Forgive us our trespasses
Devin Humphreys | Tuesday, September 21, 2021
Sometimes, Notre Dame Law School presents us with an opportunity to engage in the more important questions of life. Among those questions is one I posed to my colleagues throughout the spring semester last year: “What is your favorite common-law writ or form of action?”
The possibilities in answering this question are many, and while it seems ridiculously niche, the answers my friends gave to this question (bless them for indulging me in my geeking out) were truly interesting. For instance, a popular choice was the writ of mandamus, coming from the Latin for “we command.” This writ was critical to the landmark decision of Marbury v. Madison, responsible for establishing the judicial review power of our Supreme Court and shaping the landscape of American constitutional law. In general, those who said “mandamus” had strong interests in constitutional law-related issues, among other things. The more liberty-minded among our cohort went instead for the writ of habeas corpus, coming from the Latin imperative “have the body.” They had interests in criminal procedure and civil rights law.
As for me? My favorite form of action is trover, and not only because it’s a fun word to say. Trover has a storied history, and it all has to do with property. For back in ye olde England, when people took your stuff (fancifully called “chattel” to distinguish it from land), you could sue them to get your stuff back. Such an action was called “replevin.” But replevin left the door wide open to abuse. Say John loans his wheelbarrow to James, but James, disliking John, takes an axe to the wheelbarrow, chopping it up into a bunch of wooden bits. James sues John in replevin, and obviously wins, but all John has to do is give back the wooden bits of what once was a wheelbarrow. Since those are worthless, James would have ended up losing his wheelbarrow with no legal remedy. And so it was for a couple of centuries, until the action in trover came to the rescue. In trover, James could sue John not for the wooden bits but instead for the monetary value of the wheelbarrow. Trover thus made wrongs right and took advantage of the existence of money to secure relief to aggrieved plaintiffs whose property had been messed with.
John, in chopping up the wheelbarrow, committed a tort. For those who don’t know, which included me before law school: a tort is a private wrong committed against an individual for which the law provides a remedy of some kind. More specifically, John committed a tort called conversion. Conversion entails claiming something that belongs to someone else as your own and altering the thing beyond recognition. The tort of conversion is easily compared to its cousin, the trespass to chattels. Someone who has committed the tort of trespass to chattels has simply taken something that’s not theirs. It’s less of an interference than the tort of conversion, and an action in trespass to chattels typically secures a lesser remedy as well. In either case, though, if someone seeks recovery in trover, the defendant is then typically obligated to pay a sum of monetary damages, giving the plaintiff the opportunity to (for example) buy a new wheelbarrow.
These torts find analogy in our Catholic faith. Christ is always calling us to let Him change our hearts. And the two main aspects of the tort of conversion fit that call. First: conversion involves claiming something that belongs to someone else as your own. At our baptisms, Christ claims each of us as a child of the Kingdom of God. As St. Paul says in Galatians, “yet I live, no longer I, but Christ lives in me.” Second: conversion involves establishing this claim with permanence. In removing the stain of original sin, our baptism enables us to begin to realize that God has claimed us as His own for all time.
But even with our baptisms, the human condition persists, what with its concupiscence and all, and we are held back from fully embracing our Lord and Savior for who He is. The result is that instead of conversion, we find ourselves more in the territory of trespass to chattels, only getting part of the way to union with Christ. But there is hope, and it comes from two places: Christ’s death on the cross and his outpouring of grace through the sacraments. Christ’s death on the cross, the price of our redemption, is our remedy in trover; in paying that price, Christ makes us new. And by continuously giving us the opportunity to unite ourselves to him in the sacraments, most chiefly in both confession and the reception of Holy Communion, Christ consistently calls us to deeper, more fundamental conversion.
Wherever you next find yourself for Mass (be it Thursday night at Dillon Hall for the Milkshake Mass, Friday afternoon at the Law School Chapel with Bishop Paprocki, or the Sunday noon Basilica Mass with the Folk Choir), when you pray the Our Father, remember these writs as you pray, “forgive us our trespasses as we forgive those who trespass against us.” May Christ, through our constant and unceasing prayer, lead us away from the lukewarm trespass to chattels and instead guide us to a deeper conversion. In the meantime, let’s reflect on how Christ’s death is our trover, our price to be made new.
The views expressed in this column are those of the author and not necessarily those of The Observer.