Common Law Writ System

HISTORICAL BACKGROUND: THE COMMON LAW WRIT SYSTEM

Professor Edward C. Martin

The English Common Law Writ System.

In the early days of the English common law system of jurisprudence, the legal system was entirely subordinate to the King. Since the King was sovereign, all access to the King’s courts was controlled by the King’s designated representatives. In the legal system, these individuals (commonly known as "writ writers") issued special documents (referred to as writs) that, in effect, granted the King’s permission for the complaining party to sue another one of the King’s subjects in one of the King’s courts. Initially, in order to obtain one of these writs, the complaining party appeared before the King’s writ writer and presented his claim. If the essence of the complaint came within the scope of the writ writer’s authority, he would issue a specialized writ (usually for a fee) that allowed the "case" then to proceed into court. However, if the facts could not be fit squarely within one of these specialized writs, then the writ writer could not issue a writ and the complaining party simply had no further legal recourse against the offending party. Thus, the writ writers became very important in determining whether or not aggrieved parties could seek legal redress for their grievances in the King’s courts. These "writs" were the precursors for modern-day "forms" of action.

Originally, the common law recognized only a limited number of different writs that were available to persons seeking legal redress in the King’s courts. One of the most common early writs was the writ of assumpsit which was available in cases involving the breach of a contract where the defendant was alleged to have broken some promise made to the complaining party. Typically, the specific forms of these writs were very narrowly interpreted. For example, the writ of detinue was available for the recovery of goods that originally had been rightfully acquired by the defendant, but later wrongfully retained, whereas the separate writ of replevin was used in those situations where the goods had been wrongfully acquired in the first instance. Moreover, the writ of trover was used where the plaintiff's goods had been found by the defendant who then refused to surrender them back to the plaintiff.

Originally, since most torts were also regarded as crimes, the defendant typically was punished by the King according to the criminal laws. In time, however, the King also began to allow individual victims of the defendant's tortious (i.e., at that time, still criminal) conduct to sue for their own personal damages as well. The writ of trespass commonly became used for this purpose. Actually, those actions based upon trespass were divided into several sub-categories, each with its own separate writ associated with particular types of misconduct . Trespass de bonis asportatis was used for damages to the plaintiff's goods which had been "carried away" by the defendant. Trespass quare clausum fregit was used in cases where the defendant physically intruded onto the plaintiff's land by "breaking the imaginary close" that represented the boundary line which surrounded the property. Finally, trespass vi et armis was used for those other Tort actions whereby the plaintiff suffered injury to person or property by virtue of the defendant's direct and forceful misconduct.

Originally, the basic criteria used by the writ writers in issuing any of these trespass writs involved merely whether the plaintiff's injury was caused as a DIRECT result of the defendant's FORCIBLE actions. This simplistic test was applied in a very "mechanical" manner, which often resulted in the non-issuance of a writ in situations where the plaintiff was unable to demonstrate the necessary degree of "directness" between the injury and the defendant's alleged wrongful act. Thus, when the defendant chopped down a tree on his own land, causing it to fall onto an adjacent public road where it happened to strike the plainitff directly as he passed by, the writ writers would issue a trespass writ allowing the plaintiff to seek legal redress for his injuries. The reason given was that the plaintiff's injuries were caused as the DIRECT and IMMEDIATE result of the defendant's alleged tortious action. However, where the defendant engaged in the identical act of cutting down the tree where it first fell harmlessly into the adjacent roadway without striking anyone, and then later the plaintiff stumbled over that same log as he passed along the road in the dark, the writ of trespass would NOT be issued. The reason given for this by the courts was because the plaintiff's injury only INDIRECTLY occurred as the result of the defendant's alleged tortious conduct of cutting down the tree.

To deal with the apparent injustice created by such a rigid interpretation of the trespass writs, the King eventually authorized writ writers to issue certain individual trespass writs in special situations, even where the injury was NOT DIRECT. However, since these special writs were only available on a "case by case" basis as the need arose, the writ eventually became known as trespass on the case, or simply "case" for short. Even so, this "new" writ remained distinguishable from the original trespass writ in two very important particulars: (1) it was only available for INDIRECT (as opposed to direct) injuries; and (2) the plaintiff was REQUIRED to prove some ACTUAL HARM (as opposed to merely presuming harm from the fact of the tortious invasion itself).

Even though today the common law no longer recognizes these early English writs, their impact on the individual Tort causes of action which subsequently evolved from these two early trespass writs is nonetheless quite profound. Among our modern Tort causes of action, FIVE specific Intentional Tort actions can be traced DIRECTLY back to the common law writ of trespass. Interestingly, these Torts (Assault, Battery, False Imprisonment, Trespass to Land and Trespass to Chattels) are the ONLY Torts which still to this day DO NOT require some type of proof of INJURY in order to be actionable. Moreover, they are ALSO the only intentional Torts in which the requisite INTENT can be TRANSFERRED from one to another. Indeed, each of these Torts can be established merely upon the most "technical" showing of an intentional act (i.e., an intent "to do the act"). Most other modern Intentional Tort causes of action require at least SOME KIND of specific INTENT (i.e., intent to cause emotional distress; an intent to defame; etc.), as well as proof of some actual harm to the plaintiff (as compared with merely presuming such harm). Indeed, the modern Tort of "Negligence" has derived directly from the trespass on the case writ.

Because of the close relationship historically between the King and the Church, the King also designated certain representatives in the Church to resolve other types of disputes that were considered to involve purely ecclesiastical (i.e., non-legal) matters, such as divorce, etc. Eventually, these "courts" became known as Chancery courts, and their jurisdiction was primarily equitable in nature, (that is, they were only used when the parties had no LEGAL remedy that was otherwise available to them).

Implicit with the early common law notion that the King was sovereign was the notion that he was simply NOT capable of being sued at all. As the sovereign, the King was incapable of doing anything legally "wrong" (i.e., by definition, whatever the King did was right). Moreover, even if someone had a grievance against the King (probably not a very good idea in the first instance), he still could not bring any kind of legal action against the King, because the King simply would not grant access (by way of issuing a writ through the writ writers) to gain access into the King's court to bring the suit. Thus, with access to the court denied, the aggrieved plaintiff simply had no other remedy for the alleged "wrong." Thus, the common law concept of sovereign immunity developed. This doctrine simply stated what was obvious to everyone at the time: no one could sue the King (the sovereign), because there was no recognized legal (or even equitable) remedy for any wrong that may otherwise have been committed by the King. Eventually, as the common law developed, the doctrine of "sovereign immunity" became recognized as a nerely absolute immunity first with respect to actions against the King, and later with respect to all Tort claims brought against various different Governmental entities that eventually replaced the King.