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ON THE

L AWS OF ENGLAND.

воок тн Е тн IR р.

of PRI V A TE WRONG S.

CHAPTER THE FIRST.

OF THE REDRESS OF PRIVATE WRONGS

BY THE MERE ACT OF THE PARTIES.

T the opening of these commentaries a 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 6." From hence therefore it followed, that the primary objects of the law are the estas blishment of rights, and the prohibition of wrongs. And this occasioned 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 for bidden and redressed, by the laws of England. a Introd. $. 2.

Bract. l. 1. c. 3. San&tio jußa, jubens bonefta, et pro c Book I. ch. I. bibens contraria. Cic, ni Philipp. 12.

VOL. III.

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· In the prosecution of the first of these inquiries, we distinguished rights into two sorts: first, such as concern or are annexed to the persons of men, and are then called jura perfonarum, 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 as 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 neceffary, 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.

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WRONGS are divisible into two sorts 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 misdemesnors. 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.

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The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized fociety, 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 fought by application to these

courts

courts 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 fuit or action 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; first, that which is obtained by the mere act of the parties themselves; secondly, that which is effected by the mere ac7 and operation of law; and, thirdly, that which arises from fuit 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 forts; first, that which arises from the act of the injured party only; 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 fort, 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 husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly at: tacked 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 “. For the law, in this case, respects the passions 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

d 2 Roll. Abr. 546. 1 Hawk. P. C. 138.

A 2

prompted prompted by nature, and which no prudential motives are strong enough to restrain. It confiders, that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impoflible to fay, to what wanton lengths of rapine or cruelty outrages of this fort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-deferrce 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; for then the defender would himfelf become an aggredor.

II. RECAPTION or reprisal is another fpecies of remedy by the mere act of the party injured. This happens, when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or fervant: in which cafe the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, wherever he happens to find them ; so it be not in a riotous manner, or attended with a breach of the peace. The reaa son for this is obvious; 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 deftroyed; and his wife, children, or servants, concealed or carried out of his reach; if he had no fpeedier remedy than the ordinary process of law. If therefore he car fo contrive it as to gain poffeffion 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 focial justice must ceafe, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided, that this natural right of recap

* 3 Inft. 134. Hal. Anal. 9. 46.

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