The forms of action in the early courts
Today the law covers every situation. If there isn’t a specific law or case on the point in question, then there will be one for an analogous situation which can be applied.
The court claim forms (still referred to as ‘pleadings’, at least by lawyers) are then drafted up to describe what the claimant is asking for.
However in medieval times it was quite different. Then, it was the procedure used to enforce a right which mattered. This is how Baker explains it:
The principles of the common law were not laid down in the abstract, but grew around the forms through which justice was centralised and administered by the King’s courts. There was a law of writs before there was a law of property, or of contract, or of tort.
What was a writ?
A writ was a strip of parchment containing a letter (the content of which varied depending on the circumstances of the case) in the name of the King.
It was usually written in Latin and was sealed by the great seal. You can see the great seal of Henry I above (although here used for another purpose).
Starting a claim
This was done by a plaintiff (or claimant as they are called now) making a complaint or claim in the proper form. Sometimes, in the local courts, this could be done orally. However for more substantial cases, where using the Kings court, you had to pay for a royal writ which would authorise the commencement of proceedings.
Baker describes this as like a pass admitting people to the type of justice they had paid for, with different types of pass for different purposes.
By 1200 there were lots of different types of writ which would be issued for a standard fee, and would admit the purchaser to the Kings justice at Westminster.
Ossification of the writ system
During the period I am currently writing about, the Norman period, the different writs and the judicial process generally, were still being developed. However once a writ had been used successfully, it became a precedent for the future.
Lawyers were reluctant to change something which had been used successfully once, and so gradually the forms (known as the forms of action) became fixed.
If a plaintiff wanted to bring a particular type of claim, he had to see if there was a precedent writ which had been used for something similar in the past. If there was, he would use that. If there wasn’t, he had to get a new one drafted.
As time went by, this became more and more difficult.
Lawyers across the centuries
In this, I have to say that lawyers of today are very similar to their cousins from yesteryear. A lawyer will ALWAYS prefer to use a precedent rather than draft something up new. This is why many legal documents use such antiquated language.
It is in the dna of a lawyer that you don’t make anything up but, if you possibly can, use something tried and tested. Then the lawyer is less likely to be blamed if it all goes wrong.
Today, with the introduction of the concept of ‘plain English’, now increasingly being demanded by lay clients, lawyers are having to abandon their precedents, at least for consumer contracts, and venture into the uncertain waters of original drafting. It is a scary prospect for most. People don’t really change do they?