instance, an innkeeper might be summoned to show why, whereas
(cum) by the custom of England he had a duty to look after his guests’
possessions, he had allowed the plaintiff’s horse to be led away.^248
Alongside writs of trespass in the Registerand sharing with them the
‘summons to show why’ (summone N ostensurus quare) formula of
actions for tort, appeared writs of Deceit and Assumpsit, both con-
cerned with the breaking of agreements, either fraudulently or by
omission or positive negligence, which had previously not been action-
able in the absence of a written deed of covenant. Deceit, like that
alleged in 1387 against a man who sold a horse which died within days
of his warranting it to be ‘sound and suitable’ did not even need the
backing of contra pacem domini regis.^249 Assumpsitwas a way of gain-
ing damages from negligent professional men: an oculist who was said
in 1329 to have undertaken (assumpsit) to heal a man’s sight with herbs
and caused him to lose it, or a farrier who was alleged in 1372 to have
injured a horse with a nail but not maliciously or vi et armis.^250
The notion of trespasses (transgressiones) against the king’s peace
also added a new dimension to the criminal law. When the eyre ‘for all
pleas’ could not cope with the stream of complaints of trespasses ‘by
officials and anyone else’, responsibility for punishing them had to be
given to special commissions of ‘oyer and terminer’, capped by the
occasional, draconian, commissions of trailbaston, and then to the new
county justices of the peace.^251 The fourteenth century was a time of
continuous judicial experiment for the maintenance of order in the
localities amid the disturbance caused by wars in France and Scotland,
plague, and demographic crisis. Though at first gradual and hesitant,
the raising of the military custodes pacisof the mid-thirteenth century
to the status of justices, their powers repeatedly extended by parliament
and their supervision a major responsibility of the king’s ministers, was
a vital element in the making of the English state.^252 It was also a
demonstration of the enduring potency of the idea of peace in the
development of government, which would be shown again in early
seventeenth-century Scotland by King James VI’s introduction of
justices of the peace at a time when he was striving to curb the heritable
jurisdictions of the lords, and in 1791 by the revolutionaries’ creation of
juges de paixfor every city and canton of France, after the abolition of
the franchises of the clergy and nobility.^253
244 Legal Ordering of ‘the State of the Realm’
(^248) Baker and Milsom, Sources of English Legal History: Private Law to 1750, 338 ff.,
552–7.^249 Ibid.506–7.
(^250) Ibid.340–2.
(^251) EHDiii. 397–8; Harding, The Law Courts of Medieval England, 86 ff.
(^252) A. J. Musson, Public Order and Law Enforcement: the Local Administration of
Criminal Justice 1294–1330(Woodbridge, 1996).
(^253) For justices of the peace in Scotland, see the introduction to The Minutes of the Justices