Commentaries on the Laws of England (1765-1769)
Sir William Blackstone
Of the Redress of Private Wrongs by the Mere Act of the Parties
AT the opening of these commentaries1 municipal law was in general defined to be, “a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong.”2 From hence therefore it followed, that the primary objects of the law are the establishment of rights, and the prohibition of wrongs. And this occasioned3 the distribution of these collections into two general heads; under the former of which we have already considered the rights that were defined and established, and under the latter are now to consider the wrongs that are forbidden and redressed, by the laws of England.
IN the prosecution of the first of these inquiries, we distinguished rights into two sorts: first, such as concern or are annexed to the persons of men, and are then called jura personarum, or the rights of persons; which, together with the means of acquiring and losing them, composed the first book of these commentaries: and, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are called jura rerum, or the rights of things; and these, with the means of transferring them from man to man, were the subject of the second book. I am now therefore to proceed to the consideration of wrongs; which for the most part convey to us an idea merely negative, as being nothing else but a privation of right. For which reason it was necessary, that, before we entered at all into the discussion of wrongs, we should entertain a clear and distinct notion of rights: the contemplation of what is jus [right] being necessarily prior to what may be termed injuria [injury], and the definition of fas [lawful] precedent to that of nefas [unlawful].
WRONGS are divisible into two sorts or species; private wrongs, and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals; and are thereupon frequently termed civil injuries: the latter are a breach and violation of public rights and duties, which affect the whole community, considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanors. To investigate the first of these species of wrongs, with their legal remedies, will be our employment in the present book; and the other species will be reserved till the next or concluding volume.
THE more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined, and wrongs prohibited. This remedy is therefore principally to be sought by application to these courts of justice; that is, by civil suit or action. for which reason our chief employment in this volume will be to consider the redress of private wrongs, by suit or action in courts. But as some injuries are of such a nature, that they furnish or require a more speedy remedy, than can be had in the ordinary forms of justice, there is allowed in those cases an extrajudicial or eccentric kind of remedy; of which I shall first of all treat, before I consider the several remedies by suit: and, to that end, shall distribute the redress of private wrongs into three several species; first, that which is obtained by the mere act of the parties themselves; secondly, that which is effected by the mere act and operation of law; and, thirdly, that which arises from suit or action in courts; which consists in a conjunction of the other two, the act of the parties cooperating with the act of law.
AND, first, of that redress of private injuries, which is obtained by the mere act of the parties. This is of two sorts; first, that which arises from the act of the injured party only; and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order.
OF the first sort, or that which arises from the sole act of the injured party, is,
I. THE defense of one’s self, or the mutual and reciprocal defense of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray.4 For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defense therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defense and prevention; for then the defender would himself become an aggressor.
II. RECAPTION or reprisal is another species of remedy by the mere act of the party injured. This happens, when any one has deprived another of his property in goods or chattels personal, or wrongfully detains one’s wife, child, or servant; in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, wherever he happens of find them; so ti be not in a riotous manner, or attended with a breach of the peace.5 The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; and his wife, if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again, without force or terror, the law favors and will justify his proceeding. But, as the public peace is a superior consideration to any one man’s private property; and as, if individual were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided, that this natural right of recaption shall never be exerted, where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use: but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen;6 but must have recourse to an action at law.
III. AS recaption is a remedy given to the party himself, for an injury to his personal property, so, thirdly, a remedy of the same kind for injuries to real property is by entry on lands and tenements, when another person without any right has taken possession thereof. This depends in some measure on like reasons with the former; and, like that too, must be peaceable and without force. There is some nicety required to define and distinguish the cases, in which such entry is lawful or otherwise: it will therefore be more fully considered in a subsequent chapter; being only mentioned in this place for the sake of regularity and order.
IV. A FOURTH species of remedy by the mere act of the party injured, is the abatement, or removal, of nuisances. What nuisances are, and their several species, we shall find a more proper place to inquire under some of the subsequent divisions. At present I shall only observe, that whatsoever unlawfully annoys or does damage to another is a nuisance; and such nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot in the doing of it.7 If a house or wall is erected so near to mine that it stops my ancient lights which is a private nuisance, I may enter my neighbor’s land, and peaceably pull it down.8 Or if a new gate be erected across the public highway, which is a common nuisance, any of the king’s subjects passing that way may cut it down, and destroy it.9 And the reason why the law allows this private and summary method of doing one’s self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy; and cannot wait for the slow progress of the ordinary forms of justice.
V. A FIFTH case, in which the law allows a man to be his own avenger, or to minister redress to himself, is that of distraining cattle or goods for nonpayment of rent, or other duties; or, distraining another’s cattle damage-feasant, that is, doing damage, or trespassing, upon his land. The former intended for the benefit of landlords, to prevent tenants from secreting or withdrawing their effects to his prejudice; the latter arising from the necessity of the thing itself, as it might otherwise be impossible at a future time to ascertain, whose cattle they were that committed the trespass or damage.
AS the law of distresses is a point of great use and consequence, I shall consider it with some minuteness, by inquiring, first, for what injuries a distress may be taken; secondly, what things may be distrained; and, thirdly, the manner of taking, disposing of, and avoiding distresses.
1. AND, first, it is necessary to premise, that a distress,10 districtio, is the taking of a personal chattel out of the possession of the wrongdoer into the custody of the party injured, to procure a satisfaction for the wrong committed. 1. The most usual injury, for which a distress may be taken is that of nonpayment of rent. It was observed in a former volume11 that distresses were incident by the common law to every rent-service, and by particular reservation to rent-charges also; but not to rent-seck, till the statute 4 Geo. II. c. 28. extended the same remedy to all rents alike, and thereby in effect abolished all material distinction between them. So that now we may lay it down as an universal principle, that a distress may be taken for any kind of rent in arrear; the detaining whereof beyond the day of payment is an injury to him that is entitled to receive it. 2. For neglecting to do suit to the lord’s court,12 or other certain personal service,13 the lord may distrain, of common right. 3. For amercements in a court-leet a distress may be had of common right, but not for amercements in a court-baron, without a special prescription to warrant it.14 4. Another injury, for which distresses may be taken, is where a man finds beasts of a stranger wandering in his grounds damage-feasant; that is, doing him hurt or damage, by treading down his grass, or the like; in which case the owner of the soil may distrain them, till satisfaction be made him for the injury he has thereby sustained. 5. Lastly, for several duties and penalties inflicted by special acts of parliament, (as for assessments made by commissioners of sewers,15 or for the relief of the poor16) remedy by distress and sale is given; for the particulars of which we must have recourse to the statutes themselves: remarking only, that such distresses17 are partly analogous to the ancient distress at common law, as being repleviable and the like; but more resembling the common law process of execution, by seizing and selling the goods of the debtor under a writ of fieri facias [cause to be made], of which hereafter.
2. SECONDLY; as to the things which may be distrained, or taken in distress, we may lay it down as a general rule, that all chattels personal are liable to be distrained, unless particularly protected or exempted. Instead therefore of mentioning what things are distrainable, it will be easier to recount those which are not so, with the reason of their particular exemptions.18 And, 1. As every thing which is distrained is presumed to be the property of the wrongdoer, it will follow that such things, wherein no man can have an absolute and valuable property (as dogs, cats, rabbits, and all animals ferae naturae [wild nature]) cannot be distrained. Yet if deer (which are ferae naturae) are kept in a private enclosure for the purpose of sale or profit, this so far changes their nature by reducing them to a kind of stock or merchandise, that they may be distrained for rent.19 2. Whatever is in the personal use or occupation of any man, is for the time privileged and protected from any distress; as an ax with which a man is cutting wood, or a horse while a man is riding him. But horses, drawing a cart, may (cart and all) be distrained for rent-arrere; and also if a horse, though a man be riding him, be taken damage-feasant, or trespassing in another’s grounds, the horse notwithstanding his rider may be distrained and led away to the pound.20 3. Valuable things in the way of trade shall not be liable to distress. As a horse standing in a smith’s shop to be shoed, or in a common inn; or cloth at a tailor’s house; or corn sent to a mill, or a market. For all these are protected and privileged for the benefit of trade; and are supposed in common presumption not to belong to the tenant or a stranger, are distrainable by him for rent: for otherwise a door would be opened to infinite frauds upon the landlord; and the stranger has his remedy over by action on the case against the tenant, if by the tenant’s default the chattels are distrained, so that he cannot render them when called upon. With regard to a stranger’s beasts which are found on the tenant’s land, the following distinctions are however taken; It they are put in by consent of the owner of the beasts, they are distrainable immediately afterwards for rent-arrere by the landlord.21 So also if the stranger’s cattle break the fences, and commit a trespass by coming on the land, they are distrainable immediately by the lessor for his tenant’s rent, as a punishment to the owner of the beasts for the wrong committed through his negligence.22 But if the lands were not sufficiently fenced so as to keep out cattle, the landlord cannot distrain them, till they have been levant and couchant (levantes et cubantes) on the land; that is, have been long enough there to have laid down and rose up to feed; which in general is held to be one night at least: and then the law presumes, that the owner may have notice, whither his cattle have strayed, and it is his own negligence not to have taken them away. Yet, if the lessor or his tenant were bound to repair the fences and did not, and thereby the cattle escaped into their grounds without the negligence or default of the owner; in this case, though the cattle may have been levant and couchant, yet they are not distrainable for rent, till actual notice is given to the owner that they are there, and he neglects to remove them:23 for the law will not suffer the landlord to take advantage of his own or his tenant’s wrong. 4. There are also other things privileged by the ancient common law; as a man’s tools and utensils of his trade, the ax of a carpenter, the books of a scholar, and the like: which are said to be privileged for the sake of the public, because the taking them away would disable the owner from serving the commonwealth in his station. So, beasts of the plow, averia carucae, and sheep, are privileged from distresses at common law;24 while goods or other sort of beats, which Bracton calls catalla otiosa [chattels not privileged] may be distrained. But, as beasts of the plow may be taken in execution for debt, so they may be for distresses by statute, which partake of the nature of executions.25 And perhaps the true reason, why these and the tools of a man’s trade were privileged at the common law, was because the distress was then merely intended to compel the payment of the rent, and not as a satisfaction for its nonpayment: and therefore, to deprive the party of the instruments and means of paying it, would counteract the very end of the distress.26 5. Nothing shall be distrained for rent, which may not be rendered again in as good plight as when it was distrained: for which reason milk, fruit, and the like, cannot be distrained; a distress at common law being only in the nature of a pledge or security, to be restored in the same plight when the debt is paid. So, anciently, sheaves or shocks of corn could not be distrained, because some damage must needs accrue in their removal: but a cart loaded with corn might; as that could be safely restored. But now by statute 2 W. & M. c. 5. corn in sheaves or cocks, or loose in the straw, or hay in barns or ricks, or otherwise, may be distrained as well as other chattels. 6. Lastly, things fixed to the freehold may not be distrained; as caldrons, windows, doors, and chimneypieces: for they favor of the realty. For this reason also corn growing could not be distrained; till the statute 11 Geo. II. c. 19. empowered landlords to distrain corn, grass or other products of the earth, and to cut and gather them when ripe.
LET us next consider, thirdly, how distresses may be taken, disposed of, or avoided. And, first, I must premise, that the law of distresses is greatly altered within a few years last past. Formerly they were looked upon in no other light than as a mere pledge or security, for payment of rent or other duties, or satisfaction for damage done. And so the law still continues with regard to distresses of beasts taken damage-feasant, and for other causes, not altered by act of parliament; over which the distrainor has no other power than to retain them till satisfaction is made. But distresses for rent-arrere being found by the legislature to be the shortest and most effectual method of compelling the payment of such rent, many beneficial laws for this purpose have been made in the present century; which have much altered the common law, as laid down in our ancient writers.
IN pointing out therefore the methods of distraining, I shall in general suppose the distress to be made for rent; and remark, where necessary, the differences between such distress, and one taken for other causes.
IN the first place then, all distresses must be made by day, unless in the case of damage-feasant; an exception being there allowed, lest the beasts should escape before they are taken.27 And, when a person intends to make a distress, he must, by himself or his bailiff, enter on the demised premises; formerly during the continuance of the lease, but now28 he may distrain within six months after the determination of such lease whereon rent is due. If the lessor does not find sufficient distress on the premises, formerly he could resort no where else; and therefore tenants, who were knavish, made a practice to convey away their goods and stock fraudulently from the house or lands demised, in order to cheat their landlords. But now29 the landlord may distrain any goods of his tenant, carried off the premises clandestinely, wherever he finds them within thirty days after, unless they have been bona fide [good faith] sold for a valuable consideration: and all persons privy to, or assisting in, such fraudulent conveyance, forfeit double the value to the landlord. The landlord may also distrain the beasts of his tenant, feeding upon any commons or wastes, appendant or appurtenant to the demised premises. The landlord might not formerly break open a house, to make a distress, for that is a breach of the peace. But when he was in the house, it was held that he might break open an inner door:30 and now31 he may, by the assistance of the peace officer of the parish, break open in the day time any place, locked up to prevent a distress; oath being first made, in case it be a dwelling-house, of a reasonable ground to suspect that goods are concealed therein.
WHERE a man is entitled to distrain for an entire duty, he ought to distrain for the whole at once; and not for part at one time, and part at another.32 But if he distrains for the whole, and there is not sufficient on the premises, or he happens to mistake in the value of the thing distrained, and so takes an insufficient distress, he may take a second distress to complete his remedy.33
DISTRESSES must be proportioned to the thing distrained for. By the statute of Marlbridge, 52 Hen. III. c. 4. if any man takes a great or unreasonable distress, for rent-arrere, he shall be heavily amerced for the same. As if34 the landlord distrains two oxen for twelvepence rent; the taking of both is an unreasonable distress; but, if there were no other distress nearer the value to be found, he might reasonably have distrained one of them. But for homage, fealty, or suit, as also for parliamentary wages, it is said that no distress can be excessive.35 For as these distresses cannot be sold, the owner, upon making satisfaction, may have his chattels again. The remedy for excessive distresses is by a special action on the statute of Marlbridge; for an action of trespass is not maintainable upon this account, it being no injury at the common law.36
WHEN the distress is thus taken, the next consideration is the disposal of it. For which purpose the things distrained must in the first place be carried to some pound, and there impounded by the taker. But, in their way thither, they may be rescued by the owner, in case the distress was taken without cause, or contrary to law: as if no rent be due; if they were taken upon the highway, or the like; in these cases the tenant may lawfully make rescue.37 But if they be once impounded, even though taken without any cause, the owner may not break the pound and take them out; for they are then in the custody of the law.38
A POUND (parcus, which signifies any enclosure) is either pound-overt, that is, open overhead; or pound-covert, that is, close. By the statute 1 & 2 P. & M. c. 12. no distress of cattle can be driven out of the hundred where it is taken, unless to a pound-overt within the same shire; and within three miles of the place where it was taken. This is for the benefit of the tenants, that they may know where to find and replevy the distress. And by statute 11 Geo. II. c. 19. which was made for the benefit of landlords, any person distraining for rent may turn any part of the premises, upon which a distress is taken, into a pound pro hac vice [for this time], for securing of such distress. If a live distress, of animals, be impounded in a common pound-overt, the owner must take notice of it at his peril; but if in any special pound-overt, so constituted for this particular purpose, the distrainor must give notice to the owner: and, in both these cases, the owner, and not the distrainor, is bound to provide the beasts with food and necessaries. But if they be put in a pound-covert, as in a stable or the like, the landlord or distrainor must feed and sustain them.39 A distress of household-goods, or other dead chattels, which are liable to be stolen or damaged by weather, ought to be impounded in a pound-covert, else the distrainor must answer for the consequences.
WHEN impounded, the goods were formerly, as was before observed, only in the nature of satisfaction; and upon this account it has been held,40 that the distrainor is not at liberty to work or use a distrained beast. And thus the law still continues with regard to beasts taken damage-feasant, and distresses for suit or services; which must remain impounded, till the owner makes satisfaction, or contests the right of distraining, by replevying the chattels. To replevy (replegiare, that is, to take back the pledge) is, when a person distrained upon applies to the sheriff or his officers, and has the distress returned into his own possession; upon giving good security to try the right of taking it in a suit at law, and if that be determined against him, to return the cattle or goods once more into the hands of the distrainor. This is called a replevin, or which more will be said hereafter. At present I shall only observe, that, as a distress is at common law only in nature of a security for the rent or damages done, a replevin answers the same end to the distrainor as the distress itself; since the party replevying gives security to return the distress, if the right be determined against him.
THIS kind of distress, though it puts the owner to inconvenience, and is therefore a punishment to him, yet, if he continues obstinate and will make no satisfaction or payment, it is no remedy at all to the distrainor. But for a debt due to the crown, unless paid within forty days, the distress was always saleable at the common law.41 And for an amercement imposed at a court-leet, the lord may also sell the distress:42 partly because, being the king’s court of record, its process partakes of the royal prerogative;43 but principally because it is in the nature of an execution to levy a legal debt. And, so in the several statute-distresses, before-mentioned, which are also in the nature of executions, the power of sale is likewise usually given, to effectuate and complete the remedy. And, in like manner, by several acts of parliament,44 in all cases of distress for rent, if the tenant or owner do not, within five days after the distress is taken, and notice of the cause thereof given him, replevy the same with sufficient security; the distrainor, with the sheriff or constable, shall cause the same to be appraised by two sworn appraisers, and sell the same towards satisfaction of the rent and charges; rendering the overplus, if any, to the owner himself. And, by this means, a full and entire satisfaction may now be had for rent in arrerre, by the mere act of the party himself, viz. by distress, the remedy given at common law; and sale consequent thereon, which is added by act of parliament.
BEFORE I quit this article, I must observe, that the many particulars which attend the taking of a distress, used formerly to make it a hazardous kind of proceeding: for, if any one irregularity was committed, it vitiated the whole, and made the distrainors trespassers ab initio [from the beginning].45 But now by the statute 11 Geo. II. c. 19. it is provided, that, for any unlawful act done, the whole shall not be unlawful, or the parties trespassers ab initio; but that the party grieved shall only have an action for the real damage sustained; and not even that, if tender of amends is made before any action is brought.
VI. THE seizing of heriots, when due on the death of a tenant, is also another species of self-remedy; not much unlike that of taking cattle or goods in distress. As for that division of heriots, which is called heriot-service, and is only a species of rent, the lord may distrain for this, as well as seize: but for heriot-custom (which Sir Edward Coke says,46 lies only in prender, and not in render) the lords may seize the identical thing itself, but cannot distrain any other chattel for it.47 The like speedy and effectual remedy, of seizing, is given with regard to many things that are said to lie in franchise; as waifs, wrecks, estrays, deodands, and the like; all which the person entitled thereto may seize, without the formal process of a suit or action. Not that they are debarred of this remedy by action; but have also the other, and more speedy one, for the better asserting their property; the thing to be claimed being frequently of such a nature, as might be out of the reach of the law before any action could be brought.
THESE are the several species of remedies, which may be had by the mere act of the party injured. I shall, next, briefly mention such as arise from the joint act of all the parties together. And these are only two, accord, and arbitration.
I. ACCORD is a satisfaction agreed upon between the party injuring and the party injured; which, when performed, is a bar of all actions upon this account. As if a man contract to build a house or deliver a horse, and fail in it; this is an injury, for which the sufferer may have his remedy by action; but if the party injured accepts a sum of money, or other thing, as a satisfaction, this is a redress of that injury, and entirely takes away the action.48 By several late statutes, particularly 11 Geo. II. c. 19. in case of irregularity in the method of distraining; and 24 Geo. II. c. 24. in case of mistakes committed by justices of the peace; even tender of sufficient amends to the party injured is a bar of all actions, whether he thinks proper to accept such amends or no.
II. ARBITRATION is where the parties, injuring and injured, submit all matters in dispute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators; who are to decide the controversy: and if they do not agree, it is usual to add, that another person be called in as umpire, (imperator) to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award. And thereby the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of justice.49 But the right of real property cannot thus pass by a mere award:50 which subtlety in point of form (for it is now reduced to nothing else) had its rise from feudal principles; for, if this had been permitted, the land might have been aliened collusively without the consent of the superior. Yet doubtless an arbitrator may now award a conveyance or a release of lands; and it will be a breach of the arbitration-bond to refuse compliance. For, though originally the submission to arbitration used to be by word, or by deed, yet both of these being revocable in their nature, it is now become the practice to enter into mutual bonds, with condition to stand to the award or arbitration of the arbitrators or umpire therein named.51 And experience having shown the great use of these peaceable and domestic tribunals, especially in settling matters of account, and other mercantile transactions, which are difficult and almost impossible to be adjusted on a trial at law; the legislature has now established the use of them, as well in controversies where causes are depending, as in those where no action is brought, and which still depend upon the rules of the common law: enacting, by statute 9 & 10 W. III. c. 15. that all merchants and others, who desire to end any controversy, (for which there is no other remedy but by personal action or suit in equity) may agree, that their submission of the suit to arbitration or umpirage shall be made a rule of any of the king’s courts of record: and, after such rule made, the parties disobeying the award shall be liable to be punished, as for a contempt of the court; unless such award shall be set aside, for corruption or other misbehavior in the arbitrators or umpire, proved on oath to the court, within one term after the award is made. And, in consequence of this statute, it is now become a considerable part of the business of the superior courts, to set aside such awards when partially or illegally made; or to enforce their execution, when legal, by the same process of contempt, as is awarded for disobedience to such rules and orders as are issued by the courts themselves.