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 misdemeanors. 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 one.

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 reme

dy is therefore principally to be sought by application to these [ *3 ] courts of justice ; that is, by civil suit or action. For which

reason our chief employment in this book 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 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 sort, or that which arises from the sole act of the injured

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 (1), be forciblý 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 (d). For the law, in

, (d) 2 Roll. Abr. 546. 1 Hawk. P. C. 131. (1) It is said, that according to 1 Salk. 407, ed Commentator, the law respects the passions I Ld. Raym. 62. and Bul. N. RP. 18. a master of the human mind, yet it does not allow this cannot justify an assault in defence of his interference as an indulgence of revenge, servant, because he might have an action per but merely to prevent the injury, or a repetiquod servitium amisit. But according tn 2 tion of it; and therefore in a plea by a faRol. Ab. 546. D. pl. 2._Owen, 151. Bac. Ab. ther, master, &c., founded on this ground, it is Master and Servant, P. such an interference necessary to state that the plaintiff would have by the master is lawful ; and Ld. Hale, I vol. beat the son, servant, &c. is the defendant had says,

" That the law had been for a mas- not interfered; and if it be merely alleged that ter killing in the necessary defence of his ser- the plaintiff had assaulted or beat, &c. it will vant, the husband in defence of his wife, the he demurable, for if the assault on the master, wife of the husband, the child of the parent, &c. be over, the servant cannot strike by way or the parent of the child, for the act of the as- of revenge, but merely in order to prevent an sistant shall have the same construction in injury: 2 Stra. 953. When a person does not such cases as the act of the party assisted stand in either of these relations, he cannot should have had if it had been done by himself

, justify an interference on behalf of the party for they are in a mutual relation one to an injured, but merely as an indifferent person, other.” But though, as observed by the learn to preserve the peace. 2 Stra. 954.

party, is,

.

484.

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 connexion) makes it lawful in him to do himself that immediate justice, to which he *is prompted by nature, and which no pru- [ *4 ] dential 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 say, 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 ; for then the defender would himself become an aggressor (2).

II. Recaption or reprisal is another species 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 servant: in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, whereever he happens to find them; so it be not in a riotous manner, or attended with a breach of the peace (e). The reason 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 destroyed; and his wife, children, or servants, concealed or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If therefore he can 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 reasons it is provided, that this natural right of recaption *shall never be exerted, where such exertion [ *5 ] must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use ; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen (S); but must have recourse to an action at law (3).

III. As recaption is a remedy given to the party himself, for an injury to his personal property, so, thirdly, a remedy of the same kind for injuries to real property, is by entry on lands and tenements, when another

a

(e) 3 Inst. 134. Hal. Anal. $ 46.

(fl 2 Roll. Rep. 55, 56. 208. 2 Roll. Abr. 565, 566.

P. 182.

(2) See 2 R. S. 660.93, and book 4. note 6, on the wrongdoer in order to recover it, 8 T.

R. 78. 2 Roll. Abr. 56. 208. 2 Roll. Abr. 565. (3) In the case of personal property impro. pl. 50. 2 Leonard, 202. Selw. N. P. tit. Asperly detained or taken away, it may be re. sault and Battery ; nor can he without leave taken from the house and custody of the enter the door of a third person, not privy to wrongdoer, even without a previous request; the wrongful detainer, to take his gords therebut unless it was seized or attempted to be from. 2 Roll. Abr. 55, 6. 208. 2 Roll. Abr. seized forcibly, the owner cannot justify doing 565. I. pl. 2. Bac. Ab. Trespass, F. any thing more than gently laying his hands

a

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 misdemeanors. 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 conclud

; ing one.

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 reme

dy is therefore principally to be sought by application to these [ *3 ] *courts of justice ; that is, by civil suit or action. For which

reason our chief employment in this book will be to consider the redress 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 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 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 (1), be forciblý attacked in his person or property, it is lawful for him to repel force by force; and the breach of the

each of the peace, which happens, is chargeable upon him only who began the affray (d). For the law, in

(d) 2 Roll. Abr. 546. 1 Hawk. P. C. 131.

(1) It is said, that according to 1 Salk. 107, ed Commentator, the law respects the passions I Ld. Raym. 62. and Bul. N. P. 18. a master of the human mind, yet it does not allow this cannot justify an assault in desence of his interference as an indulgence of revenge, servant, because he might have an action per but merely to prevent the injury, or a repetiquod servitium amisit. But according to 2 tion of it; and therefore in a plea by a faRol. Ab. 546. D. pl. 2._Owen, 151. Bac. Ab. ther, master, &c., founded on this ground, it is Master and Servant, P. such an interference necessary to state that the plaintiff would have by the master is lawful; and Ld. Hale, 1 vol. beat the son, servant, &c. if the defendant had

" That the law had been for a mas- not interfered ; and if it be merely alleged that ter killing in the necessary defence of his ser. the plaintiff had assaulted or beat, &c. it will vant, the husband in defence of his wife, the he demurable, for if the assault on the master, wife of the husband, the child of the parent, &c. be over, the servant cannot strike by way or the parent of the child, for the act of the as. of revenge, but merely in order to prevent an sistant shall have the same construction in injury. 2 Stra. 953. When a person does not such cases as the act of the party assisted stand in either of these relations, he cannot should have had if it had been done by himself

, justify an interserence on behalf of the party for they are in a mutual relation one to an- injured, but merely as an other." But though, as observed by the learn. to preserve the peace. 2 Stra. 954,

484. says,

a

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 connexion) makes it lawful in him to do himself that immediate justice, to which he *is prompted by nature, and which no pru- [ *4 ] dential 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 say, 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 ; for then the defender would himself become an aggressor (2).

II. Recaption or reprisal is another species 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 servant: in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, whereever he happens to find them; so it be not in a riotous manner, or attended with a breach of the peace (e). The reason 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 destroyed ; and his wife, children, or servants, concealed or carried out of his reach ; if he had no speedier remedy than the ordinary process of law. If therefore he can 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 reasons it is provided, that this natural right of recaption *shall never be exerted, where such exertion [ *5 ] must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use ; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen (f); but must have recourse to an action at law (3).

III. As recaption is a remedy given to the party himself, for an injury to his personal property, so, thirdly, a remedy of the same kind for injuries to real property, is by entry on lands and tenements, when another

(f 1 2 Roll. Rep. 55, 56. 208. 2 Roll. Abr. 565, 566.

(e) 3 Inst. 134. Hal. Anal. $ 46.

p. 182.

(2) See 2 R. S. 660.93, and book 4. note 6, on the wrongdoer in order to recover it, 8 T.

R. 78. 2 Roll. Abr. 56. 208. 2 Roll. Abr. 565. (3) In the case of personal property impro. pl. 50. 2 Leonard, 202. Selw. N. P. tit. As. perly detained or taken away, it may be re- sault and Battery ; nor can he without leave taken from the house and custody of the enter the door of a third person, not privy to wrongdoer, even without a previous request; the wrongful detainer, to take his goods therebat unless it was seized or attempted to be from. 2 Roll.

Abr. 55, 6. 208. 2 Roll. Abr. seized forcibly, the owner cannot justify doing 565. I. pl. 2. Bac. Ab. Trespass, F. any thing more than gently laying his hands

person without any right has taken possession thereof (4). This depends in some measure on like reasons with the former; and like that too, must be peaceable and without force. There is some nicety required to define and distinguish the cases, in which such entry is lawful or otherwise ; it will therefore be more fully considered in a subsequent chapter (5); being only mentioned in this place for the sake of regularity and order.

IV. A fourth species of remedy by the mere act of the party injured, is the abatement, or removal of nuisances (6). What nuisances are, and their several species, we shall find a more proper place to inquire under some of the subsequent divisions (7). At present I shall only observe, that whatsoever unlawfully annoys or doth damage to another is a nuisance; and such

a

(4) With respect to land and houses also, on the soil of the other and abate the nuisance, resumption of possession by the mere act of and justify the trespass : and this right of the party is frequently allowed. Thus, if a abatement is not confined merely to a house, tenant omit at the expiration of his tenancy to mill, or land. 2 Smith's Rep. 9. 2 Rol. Ab. deliver up possession, the landlord may legally, 565. 2 Leon. 202. Com. Dig. Pleader 3 M. in his absence, break open the outer door and 42. 3 Lev. 92. So it seems that a libellous resume possession, though some articles of print or paper, affecting a private individual, furniture remain therein; and if the landlord may be destroyed, or, which is the safer course, put his cattle on the land, and the tenant dis- taken and delivered to a magistrate. 5 Coke, train them as damage-feasant, he may be sued. 125. b. 2 Camp. 511. Per Best, J. in the 1 Bing. R. 158. 7 T. R. 431, 2. i Price R. Earl Lonsdale v. Nelson, 2 Bar. & Cres. 311, 53. Andr. 109. 6 Taunt. 202. If the land- "nuisances, by an act of commission, are com. lord, in resuming possession, be guilty of a miited in defiance of those whom such nuisan. forcible entry with strong hand, or other illegal ces injure, and the injured party may abate breach of the peace, he will be liable to an in- them, without notice to the person who comdictment. 7 T. R. 432. 3 T. R. 295. 6 mitted them; but there is no decided case Taunt. 202. 8 T. R. 364. 403. But the cir- which sanctions the abatement, by an indi. cumstance of the owner of property using too vidual, of nuisances from omission, except that much force in regaining possession, but tak- of cutting the branches of trees which overing care to avoid personal injury to the party hang a public road, or the private property of resisting, will not enable the latter to sue him. the person who cuts them. The permitting See cases in last two notes. But if any un- these branches to extend so far beyond the soil necessary violence to the person be used in of the owner of the trees, is an unequivocal rescuing or desending possession of real or act of negligence, which distinguishes this personal property, the party guilty of it is lia. case from most of the other cases that have ble to be sued. 8 T. R. 299. id. 78. 1 Saund. occurred. The security of lives and property 296. n. I. So, as the law allows retaking of may sometimes require so speedy a remedy as the possession of land, it also sanctions the not to allow time to call on the person on due desence of the possession thereof; and whose property the mischief bas arisen to retherefore, though if one enter into my ground, medy it; in such cases an individual would I must request him to depart before I can lay be justified in abating a nuisance from omishands on him to turn him out, yet if he refuse sion without notice. In all other cases of such I may then push him out, and if he enter nuisances, persons should not take the law into with actual force I need not first request him their own hands, but follow the advice of Lord to be gone, but may lay hands on him imme. Hale, and appeal to a court of justice;" and diately. 8 T. R. 78. 1 Salk. 641. See 1 Bing. see further, 3 Dowl. & R. 556. And it was

held in the same case, that where a person is (5) Post, 174.

bound to repair works connected with a port, (6) Thus, in case of a public nuisance, if a and neglecis to do so, another person cannot house be built across a highway any person justify an entry to repair without averring and may pull it down; and, it is said, he need not proving that immediate repairs were neces. observe particular care in abating it, so as to sary, and the parties' right io use the port. prevent injury to the materials. And though to cutting trees, “ if the boughs of your trees å gate, illegally fastened, might have been grow out into my land, I may cut them." opened without cutting it down, yet the cutting Croke, J. Rol. Rep. 394. 3 Buls. 198.

Vin. would be lawful. However, it is a general Ab. Trees, E. & tit. Nuisance, W. 2. pl. 3. rule, that the abatement must be limited by its The abater of a private nuisance cannot renecessity, and no wanton or unnecessary in

move the materials further than necessary ; jury must be committed. 2 Salk. 458. As to or convert them to his own use. Dalt. c. 50. private nuisances, they also may be abated; And so much only of the thing as causes the and therefore it was recently held, that if à nuisance should be removed ; as if a house be man in his own soil erect a thing which is a built too high, only so much of it as is too high nuisance to another, as by stopping a rivulet, should be pulled down. 9 Rep. 53. God. 221. and so diminishing the water used by the lat- 2 Stra. 686. ter for his cattle, the party injured may enter

(7) Post, 216.

158.

As

Per