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fendant, therefore removed them, &c., doing no unnecessary damage.
Such being the tenant's prospect of redress, if he resort to an action, what will be the result of his prosecuting his landlord criminally, by an indictment of forcible entry, either under the statute of forcible entry or at common law ?
Nothing can well be clearer than that a tenant at sufferance has not such an estate as is protected by any of the statutes ‘ of forcible entry. He has a bare wrongful possession, and his estate is, therefore, inferior even to a tenancy at will. Co. Lit. 576. 3 Bac. Abr. title Porcible Entry. Hawkins's P. C. c. 64. The Queen v. Griffith, 3 Sal. 169. Rex v. Bathurst, Sayer 225. Rex v. Wannop, Sayer 142. In this last case, the objection to the indictment was, that it did not therein appear what estate the person expelled had in the premises. And by the court, “it is absolutely necessary this should appear; otherwise it will be uncertain whether any one of the statutes relative to forcible entries does extend to the estate from which the expulsion was. The 5 R. 2. c. 7. the 15 R. 2. c. 2. and the 8 H. 6. c. 9. do only extend to freehold estates; and the 21 Jac. 1. c. 15. does only extend to estates holden by tenants for years, tenants by copy of court roll, tenants by elegit, statute-merchant, and statute-staple.”
But, on the other hand, it seems that a tenant whose term is expired, holding over by force after demand of possession, is guilty of a forcible detainer, and liable under these same statutes. Snig v. Shirton, Cro. Jac. 199.
If the landlord, therefore, in the case we have proposed, be liable at all, it probably is only to an indictment for a forcible entry at common law. But even if this course were adopted, his liability would be by no means so clear as is commonly believed. As a general rule, it is certainly true, that the preservation of public peace being a consideration of paramount importance in the eye of the law, it will not tolerate such modes of asserting a right of property, as are calculated to produce a breach of the peace. True also, there are several dicta of Lord Kenyon and other modern judges (and the general soundness and discretion of Lord Kenyon’s observations, even when extrajudicial, entitle these dicta to the highest consideration), to the effect that a landlord entering with a strong hand to dispossess by force his tenant holding over unlawfully, may be indicted for a forcible entry at common law. But, on the other hand, it is material to observe, that in a case, apparently the only one wherein an indictment at common law, for a forcible entry, was ever brought directly under the consideration of that great judge, he solicitously guarded the judgment which he then delivered against any interpretation which could affect the present question. The case alluded to is that of Rex v. Wilson, 8 T. R. 357. a case sometimes supposed, but incorrectly so, to establish the landlord's liability. The principal count in that indictment stated, that the defendants, &c. with force of arms, unlawfully, injuriously, and with a strong hand, entered into a certain mill, &c. being in the possession of one Lewis, and him the said Lewis, from the possession of the said premises, unlawfully, injuriously, and with a strong hand, expelled and put out, &c. against the peace, &c. To this there was a demurrer, and, upon argument, judgment was given for the crown. In delivering judgment, Lord Kenyon expressed himself, generally, that, in determining that this count might be supported, effect would be given to a part of our law that ought to be preserved; namely, that no one shall, with force and violence, assert his own title. But, upon maturer consideration, he took the opportunity on a subsequent day in the term, of saying, “We wish that the grounds of our opinion may be understood. We do not in the least doubt the propriety of the decision in this case the other day, but we desire that it may not be considered as a precedent in other cases to which it does not apply. Perhaps some doubt may hereafter arise respecting what Mr. Serjeant Hawkins says, that, at common law, the party may enter with force into that to which he has a legal title. But without giving any opinion concerning that dictum one way or the other, but leaving it to be proved or disproved whenever that question shall arise, all that we wish to say is, that our opinion in this case leaves that question untouched, it appearing by this indictment that the defendants unlawfully entered, and therefore the court cannot intend that they had any title.” The passage in Hawkins here alluded to, is; “ It seems that, at the common law, a man disseised of lands or tenements (if he
could not prevail by fair means) might lawfully regain the
possession thereof by force, unless he were put to a necessity of bringing his action, by having neglected to enter in due time.” This, however, is far from being the dictum of Hawkins alone : much older authorities support the same doctrine. In Lamb, Justice of the Peace, tit. Forcible Entry, the position is laid down in almost the same terms, and the year books cited as authorities. Bracton has an elaborate chapter, De primo remedio post disseisinam,” fol. 162 b. and to ascertain within what time a party disseised may reinstate himself by force. Dalt. c. 76. and Cromp. 70 a, b. take the same view of this question, and so do Reeves, vol. ii. 202. and Blackstone, vol. iv. 148. whose opinions are not altogether destitute of weight on a point of this nature.
It may also be urged, that there is a strong though silent stream of precedent in favour of this position, no indictment at common law appearing to have been ever instituted (at least with success) in the case we are considering: and, moreover, that it receives some countenance from the statute 5 R. 2. which otherwise would have been altogether idle and inoperative. Much stress, however, is not to be laid on these last circumstances; but it is unquestionably very difficult to reconcile the modern dicta we have mentioned, with this very general consent of ancient writers, the other way. There is no denying that the early text-writers must have been better acquainted than we can possibly pretend to be, with the law as it stood in the days in which they flourished; that what was law at any former period of our history, must be law still, unless statutable enactments or adverse decisions have intervened ; that no such statutable enactments or adverse judicial decisions have intervened; and that, therefore, a court of justice would find some difficulty in deciding an indictment to be maintainable at common law upon an entry pursued with no more force than sufficient to re-establish a party having title to enter, in his rightful possession of the premises.
But, on the other hand, the numerous recent dicta that are opposed to this conclusion, the altered constitution of society, the distinction that may be taken between the case of a disseisin (to which alone the ancient dicta may be contended to have been directed) and that of a wrongful holding over upon an entry originally lawful, and, above all, the existence of the general principle, mentioned in the outset, that private rights are not to be asserted at the hazard of endangering public peace, together with the temper of the courts to give effect in every conjuncture to a rule so conducive to tranquillity, all these circumstances in co-operation, render it not improbable that such an indictment would, in the present day, be held sustainable.
When we recollect, however, that a tenant so dispossessed, could obtain, by indicting his landlord, no restitution of possession, and must be put to considerable expense, without any equivalent or compensation ; and also, that the punishment inflicted upon the landlord (supposing the indictment to lie) would probably, unless in an outrageous case, be merely nominal ; this part of the question will not appear very likely to be soon decided.
In conclusion, it may be useful to remark, that, if the landlord can obtain possession without violence, during the absence though only temporary of the tenant and his family, there would seem to be no pretence for calling the entry a forcible one.
With respect to what will constitute a forcible entry, there must exist a close analogy between forcible entries under the statutes and forcible entries at common law ; and it has been held, with regard to the former, that if a man open the door with a key, or enter by an open window, or if the entry be without the semblance of force, as by coming in peaceably, enticing the owner out of possession, and afterwards excluding him by shutting the door, without other force - these will not be forcible entries. But for the various shades by which cases of this sort may be distinguished, we must refer our readers to the express treatises on the subject, in Burn's J. P., Hawkins's P. C., Comyn's Dig., and Bacon's Abr.
ON THE CUSTOM OF MAKING ALLOWANCES OUT OF THE POORRATE TO ABLE-BODIED LABOURERS IN INCREASE OF THEIR WAGES.
There are now depending in parliament several bills for the amendment and alteration of the poor laws. It is not our intention at present to give any detail of their various provisions, or of the different plans of improvement suggested by different members of the legislature. But there is one part of these laws to which we are anxious that the public attention should be more generally directed. It is well known that a system has grown up, in several of the southern counties, of paying a certain portion of the wages of agricultural labourers out of the
poor rates. There are, it seems, about sixteen counties over which this practice has spread, and in these it is completely established. The quantum to be paid to each labourer by the parish is settled and well known both by the parish officer and the pauper, and in most parishes it is contingent on the number of children which the pauper has. The tendency of this abuse of the poor laws is self evident : in fact, those counties in which the abuse exists are separable from others in which it does not exist, by a line, on one side of which are high wages and low rates, on the other low wages and high rates. 1
This important branch of the poor law system was brought under the notice of the House of Commons by Mr. Slaney, on the 17th of April last. On that day he moved for leave to bring in a bill to declare and amend the existing laws relating to able-bodied paupers. His motion embraced other objects connected with the administration of the poor laws; but to those it is not our intention at present to advert. The one which we have mentioned above is the subject of the following remarks. We shall limit ourselves even more closely; for it is to one part only of that subject, to which we mean to confine ourselves. Remarkable as is that state of things to which we have just alluded, and important as
1 Mr. Slaney's speech in the House of Commons, 17th of April.