Criminal Trespass - Historical Background

Trespass originated in England in the thirteenth century as a general concept indicating that the defendant had done a wrong and should, therefore, pay damages and be fined. Although there was no clear distinction between crime and tort (wrongs for which a civil remedy exists) at this time, the main emphasis was on providing civil remedies such as payment of damages or return of possession. The allegation of breach of the peace or some use of force apparently served more as a device to justify judicial action than as an indication of the criminal nature of the defendant's conduct. In the late fourteenth century, Parliament adopted criminal statutes prohibiting forcible entry on real property. This legislative scheme was further developed in the next two and a half centuries, primarily to provide for return of possession and to prohibit forcible detainers (refusals to leave).

In the first half of the eighteenth century a series of English cases explicitly recognized for the first time the existence of the common law crime of criminal trespass. The lateness of this development is apparently explainable by a variety of factors: the existence of civil remedies for the tort of trespass; the availability of the legislation concerning forcible entry and detainer, which provided both a civil remedy and criminal sanctions; and the failure to remedy certain conditions—such as the general weakness of the executive branch of government and thus of the means for prosecuting he crime—until the sixteenth century.

The recognition of the crime of criminal trespass was complete by the time of the American Revolution, and the individual states adopted the common law crime of criminal trespass. They also adopted the prohibition of forcible entry and detainer, either as a part of a broadly defined common law or in statutory provisions.