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the inferior courts to do ample and speedy justice; in preventing them from transgressing their due bounds; and in allowing them the undisturbed cognizance of such causes as by right, founded on the usage of the kingdom or act of parliament, do properly belong to their jurisdiction.

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

Scope of chapter.-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.

Wrongs. 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, as the fountain of justice, is officially bound to redress in the ordinary forms of law: reserving such *injuries or encroachments as may occur between the crown and the subject, to be dis[*116] tinctly considered hereafter, as the remedy in such cases is generally of a peculiar and eccentrical nature.

Remedies. Now, since all wrong may be considered as merely a privation of right, 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 subject-matter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded: or, where that is not 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 remedy is obtained (which are some

(a) See book II, ch. 29.

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times 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 right of prosecuting to judgment which is due to every one).

Forms of action.- 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, "composito sunt, quibus inter se homines disceptarent: quas actiones ne populus prout vellet institueret, certas solennesque esse voluerunt" (forms of process were settled, by which men might argue their differences, which forms were established and made certain, that the people might not at pleasure institute their own modes of proceeding). (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 *concealment was [*117] 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, (f) "sunt jura, sunt formulæ de omnibus rebus constitute, ne quis aut in genere injuriæ, aut in ratione actionis, errare possit. Expressa enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publica a prætore formulæ, ad quas privata lis accommodatur" (there are rights, there are forms appointed for all things, lest any one should mistake either the kind of injury or the mode of redress. For public forms are composed by the prætor from every species of loss, trouble, inconvenience, calamity, and injury, for the accommodation of private suits). 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) And all the modern legislatures of Europe have found it expedient, from the same reasons, to fall into the same or a similar method.1

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(b) C. 2, § 1.
(e) Cic. pro Muræna. § 11. de orat. l. 1, c. 41.

(f) Pro. Qu. Roscio, § 8.

(g) Sunt quædam brevia formata super certis casibus de cursu, et de communi consilio totius regni approbata et concessa, quæ quidem nullatenus mutari poterint absque consensu et voluntate eorum. (There are some writs formed on certain cases, granted and approved by the common council of the kingdom, which can in no wise be changed without its will and consent.) L. 5, de exceptionibus, c. 17, § 2.

1 ["It must be remembered that the judges are appointed to administer, not to make, the law, and that the jurisdiction with which they are entrusted has been defined and marked out by the common law or acts of parliament. It is, moreover, a principle consonant to the spirit of our constitution, and which may be traced as pervading the whole body of our jurisprudence, that optima est lex quæ minimum relinquit arbitrio

judicis, optimus judex qui minimum sibi: that system of law is best which confides as little as possible to the discretion of the judge; that judge the best who relies as little as possible on his own opinion.

"Further, be it remembered, that there is no court in England which is entrusted with the power of administering justice without restraint; that restraint has been imposed from the

Classes of actions. With us in England the several suits, or remedial instruments of justice, are from the subject of them distinguished into three kinds; actions personal, real and mixed.1

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" (personal actions which are commenced against him who by contract, or through the commission of some offense, is bound to give or surrender something). (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, (i) feudal 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 other *hereditaments, in [*118] fee-simple, fee-tail, or for term of life. By these actions formerly all disputes concerning real estates were decided: but they are now pretty generally laid aside in practice, upon account of the great nicety required 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 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 really 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.

Species of wrongs.- Under these three heads may every species of remedy by suit or action in the courts of common law be com

(k) 6 Edw. I, c. 15.

(h) Inst. 4, 6, 15. (i) C. 2, § 6. earliest times. And, although instances are constantly occurring where the courts might profitably be employed in doing simple justice between the parties, unrestrained by precedent, or by any technical rule, the law has wisely considered it inconvenient to confer such power upon those whose duty it is to preside in courts of justice. The proceedings of all courts must take a defined course, and be administered according to a certain uniform system of law, which, in the general result, is more satisfactory than if a more arbitrary jurisdiction was given to them. Such restrictions have prevailed in all

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prised. 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 all civil injuries are of two kinds, the one without force or violence, as slander or breach of contract; the other, coupled with force and violence, as batteries or false imprisonment. (7) 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 [*119] 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 of 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, 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 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.

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 corresponding nature.

I. Injuries against personal security. 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 reputations.

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1. Causing death. 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.

(1) Finch, L. 184. 1 That no civil action will lie at the common law for causing the death of a human being, see Whitford v. Panama R. R., 23 N. Y. 465; Carey v. Berkshire R. R. Co., 1 Cush. 475; Ohio and M. R. R. Co. v. Tindall, 13 Ind. 366; Eden v. L. and F. R. R. Co., 14 B. Monr. 204. But where death does not at once ensue, a person entitled to the services

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

(n) See book I, ch. 1.

of the person injured may recover for the loss accruing between the injury and the death, and this recovery will not be barred by the death. Long v. Morrison, 14 Ind. 595; Hyatt v. Adams, 16 Mich. 180.

And now, by statute 9 and 10 Vic. c. 93, whenever the death of a person shall be caused by such wrongful act,

*2, 3. Trespass vi et armis.—The two next species of injuries, affecting the limbs or bodies of individuals, I shall [*120] 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 manner at another; or strikes at him, but misses him; this is an assault, insultus, which Finch (9) describes to be "an unlawful setting upon one's person." This also is an inchoate violence, amounting considerably higher than bare threats; and, therefore, though no actual suffering is proved, yet the party injured may have redress by action of trespass vi et armis; wherein he shall recover damages as a compensation for the injury.

3. By battery; which is the unlawful beating of another. The least touching of another's person wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner. And, therefore, upon a similar principle the Cornelian law de injuriis (of injuries) prohibited pulsation as well as verberation; distinguishing verberation, which was accompanied with pain, from pulsation, which was attended with none. (r) But battery is, in some cases, justifiable or lawful; as where one who hath authority, a parent, or master, gives moderate correction to his child, his scholar, or his apprentice. So also on the principle of self-defence: for if one strikes me first, or even only assaults me, I may strike in my own defence; and, if sued for it, may plead son assault demesne, or that it was the plaintiff's own original assault that occasioned it. So

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neglect or default, as would, if death had not ensued, have entitled the party injured to maintain an action for damages, the person who would have been liable to such action may be sued by the executor or administrator, for the benefit of the wife, husband, parent, or child of the person deceased. The damages awarded are apportioned among the persons for whose benefit the action is brought, as the jury may direct. Similar statutes have been passed in the United States. See Read v. Great Eastern R. R. Co., L. R. 3 Q. B. 555; Carey v. Berkshire R. R. Co., 1 Cush. 479; Soule v. New York, &c. R. R. Co., 24 Conn. 575; Whitford v. Panama R. R. Co., 23 N. Y. 465; Georgia, &c. Co.

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(q) Finch, L. 202.

v. Wynn, 42 Geo. 331; Frank v. New Orleans, &c. R. R. Co., 20 La. An. 25; Walters v. Chicago, &c. R. R. Co., 36 Iowa, 458; Steel v. Kurtz, 28 Ohio St. 191; Alabama, &c. R. R. Co. v. Waller, 48 Ala. 459; Covington St. R. R. Co. v. Packer, 9 Bush, 455; S. C., 15 Am. Rep. 725; Mathews v. Warner, 29 Gratt. 570; S. C., 26 Am. Rep. 396.

The English doctrine that the civil remedy for an injury by a felony is suspended until the criminal remedy has been pursued is generally held inapplicable in the United States, where the duty of prosecuting for public of fenses is devolved upon a public officer. See cases collected, 1 Bish. Cr. L. § 329, et seq. [McClain's Cr. L., § 11.]

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