinguishing law from fact by enacting that jurors shall not be compelled to say whether there has been a disseisin, so long as they tell the facts. In other words, seisin is no longer an obvious fact but an obscure legal technicality. This change was possibly the most potent single factor in forcing the distinction between law and fact, and as time went on litigants devised means of raising questions of law, which earlier times had treated as questions of fact. Hence the frequency of special verdicts and of colour. From the assizes these devices spread to writs of entry and finally to trespass.
As early as 1329 a jury found a special verdict of se defendendo to an indictment of homicide.1
When commercial cases came into the common law courts, law and fact were often left indiscriminately to the jury until the time of Lord Mansfield,2 and the same sort of thing happened in Admiralty; in both cases the development of clear principles upon which merchants could base their dealings was prevented.3
Bracton, f. 413 b.
Pollock and Maitland, ii. 558; at first the system was not exclusively English, for it also existed in Normandy.
W. H. Stevenson, Yorkshire Surveys, English Historical Review, xxvii. 4.
See now the important work of Miss F. E. Harmer, Anglo-Saxon Writs.
This is the writ of right de recto.
The procedure (including the dilatory writ de pace) peculiar to a writ de recto (described by Richardson in Law Quarterly Review, liv. 387) must have made praecipe quod reddat much more popular. For an alternative speculation on this point, see Lady Stenton’s introduction to Pipe Roll of 6 John (Pipe Roll Society, n.s. xviii), xxx ff.
Magna Carta (1215), c. 34; (1216), c. 27; (1217), c. 30; (1225), c. 24. Cf. Miss N. D. Hurnard, in Essays presented to F. M. Powicke, 157-179.
Hence a variety of writs of right with the clause quia dominus remisit curiam suam.
De non intromittendo. Even without getting that writ, a lord might intervene orally, and “pray his court”: Eyre of Kent (Selden Society), ii. 86-7. But if the lord took no steps, the parties to the action could not raise the matter. Y.B. 30 & 31 Edward I (Rolls Series), 233-234.
Not infrequently, tenants held by the services of attending the lord’s court “when a writ of right is to be tried, or a thief is to be hanged”.
Bracton, f. 108. Cf. Y.BB. Edward II (Selden Series), xxii. 31-32, per Bereford, C.J.
Below, p. 408.
Above p. 156.
The technicalities are discussed by G. J. Turner in Brevia Placitata (Selden Society), lxiii, lxxxvi. If the plea had been by plaint instead of writ, then it had to be recorded before removal into a royal court.
The assize of fresh force existed in the city of London before 1166. See the references by Dr A. H. Thomas in his edition of Plea and Memoranda Rolls, 1323-1364, 141 n. 1; Mary Bateson, in English Historical Review, xvii. 708 (from B.M. Add. 14252).
There is an example in Y.B. 21 & 22 Edward I (Rolls Series), 276.
Joüon des Longrais, Le Conception anglaise de la saisine (whose views we have summarised in Harvard Law Review, xl. 921-925) and La Portée politique des réformes d’Henry II,  Revue historique de droit, 540.
Cf. the comment and references of F. Barlow, Letters of Arnulf of Lisieux, lxv, for the corresponding position in canon law.
Sententiae Pauli (ed. P. Krueger), i. 7.
Codex Theodosianus (ed. Mommsen), ix. 10. 3.
Decretales Pseudo-Isidorianae (ed. Hinschius), 18, 108-109, etc. (full list of references in Joüon des Longrais, La Portée politique des réformes d’Henry II,  Revue historique de droit, 548 n. 1).
In Gesetze der Angelsachsen (ed. Liebermann), v. 3; xxix. 2; liii. 3-6; lxi. 20.
cc. 1-6, C. 2, q. 2; and also in C. 3, q. 1.
Z. N. Brooke, English Church and the Papacy, 57 ff.; references are given by Joüon des Longrais, loc. cit., 548 n. 3.
This very sensible suggestion is from Joüon des Longrais, loc. cit., 550.
Richardson and Sayles, Procedure without Writ (Selden Society, vol. 60), cxxix ff.
Pollock and Maitland, ii. 47. On possession and seisin in this connection, see Ernst Levy, West Roman Vulgar Law: The Law of Property, 96 ff., and on possessory remedies, ibid., 243.
The date of its establishment seems to be 1166; Maitland, Equity and Forms of Action, 339. Thus in 1218 a plaintiff (who was in under a tortious feoffment) succeeded in novel disseisin against the true owner (who had disseised him) “who may pursue in another way if he wants to”: Eyre Rolls (Selden Society, vol. 53), no. 38.
Joüon des Longrais, La Saisine, 52 n. 1.
In Stubbs, Charters. For an example as early as 1157, see Joüon des Longrais, op. cit., 50 n. 1.
This was essential. The only instance of success where the ancestor did not die seised is in Eyre Rolls (Selden Society, vol. 59), no. 474 (1221), where the court frustrated a lord’s attempt to evade a possible assize by disseising the ancestor just before he died—a bold piece of equity. The word “ancestor” included only father, mother, brother, sister, uncle and aunt.
Cf. J. W. Gray, The Jus Praesentandi, English Historical Review, lxvii. 481.
See above, p. 17.
Bracton’s Note Book, no. 1215.
Y.B. 19 Edward III (Rolls Series), 332. There was a long tussle between the courts and the Chancery over this; the Chancery won: Y.B. 20 & 21 Edward I (Rolls Series), 228, Y.BB. Edward II (Selden Series), x. xxxix, 95, xii. xl, 107.
For all this, see G. E. Woodbine, Curia Regis Rolls, Yale Law Journal, xxxix. 509. Another element was the tender of a demi-mark, in writs of right, for permission to take a specially narrow issue: D. M. Stenton, Pipe Roll of 6 John (Pipe Roll Society, N.S. xviii), xxxj.
Statute of Marlborough, c. 29 (1267); Pollock and Maitland, ii. 71; Plucknett, Statutes and their Interpretation, 80.
For an early example, see Select Civil Pleas (Selden Society), no. 59 (1200).
Maitland, Equity and Forms of Action, 338, 340. Cf. Maitland’s note to Bracton’s Note Book, no. 1215.
There are useful references in Powicke, Henry III, i. 400 n. 3.
As land could be gaged either in fee or for a term of years, there is a close connection between the writs of gage and entry ad terminum; gage thus became the ancestor of the writs of entry. Maitland, op. cit., 333.
Statute of Gloucester, c. 7 (1278); a right of entry was given by 11 Hen. VII, c. 20.
Bereford’s words “Blessed be he who made that statute [Westminster II, c. 24]. Make the writ and we will maintain it” occur in only one manuscript and concern the remainderman’s rights (Y.BB. Edward II (Selden Society), iii. 19); the same MS. tells a similar story in another case where alienations by other particular tenants and the reversioner’s recovery are involved, ibid., 108-109.
Maitland, Equity and Forms of Action, 332. Note the veiled doubt, characteristically expressed in Maitland’s words (he was more positive in Pollock and Maitland, ii. 205). The theory is reduced to an absurdity when it is argued (as has been done) that the action of debt is designed to recover the identical coins lent. Praecipe quod reddat is the current blank form for writs in the twelfth and very early thirteenth centuries. It seems to recall the solemn demand for restitution which was a necessary preliminary to litigation before the Conquest, only now it is the King’s sheriff who makes it. Cf. Ine, 9; Canute II, 19; Leges Henrici Primi, 51, 3; Bateson, Borough Customs (Selden Society), i. 89. But see the curious bond in Pollock and Maitland, ii. 193, n. 3.
Edgecomb v. Dee (1670), Vaughan 89 at 101.
The only important exception is the group of assizes; novel disseisin begins by reciting a complaint, questus est nobis . . .; mort d’ancestor is merely a summons.
Except when a sealed deed was the basis of the demand; below, p. 633 n. 3.
For this, see below, p. 375.
And consequently, a doweress could not demand dower unless she handed over her late husband’s charters: Y.B. 41 Edward III, Pasch. no. 9.
Cf. Pollock and Maitland, ii. 221, citing Langdell, Equity Jurisdiction, 75; Ames, Lectures in Legal History, 116; Plucknett, The Mediaeval Bailiff, 22 ff.; Curia Regis Rolls, i. 191, 249; iv. 64, 145.
See the details in Plucknett, Words, Cornell Law Quarterly, xiv. 263, 270.
Y.BB. Edward II (Selden Series), xxii. 264. Unless appointed by the creditor, the receiver’s acquittance did not discharge the debt: ibid., xxiv. 84 (1319) and Intro., p. lxxxvi. Cf. Y.B. 5 Edward III, Michs. no. 104 (1331).
Plucknett, New Light on the Old County Court, Harvard Law Review, xlii. 666, citing Morris, Early English County Court, 185.
Subject to exceptions and qualifications: C. H. S. Fifoot, History and Sources of the Common Law: Tort and Contract, 255-256.
The enrolment is on J.I. 1/1177 m. 1 d. This reference, and figures relating to the Fine Rolls, were kindly communicated by Mr. C. A. F. Meekings of the Public Record Office.
See the long and varied assortment of quare actions (brought in 1200 and shortly afterwards) listed in the index of Select Civil Pleas (Selden Society), 107-108.
Bracton, f. 164.
Cf. below, p. 371 n. 1.
The early history of replevin is somewhat obscure; for the quare form of replevin see Bracton’s Note Book (ed. Maitland), no. 157. There is much material on the procedure and pleading of replevin in F. A. Enever, History of the Law of Distress (1931).
Y.B. 19 Henry VI, 65 (Pasch. 5), cited in Ames, Lectures on Legal History, 69, 70. See the discussion by Bordwell, Property in chattels, Harvard Law Review, xxix. 374.
Holmes, The Common Law, 3, 4, 101, 102; Ames, op. cit., 56-61. For an example of an “appeal”, see above, p. 121.
Numerous examples are collected by Elsa de Haas, Antiquities of Bail, 118 ff.
See below, p. 452.
Bracton describes this form as an action de re adirata. It came very near to being a real action for those chattels which the demandant had lost involuntarily (it did not lie if the chattels had been bailed; in that case, detinue alone would serve).
Woodbine, Origins of the Action of Trespass, Yale Law Journal, xxxiii. 799-816, xxxiv. 343-370.
Richardson and Sayles, Procedure without Writ under Henry III (Selden Society, vol. 60), cxvi.
A clear example of damages in Anglo-Saxon law occurs in Ine, 42, and the twelfth-century custumal of Preston shows the old bot changing to damages including costs and expenses: Borough Customs (Selden Society), i. 30-31.
Bracton, f. 179; cf. below, p. 394.
For discussion of the quare group of actions and of the querela see Jacob, Baronial Rebellion and Reform, 65; Adams, Council and Courts, 348; Treharne, The Baronial Plan of Reform, i. 147, and Woodbine in Yale Law Journal, xxxiv. 349-356. The volume of Proceedings without Writ under Henry III, edited by Mr. Richardson and Dr. Sayles (Selden Society, 1941), constitutes a large collection of material on the history of trespass for that very reason. Many of the cases come from eyre rolls, and very few from common pleas rolls (cf. above, p. 367).
Joüon des Longrais, La Saisine, 52 n. 1.
Pollock and Maitland, ii. 558.
Ibid., 571; Maitland, however, did not connect the old complaint with trespass.
The recital of a complaint does not appear in mort d’ancestor or darrein presentment.
Below, p. 385; Bracton, f. 441.
Below, p. 571.
Glanville Williams, Liability for Animals, 128.
See the passages cited in Maitland, Register of Writs, Harvard Law Review, iii. 104 n. 1.
Y.B. 42 Edward III, f. 11, no. 13 (below, p. 481), where the question whether process was by capias was discussed. For another example, see Y.B. 13 Richard II (Ames Foundation), 104 (1390).
Maitland, Equity and Forms of Action, 345, 346, states the old view, but with obvious hesitation. For a discussion of this see Plucknett, Case and the Statute of Westminster II, Columbia Law Review, xxxi. 778, and the comments of Sir William Holdsworth in Law Quarterly Review, xlvii. 334; P. A. Landon, Law Quarterly Review, lii. 63 (and cf. ibid., 220); Dix, Origins of Trespass on the Case, Yale Law Journal, xlvi. 1142; Kiralfy, The Action on the Case (1951).
There was already an older action quare ejecit infra terminum (ascribed to Raleigh, c. 1235) whose usefulness was very limited as it only lay between rival lessees who both claimed to hold from the same lessor. It is notable that Bracton, f. 220, gives two forms of it, one is a praecipe quod reddat, and the other is a summons ostensurus quare. For more as to the termor’s remedies see below, pp. 570-574.
Pollock and Maitland seem confused on this; the writ is printed in Maitland’s Forms of Action.
See the data in Maitland, Forms of Action, 350, which represents the state of the printed sources. An unpublished case of 1389 (De Banco Roll, Michs. 13 Ric. II, roll ccclxxxvii) already shows recovery of the term.
Above, pp. 372-373.
More will be said of assumpsit in discussing the history of tort and contract; below pp. 481 ff., 637 ff.
But indirectly; if the finder refuses in court to restore the chattel as an adirata, then the plaintiff counts afresh, this time with words of felony: Bracton, f. 150 b.
Y.B. 21 & 22 Edward I (Rolls Series), 466-468. It is said there that the trial is by wager of law by the plaintiff (not by the defendant).
Y.B. 13 Richard II Ames Foundation), 56.
Y.B. Trin. 33 Henry VI, no. 12, ff. 26-27; Pollock and Maitland, ii. 175 (criticised by Ames, Lectures, 82 n. 4).
Intrationum excellentissimus Liber (1510, i.e. 1511), f. 22 and f. 71; cited in Ames, Lectures, 83.
In America replevin was more often used in place of detinue; in England the scope of replevin was practically restricted to distress.
Bracton, f. 103 b-104.
Bracton, f. 159 b, which may be contrasted with f. 161 b.
Ibid., f. 102 b.
Littleton, Tenures, s. 508.
A few exceptional cases show the specific recovery of chattels in trespass: Sayles, King’s Bench, i. 178-179 (1289) and ii. 16-17 (1290).
See the New English Dictionary (ed. Murray), s.vv. It occurs first in 1441; E. F. Jacob, Chichele’s Register,ii. 593.
III Æthelred 14 (c. 997); Y.B. 18 Edward IV, Michs., no. 17; Winfield, Death as affecting liability in tort, Columbia Law Review, xxix. 239 at 244.
Glanvill, vii. 8.
Bracton, f. 407 b.
This is the conjecture of Pollock and Maitland, ii. 347.
Fleta, ii. 62. 10. Nevertheless, the plaintiff does not describe himself in the writ as “heir”: Y.BB. Edward II (Selden Society), xxiv. 129, with which cf. ibid., xxiii. 28. According to the later law, this liability only attached if the heir had inherited from the ancestor, but his liability was not limited to the value of the inheritance (Y.B. 40 Edward III, 15); a petition in Parliament to that effect was denied (Rot. Parl., ii. 240-241). Such cases are rare (Davy v. Pepys (1573), Plowd. 441).
Westminster II, c. 23 (1285). It may be that the statutory change was the earlier, and that the courts merely extended its policy.
Ames, Lectures in Legal History, 95 n. 5. When the attitude of Chancery was well established, this sort of case was again brought in the common law courts, and the defendant executors refrained from abating the writ by insisting on a specialty. Their theoretical right to do so remained (as to this, see p. 703 below). After all, executors should care for their testator’s soul by paying his just debts: Edgecomb v. Dee (1670), Vaughan, 89 at 93. Below, p. 647.
Statute of Marlborough, 52 Henry III, c. 28. See also Westminster II, c. 35 (1285), for another aspect of the matter.
1 Edw. III, stat. 1, c. 3 (1327). The solecisms in this chapter suggest that the text originated with laymen rather than with lawyers.
4 Edw. III, c. 7 (1330).
Details will be found in Holdsworth, iii. 576 ff.; cf. Goudy, “Two Ancient Brocards” in Essays in Legal History (ed. Vinogradoff), 215-229; Vinogradoff, Collected Papers, i 240.
Law Revision Committee, First Interim Report, 1934 (Cd. 4540).
Law Reform (Miscellaneous Provisions) Act, 1934.
See Sir Hilary Jenkinson’s introduction to Select Cases in the Exchequer of Pleas (Selden Society); J. Conway Davies, in Bulletin of the Institute of Historical Research, xxvi. 125, xxvii. 1.
Cf. Hengham (ed. Dunham), 16, 17.
Cf. the demand in 1368 that no legal proceedings should be begun, except by indictment or original writ; above, p. 187.
Much material is analysed by R. W. Millar, The Formative Principles of Civil Procedure, Illinois Law Review, xviii. 1, 94, 150 (reprinted as prolegomena to his translation of A. Englemann and others, History of Continental Civil Procedure, 1927).
Borough Customs (ed. Bateson, Selden Society), i. 89.
Above, p. 363 n. 1.
2 William & Mary, session 1, c. 5.
Holdsworth, ii. 83.
Glanvill, 1. 7.
Fourcher was forbidden between parceners and joint-tenants in 1275 (Westminster I, c. 43), and between husband and wife in 1278 (Gloucester, c. 10); since 1335 actions of debt against executors were to proceed against whichever one appeared first (9 Edw. III, stat. 1, c. 3); a petition for such legislation is printed in Sayles, King’s Bench, iii. p. cxix. Fourcher in account survived: Y.BB. Edward II (Selden Society), xxii. 115.
Above, p. 372.
Westminster II, c. 11.
25 Edw. III, stat. 5, c. 17.
19 Hen. VII, c. 9.
See the discussion in Y.B. 3 Edward III, Michs. no. 19 (1329).
Forfeiture Act, 1870 (33 & 34 Vict., c. 23).
See the discussion in Bracton f. 367.
Pollock and Maitland, ii. 595; Uniformity of Process Act, 1832 (2 Will. IV, c. 39).
Bracton’s Note Book, no. 900 (1224).
In the fourteenth century it moved frequently. Cf. below, p. 470. H. G. Richardson and G. O. Sayles, Proceedings without Writ: Henry III (Selden Society), have assembled material showing an even greater use of bills than that mentioned in the text. The interpretation of this material is difficult, and cannot be attempted here. The frequency of bills of trespass is evident from statutes of 1331 (5 Edw. III, c. 7) and 1354 (28 Edw. III, c. 8).
13 Car. II, st. 2, c. 2.
On some surviving manuscript criticisms of these developments, see Faith Thompson, Magna Carta . . . 1300-1629, 201-202.
Uniformity of Process Act, 1832 (2 Will. IV, c. 39).
Y.B. 21 & 22 Edward I (Rolls Series), 452. See generally, F. L. Ganshof, Faussement de Jugement (Bulletin de la Commission royale des anciennes lois de Belgique, XIV. ii) 1935, and Julius Goebel, “The Matrix of Empire”, in J. H. Smith, Appeals to the Privy Council, 1950.
Plucknett, Legislation of Edward I, 24-25.
An example of this procedure has been given above, p. 121.
For the earliest writ of error in the King’s Bench from the Common Pleas, see Bracton’s Note Book, no. 1166 (dated 1236).
In 1376 Parliament refused to hear error in the Common Pleas, Rot. Parl., ii. 330 (48); the procedure is explained in Y.B. 1 Henry VII, 19, and Y.B. 14 & 15 Edward III (Rolls Series), 364.
The writs of error coram nobis and coram vobis are only apparent exceptions to this principle See the note in Harvard Law Review, xxxvii. 744.
To enter without the sheriff is disseisin: Y.B. 20-21 Edward I, 52; Sayles, King’s Bench II. 98 (but see the denial by Bereford in Y.BB. Edward II (Selden Society), xxii. 104).
Pollock and Maitland, ii. 596.
Tacitus, Germania, c. 24.
Westminster II, c. 11 (1285). Cf. Plucknett, The Medieval Bailiff, 22 ff.
25 Edw. III, st. 5, c. 17 (1352).
Y.B. 40 Edward III, 25, pl. 28 (1366). If, however, the defendant appeared before the mesne process had got as far as the capias ad respondendum, then he was not liable to a capias ad satisfaciendum: Y.B. 49 Edward III, 2, pl. 5 (1375), which doubts whether outlawry was possible after judgment.
19 Henry VII, c. 9 (1504).
Leases could also be sold under fi. fa.
Rot. Parl., ii. 167 no. 21.
Magna Carta (1215), c. 9; (1225), c. 8.
Above, p. 377 n. 4; where the heir was expressly made liable for the debt by his ancestor’s deed, then the heir’s land was delivered to the creditor; otherwise execution would be impossible, for the testator’s goods go to the executors. Fleta ii. 62, 10; Davy v. Pepys (1573), Plowd. 441 (cf. Harbert’s Case (1584), 3 Rep. 12 b); Jews already had such a remedy by the Statute of Jewry, 3 Edw. I.
Westminster II, c. 18; the reference in the statute to “lands” in connection with fi. fa. is curious. It possibly means those devisable burgages in towns which the law regarded more as chattels than lands (as in the Statute of Acton Burnell); cf. also p. 390 n. 1 above. Cf. Plucknett, Legislation of Edward I, 148 ff.
It soon became customary to describe the tenant by elegit as “seised”.
Pollock and Maitland, ii. 203.
Y.BB. Edward II (Selden Society), xxii. 96 (1317), was an ingenious fraud to evade the statute; the court stated the nature of a recognisance in its judgment enrolled, ibid., 110.
Westminster II, c. 45 (1285). For scire facias awarded against an infant heir, see Y.BB. Edward II (Selden Society), xxii. 238-241 (1318); for the charge falling upon after-acquired land, ibid., 244. There seem no grounds for the suggestion in Y.B. 12 & 13 Edward III (Rolls Series), cvii, that there is anything “equitable” about scire facias.
Statute of Acton Burnell, 11 Edw. I (1283). This was a much more thorough system than the one devised in France a few years earlier and summarised by Beaumanoir, § 52; cf. Barré, L’Ordonnance de Philippe le Hardi, Bibliothèque de l’École des Chartes, xcvi. 5.
For the differences between the statutes of 1283 and 1285, see Plucknett, Legislation of Edward I, 138 ff.
Statute of Merchants, 13 Edw. I (1285). For material illustrating the use of statutes merchant and staple in both mediaeval and modern times see Select Cases in Law Merchant (ed. Hall, Selden Society), vols. ii and iii; A. Beardwood, Bishop Langton’s use of statute merchant recognisances, Medievalia et Humanistica, ix. 54; E. E. Rich, Staple Court Books of Bristol.
Statute of Staples, 27 Edw. III (1353).
Of the “complaint” as a procedure we have already spoken. Those complaints which could be immediately dealt with were brought into court (as we have seen) sometimes by an assize of novel disseisin, which Bracton f. 179 and elsewhere constantly calls a querela, and sometimes by a summons ostensurus quare . . . unde queritur (above, pp. 370, 371). Those which required preliminary investigation were often dealt with by writs reciting ex gravi querela or audita querela: examples in Sayles, King’s Bench, iii. 11, and in intro. p. lxiv. n. 3. Indeed, there was a marked trespassory element (including damages) in audita querela: Y.BB. Richard II (Ames Foundation), v. 147-149 (1388).
See the statement made in 1344: Y.B. 18 Edward III (Rolls Series), 308. Cf. Plucknett, Legislation of Edward I, 145.
See the fifteenth-century example, in Rastell’s Entries.
Y.B. 20 Edward III (Rolls Series), i. 92-94 (1346), is a good example.
Y.B. 17 Edward III (Rolls Series), 370 (1343); cf. Holdsworth, ii. 344, 593.
F. E. Harmer, Anglo-Saxon Writs, 1 ff.
S. A. de Smith, Prerogative Writs, Cambridge Law Journal, xi. 40.
E. Jenks, Story of the Habeas Corpus, Law Quarterly Review, xviii. 64.
Norma Adams, The Writ of Prohibition to Court Christian, Minnesota Law Review, xx. 272; G. B. Flahiff, The use of prohibitions by clerics against ecclesiastical courts in England, Mediaeval Studies (Pontifical Institute of Mediaeval Studies, Toronto), iii. 101, The Writ of prohibition in the thirteenth century, ibid., vi. 261, vii. 229.
Above, pp. 197-198.
Below, p. 570 (waste); so also Contra formam feofamenti and champerty (Plucknett, Statutes and their Interpretation, 9-10).
The references given above, p. 373 n. 2, all deal with the matter.
Provisions of Oxford (in Stubbs, Charters).
Westminster II, c. 24.
Y.BB. Edward II (Selden Society), iii. 19, 108-109; above, p. 362 n. 4.
Cf. above, p. 354.
Bracton, f. 414 b.
Above, pp. 370 ff.
Y.BB. 30 & 31 Edward I (Rolls Series) 124; Rot. Parl., i. 154 no. 5, ii. 229 no. 25; Brevia Placitata (Selden Society), xlvi ff.
G. O. Sayles, Local Chanceries, Bulletin of the Institute of Historical Research, xiv. 69.
Holdsworth, ix. 259.
The history of the successive reforms made by the legislature in the nineteenth century involves a formidable mass of detail; the main changes have been skilfully extracted by Professor Jenks in chapter xix of his Short History of English Law (4th ed. enlarged, 1934).
Y.BB. Edward II (Selden Society), xi. 87.
They begin with 14 Edw. III, st. 1, c. 6 (1340), when the record was still beyond the reach of the parties. Later these statutes benefited attorneys and counsel who drew pleadings.
Cf. the statute of additions, 1 Hen. V, c. 5 (1413), explained in Reeves, History of English Law, ii. 520 n. Below, p. 429.
The great severity of the criminal law in general likewise produced the “safeguard” of minutely technical indictments and definitions of various crimes.
Littleton, Tenures, s. 534.
Co. Lit. 303-304 b.
Oaths, 10 (Liebermann, Gesetze, i. 398).
36 Edw. III, c. 15; the rolls continued in Latin until 1731: 4 Geo. II, c. 26.
Esplees (expleta) are the various profits and dealings with the land which are visible indications that the owner was in continued and peaceful possession.
This and the following example are translated from Novae Narrationes, which are being re-edited for the Selden Society by Dr. Elsie Shanks. For a demandant to offer battle, is an early and rare anomaly. The example in Select Civil Pleas (Selden Society), no. 76 (1201), may be compared with the prosecutor’s offer in the criminal case mentioned above, p. 115.
For a case in 1222 where the suit was examined, but knew nothing of the matter save by hearsay, see Eyre Rolls (Selden Society, vol. 59), no. 1477.
Y.B. 17 & 18 Edward III (Rolls Series), 72 (1343).
Magna Carta (1215), c. 38; amended (1217), c. 34, and (1225), c. 28. For the possible ecclesiastical origin of the rule see Henry II’s edict of 1159 in Haskins, Norman Institutions, 329, and Plucknett, The Medieval Bailiff, 12 ff.
Select Civil Pleas (ed. Maitland, Selden Society), no. 17.
For an almost unique fragment of Norman judicial enrolment, see Plaids de la Sergenterie de Mortemer (ed. Génestal), Caen, 1924.
Below, pp. 405-406; Winfield, Chief Sources, 303 ff.
“The aforesaid record having been read and more fully understood” is a common preamble to judgments. Contrast Bracton’s Note Book, no. 1383, where judgment is based on “count counted, and plea pleaded”.
This is already apparent in Fet Asaver (ed. Woodbine), 85-86.
In the introduction to Y.BB. Edward II (Selden Society), iii. lxx.
Westminster II, c. 31, as to which see Plucknett, Statutes and their Interpretation, 67-68, 140; cf. below, p. 406 n. 2.
An appeal to the roll might reveal a disagreeable surprise, but for a time it was possible to invoke the “record” (i.e. official memory) of the judges to supplement a defective roll: Y.BB. Edward II (Selden Society), x. p. xxviii; xi. p. 139. For this distinction between roll and record, see S. E. Thorne, Courts of Record, West Virginia Law Quarterly, xl. 347, 352.
Tout, “The Household of the Chancery”, in his Collected Papers, ii. 143.
Tout, Place of Edward II in English History, 369; and again under Richard II in the case of Thomas Haxey, for which see Taswell-Langmead, Constitutional History (ed. Plucknett), 195-196, 217. (It is now known that Haxey was also the abbot of Selby’s proctor in the parliament of 1397: Register of Henry Chichele, ii. 657.)
John Bacon was chief clerk from 1292 until 1313 when he became a justice of the common pleas: Tout, Edward II, 372.
Hengham Magna (ed. Dunham) frequently illustrates the steps in procedure by showing how they are recorded on the roll.
They were “greatly bosted and noted of some students”, said Redman; his views and those of other early law printers are related in H. S. Bennett, English Books and Readers, 85.
For protests under Edward II, see Sayles, King’s Bench, i. pp. lxxxvi n. 5, cxliv; under Richard II, Rot. Parl., iii. 306 no. 28; under Henry IV, Rot. Parl., iii. 642 no. 63, with the attorneys’ indignant reply, ibid., 666 no. 49. The problem was not peculiar to the benches: T. W. Simons, Chancery and Exchequer Clerks as Attorneys, University of Colorado Studies, xxii, 381-396.
See the complaints in Parliament (1393), Rot. Parl., iii. 306 no. 28. For the recording of arguments, as distinct from pleadings, cf. Sayles, King’s Bench, ii. p. ci, and Margaret Hastings, Common Pleas, 189.
Reeves, ii. 619; Holdsworth, iii. 639.
Above, p. 397 n. 2.
Actions of debt whose main object was to get one entry of judgment on the rolls seem to have been common.
Interesting questions are raised by the presence of “bills” among exchequer archives which have every appearance of being written pleas; for examples, see Select Cases in the Exchequer of Pleas (ed. Jenkinson, Selden Society), cxxix. They occur as early as 1343. Many of the Select Bills in Eyre (ed. Bolland, Selden Society), at an even earlier date, closely resemble written pleadings. On bills generally, see above, pp. 386-387.
But see Holdsworth, iii. 641.
Cf. Guilhiermoz, La Persistance du caractère oral dans la procédure civile française,  Revue historique du droit, 61.
For an illuminating comparison between the two principles, see Sir Maurice Amos A Day in Court at Home and Abroad, Cambridge Law Journal, ii. 340-349.
Edited by G. E. Woodbine, Four Thirteenth-Century Law Tracts, 143-162.
Just before the reforms of the nineteenth century there appeared two masterly works on the old system, Stephen, On Pleading (1824), an Chitty, Treatise on Pleading (1809). A very useful introduction to these larger works is Ralph Sutton, Personal Actions at Common Law (1929).
For another example, see Y.BB. Edward II (Selden Society), x. 220.
4 & 5 Anne, c. 3.
Reeves, History of English Law, ii. 627.
Statute de conjunctim feoffatis, 34 Edw. I (1306).
Much restricted by Westminster II, c. 48 (1285).
Westminster II, c. 3 (1285), gives receipt for the reversioner on the default of tenant in dower, by curtesy, in tail or for life. Conversely, a termor could be received on the default of his lessor by Gloucester, c. 11 (1278). Cf. p. 555 below.
The difference between aid-prayer and voucher is discussed in Y.B. 21 & 22 Edward I (Rolls Series), 468.
More rarely, the grantor might bind, not himself or his heirs, but particular lands, to fulfil the warranty: Y.B. 21 & 22 Edward I (Rolls Series), 492.
Statute of Bigamists, 4 Edw. I, c. 6 (1276).
Westminster I, c. 40 (1275); statute de vocatis ad warrantiam, 20 Edw. I (1292); 14 Edw. III, stat. 1, c. 18 (1340).
This conclusion follows from the fact that in the fourteenth century the allegations made as “colour” could be traversed, e.g. Y.B. 11 Richard II (ed. Thornley, Ames Foundation), 268-278.
Y.B. 19 Henry VI, 21, pl. 42.
The admissibility of evidence could not be tested in this way, but by bill of exceptions, which was analogous to a writ of error. Above, p. 29. As Thayer, Evidence, 121, points out, in many cases the “evidence” demurred to is not the testimony of witnesses but the statements of fact made by counsel. “A demurrer upon evidence goes to the law upon the matter, and not to the truth of the fact”—Newis v. Lark (1571) Plowd. 410; the pleadings of this case are a good example.
32 Hen. VIII, c. 30. It is entertaining to find that such great experts as Rickhill, J., and Serjeant Brenchesley, litigating in their own court, had their writ abated, even after a jury had found a verdict in their favour: Y.B. 2 Henry IV, Michs. no. 48, p. 11 (1400).
27 Eliz., c. 5.
4 & 5 Anne, c. 3.
For example, the act incorporating conservators of Bedford Level, 15 Car. II, c. 17, s. 15 (1663), and certain insurance companies by 11 Geo. I, c. 30, s. 43 (1724).
For example, in answer to informations for intrusion, 21 James I, c. 14 (1624).
Acts and Ordinances, ii. 455-456 (1650); 12 Charles II, c. 3, s. 4 (1660).
Compare the “mise of Amiens” whereby Henry III and the baronial opposition submitted themselves to the arbitration of St Louis, in 1264.
Chitty, On Pleading (1831), i. 519.
Bacon, Abridgement, vii. 704.
This matter has been discussed by Sir William Holdsworth, The New Rules of Pleading of the Hilary Term, 1834, Cambridge Law Journal, i. 261-278.
The County Courts Act (9 & 10 Victoria, c. 95), s. 76, seems to have been a preliminary experiment in this direction.
See generally Thayer, Evidence, 183 ff.; Pollock and Maitland, ii. 629; above, p. 129 n. 5.
Select Civil Pleas (Selden Society), 179.
Bracton, f. 186 b. Cf. Y.B. 30 & 31 Edward I (Rolls Series), 16.
Westminster, II, c. 30; Y.B. 20 & 21 Edward I (Rolls Series), 10, shows that the statute did not remove all the difficulties felt by jurors. In 1348 the commons prayed for general permission for jurors to “tell the truth if they want to” in all cases, as well as in novel disseisin, but the petition was rejected: Rot. Parl., ii. 203 no. 22.
Fitzherbert, Corone, 284.
As Buller, J., observed in Lickbarrow v. Mason (1787) 2 T.R. 73.
Holdsworth, Makers of English Law, 168 n. 1, 220-221.