The Online Library of Liberty

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• Preface to the Fifth Edition
• Table of Mediaeval Cases
• Table of Modern Cases N.b. the Report References, Which Appeared In This Table In Earlier Editions, Will Be Found Incorporated In the Footnotes In the Text.
• Table of Laws and Statutes
• A Concise History of the Common Law
• Book One: a General Survey of Legal History
• Part 1: The Crown and the State
• Summary
• Chapter 1: The Anglo-saxon Period: Races and Religion
• Chapter 2: The Conquest to Henry II: The Beginnings of Administration
• Chapter 3: The Great Charters: Law Separates From Administration
• Chapter 4: Edward I to Richard II: Statutes and Social Revolution
• Chapter 5: The Fifteenth Century: the Problem of Enforcement
• Chapter 6: The Tudors: Renaissance, Reformation and Reception
• Chapter 7: The Stuarts: Struggle For the Supremacy of Law
• Chapter 8: The Eighteenth Century: Industrial Revolution
• Chapter 9: The Nineteenth Century: Liberalism and Reform
• Part 2: The Courts and the Profession
• Summary
• Chapter 1: The Communal Courts
• Chapter 2: Seignorial Jurisdiction
• Chapter 3: The Crown and Local Courts
• Chapter 4: The Jury
• Chapter 5: The Origins of the Central Courts
• Chapter 6: The Elaboration of the Judicial System: 1307-1509
• Chapter 7: The Tudors and the Common Law Courts
• Chapter 8: The Rise of the Prerogative Courts
• Chapter 9: Prerogative, Equity and Law Under the Stuarts
• Chapter 10: Parliament and the Privy Council
• Chapter 11: The Courts In the Nineteenth Century
• Chapter 12: The Legal Profession
• Chapter 13: The Growth of the Judiciary
• Chapter 14: Professional Literature
• Part 3: Some Factors In Legal History
• Summary
• Chapter 1: The Civil Law of Rome
• Chapter 2: The Canon Law of the Church
• Chapter 3: Custom
• Chapter 4: Legislation
• Chapter 5: The Principle of Precedent
• Book Two: Special Part
• Part 1: Procedure
• Summary
• Chapter 1: The Forms of Action
• Chapter 2: Civil Procedure
• Chapter 3: Pleading
• Part 2: Crime and Tort
• Summary
• Chapter 1: Criminal Procedure
• Chapter 2: The Felonies
• Chapter 3: Misdemeanours, Trespass and Tort
• Chapter 4: Liability, Civil and Criminal
• Chapter 5: Defamation
• Part 3: Real Property
• Summary
• Chapter 1: Feudalism
• Chapter 2: Feudalism In England
• Chapter 3: Inheritance and Alienability
• Chapter 4: Tenures and Incidents
• Chapter 5: The Rise of the Entail
• Chapter 6: The Common Law Estates Down to 1540
• Chapter 7: Uses and the Statute
• Chapter 8: The Later Law of Real Property
• Chapter 9: The Mortgage
• Chapter 10: Conveyances
• Part 4: Contract
• Summary
• Chapter 1: Origins
• Chapter 2: The Fourteenth Century
• Chapter 3: Assumpsit to Slade’s Case
• Chapter 4: Contract After Slade’s Case
• Chapter 5: Law Merchant and Admiralty
• Part 5: Equity
• Summary
• Chapter 1: The Early History of Equity
• Chapter 2: The Formative Period
• Chapter 3: The Work of the Chancellors
• Part 6: Succession
• Summary
• Chapter 1: Inheritance
• Chapter 2: Intestacy
• Chapter 3: Wills

CHAPTER 3

MISDEMEANOURS, TRESPASS AND TORT

Anglo-Saxon law knew neither felony or misdemeanour. In so far as it classified crimes at all, it was into “emendable” and “botless” crimes, and the latter became in most cases the felonies of later law. Even after the Conquest the idea of botless crimes still flourished, and the Norman kings sometimes enacted that a particular offence would be visited with the King’s “full forfeiture”, and so the heavy penalty of loss of chattels might be inflicted for crimes which fell far short of felony. Henry I had to abandon this, and in his coronation charter promised what seems to be a return to the Anglo-Saxon system of pre-appointed fines or wite.1 From the rolls of Henry III, however, it is clear that the King’s courts once again used a wide discretion, this time in committing offenders to prison, with the understanding that the imprisonment would normally be commuted to a fine.

Fines were so common, however, even in civil proceedings, that they could not be regarded as typical of misdemeanour, and in fact criminal law was (apart from statute) practically confined to the felonies. This becomes all the clearer when it is remembered that most of the characteristics of criminal proceedings did not attach to misdemeanours. Thus they were not subject to benefit of clergy, nor to attaint of blood and its accompaniments, escheat and forfeiture; nor did the Crown use its oppressive power of forbidding counsel and sworn witnesses to the accused; on the other hand, the accused did not have the protection afforded him in felony trials of peremptory challenges to the jury. All this seems to indicate that the Crown regarded prosecutions for misdemeanours as being more akin to civil litigation than to trials for felony. It is not surprising, therefore, that misdemeanour and tort together occupy a large field where it is impossible in many cases to assign to each its severalty.

TORT IN THE THIRTEENTH CENTURY

An examination of the early plea rolls indicates that there was a very wide field of tort in the reigns of John and Henry III.1 As these are cases in the King’s Court it is natural that most of them are concerned with torts to property, and especially to feudal interests, but nevertheless there is a large variety of them. The form is almost universally a summons or attachment to show quare, why, the defendant had damaged the plaintiff—in other words, the form which soon became typical of trespass. Some of these torts were litigated through the form of an assize, such as the assize of nuisance, but others continued in later years as trespass (for example, impleading a person wrongfully in Court Christian) or case. Early in the thirteenth century this type of action is much more common than the more familiar forms of trespass de clauso fracto, de bonis asportatis, and assault.

MISDEMEANOUR IN THE THIRTEENTH CENTURY

At this moment it would seem that a great deal of minor crime was dealt with in the local courts. The King’s Court was not interested in that sort of work, and even when royal justices went on tour, they seem mainly concerned with real property matters and felony only, as may be seen from an examination of Lady Stenton’s recent volumes of Eyre Rolls published by the Selden Society.

Late in the century several changes take place. The writs quare were extended to cases which would now be described as trespass; some of these new cases were independent of feudal rights and overlapped the old criminal law. Thus mayhem, which was a felony if the injured party proceeded by appeal, now became a trespass if he preferred to bring his writ. It must always be understood, however, that at this date the action of trespass (as distinct from the wider group of quare actions) had a criminal element which was sufficient to allow such a shifting of mayhem to seem reasonable, and that the word trespass was sufficiently vague and wide for Bracton to say that all felonies were trespasses, but all trespasses were not felonies.2 The familar quare formula thus began a new branch with the addition of the words contra pacem which were characteristic of the new complaints of assault, breach of close and asportation of chattels. It is a significant illustration of Bracton’s dictum, that only certain varieties of quare action acquired the name of “trespass”, and that those varieties used the allegation of contra pacem, and covered situations which might be considered with equal plausibility as crime or tort. The investigations made by the baronial reformers3 show clearly that there was much oppression and injustice which the local jurisdictions failed to check, and it seems extremely likely that the King’s Court deliberately extended its quare actions so that they should cover these non-felonious “trespasses” of which Bracton spoke. The expedient was successful. It brought about the decline of the local courts and extended the work of the King’s Court, but it made a symmetrical scheme of either crime or tort impossible, for those trespasses in breach of the peace (which might well resemble misdemeanours) soon partook of the civil nature of the other quare actions, and so became finally torts.

The second change during this period was the creation of several statutory trespasses or “actions on the statute” as the old books classify them. For example, in 1275 a statutory writ of trespass against poachers1 gave punitive damages to the plaintiff, an arbitrary fine to the king, and three years’ imprisonment for the defendant; another statutory writ of trespass2 might involve even imprisonment for life as a “punishment”. The same procedure therefore gave a civil remedy to the plaintiff as well as punishment for the misdemeanour of the defendant.

MISDEMEANOURS AND INDICTMENT

Until recently, the only conclusion possible from the available evidence was that our mediaeval criminal law consisted of (a) the felonies, and (b) the few statutory misdemeanours of the sort just mentioned. Clearly this was much too meagre even for the needs of fourteenth-century England and the problem of discovering how the deficiency was supplied became very difficult. The solution suggested was that much of the law of misdemeanour was missing entirely, and that its place was taken by the civil action of trespass, which by this time was undoubtedly of considerable scope and importance. Tort had therefore taken over a great deal of the field of criminal law, and the civil aspect of trespass had ousted the criminal aspect.3

So difficult a hypothesis is now no longer necessary. It is now known from the Fine Rolls that by 1250 the action of trespass was rapidly getting common, and from the Trailbaston Rolls that at the death of Edward I petty larceny could be punished by imprisonment at the rate of a week for every penny stolen (three days for a halfpenny).4 Moreover, thanks to the fascinating volume of Proceedings before Justices of the Peace recently edited for the Ames Foundation by Professor Putnam, it is now abundantly clear that the justices of the peace handled an enormous quantity of business, and that trespasses in great variety were indicted before them. Consequently there is no longer need to suppose that the civil aspect of trespass had overshadowed the criminal: on the contrary, the indictable trespass is now known to have been the common and normal way of dealing with offences less than felony from the reign of Edward II onwards. The fact that the vast majority of these indictments were found and tried locally, and so appeared but rarely in the Year Books, resulted in their existence being unknown until the records of the justices of the peace were discovered and printed.

From the material now available it would seem that most matters which would support an action of trespass could also be laid in an indictment as constituting a misdemeanour,1 although as early as the reign of Edward I it was recognised that an action for damages, on the other hand, was a civil action.2 Moreover, matters which constituted a felony could be regarded alternatively as constituting a misdemeanour. Bracton had stated this long ago, and the new documents show that this was more than a piece of academic analysis, for the indictments bear him out, and in fact carry on the story down to the time of Marowe who wrote in 1503: “although a man has taken my goods feloniously, I can if I please treat that felony as a mere trespass, and so can the king if he pleases; for one wrong shall not be excused by another wrong.”3

THE SEPARATION OF CRIME AND TORT

So far, then, the story has been briefly this. Early in the thirteenth century the royal courts have a well-defined jurisdiction over felony, and a very large and varied assortment of torts which could be redressed by a quare action. Local courts, on the other hand, have a large jurisdiction over many sorts of minor offence which we may call misdemeanours (the word itself, however, is modern). In the middle of that century, trespass contra pacem puts the quare action to a new use, and begins to remedy certain violent offences by means of a civil action in the King’s Court, which may also result in fine and imprisonment in some cases. Trespass contra pacem was thus double in its nature, but soon it began to lose its criminal characteristics, perhaps reflecting the overwhelmingly civil atmosphere of the Court of Common Pleas. At the beginning of the fourteenth century the justices of the peace were becoming the principal jurisdiction for criminal matters, and in their sessions the indictable trespass is as conspicuous as the civil trespass was in the Common Pleas; consequently, there was no gap in criminal law forcing litigants to use civil remedies for lack of criminal ones. The contrast between indictment and original writ thus corresponded nearly enough with the distinction between crime and tort. Parliament in the fourteenth century realised this. Instead of adding “punishments” to actions of trespass (as it had done under Edward I), it created new offences less than felony by making them indictable as trespasses under Edward III and his successors—riot, forcible entry, maintenance and labour offences are typical examples. Early in the sixteenth century the word “misdemeanour” served to distinguish the indictable from the actionable trespass. It is, of course, characteristic that the distinction should be procedural rather than substantial.

THE STAR CHAMBER

The Star Chamber had equal influence with the legislature in developing the field of misdemeanour, largely, no doubt, because an old tradition (reinforced by many statutes) excluded the council, and all similar authorities, save the ancient courts of the Crown, from jurisdiction over felony, which involved judgment of life and loss of the sacred freehold. But just as the Common Pleas did not trouble to distinguish civil from criminal law when it appropriated a new field with the writ of trespass contra pacem, so the Star Chamber in turn administered civil and criminal justice simultaneously in dealing with its expanding list of “Star Chamber cases”. Forgery, perjury, riot, maintenance, fraud, libel and conspiracy were the principal heads of the Star Chamber’s jurisdiction according to its clerk, Hudson. Even crimes which were treason or felony at common law might be punished in the Star Chamber as high misdemeanours, while it claimed the right to punish as crimes acts which escaped the existing classification. It also developed the principle that an unsuccessful attempt might itself be criminal.

This development took place at a fortunate moment, for the manipulation of rules relating to pardons and benefit of clergy was at the same time introducing more variety into the common law system. When the Star Chamber was abolished, the King’s Bench realised that much of its work was of permanent value, and so a great deal of its law of misdemeanours finally passed into the common law.

THE FIELD OF TORT

The field of tort was by no means extensive until the last century, and consequently its development had not reached a very advanced stage. Much of it was also annexed to neighbouring provinces with the approach of modern times. Trespass de clauso fracto and de ejectione became part of the law of property, and deceit, with its derivative assumpsit, became one of the roots of the law of contract. The rapid prominence and growth of the law of tort in the last few generations is clearly associated with the sudden mechanisation of contemporary life, and with the growth of large and wealthy businesses (necessarily carried on through fallible servants and agents) engaged in finance, insurance, transport and an endless variety of enterprises which are productive of torts and tort litigation. There can be no doubt that the universal practice of insurance has provided the superior courts with thousands of cases which would probably have escaped the reports if parties had no other resources than their own in contesting them.

TORT AND THE FORMS OF ACTION

Although in our own day it has become possible to speak of tort as a homogeneous body of law, it is still useful at times to remember that this field is really the result of the enclosure of many different acres, and that the old boundaries between them are still visible. Some scores of torts were actionable early in the thirteenth century by means of special varieties of quare action. Many of these survived in the next century and later to form the unified action of case. The commonest type of tort was certainly assault and battery, and breach of close. These soon coalesced to form another group, trespass. By the end of the fourteenth century much of the law of tort was comprised under one or the other of these two heads, but it was only slowly that theory supplied a test to distinguish between them. A formal distinction grew up1 since it had never been customary to allege vi et armis in some cases. Those cases became fixed upon no clear principle. Thus in the two chapters of Fitzherbert’s New Natura Brevium (which is usually cited as F.N.B.) dealing respectively with trespass and case, it will be found that some of the writs he classifies as trespass do not allege force and arms,2 while some of the writs which do contain this clause he describes as trespass on the case.3 We can hardly say, therefore, that any distinction (other than tradition) served to distinguish the scope of trespass from that of case, even so late as Henry VIII’s reign.4 Even the test which later prevailed, namely, trespass for direct and case for indirect damage, would hardly apply to some of the cases discussed by Fitzherbert; thus if A. breaks his own pond in such wise that it causes B.’s pond to overflow, the remedy is trespass vi et armis.5

Gradually case acquires a few substantial characteristics. Thus case is appropriate when the defendant himself did not act, although his servants have caused damage for which he is liable. So, too, an old allegation of negligence becomes more prominent, until negligence finally became one of the most important features of the action. This does not mean that the notion of negligence was entirely absent from trespass; it was, however, concealed under another form. The defendant in trespass has long had the defence of inevitable accident. Any damage which he could have avoided will therefore charge him, although that which is “inevitable” will not. In case, on the other hand, the plaintiff (who has to prove the defendant’s negligence) in practice can only demand a moderate standard of care which undoubtedly fell short of that implied in trespass.

As a result of causes which have been skilfully traced by Professor Winfield and Professor Goodhart,1 case (based on negligence) supplanted trespass (where negligence need not be proved) in the course of the nineteenth century. The reasons for this were procedural for the most part. An old statute2 had the result that a verdict of nominal damages in trespass should carry with it nominal costs as well. In many cases there must also have been doubt whether the facts would show direct or only consequential damage, for the line between the two is necessarily vague. As a result, many cases which might have supported an action of trespass were framed in case, so that the idea of negligence implied in case has supplanted the older and stricter (though by no means absolute) liability which characterised the action of trespass. At the same time, this newer view of negligence has been now extended even to certain cases where the plaintiff has endeavoured to base his action on trespass and not on case—notably trespasses on or from the highway.3

THE TORT OF NEGLIGENCE

For many centuries it would have been impossible to state the common law otherwise than in the form of a list of various torts which have been remedied by various forms of action. As we have seen, the King’s Courts were not anxious to entertain personal actions of any sort, and even in the sixteenth and seventeenth centuries there was legislation designed to keep actions not involving title to land in local courts.4 Reluctantly more and more torts were admitted to the list of those actionable in the King’s Courts, but still there was no theory which would draw all these details together into a coherent system. The forms of action stood in the way.

It was the action of case which first evolved a principle sufficiently wide to cover many of the constantly recurring forms of tort. This principle was negligence and its history will concern us in the next chapter. Here we are only concerned with the formal exterior of tort actions; for this purpose it will suffice to say that actions of case were very generally regarded from about 1800 onwards as being based on negligence. It became common to speak of “case for negligence”, “actions for negligence”, “actionable negligence”.5 Such language was perhaps made more attractive because there still remained an older tradition about the nature of trespass with which “case for negligence” could be (rightly or wrongly) contrasted. By this time the emphasis on the general concept of negligence has become so steady and universal that it is possible to argue that we have outgrown the old method of “matching colours” whereby new cases were brought in under the cover of old ones, and that we now have created a distinct tort of negligence.1

[1]Charter of Henry I (1100) c. 8 (in Stubbs, Select Charters).

[1]See the indexes of actions in Select Civil Pleas (ed. Maitland), and Bracton’s Note Book (ed. Maitland).

[2]Bracton, f. 119 b.

[3]Above, p. 371.

[1]Westminster I, c. 20.

[2]Westminster II, c. 35.

[3]Pollock and Maitland, ii. 522; Holdsworth, iii. 318, 370; Winfield, Province of the Law of Tort, 191.

[4]I am indebted for these results to Mr. C. A. F. Meekings and Mr. A. W. Mabbs both of the Public Record Office.

[1]In post-mediaeval times the scope of indictable trespass was rather narrowed: Holdsworth, xii. 514.

[2]Sayles, King’s Bench, ii. 134.

[3]Marowe, De Pace, in Putnam, Early Treatises, 375. By “trespass” Marowe evidently means “indictable trespass” (i.e. misdemeanour). For the relations of tort and felony, see Holdsworth, iii. 331.

[1]Stated in Fitzherbert, New Natura Brevium, 86 H (but see Lord Hale’s note).

[2]F.N.B., 90 A.

[3]Ibid., 88 D and E.

[4]The first edition of Fitzherbert’s Natura Brevium (not mentioned in Beale’s Bibliography) was in either 1534 or 1537 (Putnam, Early Treatises. 34 n. 4); the author died in 1538.

[5]F.N.B., 87 L.

[1]Winfield and Goodhart, Trespass and Negligence, Law Quarterly Review, xlix. 359-378.

[2]22 & 23 Car. II, c. 9, s. 136 (1670); see above, p. 174.

[3]See Winfield and Goodhart, u.s.

[4]Above, p. 174.

[5]See the material collected by Winfield, History of Negligence in Torts, Law Quarterly Review, xlii. 184, and his App. A.

[1]See now, however, Winfield’s remark in Law Quarterly Review, lv. 450-451, where he preferred to regard the situation as still a tendency, rather than an established rule of law.