municated; and if he drew a weapon he was to have one ear cut off, or his cheek branded with the letter F.1 It is also an offence to molest the clergyman during divine service, and punishable by fine of five pounds. But if divine service is over, and he is merely collecting the offertory, this being no part of the service, any one obstructing does not offend against this particular statute, whatever other redress there may be.3

Assault to stop persons fighting.-Where persons are engaged in an affray, which in strictness of law is defined as a fight in a public place between two or more persons, to the terror of the queen's subjects, anyone of the public who is a bystander may justifiably assault one of the parties in order to cause a cessation of the fight, provided always in this, as in other cases, that he use no greater force than is necessary to procure the only result which should ever be the object of his interference, namely, the preventing any repetition of the affray. And to prevent a third party being attacked, or a dog being incited to bite, is also a good cause for such interference.5 Yet, lest such interference should be misconstrued by the parties engaged, such bystander should be careful first to intimate his object to the party whom he seeks to restrain. mere quarrelsome words or abusive language will not amount to an affray so as to justify the use of force. The sound and fury of words must be left to spend themselves in the air, and do not justify the arrest of the person who volleys them forth.

But

Assault in defence of possession of property.-Not only does the law justify an assault, if it is committed without excess in self-defence, or in defence of a wife, child, or relative, and in situations already noticed, but the same justification extends to assaults committed in defence of one's peaceable possession of his lands or goods. The exclusive possession of one's property is of the highest regard in the eye of the law, and to deprive the owner of

1 5 & 6 Ed. VI. c. 4, § 3. This was c. 31; 23 & 24 Vic. c. 32, § 5. 3 Cope v Barber, 41 L. J., M. C. 137. B. 218; Timothy v Simpson, 6 C. & P. Selw. N. P. 27; 1 Hawk. c. 60, § 23. Cr. L. 310.

repealed in 1829; 9 Geo. IV. 2 23 & 24 Vic. c. 32, § 2. 4 Noden v Johnson, 16 Q. 5 Griffin v Parsons, 61 East. P. C. 306; Fost,

500.

this possession by force is a wrong of so odious and urgent a character, that the law sympathises with a man who feels excited and who resorts to force to prevent such possession being interfered with. If there is not a colour of right or claim on the part of the aggressor, the attempt in case of goods is nothing less than an attempt to steal. But there are many mixed cases, where there may be no such evil disposition as felony presumes, and yet there may be such a flagrant contempt of the ordinary remedies which the law supplies, that the aggressor is viewed as only invoking the punishment he deserves by provoking his neighbour over much. If there is a dispute between them the law is open to the complainant; but no code of law could consistently tolerate an appeal to violence as the solution of such dispute except in rare cases, for the peculiar triumph of law is to supersede all violence by leaving such solution to the calm neutrality of a judge. In all cases, therefore, where a person is in peaceable possession of land or goods, either as owner or representing the owner, and a stranger, without the warrant of any legal process, seeks to dispossess him, force may be used to prevent the aggressor carrying his point. The assault in such a case is viewed as a necessary consequence of the unjustifiable interference with the possessory right, and so is in itself justifiable.2 And though at one time it was thought that a man was justified in assaulting another only to retain or defend possession of his goods, but could not break the peace in order to regain possession, he is now held justified also in using force to regain possession of them.3 It is the same as regards the possession of land, for where a breach of the peace is committed by a freeholder, who, in order to get possession of his land, assaults a person wrongly holding possession of it against his will, though the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. He may be justified in entering on his land, even though in so doing a breach of the peace is committed. If the owner were compelled by law always to seek redress by

4

1 Jackson v Courtenay, 8 E. & B. 8. 2 Roberts v Taylor, 1 C. B. 117. 3 Blades v Higgs, 10 C. B., N. S. 713. 4 Harvey v Bridges, 14 M. & W. 442; 1 Exch. 261; Lows v Telford, 45 L. J., Exch. 613.

action for a violation of his right of property, the remedy would be often worse than the mischief, and would aggravate the injury instead of redressing it.1

1

In defence of property moderation of assault is essential.When one is said to act in defence of his land or goods, this includes the protecting of them against wilful injury or destruction as well as against mere acts of trespass. But, as has been said, one ought not to begin with striking. The law allows one, either in defence of his person or possessions, first to lay his hand on the adversary, and then to say, that, if any further mischief ensue, it will be in consequence of the adversary's own act; and then the battery will follow from the interference. And yet a previous request to desist is not necessary when force has been already used. And it must never be forgotten, that, in this as in other cases of resorting to force against a third party, moderation must be observed, and no more force used or pain inflicted than is reasonably necessary to defend the property and maintain the status quo.*

Assault in ejecting stranger from house or land.—It often happens, that disputes, not connected in any way with the title to lands, arise between the person in possession of a house or land, and a stranger or friend, who, with or without permission, has entered upon the premises. In judging of the mutual rights of the parties to remain, the first point to be ascertained is, who is for the time being the occupier of the premises, for what is commonly called the occupation of a house or land is only another name for the legal right to exclusively possess the premises for a definite term or during the will and pleasure of the true owner. In such a state of things, part of the absolute ownership, which consists in the exclusive right of possession, has become vested in the tenant or occupier, and, so long as such occupation lasts, the occupier is as much the entire master of the premises, and can dictate who shall come or go upon the premises, as if he were the absolute owner. The right of occupation therefore implies the

1 Blades Higgs, 10 C. B., N. S. 721. Weaver e. Bush, 8 T. R. 78.

* Per Lawrence J., Ibid. Polkinghorne Wright. 8 Q. B. 206; Green & Goddard, 2 Salk, 641. 4 Cockroft »

Smith, 11 Mod. 43; 2 Salk, 641; Tullay & Reed, 1 C. & P. 6; Gregory Hill, 8 T. R. 299.

absolute right to exclude third parties and forbid them to remain on the premises; and whoever is upon the premises remains solely by the will and pleasure of the occupier, who can, however, at any moment revoke such pleasure with or without reasons given. As between himself and all others, his will and pleasure is the sole rule by which their right to be on the premises is governed. Though they are peaceably there, that is to say, having entered by his express or implied permission, still if at any moment, he chooses to revoke that permission and he requests them to leave, they are bound to go, and are in the eye of the law trespassers from that moment. And it makes no difference whether such third parties may have had some contract with the occupier, which included a permission to them to remain for the purposes of such contract; the utmost that can result from this is, that on breach of the contract the occupier will be required to pay damages. But the occupier's inherent and absolute right to order any person to leave his premises remains unaffected, and however harshly or wrongfully he may act, the law will not inquire into his motives. The parties must leave on his request, and if after such request they refuse peaceably to depart, he may use force just sufficient and no more to expel them from the premises. But before force is resorted to, care must be taken in all cases first to request the party to leave peaceably.1 Thus a shopkeeper, though in a certain sense always inviting the public to enter and purchase, may, nevertheless, at any moment call on his customer to leave.2

Assault in disputes as to possession of real property.— And it is equally a rule of law that in all disputes where one is in possession and another seeks possession though not employing any force, the former cannot lawfully begin to use force to repel, until he has first requested the latter to desist in his attempt. If after such request the latter still insists, he may be lawfully assaulted with less or greater force, proportioned to the need of getting rid of him. And the cardinal rule in such a case is, to use no more force than is necessary to overcome the resistance. If one uses more force than is absolutely necessary, he renders 1 Tulley v Reed, 1 C. & P. 6. 2 Timothy Simpson, 6 C. &

P. 500.

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himself responsible for all the consequences of the excessThus, if a man comes on my land, I cannot lay hands on him to remove him until I have desired him to go off. If he will not depart on request, I cannot proceed immediately to beat him; but must endeavour to push him off. If he is too powerful for me, I cannot use a dangerous weapon, but must first call in other assistance.1

It is to be borne in mind that the legality of the conduct of persons peaceably defending property does not always turn on the strict legal rights subsisting in that property. If a person is in peaceable possession of property which he believes to be his own, or at least claims as such, or claims at least in possession, he is not to be dispossessed by force even by him who may turn out to be the rightful owner and entitled to possession. The ownership is not to be confounded with the possession, for a tenant may be rightfully entitled to possession as against the owner of the reversion himself, who in such a case will not be entitled to possession till the present occupier's term has come to an end. Therefore the true criterion of whether one who holds possession of property can use force to defend such possession is not solely that in strictness of law he is entitled to such possession, but the main test is as to his being for the time in peaceable possession. If he has no right to continue in such possession, the owner must resort to the legal remedy appropriate to his case, and can rarely use force to recover such possession even of what is his own; at least if he does So, he may be opposed with still greater force, and must take the consequences. Yet there are many cases, where the possessor having not a colour of title to maintain his possession, and the real owner having given him no colour of acquiescence, may be ejected with force, and even though a breach of the peace is committed thereby. It was indeed once thought that if one is in actual possession of a house or premises, and another is rightfully entitled to the immediate possession, the latter cannot justifiably use force to recover the possession unless he can do so without a breach of the peace. It is true, that, if he use force and commit a breach of the peace, he is always liable for the assault.2 And it Per Best, J., Ilott v Wilkes, 3 B. & Ald. 317. 2 5 Rich. 2, c. 7 Newton v Harland, 1 M. & Gr. 660; 1 Sc. N. R. 474.