CHAPTER VIII.

OF WRONGS, AND THEIR REMEDIES,
RESPECTING THE RIGHTS OF PERSONS.

1. Injuries cognizable at common law.

THE former chapters of this part of our Commentaries having been employed in describing the several methods of redressing private wrongs, either by the mere act of the parties, or the mere operation of law; and in treating of the nature and several species of courts; together with the cognizance of wrongs or injuries by private or special tribunals, and the public ecclesiastical, military, and maritime jurisdictions of this kingdom; I come now to consider at large, and in a more particular manner, the respective remedies in the public and general courts of common law, for injuries or private wrongs of any denomination whatsoever, not exclusively appropriated to any of the former tribunals. And herein I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury: and shall, secondly, describe the method of pursuing and obtaining these remedies in the several courts.

First, then, as to the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury. And, in treating of these, I shall at present confine myself to such wrongs as may be committed in the mutual intercourse between subject and subject; which the king (1), as the fountain of justice, is officially bound to redress in the ordinary forms of law: re[*116] serving such *injuries or encroachments as may occur between the crown and the subject, to be distinctly considered hereafter, as the remedy in such cases is generally of a peculiar and eccentrical nature.

(1) See vol. i. pp. 266, 267; ante, pp. 24, 31.

Now, since all wrong may be considered as merely a privation of right (2), the plain natural remedy for every species of wrong is the being put in possession of that right, whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subjectmatter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded: or, where that is not a possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault, breach of contract, &c.: to which damages the party injured has acquired an incomplete or inchoate right the instant he receives the injury (a); though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments whereby this II. Remedy. remedy is obtained (which are sometimes considered in the light of the remedy itself) are a diversity of suits and actions, which are defined by the Mirror (b) to be "the lawful demand of one's right;" or, as Bracton and Fleta express it, in the words of Justinian (c), jus prosequendi in judicio quod alicui debetur.

The Romans introduced, pretty early, set forms for actions and suits in their law, after the example of the Greeks; and made it a rule, that each injury should be redressed by its proper remedy only. "Actiones," say the Pandects, "compositæ sunt, quibus inter se homines disceptarent; quas actiones, ne populus prout vellet institueret, certas solemnesque esse voluerunt" (d). The forms of these. actions were originally preserved in the books of the Pontifical College, as choice and inestimable secrets, till one Cneius Flavius, the secretary of Appius Claudius, stole a copy and published them to the people (e). The *conceal- [*117 ] ment was ridiculous: but the establishment of some standard was undoubtedly necessary, to fix the true state of a question of right; lest in a long and arbitrary process it might be shifted continually, and be at length no longer discernible. Or, as Cicero expresses it(ƒ), "sunt jura, sunt

1. Personal actions.

2. Real actions.

formula, de omnibus rebus constitutæ, ne quis aut in genere injuriæ, aut in ratione actionis, errare possit. Expressæ enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publicæ a prætore, formula, ad quas privata lis accommodatur." And in the same 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 (g)(3). And all the modern legislators of Europe have found it expedient, from the same reasons, to fall into the same or a similar method. With us in England, the several suits, or remedial instruments of justice, are from the subject of them distinguished into three kinds (4): actions personal, real, and mixed.

Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof: and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs; and they are the same which the civil law calls " actiones in personam, quæ adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere” (h). Of the former nature are all actions upon debt or promises; of the latter, all actions for trespasses, nuisances, assaults, defamatory words, and the like.

Real actions, (or, as they are called in the Mirror (¿), feodal actions,) which concern real property only, are such whereby the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or [*118] *other hereditaments, in fee-simple, fee-tail, or for term of life. By these actions formerly all disputes concereing real estates were decided; but they are now pretty generally laid aside in practice, upon account of the great nicety required eorum. (Lib. 5, de Exceptionibus, c. 17, § 2.)

(g) Sunt quædam brevia formata super certis casibus de cursu, et de com·muni consilio totius regni approbata et concessa, quæ quidem nullatenus mutari poterint absque consensu et voluntate

(3) See ante p. 51; post, p. 123.
(4) They are now, very advantage-
ously, much simplified; the forms of
real actions were most complicated; but
now, with the exceptions of writs for

(h) Inst. 4, 6, 15.
(i) C. 2, § 6.

dower, quare impedit, and ejectment, all real and mixed actions are abolished by the statute of 3 & 4 Will. IV. c. 27, s. 36.

in their management, and the inconvenient length of their process: a much more expeditious method of trying titles. being since introduced, by other actions personal and

mixed.

Mixed actions are suits partaking of the nature of the 3. Mixed actions. other two, wherein some real property is demanded, and also personal damages for a wrong sustained. As for instance, an action of waste: which is brought by him who hath the inheritance, in remainder or reversion, against the tenant for life, who hath committed waste therein, to recover not only the land wasted, which would make it merely a real action; but also treble damages, in pursuance of the statute of Gloucester (k), which is a personal recompense; and so both, being joined together, denominate it a mixed action.

out force and with

Under these three heads may every species of remedy by suit or action in the courts of common law be comprised. But in order effectually to apply the remedy, it is first necessary to ascertain the complaint. I proceed, therefore, now to enumerate the several kinds, and to inquire into the respective natures, of all private wrongs, or civil injuries, which may be offered to the rights of either a man's person or his property; recounting at the same time the respective remedies, which are furnished by the law for every infraction of right. But I must first beg leave to premise, that Civil injuries of all civil injuries are of two kinds, the one without force or two kinds, with violence, as slander or breach of contract; the other coupled force. with force and violence, as batteries or false imprisonment (1). Which latter species savour something of the criminal kind, being always attended with some violation of the peace; for which in strictness of law a fine ought to be paid to the king, as *well as a private satisfaction to the party injured (m). And this distinction of private wrongs, into injuries with and without force, we shall find to run through all the variety of which we are now to treat. In considering which I shall follow the same method that was pursued with regard to the distribution of rights: for as these are nothing else but an infringement or breach of those rights, which we have before laid down and explained,

(k) 6 Ed. I. c. 5. (1) Finch, L. 184.

(m) Finch, L. 198; Jenk. Cent. 185.

[*119 ]

Division into

rights of persons

it will follow that this negative system of wrongs must correspond and tally with the former positive system of rights. As therefore we divided (n) all rights into those of persons, and rights of pro- and those of things, so we must make the same general distribution of injuries into such as affect the rights of persons, and such as affect the rights of property.

perty;

again divided into absolute and relative rights.

I. Of injuries affecting the personal security.

[*120 ]

By threats.

By assault.

The rights of persons, we may remember, were distributed into absolute and relative: absolute, which were such as appertained and belonged to private men, considered merely as individuals, or single persons; and relative, which were incident to them as members of society, and connected to each other by various ties and relations. And the absolute rights of each individual were defined to be the right of personal security, the right of personal liberty, and the right of private property, so that the wrongs or injuries affecting them must consequently be of a correspondent

nature.

I. As to injuries which affect the personal security of individuals, they are either injuries against their lives, their limbs, their bodies, their health, or their reputation.

1. With regard to the first subdivision, or injuries affecting the life of man, they do not fall under our present contemplation; being one of the most atrocious species of crimes, the subject of the next book of our Commentaries (5).

*2, 3. The two next species of injuries, affecting the limbs or bodies of individuals, I shall consider in one and the same view. And these may be committed, 1. By threats and menaces of bodily hurt, through fear of which a man's business is interrupted. A menace alone, without a consequent inconvenience, makes not the injury; but, to complete the wrong, there must be both of them together (o). The remedy for this is in pecuniary damages, to be recovered by action of trespass vi et armis (p); this being an inchoate, though not an absolute violence. 2. By assault, which is an attempt or offer to beat another, without touching him; as if one lifts up his cane, or his fist, in a threatening man

(n) See book i. ch. i. p. 122; and vol. ii. p. 1.

(0) Finch. L. 202.

(p) Regist. 104; 27 Ass. 11; 7 Edw. IV. 24.

(5) Vol. iv. pp. 176-204.