Different degrees of violence
In the Mississippi Territory, in 1817, a jury of 12 men tried and true returned a verdict of not guilty against Nathaniel Christmas.
The court minutes reflect that the “Jurors return their verdict that the Defendant Nathl Christmas is not guilty in manner and form as charged in the … Declaration.”1
And the “manner and form as charged in the … Declaration”?
Trespass vi et armis.
Does it make you feel any better that The Legal Genealogist had to look that up too? I mean, seriously, I went to law school in the 20th century. They didn’t teach legal Latin then!
So off to Black’s Law Dictionary we go, and there we learn that vi et armis is Latin for “with force and arms.”2
Okay! Now we get it, right?
Um… what’s meant by “force and arms”?
It’s a “phrase used in declarations of trespass and in indictments, but now unnecessary in declarations, to denote that the act complained of was done with violence.”3 And violence, we’re told, is “synonymous with ‘physical force.’”4 And arms? That’s “(a)nything that a man wears for his defense, or takes in his hands, or uses in his anger, to cast at or strike at another.”5
So now we’re all clear, right?
Sure we are.
Until we realize that, well, there are different degrees of force, and arms when used in “force and arms” doesn’t always mean a gun or a knife or a club, and exactly what’s meant in a court document like this is going to vary with the circumstances.
Force, we learn, means “unlawful violence. It is either simple, as entering upon another’s possession, without doing any other unlawful act; compound, when some other violence is committed, which of itself alone is criminal; or implied, as in every trespass, rescous, or disseisin.”6
And in addition to “force and arms,” there’s “force and fear” — which is the kind of undue influence that lets you out of a contract if you can prove you wouldn’t have signed it otherwise.7
Oy. It couldn’t be easy, could it?
So let’s break down our Mississippi case.
Trespass, the kind of case we’re dealing with here, includes “(a)ny misfeasance or act of one man whereby another is injuriously treated or damnified. An injury or misfeasance to the person, property, or rights of another person, done with force and violence, either actual or implied in law. In the strictest sense, an entry on another’s ground, without a lawful authority, and doing some damage.”8
In order words, something as basic as, say, riding a horse into another person’s garden and damaging the crops is a trespass.
And by adding the “vi et armis” part, we’re saying there were weapons involved, right? So this is a criminal case?
No. By definition, trespass vi et armis was “a common-law action for damages for any injury committed by the defendant with direct and immediate force or violence against the plaintiff or his property.”9 Tearing down a fence on your neighbor’s property would be a trespass vi et armis. Going onto his land and cutting down a tree. Riding down those plants in the garden.
Moreover, an action for damages is always a civil case. Person A suing person B for money. You don’t collect damages in a criminal case.
And just to emphasize that, the law actually has another category of force, force “with a strong hand,” words that “imply a degree of criminal force, whereas the words vi et armis (‘with force and arms’) are mere formal words in the action of trespass, and the plaintiff is not bound to prove any force. The statutes relating to forcible entries use the words ‘with a strong hand’ as describing that degree of force which makes an entry or detainer of lands criminal.”10
Trespass vi et armis. A — pardon the phrase — garden variety civil suit for property damage.
- Washington County, Mississippi Territory, Superior Court Minutes A: 17 (1817); FHL microfilm 1752975. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1219, “vi et armis.” ↩
- Ibid., 508, “force and arms.” ↩
- Ibid., 1228, “violence.” ↩
- Ibid., 88, “arms.” ↩
- Ibid., 503, “force.” ↩
- Ibid., “force and fear.” ↩
- Ibid., 1187, “trespass.” ↩
- Ibid., 1188, “trespass vi et armis.” ↩
- Ibid., 1128, “strong hand.” ↩