OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES..

Restatement of plan. At 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 enquiries, we dis- [*2] guished 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

(a) Introduc. § 2.

(b) Sanctio justa, jubens honesta, et prohibens contraria. Cic. 11. Philipp. 12. Bract. l. 1, c. 3. (c) Book 1, ch. 1.

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: the contemplation of what is jus (right), being necessarily prior to what may be termed injuria (injury), and the definition of fas (lawful), precedent to that of nefas (unlawful).

Classification of wrongs.- Wrongs are divisible into two sorts or species: private wrongs and public wrongs.

Civil 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.

Crimes and misdemeanors.-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 appellations 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 volume.

Modes of redressing private wrongs.-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 [*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.

Redress by act of the parties.- 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. Self-defense.-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,' 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 connexion), makes it lawful in him to do himself that immediate justice, to which he *is prompted by nature, and which [*4] no prudential 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.

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 or destroyed; and his wife, children, or servants, concealed or carried out of his reach; if he had no speedier remedy than the ordinary pro

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

In the defense of one's self, or any member of his family, a man has a right to employ all necessary violence, even to the taking of life. Shorter v. People, 2 N. Y. 193; Yates v. People, 32 N. Y. 509; Logue v. Commonwealth, 38 Penn. St. 265; Pond v. People, 8 Mich. 150; Maher v. People, 24 Ill. 241. But except where a forcible felony is attempted against person or property, he is always to avoid such lamentable consequences if possible, and he cannot justify standing up and resisting to the death when the assailant might have been avoided by retreat. People v. Sullivan, 7 N. Y. 396. But when a man is assaulted in his dwelling, he is under no obligation to retreat; his house is his castle, which he may defend to any extremity. And this means not simply the dwelling-house proper; whatever at the common law is within the cur. tilage is entitled to the same protection.

(e) 8 Inst. 134. Hal. Anal. § 46.

Pond v. People, 8 Mich. 150. And in deciding what force it is necessary to employ in resisting the assault, a man must act upon the circumstances as they appear to him at the time, and he is not to be held criminal because on a calm survey of the facts afterwards it appears that the force employed was excessive. See the cases cited above; also Hinton v. State, 24 Texas, 454; Schnier v. People, 23 Ill. 17; Patten v. People, 18 Mich. 314. In the last case it was held that where a man's dwelling, in which was his mother in feeble health, was assailed by rioters, and he had reason to believe that the noise and threats of the assailants endangered his mother's life, he had the same right to employ force to quell the riot that he would have had to defend his mother against an actual attack upon her person.

cess 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 [*5] *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 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.'

III. Re-entry on land. 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 person without any right has taken possession thereof. 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; being only mentioned in this place for the sake of regularity and order.

IV. Abatement of nuisance.-A fourth species of remedy by the mere act of the party injured, is the abatement or removal of nuisances. What nuisances are, and their several species, we shall

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

1 A man may not lawfully enter upon the lands of a third party who is not a wrong-doer, for the purpose of retak ing his own property: Heermance v. Vernoy, 6 Johns. 5; Blake v. Jerome, 14 Johns. 406; and his attempt to do so may be resisted by force. Newkirk v. Sabler, 9 Barb. 652. [The owner has in most cases the right to enter the close of another to retake his property, provided he can do so without a forcible breaking or a breach of the peace. Richardson v. Anthony, 12 Vt. 273; Gardener v. Rowland, 2 Ired. (N. C.) 247. Of course he is liable for all damages done unless their presence is accounted for by an act of God. Where the property is inanimate it seems that a condition to reclaiming it is making good the damage. Sheldon v. Sherman, 42 N. Y. 484; 1 Am. Rep. 569. See infra, p. *9.]

2 Any obstruction to a navigable river is a nuisance, which any citizen having occasion to use the river for the passage of his vessel may lawfully reinove. Inhab. of Arundel v. McCulloch,

10 Mass. 70. And the permission of the town to create the obstruction will not preclude the abatement. Id. But that which the legislature of the state permits cannot be a public nuisance: Williams v. N. Y. Central R. R. Co., 18 Barb. 222; unless the permission is exceeded: Renwick v. Morris, 7 Hill, 575; Hinchman v. Railroad Co., 2 Green, N. J., 75; it may nevertheless be a private nuisance, as where a dam erected by state permission floods the lands of an individual, in which case he may abate it. State v. Moffett, 1 Greene, Iowa, 247. Generally a legislative act permitting the construction of a bridge or dam across a navigable stream is a complete protection to the structure. Commonwealth v. Breed, 4 Pick. 460; Depew v. Trustees of W. and E. Canal, 5 Ind. 8; Dover v. Portsmouth Bridge, 17 N. H. 200. Except where the river constitutes a highway for foreign or interstate commerce, in which case the regulations which congress might prescribe would be supreme. See Colum bus Ins. Co. v. Peoria Bridge Co., 6 Mc