COMMENTARIES ON THE LAWS OF ENGLAND. BOOK THE THIRD. OF PRIVATE WRONGS. CHAPTER I. OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES. of municipal law. AT the opening of these Commentaries (a) municipal law General definition 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) (1). 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. Wrongs are the privation of right; and are, 1. private, 2. public. Private wrongs with their legal remedies, the subject of this volume. 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 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 necessary that, before we entered at all into the discussion of wrongs, we should entertain a clear and distinct notion of rights (2): the contemplation of what is jus (3) being necessarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas. 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. (2) See the note to vol. i. p. 122. cujus violatio est injuria." This is not inconsistent with the definitions of right cited in the notes to vol. i. p. 122, and vol. ii. p. 2, provided such "moral quality" is properly understood to be solely derived from, or, at all events, to be consistent with, the will of God. Positive institutions, which do not rest on any such basis, may, indeed, be held by force; but they must want that moral quality which, alone, can constitute right; they must necessarily be either private or public wrongs. up [*3] 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 employment 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 The redress of act of the parties themselves; secondly, that which is three different 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. private wrongs by methods. mere act of par. And, first, of that redress of private injuries, which is ob- First, by the tained by the mere act of the parties. This is of two sorts; ties. 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, (4) parent (5) and child, master (6) and servant. In (4) Leward et ux. v. Baseley, 1 Lord merely an obiter dictum, not necessary Raym. 62. (5) See vol. i. pp. 450, 453. (6) See vol. i. p. 429. The dictum in the case of Leward v. Baseley, (cited in the last note but one, and which is also reported in 1 Salk. 407,) which is in opposition to the text, as to the right of a master to defend his servant, was to the decision of the case then before Instances; I. de fence of one's self, or relations. [*4 ] II. Recaption of goods, &c. these cases, if the party himself, or any of these his relations, be forcibly 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 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 prompted by nature, and which no prudential motives are strong enough to restrain. It considers, that the future process of the 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. 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, wherever 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 (d) 2 Roll. Abr. 546. I'Hawk. P. C. 131. (e) 3 Inst. 134. Hal. Anal. § 46. had been so determined two centuries After an assault upon his master has assailant out of revenge. Barfoot v. Reynolds, W. Kelynge, 135; S. C. Str. 953. [*5] 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 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 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. III. As recaption is a remedy given to the party himself, III. Entry on 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 person without any right has taken possession thereof (7). 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; (8) being only mentioned in this place for the sake of regularity and order. lands or tene inents. nusances. IV. A fourth species of remedy by the mere act of the IV. Abatement of party injured, is the abatement, or removal of nusances. (f) 2 Roll. Rep. 55, 56, 208; 2 Roll. Abr. 565, 566. [Rich v. Woolley, 7 Bingh. 661; 5 Moo. & P. 663; (7) A person wrongfully holding possession of land cannot treat the rightful owner, who enters on the land, as a trespasser. Butcher v. Butcher, 7 Barn. & Cress. 402. But, of course, although an owner's entry be lawful, still, if he accompany that entry by outrage and violence, he may subject him Anthony v. Honey, 8 Bingh. 192; 1 self to an indictment for a breach of the (8) See post, p. 174. |