The dialectics of distraint

Researching the use of distraint for harbour dues etc, (for which see Powers of distress 2009) I came across material also on the use of distraint during the industrial revolution (see The Victorian bailiff- conflict & change c.1), which set me thinking too about the use of distraint as described in Weapon of authority chapter 4.

In the case of Swire v Leach (1865) Serjeant Sandars, appearing as counsel for the plaintiff, argued on appeal that "The right of the landlord to distrain for rent is an exception on the common law of England."  Is this true?

If we consider the granting of powers of distraint to railway and canal companies- as well as to private ports and markets- it seems that this statement is incorrect.  The landlord's right of distraint may have been the first devolution of the state's powers of execution onto a private individual, but the later grants by Parliament are a similar privilege allowed to newer forms of capital.  Just as property in land was favoured with extra-judicial rights, so property rights in industrial enterprises received a similar beneficial treatment, so as to encourage and assist them.

It may be argued that these rights of seizure for toll etc are more akin to distress damage feasant- which may be true- but then, that too is a privilege of the owner of property.  Another interpretation of these instances might be this:  In Proprietors of the Stourbridge Canal v Wheeley (1831) 2 B&A 792 Lord Tenterden CJ characterises these statutory rights of distraint as the result of a bargain with the public.  The beneficiary acts in the public interest, performing a public function, and consequently is given the advantage and encouragement of the use of devolved state rights.  The capitalist ventures his time and resources; this is supported by the Crown which lends its authority to the endeavour.  This a more benign representation of the agreement, but we are still dealing with certain individuals and interests being privileged with rights of self help outside the judicial system for the purposes of enhancing private enterprise and profit (as well as, if not equally with, providing a public benefit).

Many of these private rights of execution have since lapsed, but they still persist in the hands of some private ports and market operators, so the landlord's right is still not unique. All remain examples of state power delegated to private hands.