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LAWS Of ENGLAND.
BOOK THE THIRD.
Of PRIVATE WRONGS*
CHAPTER THE FIRST.
Of The REDRESS Of PRIVATE WRONGS
BY THE MERE ACT OF THE PARTIES.
AT the opening of these commentaries * municipal law was in general defined to be, "a rule of "civil conduct, prescribed by the supreme power "in a state, commanding what is right, and "prohibiting what is wrong b." From hence therefore it followed, that the primary objects of the law are the esta* blisliment of rights, and the' prohibition of wrongs. And this occasioned c the distribution of these collections into two general heads; under the former of which we have already considered the rights that were defined and established, and under the latter are now to consider the wrongs that are forbidden and redressed, by the laws of England.
« Introd. §. 3. Bract. /. I. c. 3.
t> Sar.ftio jusia, juierti bor.cfla, et pro- c Book I. ch. I. l:iins imtraria. Cic. II Philips. II.
Vol. III. A Is
In the prosecution of the first of these inquiries, we distinguished rights into two forts: first, such as concern or are annexed to the persons of men, and are then called jura personarum, or the rights of persons; which, together with the means of acquiring and losing them, composed the first book of these commentaries: and, secondly, such ats a man may acquire over external objects, or things unconnected with his person, which are called jura rerum, or the rights of things; and these, with the means of transferring them from man to man, were the subject of the second book. I am now therefore to proceed to the consideration of wrongs: which for the most part convey to us an idea merely negative, as being nothing else but a privation of right. For which reason it was necessary, that, before we entered at all into the discussion of wrongs, we should entertain a clear and distinct notion of rights: the contemplation of what is jus being necessarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas.
Wrongs are divisible into two forts or species; private wrongs, and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals; and are thereupon frequently termed civil injuries: the latter are a breach and violation of public rights and duties, which affect the whole community, considered as a community; and are distinguished by the harsher appellation of crimes and mifdemefnors. To investigate the first of these species of wrongs, with their legal remedies, will be our employment in the present book; and the other species will be reserved till the next or concluding volume.
The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined, and wrongs prohibited. This remedy is therefore principally to be sought by application to these
courts tourts of justice; that is, by civil suit or action; For which reason our chief employment in this volume will be to consider the redress of private wrongs, by suit or acs ion in courts. But as there are certain injuries of such a nature, that some of them furnish and others require a more speedy remedy, than can be had in the ordinary forms of justice, there is allowed in those cases an extrajudicial or eccentrical kind of remedy; of which I shall first of all treat, before I consider the several remedies by suit: and, to that end, shall distribute the redress of private wrongs into three several species 5 first, that which is obtained by the mere ail of the parties themselves; secondly) that which is effected by the mere ail and operation of law; and, thirdly, that which arises from suit or action in courts, which consists in a conjunction of the other two, the act of the parties co-operating with the act of law.
And, first, of that redress of private injuries, which is obtained by the mere act of the parties. This is of two sorts -, first, that which arises from the act of the injured party only j and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order.
Of the first sort, or that which arises from the sole act of the injured party, is,
I. The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husoand and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force ; and the breach of the peace, which happens, is chargeable upon him only who began the affray J; For the law, in this cafe, respects the paffions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is
& i Roll. Abr. 546. j Hawk. P. C. 131.
A 2 prompted prompted by nature, and which no prudential motives are strong enough to restrain. It considers, that the future process of law is by no means an adequate remedy for injuries accompanied with force ; since it is impossible to fay,, to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken, that the resistance does not exceed the bounds of mere defence and prevention -t for then the defender would himself become an aggressor.
II. Recaption or reprisal fe another species of remedy by the mere act of the party injured. This happens, when any fine hath deprived another of his property in goods or chattels' personal, or wrongfully detains one's wife, child, or servant: in which cafe the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, wherever he happen* to find them; so it be not in a riotous manner, or attended with a breach of the peace '. The reason for this is obvious j since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; and his wife, children, or servants, concealed or carried out of his react; if he had no speedier remedy than the ordinary process of law. If therefore he caff so contrive it as to gain possession of his property again, without force or terror, the law favours and will justify his proceeding. But, as the public peace is a superior consideration to any one man's private property ■> and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the. Weak, and every man would revert to a state of nature; for these seasons it is provided, that this natural right of recap
•' J lost. 134. Hal. Anal. §• 46.