The contra pacem in the writ of trespass was no doubt inserted to lay a foundation for the king’s writ; but there seems to be no reason to attribute a similar purpose to vi et armis, or cum vi sua, as it was often put.  Glanvill says that wounds are within the sheriff’s jurisdiction, unless the appellor adds a charge of breach of the king’s peace. 2 Yet the wounds are given vi et armis as much in the one case as in the other.  Bracton says that the lesser wrongs described by him belong to the king’s jurisdiction, “because they are sometimes against the peace of our lord the king,” 3 while, as has been observed, they were supposed to be always committed intentionally.  It might even perhaps be inferred that the allegation contra pacem was originally material, and it will be remembered that trespasses formerly involved the liability to pay a fine to the king. 4

If it be true that trespass was originally confined to intentional wrongs, it is hardly necessary to consider the argument drawn from the scope of the general issue.  In form it was a mitigation of the strict denial de verbo in verbum of the ancient procedure, to which the inquest given by the king’s writ was unknown. 5 The strict form seems to have lasted in England some time after the trial of the issue by recognition was introduced. 6 When [102] a recognition was granted, the inquest was, of course, only competent to speak to the facts, as has been said above. 1 When the general issue was introduced, trespass was still confined to intentional wrongs.

We may now take up the authorities.  It will be remembered that the earlier precedents are of a date when the assize and jurata had not given place to the modern jury.  These bodies spoke from their own knowledge to an issue defined by the writ, or to certain familiar questions of fact arising in the trial of a cause, but did not hear the whole case upon evidence adduced.  Their function was more limited than that which has been gained by the jury, and it naturally happened that, when they had declared what the defendant had done, the judges laid down the standard by which those acts were to be measured without their assistance.  Hence the question in the Year Books is not a loose or general inquiry of the jury whether they think the alleged trespasser was negligent on such facts as they may find, but a well-defined issue of law, to be determined by the court, whether certain acts set forth upon the record are a ground of liability.  It is possible that the judges may have dealt pretty strictly with defendants, and it is quite easy to pass from the premise that defendants have been held trespassers for a variety of acts, without mention of neglect, to the conclusion that any act by which another was damaged will make the actor chargeable.  But a more exact scrutiny of the early books will show that liability in general, then as later, was [103] founded on the opinion of the tribunal that the defendant ought to have acted otherwise, or, in other words, that he was to blame.