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LAWS OF ENGLAND.
OF PRIVATE WRONGS.
OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES.
Ar 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." (b)' From hence therefore it followed, that the primary objects of the law are the establishment 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.
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 personarum, or the rights of per sons; 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 conveys 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.
a Introd. § 2.
b Sanctio justa, jubens honesta, et prohibens contraria, Cic. 11. Philipp. 12. Bract. L. 1. c. 3. c Book I. ch. 1.
(1) See observations on this position, ante Book, 44. note 1.
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.
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 of justice;
that is, by civil suit or action. For which reason our chief employ.  ment in this volume will be to consider the redress of private wrongs,
by suit 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 act 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 part 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 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 husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations,2
(2) It is said, that according to 1 Salk. 407 1 Ld. Raym. 62 and Bul. N. P. 18. a master cannot justify an assault in defence of his servant, because he might have an action per quod servitium amisit. But according to 2 Rol. Ab. 546. D. pl. 2. Owen. 151. Bac. Ab. Master and Servant, P. such an interference by the master is lawful; and Lord Hale, I vol. 484. says, "That the law had been for a master killing in the necessary defence of his servant, the husband in defence of his wife, the wife of the husband, the child of the parent, or the parent of the child, for the act of the assistant shall have the same construction in such cases as the act of the party assisted should have had if it had been done by himself, for they are in a mutual relation one to another." But though, as observed by the learned Commentator, the law respects the passions of the human mind, yet it does not allow this interference as an indulgence of revenge, but merely to prevent the injury, or a repetition of it; and therefore in a plea by a father, master, &c. founded on this ground, it is necessary to state that the plaintiff would have beat the son, servant, &c. if the defendant had not interfered; and if it be merely alleged that the plaintiff had assaulted or beat, &c. it will be demurable, for if the assault on the master, &c. be oyer, the servant cannot strike by way of revenge, but merely in order to prevent an injury. 2 Stra. 953. When a person does not stand in either of these relations, he cannot justify an interference on behalf of the party injured, bat merely as an indifferent persou, to preserve the peace. A Stra. 054,