At the dawn of the history of tort, stands the writ of trespass. Yet the origins of that writ are trespass disputed. Maitland, the father of the discipline of legal history, believed trespass originated from the appeal, whereas Milsom, in many ways his unorthodox successor, suggested trespass was rather a broad category dealing with ‘wrongs’.[1] Maitland’s influence saw the period before Milsom consider trespass as a specific wrong, which Milsom contradicted.[2] Milsom’s evidence, which we will shortly consider, makes his view (as corrected by later scholars) more plausible, clearly identifying trespass’s origins. My aim here, as you may have observed, is to provide a brief overview of the debate as to the origins of the writ of trespass, which is a topic I find quite interesting and hope that you will too.
An appeal allegation contained the accusation that the accused wrongdoer behaved “evilly and feloniously by force and with arms [vi et armis] and against the peace [contra pacem] of the Lord King”.[3] Trespass accusations were similarly worded. Hence, Maitland deduced that trespass must have originated from the appeal, for over time it became specialised as to only deal with ‘criminal’ matters, requiring a separate mode of compensating civil wrongs.[4] However legal inferences based upon “linguistic analogy” are most precarious and make for little in the way of evidence, as Fifoot observed.[5] In fact research shows that early trespass writs rarely used formulae alleging an offence against the King’s Peace, as Woodbine argued.[6] Since a pillar of Maitland’s argument is that the formula indicated an origin of trespass from the appeal, it seems therefore that this theory is unsound. However later scholars, before Milsom, were influenced more by Maitland’s fundamental presumption that trespass was a specific wrong and thus their mode of approaching the evidence was fundamentally rooted in Maitland’s approach, even if they disagreed on the specific basis of the origin of trespass.[7]
It may be profitable to briefly consider the two other views besides Maitland’s, though influenced by what one may call his interpretive methodology. One, held by Woodbine, posited that the writ of trespass was derived from the assize of novel disseisin in which plaintiffs would bring an action to recover land which they were dispossessed of. [8] However, it does not necessarily follow that because actions in land were brought forth that there must be a causal link between them and trespass eventually accommodating actions in land. As Fifoot observed, the attempt to link actions in land to trespass proposes a view of trespass’s origins that is “too causal”, or teleological.[9]
Next, Plucknett argued that the local courts were the origin point for the writ of trespass.[10] However, Fifoot rebutted this view, observing that writs were used in the local courts and royal court simultaneously, and so it was more probable that the local courts were following the royal court’s example.[11] From these it seems that the theorists pre-Milsom approached the question of the origin of trespass as one of evolution of a specific wrong, which it would be if trespass originated from the appeal, or from novel disseisin, or from the procedure of the local courts. However, as we shall see, Milsom’s research refuted these views.[12]
Fifoot himself represented the older view when he said that the Christian reciting the Lord’s Prayer likely meant something different by ‘trespass’ from “a pleader conning the Register of Writs”.[13] However, Milsom showed that trespass “simply meant wrong”.[14] Indeed, ‘trespass’ is the law-French word derived from the Latin “transgressio (wrongdoing)” which was not originally a narrow term;[15] trespass initially[16] had an identical broad meaning to that contained in the Lord’s Prayer.[17] Originally, ‘trespass’ denoted not a specific wrong like “our [modern] tort of trespass” but was “a generic term”, [18] and eventually came to encompass a large group of distinct writs.[19] The mistaken understanding of trespass, Milsom said, arose from scholars anachronistically reading later definitions of ‘trespass’ as a specific type of wrong into the early developments of the law, when in the earlier period, lawyers concern was with “jurisdiction and proof”.[20] The question asked was not about the type of wrong committed (as it would be in the present era) but, as Ibbetson observed, of “how a civil action for wrongdoing should be pleaded”.[21] Thus, one was to ask if the trespass was one which the royal court was willing to manage, for which a breach of the King’s Peace had to be alleged for the trespass to qualify as “a plea for the Crown”.[22]
Indeed, Milsom observed that a royal interest often did not exist in trespass cases but that the allegation of a breach of the King’s Peace was used as a mask to bring into the royal jurisdiction cases.[23] This was often when, Baker notes, local courts were forbidden from hearing such cases without royal permission (e.g., cases worth more than forty shillings) and where, had the royal court not heard the case, a failure to achieve justice would have occurred.[24] By the end of the thirteenth century inserting an allegation of a breach of the King’s Peace, to achieve the end of royal justice became routine.[25] Trespass’s proliferation led to its differentiation into different forms of wrongdoing to persons, or to goods, or to land with the uniting concept between these being was what Milsom called “direct forcible injury”,[26] or, in Ibbetson’s words, “forcible wrongdoing”[27] for it included non-personal wrongs.[28]
Milsom dated the rise of new forms of trespass to 1275.[29] That Milsom’s identification of trespass’s legal origins is generally correct is established, but his dating may be wrong. Watkin convincingly posits that the ‘in consimili casu’ provision of cap. 24 of the Statute of Westminster II (1285) allowing new writs to be created in similar circumstances to previous cases led to the increase of trespass writs being issued, as evidenced in the Year Books of that time.[30] Following Milsom, Watkin’s account accepts the fictional nature of the vi et armis accusation, but also explains why such accusations became increasingly employed after the Statute’s enactment by dating later.[31] From the foregoing, Milsom, qualified by Watkin, provides the most convincing account of the origin of the writ of trespass.
We may indeed clearly identify the origin of the writ of trespass to the making of fictional allegations to achieve the result of royal justice.[32] The writ increased in popularity because of the Statute of Westminster II (1285).[33] At the genesis of tort lies creative use of the law, and flexibility in the use of the writ of trespass. Indeed, the approach of scholars before Milsom was flawed because they saw trespass as a specific wrong, and not rather as a broad term.[34] Trespass was a flexible word, able to encompass a broad category of wrongs, and only later became narrower.
Just as a final note, let me justify this legal-historical essay here. Legal history is very often overlooked by lawyers, but is itself interesting, and can even provide lights for our profession today inasmuch as we may compare present legal tools with those of the past and refine our present tools in comparison to past ones. Thus, there are two reasons to study legal history. First, the intrinsic interestingness of the field. Second, the value of the field as a tool in comparative methodology. Why should we allow civil lawyers to take the glory of being more respectful of their sources in Roman law, the Code Napoleon etc. while we only pay lip service to the ancient origins of the common law, while ignoring those old sources ourselves? I am firmly convinced, rather, that there is great value in having a legal profession more literate in legal history.
[1] Russel Sandberg, A Historical Introduction to English Law: Genesis of the Common Law (Cambridge University Press, 2023) (Pre-publication version from author) ch 7, 20.
[2] Ibid.
[3] C H S Fifoot, History and Sources of the Common Law (Stevens & Sons, 1949) 45
[4] Russel Sandberg, op cit, 20
[5] C H S Fifoot, op cit, 44, 45
[6] G E Woodbine, ‘Origins of the Action of Trespass’ (1924) 33 Yale Law Journal 799; Origins of the Action of Trespass’ (1925) 34 Yale Law Journal 343
[7] Cf. Russel Sandberg, op cit, 21; David Ibbetson, ‘Milsom’s Legal History’ (2017) 76 The Cambridge Law Journal 360, 362 <https://www.jstor.org/stable/26291230> accessed 16 March 2023.
[8] Russel Sandberg, ibid.
[9] Russel Sandberg, ibid, 21.
[10] Theodore F T Plucknett, A Concise History of the Common Law: Book one (4th edn, Butterworths) 349
[11] C H S Fifoot, op cit, 47; cf. Russel Sandberg, op cit, 21
[12] Cf. David Ibbetson, op cit.
[13] C H S Fifoot, op cit, 44
[14] David Ibbetson, op cit.
[15] J H Baker, An Introduction to Legal History (5th edn, OUP, 2019) 67.
[16] Ibid.
[17] Russel Sandberg, op cit, 21; David Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, 2001)39fn2.
[18] S F C Milsom, ‘Trespass From Henry III to Edward III: Part 2: Special Writs’ (1958) 74 Law Quarterly Review 407
[19] J H Baker, op cit; David Ibbetson, op cit, 363.
[20] S F C Milsom, Historical Foundations of the Common Law (2nd ed, Butterworths, 1981) 285
[21] David Ibbetson, op cit, 363.
[22] S F C Milsom, op cit, 287
[23] Ibid.
[24] J H Baker, op cit, 68.
[25] S F C Milsom, op cit, 287
[26] S F C Milsom, ibid, 283
[27] David Ibbetson, op cit, 39.
[28] Cf. S F C Milsom, op cit, 283
[29] S F C Milsom, ibid, 287
[30] Thomas Glyn Watkin, ‘The Significance of ‘In Consimili Casu’’ (1979) 23 The American Journal of Legal History 283, 311
[31] Russel Sandberg, op cit, 22.
[32] Ibid; J H Baker, op cit, 68.
[33] Thomas Glyn Watkin, op cit.
[34] S F C Milsom, op cit.
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