The history of writs starts in 1066 A.D. — that is the big date in English law. In that year, King William of Normandy established his legal right to the English throne by defeating King Harold at the Batde of Hastings. After the victory, William divided the kingdom among his supporters and introduced a method of government known as the feudal system.
Feudalism was based on land ownership. Everyone in the kingdom owed allegiance to the king directly as well as through the landowner one served. Serfs, a cut above slaves, were bound to the land where they were born, and their allegiance was to the lord of their manor and, through him, to the king. The landowner's allegiance was to the king and the noble directly over him, that noble's allegiance was also to the king and to the noble above him, and so on. This centralization of allegiance brought strong centralization of government. Laws operative throughout the realm were proclaimed in the king's name. Taxes were collected and funneled into the central treasury. A system of royal courts evolved for the settlement of disputes between subjects in civil matters, and for the settlement of criminal disputes between king and subject in criminal matters.
Initially, the judicial structure was located at the seat of government and was literally "the king's court." Cases were heard before the king and the assembled nobles, and the king, acting as judge, decided the results after discussion with the nobles. As business grew, however, the king gradually referred the cases to his chancellor for determination. A bureaucracy rapidly developed in the chancellor's office (chancery) as it became necessary to screen the requests for hearing to determine what kind of case it was, what was necessary to give the defendant an opportunity to present the other side, how much time it would take, and so on. After the details were determined, a writ was composed and the case commenced. Eventually, the litigants throughout the kingdom persuaded the king to establish a system of branch courts. Members of the chancellor's staff were appointed judges and went out on circuit to hear cases in the provinces. A group of expert lawyers gradually developed to handle the cases presented before the courts.
William Blackstone, the great early English law writer, gives an excellent description of the court structure, the bar and the various types of cases in his monumental treatise, Commentaries on the Laws of England. It would not hurt, if you have the time, to browse through it. You will obtain some good background, not only on the court structure but on much of the law school work in pleading, property, contracts, torts, and crimes. (Incidentally, after you are in law school a while, you might enjoy spending a little time in the library stacks rummaging through the older books on the shelves. Such exploratory browsing will not only broaden your legal understanding but will make you aware of social customs and practices which you never suspected existed so many years ago.)
The spread of the court system led to the proliferation of writs covering every type of controversy. By the latter half of the 13th century, to make their jobs easier, the writ clerks persuaded the chancellor to stop the issuance of new writs and force litigants to fit the facts of their cases to one of the writs used in the past.
Here is a list of the eleven common-law causes of action:
- COVENANT: Action brought when a defendant failed to perform a contract under seal (a contract formalized by signature and a seal impressed in wax).
- INDEBITATUSASSUMPSIT: Action on an oral or written contract, not under seal, where the broken promise is implied from the terms of the contract.
- SPECIAL ASSUMPSIT: Action on a contract, not under seal, where the defendant has breached a specific promise in the contract.
- DEBT: Action to recover a specific sum of money, the amount being readily ascertainable.
- TROVER: Action for damages where someone has unlawfully taken another's personal property.
- REPLEVIN: Action to recover the personal property itself which was unlawfully taken.
- DETINUE: Action to recover personal property originally rightfully possessed, but not returned when due, together with damages for the unlawful keeping.
- ACCOUNT: Action on the balance of a series of transactions between the parties (sometimes called "common counts").
- EJECTMENT: Action for recovery of land, together with damages for the unlawful possession.
- TRESPASS: Action for damages for direct injury to the plaintiff. TRESPASS ON THE CASE: Action for damages for indirect injury to the plaintiff (often referred to as "case").
Modern pleading does not use these common-law divisions of causes of action. However, it is still important to know of their existence, and to have some understanding of their meaning, to fully comprehend the present-day system of code pleading. A lawyer still has to include the modern elements of a cause of action in the complaint or the case will be dismissed.
