injuries or encroachments as may occur between the crown and the fubject to be diftinctly confidered hereafter, as the remedy in fuch cafes is generally of a peculiar and eccentri cal nature. Now, fince all wrong may be confidered as merely a privation of right, the plain natural remedy for every fpecies of wrong is the being put in poffeffion of that right, whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject-matter in difpute to the legal owner; as when lands or perfonal chattels are unjustly withheld or invaded: or, where that is not a poffible, or at least not an adequate remedy, by making the fufferer a pecuniary fatisfaction in damages; as in case of affault, breach of contract, c: to which damages the party injured has acquired an incomplete or inchoate right, the inftant he receives the injury; though fuch right be not fully afcertained till they are affeffed by the intervention of the law. The inftruments whereby this remedy is obtained (which are fometimes confidered in the light of the remedy itself) are a diversity of fuits and actions, which are defined by the mirror to be "the lawful demand of one's right:" or as Bracton and Fleta exprefs it, in the words of Juftinian', jus profequendi in judicio quod alicui debetur. THE Romans introduced, pretty early, fet forms for actions and suits in their law, after the example of the Greeks; and made it a rule, that each injury fhould be redreffed by it's proper remedy only. "Actiones, fay the pandects, compofitae "funt, quibus inter fe homines difceptarent; quas actiones, ne po« pulus prout vellet inftitueret, certas folennefque effe voluerunt.” The forms of thefe actions were originally preferved in the books of the pontifical college, as choice and ineftimable fecrets; till one Cneius Flavius, the fecretary of Appius Claudius, ftole a copy and published them to the people. The ■ See book II. ch. 29. b c. 2. § 1. • Inft. 4. 6. pr. a Ff. 1. 2.2. § 6. e Cic. pro Muraena. § 11. de orat. 1. 1. c. 41. concealment concealment was ridiculous: but the establishment of fome ftandard was undoubtedly neceffary, to fix the true state of a question of right; left in a long and arbitrary process it might be fhifted continually, and be at length no longer difcernible. Or, as Cicero expreffes it, "funt jura, funt for«mulae, de omnibus rebus conftitutae, ne quis aut in genere in"juriae, aut in ratione actionis, errare poffit. Expressae enim funt ex uniufcujufque damno, dolore, incommodo, calamitate, injuria, publicae a praetore formulae, ad quas privata lis ac«commodatur." And in the fame manner our Bracton, speaking of the original writs upon which all our actions are founded, declares them to be fixed and immutable, unless by authority of parliament. And all the modern legiflators of Europe have found it expedient, from the fame reasons, to fall into the fame or a fimilar method. With us in England the feveral suits, or remedial instruments of justice, are from the fubject of them diftinguished into three kinds; actions perfonal, real, and mixed. PERSONAL actions are fuch whereby a man claims a debt, or perfonal duty, or damages in lieu thereof: and, likewife, whereby a man claims a fatisfaction in damages for fome injury done to his perfon or property. The former are faid to be founded on contracts, the latter upon torts or wrongs: and they are the fame which the civil law calls " actiones in per"fonam, quae adverfus eum intenduntur, qui ex contractu vel "delicto obligatus eft aliquid dare vel concedere." Of the former nature are all actions upon debt or promises; of the latter all actions for trefpaffes, nuisances, affaults, defamatory words, and the like. REAL actions, (or, as they are called in the mirror', feodal actions) which concern real property only, are fuch whereby the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other hereditaconfenfu et voluntate,eorum. (1. 5. de exceptionibus. c. 17. §. 2.) Pro. Qu. Rofcio. §. 8. & Sunt quaedam brevia formata super certis cafibus de curfu, et de communi confiNo totius regni approbata et concessa, quae quidem nallasenus mutari poterint abíque ↳ Inft. 4. 6. 15. i c. 2. §. 6. ments, ments, in fee-fimple, fee-tail, or for term of life. By thefe actions formerly all difputes concerning real eftates were decided; but they are now pretty generally laid aside in practice, upon account of the great nicety required in their management, and the inconvenient length of their process: a much more expeditious method of trying titles being fince introduced, by other actions perfonal and mixed. MIXED actions are fuits partaking of the nature of the other two, wherein fome real property is demanded, and also perfonal damages for a wrong fuftained. As for inftance, an action of wafte: which is brought by him who hath the inheritance, in remainder or reverfion, against the tenant for life, who hath committed wafte therein, to recover not only the land wafted, which would make it merely a real action; but also treble damages, in pursuance of the ftatute of Gloucefterk, which is a perfonal recompence; and fo both, being joined together, denominate it a mixed action. UNDER these three heads may every species of remedy by fuit or action in the courts of common law be comprized. But in order effectually to apply the remedy, it is first neces fary to ascertain the complaint. I proceed therefore now to enumerate the several kinds, and to inquire into the refpective natures, of all private wrongs, or civil injuries, which may be offered to the rights of either a man's perfon or his property; recounting at the fame time the refpective remedies, which are furnished by the law for every infraction of right. But I must first beg leave to premife, that all civil injuries are of two kinds, the one without force or violence, as flander or breach of contract; the other coupled with force and violence, as batteries, or falfe imprisonment. Which latter fpecies favour fomething of the criminal kind, being always attended with fome violation of the peace; for which in ftrictness of law a fine ought to be paid to the king, as * 6 Ed. I. c. 5. VOL. III. Finch. L. 184. well [120] well as a private satisfaction to the party injured". And this diftinction of private wrongs, into injuries with and without force, we fhall find to run through all the variety of which we are now to treat. In confidering of which, I fhall follow the fame method that was purfued with regard to the diftribution of rights: for as these are nothing else but an infringement or breach of those rights, which we have before laid down and explained, it will follow that this negative fyftem of wrongs, must correfpond and tally with the former pofitive fyftem, of rights. As therefore we divided a all rights into those of perfons, and those of things, so we must make the same general diftribution of injuries into fuch as affect the rights of persons, and such as affect the rights of property.. THE rights of perfons, we may remember, were diftributed into abfolute and relative: abfalute, which were fuch as appertained and belonged to private men, confidered merely as individuals, or fingle perfons; and relative, which were incident to them as members of society, and connected to each other by various ties and relations. And the abfolute rights of each individual were defined to be the right of perfonal fecurity, the right of personal liberty, and the right of private property, fo that the wrongs or injuries affecting them must confequently be of a correfpondent nature. I. As to injuries which affect the personal security of in, dividuals, they are either injuries against their lives, their limbs, their bodies, their health, or their reputations. 1. WITH regard to the firft fubdivifion, or injuries affecting the life of man, they do not fall under our present contemplation; being one of the most atrocious fpecies of crimes, the subject of the next book of our commentaries. 2, 3. THE two next species of injuries, affecting the limbs or bodies of individuals, I fhall confider in one and the fame view. And these may be committed, 1. By threats and meFinch. L. 198. Jenk. Cent. 185. See book I. ch. 1. naces naces of bodily hurt, through fear of which a man's business is interrupted. A menace alone, without a confequent inconvenience, makes not the injury: but, to complete the wrong, there must be both of them together. The remedy for this is in pecuniary damages, to be recovered by action of trespass vi et armis; this being an inchoate, though not an abfolute violence. 2. By affault; which is an attempt or offer to beat another, without touching him; as if one lifts up his cane, or his fift, in a threatening manner at another; or strikes at him, but miffes him; this is an affault, infultus, which Finch defcribes to be "an unlawful setting upon "one's perfon." This alfo is an inchoate violence, amounting confiderably higher than bare threats; and therefore, though no actual fuffering is proved, yet the party injured may have redrefs by action of trefpafs vi et armis; wherein he fhall recover damages as a compensation for the injury. 3. By battery which is the unlawful beating of another. The leaft touching of another's perfon wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and loweft ftage of it: every man's perfon being facred, and no other having a right to meddle with it, in any the flightest manner. And therefore upon a fimilar principle the Cornelian law de injuriis prohibited pulfation as well as verberation ; diftinguishing verberation, which was accompanied with pain, from pulfation, which was attended with none'. But battery is, in fome cafes, juftifiable or lawful; as where one who hath authority, a parent or mafter, gives moderate correction to his child, his scholar, or his apprentice. So alfo on the principle of felf-defence: for if one ftrikes me first, or even only affaults me, I may ftrike in my own defence; and, if fued for it, may plead fon affault demefne, or that it was the plaintiff's own original affault that occafioned it (1). So likewife in de- [121] (1) But in any criminal profecution by indictment, or information for an affault or battery, the defendant may plead the general |