Trespass

Abstract

This chapter is concerned with the writ of trespass vi et armis, available for wrongs committed ‘with force and arms and against the king’s peace’. The first part explores the meaning of this phrase, and reveals how in some cases it may have been extended by fiction. The second part shows what defences could be raised by special pleading. Justifications could be specially pleaded, but the few attempts to plead lack of fault failed because the absence of fault was not a justification. In 1466 it was held, after earlier uncertainty, that intention was irrelevant. However, the cases do not suggest that liability was strict. Unavoidable accident was a defence in principle, though it amounted to Not Guilty and was therefore a matter entirely for the jury. Attempts to frame special pleas of accident all failed, but the discussions which they occasioned throw light on what the underlying law was thought to be.