*65 gular if, what every man may, or may not do, at his pleasure, the magistrate who is sworn to see the law executed, and is charged with the care of the public property and rights, is alone prohibited from doing; or if his order should vitiate an act which without it would have been lawful, or which he might have executed in person. It would be equally singular, and equally absurd, that the law should punish the magistrate for hindering Mr. Livingston from doing what itself had forbidden and would punish, and reward him with damages for having been restrained *from what they had forbidden him to do. The law makes it a duty in a bystander to lay hands on a man who is beating another in the street, and to take him off. And yet it is proposed that the same law shall punish him for taking off one who was engaged, not in beating a single individual, but in drowning a whole city and country. This is not our law; it is not the law of reason; and I am persuaded it is no part of a system emphatically called ratio scripta. If it is, let the law be produced. Until it is, we hold every man authorised to stay a wrongdoer, in the commission of a wrong, in which himself and all others are interested. Forcible entry. 2. By nature's law, every man has a right to seize and retake by force, his own property, taken from him by another, by force or fraud. Nor is this natural right among the first which is taken into the hands of regular government, after it is instituted. It was long retained by our ancestors. It was a part of their Common law, laid down in their books, recognised by all the authorities, and regulated as to certain circumstances of practice. Lambard, in his Eirenarcha. B. 2. c. 4. says, it seemeth that (before the troublesome raigne of king Richard the second,) the Common law permitted any person (which had good right or title to enter into any land,) to win the possession by force, if otherwise he could not have obtained it. For a man may see, (in Britton fo. 115.) that a certain respite of time was given to the disseisee, (according to his distance and absence,) in which it was lawful for him to gather force, armes, and his friends. and to throw the disseisor out of his wrongful possession.' Hawkins in his Pleas of the crown, and all the Abridgements and Digests of the law say the same: but, not to take it at second hand, we will recur to the earliest authorities, written while it was yet the law of the land. Fleta in the time of E. 1. writes, 'Si facta fuerit diseissina,primum et principale competit remedium quod ille qui ita disseisitus est, per se, si possit, vel sumptis viribus, vel resumptis (dum tamen sine aliquo intervallo, flagrante disseisinâ et maleficio) rejiciat spoliantem. Quem si nullo modo expellere possit, ad superioris auxilium erit recurrendum. Si autem verus possessor absens fuerit, tunc locorum distantia distinguere oportebit, secundem quod fuerit propè vel longè, quo tempore viz. scire potuit disseisinam esse factam, ut sic, allocatis ei rationabilibus dilationibus, primo die cum venerit, statim suum dejiciat disseisitorem ; qui, si primo die, non possit, in crastino, vel die tertio vel ulterius, dum tamen sine fictitiâ, hoc facere poterit, vires sibi resumendo, arma colligendo, auxiliumque amicorum convocando.' Fleta L. 4. c. 2. And Bracton L. 4. c. 6. in almost totidem verbis ; and Britton 'le premer remedie pour disseisine est al disseisi de recollier amys et force et sauns delay faire (après ceo que il le purra saver) engetter les disseisours.' Britton c. 44. 66* "If a disseisin has been committed, a first and principal remedy lies, that he who has been so disseised, by himself, if he can, or taking force, and retaking, (provided it be without any interval, the disseisin and wrong being yet flagrant,) may eject the spoliator. Whom, if he can by no means expel, resort is to be had to the assistance of a superior. But if the rightful possessor were absent, then, regard must be had to the distance of the places, according as it was near or far off, at what time, for instance, he could know that a disseisin had been committed, that so, reasonable delays being allowed him, on the first day when he comes, he may immediately eject the disseisor, which if he cannot do on the first day, he may on the morrow, or third day, or later, provided however he do it without false pretences, by taking to himself force, collecting arms, and calling in the aid of his friends.' And Bracton L. 4. c. 6. almost in the same words; and Britton says, 'The first remedy for disseisin is for the disseisee to collect his friends and force, and without delay, (after he may know of it,) to eject the disseisors.' This right, as to real property, was first restrained in England by a statute of the 5. R. 2. c. 7. which forbade entry into lands with strong hand; and another of the same reign, 15. R. 2. c. 2. authorized immediate restitution to the wrong doer, put out by forcible entry. And even at this day, in an action of trespass, for an entry, vi et armis, if the defendant makes good title, he is maintained in his possession, and the plaintiff recovers no damages for the force. Lambard 2. 4. Hawk. P. C. 1. 64. 3. And in like manner, the natural right of recaption by force still exists, as to personal goods, and the validity of their recaption. Hawk. 1. 64. 1. Kelway 92. is express. Blackstone, indeed, 3. 1. 2. limits the right of recaption to a peaceable one, not amounting to a breach of the peace; meaning, I presume, that the recaptor by force may be punished for the breach of the peace. So may the defendant in trespass for an entry vi et armis. Yet in an action of detinue for the personal thing retaken by force, the first wrong doer cannot recover it, nor damages for the recaption, any more than in the case of trespass for lands. So that to this day the law supports the right of recaption, as between the parties, although it will punish the public offence of a breach of the peace. Roman law. When this natural right was first restrained among the Romans, I am not versed enough in their laws to say. It was not by the laws of the XII tables, which continued *long their only laws. From the expression 67* of the Institute, divalibus constitutionibus,' I should infer it was first restrained by some of the Emperors, predecessors of Justinian. L. 4. t. 2. §. 2. 'Divalibus constitutionibus prospectum est, ut nemini liceat vi rapere vel rem mobilem, vel se moventem, licet suam eandem rem existimat. Quod non solum in mobilibus rebus, quæ rapi possunt, constitutiones obtinere censuerunt, sed etiam in invasionibus, quæ circa res soli fiunt.' 'By the Imperial constitutions it is provided that no one shall take by force a thing either moveable, or moving, although he considers it as his own. Which the constitutions have ordained to take place, not only in moveable things, which may be taken, but also in intrusions which are made into lands. But I believe that no nation has ever yet restrained itself in the exercise of this natural right of reseising its own possessions, or bound up its own hands in the manacles and cavils of litigation. It takes possession of its own at short hand, and gives to the private claimant a specified mode of preferring his claim. There are cases, of particular circumstance, where the sovereign, as by the English law, must institute a previous inquest: but in general cases as the present, he enters at once on what belongs to his nation. This is the law of England. Whenever the king's [i. e. the nation's] title appears of record, or a possession in law be called upon him by descent, escheat, &c., he may enter without an office found: for if his title appear any way of record, it is as good as if it were found by office and if any one enter on him, even before his entry made, he is an intruder; he cannot gain any freehold in the land, nor does he put the king to an assize or ejectment, or take away his right of entry: for he cannot be disseised but by record. Stamford. Prærogativa regis. 56. 57. Com. Dig. Prærog. D. 71. the substance of the authorities cited. What are the prescriptions of the Roman law in this case, I do not know; nor are they material but inasmuch as they may be the law of the case in Louisiana. A Spanish law before cited, p. 55. forbidding erections on the beds, or on the banks of rivers, says expressly, 'si alguno lo ficiese debe ser deribado.' If any one does it, it is to be destroyed.' And the constant practice of the Governors of demolishing such erections was the best evidence of the law we could obtain. Not skilled in their laws ourselves, we had certainly a right to consider the Governor and Cabildo as competent expositors of them, and as acting under their justification and prescription. We might reasonably think ourselves safe *in their opinions of their own law. In fact, if the immediate entry was permitted by the English law, and our own, we thought we might, à fortiori, conclude it permitted by those of the province. We had before us too the example of many of the states, and of the general government itself, which have never hesitated to re 68* Squatters. Jurisdiction in whom. move by force the Squatters and intruders on the public lands.* Indeed if the nation were put to action against every Squatter, for the recovery of their lands, we should only have lawsuits, not lands for sale. While troops are on parade, should intruders take possession of their barracks, and shut the doors, are they to remain in the open air till an action, or even a writ of forcible entry replace them in their quarters? if in the interval of a daily adjournment, intruders take possession of the capitol, may not Congress take their seats again till an inquisition and posse shall reintroduce them? let him who can, draw a line between these cases. The correct doctrine is that so long as the nation holds lands in its own possession, so long they are under the jurisdiction of no court, but by special provision. The United States cannot be sued. The nation, by its immediate representatives, administers justice itself to all who have claims upon the public property. Hence the numerous petitions which occupy so much of every session of Congress in cases which have not been confided to the courts. But when once they have granted the lands to individuals, then the jurisdiction of the courts over them commences. They fall then into the common mass of matter justiciable before the courts. If the public has granted lands to B. which were the legal property of A., A. may bring his action against B. and the courts are competent to do him justice. The moment B. attempts to take possession of A.'s lands, the writ of forcible entry, the action of trespass or ejectment, and the Chancery process, furnish him a choice of remedies. The holders of property therefore are safe against individuals by the law; and they are safe against the Nation by its own justice and all the alarm which some have endeavored to excite on this subject has been merely ad captandum populum. As if the people would not be safe in their own hands, or in When it results to Courts. * Squatters or Intruders on the public or Indian lands were repeatedly removed by the state of Virginia, before its cession to Congress, by the old Congress, (see Journ. 15 June 1785,) by the present government at various times, and, as is believed, by other individual states on the ground of natural right only. MS. Note. |