The following is an informal (draft) attempt to combine the following works. It is not cleansed for known liberal bot bias, which could be a major defect, off hand. I may follow up to correct this. Not responsible for error. “In good faith.”
Companions:
Common Law Evolution:
Medieval England to Pre-Codification America
A Cross-Reference Companion to the Medieval and American Common Law Lists
Introduction
This document traces the transmission and transformation of common law from medieval England through its adoption and adaptation in colonial and early American jurisprudence. While the two source lists contain approximately 2,300 medieval terms and 150+ American pre-codification terms respectively, this cross-reference identifies the key evolutionary threads that connect them.
The analysis is organized by legal domain, showing which medieval institutions survived, which were transformed, which were rejected, and which American innovations emerged from English precedents.
I. Real Property Actions: The Great Simplification
Medieval Complexity
Medieval England possessed an elaborate system of real property writs, each addressing different scenarios of land disputes:
- Writ of right (breve de recto) — patent or close variants for different feudal relationships
- Novel disseisin assize — for recent dispossession
- Mort d’ancestor assize — inheritance claims
- Darrein presentment assize — advowson disputes (church appointments)
- Entry sur disseisin — entry claims (in the per, per & cui, post variants)
- Formedon — entailed estates (descender, remainder, reverter)
- Quare impedit — ecclesiastical presentation rights
- Waste (writ of) — tenant damage to property
American Simplification
By the pre-codification era, American practice had consolidated most real property actions into a single dominant form:
- Ejectment (fictional lease/entry/ouster) — absorbed functions of novel disseisin, entry sur disseisin, and writ of right
- Waste (writ of) — survived but simplified
- Partition (writ of) — continued for co-ownership disputes
Evolution Analysis
The fictional ejectment action (using the fictitious lessees “John Doe” and “Richard Roe”) became the universal remedy for land possession disputes. This represented a radical simplification: one flexible action replaced a dozen rigid medieval forms. The American rejection of primogeniture and fee tail estates eliminated the need for formedon writs entirely. Ecclesiastical property disputes (quare impedit, darrein presentment) disappeared with the separation of church and state.
II. Contract Actions: The Rise of Assumpsit
Medieval Framework
Medieval contract enforcement relied on several distinct actions:
- Debt (action of) — for fixed sums owed (debt on a bond, debt on simple contract)
- Covenant (action of) — for agreements under seal
- Account (action of) — against bailiffs and agents
- Detinue — for specific chattels wrongfully detained
Each had rigid procedural requirements and limited remedies.
American Transformation
Assumpsit (meaning “he undertook”) evolved to dominate American contract law:
- General assumpsit (indebitatus assumpsit) — with “common counts” for standardized claims
- Special assumpsit — for specific promises
- Common counts included: money lent, money paid, money had and received, goods sold and delivered, goods bargained and sold, work and labor done
- Quantum meruit — for reasonable value of services
- Quantum valebat — for reasonable value of goods
Evolution Analysis
Assumpsit’s flexibility revolutionized contract law. The “common counts” allowed plaintiffs to plead multiple theories without specifying which applied. This was particularly important given wager of law (where defendants could swear away debt claims with compurgators) — assumpsit circumvented this medieval defense. The action also pioneered the concept of implied contract (implied-in-fact and quasi-contract), leading to modern restitution and unjust enrichment doctrines. By the American era, assumpsit had effectively displaced debt and detinue for most purposes.
III. Tort Actions: From Trespass to Negligence
Medieval Forms
Medieval tort law distinguished between direct and indirect harms:
- Trespass vi et armis (“with force and arms”) — for direct, forcible injuries
- Trespass de bonis asportatis — wrongful taking of goods
- Trespass quare clausum fregit — land trespass (“wherefore he broke the close”)
- Trespass on the case (action on the case) — for indirect or consequential harms
The distinction mattered: trespass vi et armis was actionable per se; case required proof of actual damage.
American Development
American courts preserved these forms but developed crucial innovations:
- Trespass (vi et armis, de bonis asportatis, quare clausum fregit) — continued for direct harms
- Case (trespass on the case) — became the foundation for negligence law
- Trover (and conversion) — evolved from detinue sur trover to become the primary remedy for wrongful interference with chattels
- Negligence — emerged as a distinct doctrine from case, particularly in industrial accident litigation
Evolution Analysis
The most significant American contribution to tort law came through the action on the case. As industrialization created new forms of harm (railroad accidents, workplace injuries, product defects), courts expanded case to recognize negligence as a general principle: the duty to exercise reasonable care. This represented a conceptual leap from the medieval “writ system” (where rights existed only if a writ existed) to a principle-based system (where the duty of care could apply to novel situations). Trover similarly evolved from a procedural fiction (alleging the defendant “found” the plaintiff’s goods) into the modern tort of conversion.
IV. Prerogative Writs: Constitutional Preservation
Medieval Royal Power
The prerogative writs were extraordinary remedies issued by the King’s Bench to supervise inferior courts and enforce royal authority:
- Habeas corpus (ad subjiciendum, ad testificandum, ad deliberandum, ad prosequendum, ad satisfaciendum) — to produce the body
- Certiorari — to review lower court records
- Mandamus — to compel performance of official duty
- Prohibition — to prevent ecclesiastical or inferior courts from exceeding jurisdiction
- Quo warranto — to challenge authority to exercise franchise or office
American Adaptation
The United States not only preserved these writs but elevated them to constitutional status:
- Habeas corpus (all variants) — constitutionally protected in Article I, Section 9
- Certiorari — became the primary mechanism for Supreme Court review
- Mandamus — available against federal and state officials
- Prohibition (writ) — continued for jurisdictional review
- Quo warranto — available to challenge official authority
Evolution Analysis
This represents the most complete survival of any medieval legal institution. The American transformation, however, was profound: these writs shifted from instruments of royal control to tools of individual liberty and constitutional restraint on government. Habeas corpus became the “great writ of liberty,” protecting citizens from unlawful detention. Certiorari evolved from a discretionary royal prerogative into the Supreme Court’s primary docket control mechanism. Mandamus, originally used to enforce feudal obligations, became a remedy against government officials who abused discretion. The function inverted: what once empowered the Crown now constrains the state.
V. Pleading System: Common Law Formalism Preserved
The Pleading Sequence
Both medieval and American common law shared the same elaborate pleading structure designed to narrow disputes to a single triable issue:
| Step | Party | Pleading Options |
|---|---|---|
| 1 | Plaintiff | Declaration (narratio), Special Count |
| 2 | Defendant | General Issue (non assumpsit / nil debet / not guilty), Plea in Abatement, Plea in Bar, Confession & Avoidance, Demurrer |
| 3 | Plaintiff | Replication (including de injuria), New Assignment, Special Traverse |
| 4 | Defendant | Rejoinder |
| 5 | Plaintiff | Surrejoinder |
| 6 | Defendant | Rebutter |
| 7 | Plaintiff | Surrebutter |
| End | Both | Joinder of Issue, Demurrer to Evidence |
Each stage had to respond to the preceding one, following strict rules of logic and form.
Medieval and American Terminology
The terminology remained remarkably stable:
- Declaration (narratio) — opening statement of claim
- General issue — catch-all denial (non assumpsit, nil debet, not guilty)
- Plea in bar — complete defense to the action
- Plea in abatement — technical objection (wrong court, wrong party, etc.)
- Confession and avoidance — admitting facts but asserting justification
- Demurrer — challenging legal sufficiency without contesting facts
- Replication de injuria — plaintiff’s allegation that defendant’s justification was wrongful
- Joinder of issue — agreement on what factual question goes to trial
Evolution Analysis
This rigid system survived essentially intact until the Field Code reforms (1848 onwards) introduced “notice pleading.” American courts faithfully preserved the medieval requirement that pleadings present a single, triable issue through logical progression. The system’s complexity became notorious — entire cases could be lost on pleading technicalities. Yet this very formalism had a purpose: it forced parties to clarify their positions before trial, preventing surprise and ensuring juries considered narrow, factual disputes rather than sprawling legal arguments. The demurrer, in particular, became an important tool for developing substantive law without the need for trial.
VI. Execution and Process Writs
Medieval Enforcement
Medieval judgments were enforced through various writs of execution:
- Fieri facias — levy on goods (“cause to be made”)
- Capias ad satisfaciendum — arrest for debt
- Elegit — seize land for debt
- Distress (distraint) — seize chattels to compel performance
- Levari facias — levy on goods and rents
American Continuity and Reform
American jurisdictions retained most execution forms but began limiting debtor imprisonment:
- Fieri facias (goods execution) — continued as standard enforcement
- Capias ad satisfaciendum (debtor prison) — gradually abolished in most states by mid-19th century
- Elegit (land execution) — preserved in some states, abolished in others
- Distress (common-law remedy) — continued but increasingly regulated
Evolution Analysis
The American rejection of debtor’s prison (capias ad satisfaciendum) marked a significant departure from English practice. While medieval law treated debt as a quasi-criminal matter justifying imprisonment, American states increasingly viewed it as a purely civil matter. This reflected democratic ideals incompatible with imprisoning citizens for poverty. The retention of fieri facias and elegit, however, shows continued acceptance of property-based enforcement.
VII. Tenure and Feudal Incidents: The American Rejection
Medieval Feudal System
Medieval land tenure was inseparable from feudal obligations:
- Tenure in capite — holding directly from the Crown
- Knight service — military obligations
- Grand serjeanty / petit serjeanty — honorific or minor services
- Socage — agricultural services
- Frankalmoign — religious tenure (“free alms”)
- Feudal incidents: relief, wardship, marriage, escheat, primer seisin
- Subinfeudation — creating sub-tenancies (banned by Quia Emptores 1290)
- Fee tail — entailed estates preserving family land
- Primogeniture — eldest son inheritance
American Abolition
American law systematically dismantled feudal tenure:
- Fee simple absolute became the dominant (often only) estate
- Feudal incidents abolished by state constitutions or early statutes
- Primogeniture replaced by equal distribution among heirs
- Fee tail abolished or converted to fee simple in most states
- Curtesy (widower’s estate) — modified or abolished early
- Corruption of blood — prohibited by U.S. Constitution Article III
- Bill of attainder — explicitly prohibited (constitutional prohibition)
Evolution Analysis
This represents the most sweeping American rejection of English common law. The Founders viewed feudal tenure as incompatible with republican government. Jefferson, in particular, championed fee simple absolute ownership and the abolition of primogeniture as essential to preventing aristocracy. The Constitution’s prohibition on titles of nobility extended to property law: no American could hold land “of” another in the feudal sense. While the forms of action survived (because they were procedural), feudal tenure died (because it was substantive and hierarchical). By the early 19th century, American land law had achieved what English reformers wouldn’t accomplish until 1925: allodial ownership unburdened by service obligations.
VIII. Equity and Chancery: Informal American Merger
Medieval Chancery System
Equity developed as the King’s conscience, providing remedies unavailable at common law:
- Bill in equity — initiating equitable proceedings
- Subpoena (ad testificandum, duces tecum) — compelling testimony and documents
- Use upon a use — trust arrangements to avoid feudal incidents
- Specific performance — compelling contract performance
- Injunction — prohibitory or mandatory orders
- Reformation — correcting contract terms
- Rescission — unwinding contracts
American Integration
American courts preserved equity but began merging it with law:
- Bill in equity — continued in separate chancery courts
- Injunction (prohibitory/mandatory) — expanded use, especially against government
- Specific performance — available for land and unique goods contracts
- Rescission — contract remedy
- Reformation (contract terms) — equitable correction
- Discovery (bill for) — pre-trial fact-finding
- Subpoena (testificandum/duces tecum) — standard process
Many states maintained separate equity courts, but increasingly permitted the same judges to sit in both law and equity. This bleeding together should not have been, but was, and will be erased upon restoration of the judiciary.
Evolution Analysis
The American approach to equity was pragmatic rather than doctrinaire. While England maintained rigid separation between common law and equity until the Judicature Acts (1873-1875), many American states allowed informal merger much earlier. The same court could apply legal and equitable principles in the same case. This reflected both practical necessity (frontier courts couldn’t maintain duplicate systems) and philosophical preference (Americans mistrusted the discretionary power chancellors wielded in England). By the pre-codification era, equity had become less a separate system than a supplementary body of remedies and principles available within common law courts.
IX. Criminal Law and Quasi-Criminal Procedures
Medieval Criminal Procedures
Medieval criminal law employed distinctive procedures:
- Appeal of felony (arson, burglary, death, larceny, mayhem, rape, robbery) — private prosecution
- Approver — felon who turned state’s evidence
- Trial by battle / ordeal — proof by combat or divine judgment
- Compurgation (twelve hands, oath helpers) — swearing innocence with supporters
- Benefit of clergy — clerical immunity (neck verse test)
- Attainder — conviction with corruption of blood
- Hue and cry — community pursuit of felons
- Frankpledge (view of frankpledge, tithing) — collective security system
American Reforms
American law rejected most medieval criminal procedures:
- Trial by battle / ordeal — immediately rejected
- Compurgation — abolished
- Benefit of clergy — limited variants only in early colonial period, then abolished
- Bill of attainder — constitutionally prohibited
- Corruption of blood — constitutionally prohibited
- Year and day rule (homicide) — preserved but later abolished in most states
- Common-law misdemeanors — preserved (public nuisance, libel/slander, breach of peace, false imprisonment)
Evolution Analysis
Criminal law saw the most dramatic modernization. Trial by battle and ordeal were seen as barbaric superstition; compurgation as medieval formalism incompatible with rational fact-finding. The constitutional prohibitions on attainder and corruption of blood reflected Enlightenment rejection of collective guilt. Benefit of clergy — which had evolved into a bizarre loophole where literacy exempted first offenders — was abolished as incompatible with equality before law. The year and day rule (a homicide victim must die within a year and a day) survived longer due to causation concerns, but modern medicine eventually rendered it obsolete. What remained were the common-law misdemeanors and the jury trial, both seen as protective of liberty.
X. Modern Doctrinal Descendants
Concepts That Evolved Beyond Recognition
Several modern legal doctrines trace ancestry to medieval forms but have transformed into something entirely new:
| Medieval Form | American Transition | Modern Doctrine |
|---|---|---|
| Trespass on the case | Case (trespass on the case) | Negligence (duty, breach, causation, damages) |
| Trover (detinue sur trover) | Trover (and conversion) | Conversion (wrongful exercise of dominion over chattels) |
| Debt / Covenant / Account | Assumpsit (general/special) | Breach of contract / Implied contract |
| Quantum meruit (work value) | Quantum meruit / Money had and received | Unjust enrichment / Restitution / Quasi-contract |
| Multiple real actions (novel disseisin, etc.) | Ejectment (fictional lease) | Ejectment / Unlawful detainer / Possession actions |
| Use upon a use (avoiding feudal incidents) | Trust law development | Express trusts / Resulting trusts / Constructive trusts |
| Habeas corpus (royal prerogative) | Habeas corpus (constitutional right) | Habeas corpus (due process / unlawful detention) |
These evolutionary paths show common law’s characteristic pattern: preserving procedural forms while allowing substantive principles to develop through incremental case-law reasoning.
Conclusion: Patterns of Preservation and Innovation
What America Preserved
- Prerogative writs (elevated to constitutional status)
- Pleading system (until Field Code reforms)
- Core forms of action (trespass, case, assumpsit, ejectment)
- Jury trial
- Common-law reasoning methodology
What America Transformed
- Contract law (assumpsit displaced debt and covenant)
- Tort law (negligence emerged from case)
- Property actions (ejectment replaced real actions)
- Equity (merged informally with law)
- Criminal procedure (rational fact-finding replaced ordeals)
What America Rejected
- Feudal tenure and incidents
- Primogeniture and fee tail
- Corruption of blood and attainder
- Benefit of clergy
- Trial by battle and ordeal
- Debtor’s prison (gradually)
- Ecclesiastical jurisdiction
The Pattern
American common law exhibited clear principles of selection:
- Procedural forms survived (they were neutral tools)
- Hierarchical institutions died (incompatible with republicanism)
- Liberty-protecting mechanisms were constitutionalized (habeas corpus)
- Flexibility was prized over rigid formalism (assumpsit’s success)
- Rational proof displaced mystical procedures (jury trial over ordeal)
The result was a hybrid system: medieval in form, modern in function, American in spirit. The forms of action may have been “buried,” as Maitland quipped, but they continued to “rule us from their graves” well into the 19th century — and their conceptual descendants shape American law to this day.
This cross-reference is a companion to:
“My Little Medieval List of Common Law Words”
“My Little Pre-Codification Common Law List (American)”
