the appellee, as the appellant was required to do, was an unattractive
way of seeking revenge for any but the most serious felonies like
murder and arson, and the courts punished attempts to use appeals
simply to force opponents to come to terms and pay damages. But
plaintiffs saw that when their ‘appeals of felony’ were disallowed, the
judges were nevertheless obliged to take a verdict from a jury on the
accused’s guilt or innocence of ‘trespass against the king’s peace’ (trans-
gressio contra pacem domini regis); moreover, the inquiries into com-
plaints against officials would have taught injured parties—or their
attorneys—that this obligation might be activated by a simple complaint
(querela) that a wrong had been committed in some aggravated circum-
stance—by night (noctanter), or in breach of a special protection or
liberty granted by the king, or on the king’s high road, or simply and
most commonly ‘with force and arms’ (vi et armis). In the middle of the
thirteenth century, actions of trespass brought by writ start to turn up,
and the first writs of trespass take their place in registers of writs.
Significantly they do so immediately after writs De Minis, ordering
sheriffs to confer the king’s special peace on threatened persons, an
essential mechanism in an age of abuses of power and protection
rackets.^246
The writ of trespass was important both because it placed the award
of damages for personal injury alongside the judging of entitlement to
land as a major purpose of the common law, and because the manner
of its origin set few limits on the kinds of injuries it would cover. The
developed action of trespass simply required that the plaintiff should
allege damage inflicted on him vi et armis et contra pacem domini regis
and the defendant deny vim et injuriam(‘force and tort’). Rather than a
substantive concept, trespass was a method of labelling cases in order to
bring before the king’s court grievances perceived by a far wider section
of society than the landowning classes. The first civil actions of trespass
were broadly distinguished into cases of breaking into the plaintiff’s
property (quare clausum fregit), appropriation of his goods (de bonis
asportatis), and assault and battery (quare ipsum insultavit, verberavit
et maletractavit).^247 But the variety of complaints made it necessary for
the royal chancery to devise further writs of ‘trespass on the case’ in
which special circumstances might be recited in ‘cum-clauses’ and the
allegation of ‘force and arms’ dropped as an obvious fiction: for
Law of injuries and public peace 243(^246) The Roll of the Shropshire Eyre of 1256, ed. Harding, pp. xxxii–lviii; Bracton on the
Laws and Customs of England, tr. Thorne, ii. 402–13, 437–8.
(^247) S. F. C. Milsom, ‘Trespass’, Law Quarterly Review, 74 (1958), 195–224, 407–36,
561–90; Select Cases of Trespass from the King’s Courts, ed. Morris S. Arnold, Selden Soc.
100, 103 (London, 1984, 1987); Robert L. Palmer, English Law in the Age of the Black Death
1348–1381(Chapel Hill and London: North Carolina UP, 1993).