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.

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 inquiries, we distin- [ 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 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 being necessarily prior to what may be termed injuria, and the definition of fus 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

(a) Introd. 2.

(b) Sanctio justa, jubens honesta, et prohibens

contraria. Cic. 11. Philipp. 12. Bract. 1. 1, c. 3. (c) Book I. ch. 1.

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 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 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

(d) 2 Roll. Abr. 546.

(1) It is said, that according to 1 Salk. 407, 1 Ld. Raym. 62. and Bul. N. P. 18. a master cannot justify an assault in defence of his servant, because he might have an action per quod servitium amisit. But according to 2 Rol. Ab. 546. D. pl. 2. Owen, 151. Bac. Ab. Master and Servant, P. such an interference by the master is lawful; and Ld. Hale, 1 vol. 484. says, "That the law had been for a master killing in the necessary defence of his servant, the husband in defence of his wife, the wife of the husband, the child of the parent, or the parent of the child, for the act of the assistant shall have the same construction in such cases as the act of the party assisted should have had if it had been done by himself, for they are in a mutual relation one to an other." But though, as observed by the learn

1 Hawk. P. C. 131.

ed Commentator, the law respects the passions of the human mind, yet it does not allow this interference as an indulgence of revenge, but merely to prevent the injury, or a repetition of it; and therefore in a plea by a father, master, &c., founded on this ground, it is necessary to state that the plaintiff would have beat the son, servant, &c. if the defendant had not interfered; and if it be merely alleged that the plaintiff had assaulted or beat, &c. it will be demurable, for if the assault on the master, &c. be over, the servant cannot strike by way of revenge, but merely in order to prevent an injury. 2 Stra. 953. When a person does not stand in either of these relations, he cannot justify an interference on behalf of the party injured, but merely as an indifferent person, to preserve the peace. 2 Stra. 954.

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 (ƒ); 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

(e) 3 Inst. 134. Hal. Anal. ◊ 46.

(2) See 2 R. S. 660. § 3, and book 4. note 6, p. 182.

(3) In the case of personal property improperly detained or taken away, it may be retaken from the house and custody of the wrongdoer, even without a previous request; but unless it was seized or attempted to be seized forcibly, the owner cannot justify doing any thing more than gently laying his hands

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

on the wrongdoer in order to recover it, 8 T. R. 78. 2 Roll. Abr. 56. 208. 2 Roll. Abr. 565. pl. 50. 2 Leonard, 202. Selw. N. P. tit. Assault and Battery; nor can he without leave enter the door of a third person, not privy to the wrongful detainer, to take his goods therefrom. 2 Roll. Abr. 55, 6. 208. 2 Roll. Abr. 565. I. pl. 2. Bac. Ab. Trespass, F.

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

nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot in the doing of it (g). If a house or wall is erected so near to mine that it stops my ancient lights, which is a private nuisance, I may enter my neighbour's land, and peaceably pull it down (h). Or if a new gate be erected across the public highway, which is a common nuisance, any of the king's subjects passing that way, may cut it down and destroy it (¿). *And the [ 6 ] reason why the law allows this private and summary method of

doing one's self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice.

V. A fifth case, in which the law allows a man to be his own avenger, or to minister redress to himself, is that of distraining cattle or goods for non-payment of rent, or other duties (8); or, distraining another's cattle

(g) Rep. 101. 9 Rep. 55. (h) Salk. 459.

(i) Cro. Car. 184.

And

(8) As to distresses in general, sec Gilbert the consequence, that if a landlord, after rent on Distresses by Hunt; Bradby on Dist.; has become due and before payment, conveys Com. Dig. Distress; Bac. Ab. Distress; Vin. his legal estate to another, he cannot distrain. Ah. Distress; 2 Saunders, index, Distress; Gilb. Action Debt, 411. Bro. Debt, pl. 93. Wilkinson on Replevin. As the law allows a Vaughan, 40. Bac. Ab. Distress, A. creditor to arrest the person of his debtor as a for the same reason, it is necessary to aver in security for his being forthcoming at the de- an avowry and cognizance, that at the time of termination of the suit; so in certain cases, it the distress the tenancy subsisted. The compermits a landlord to distrain for arrear of mon law was altered as far as regards tenants rent, in order to compel the payment of it. It holding over, by the 8 Ann. c. 14. which prois laid down that the remedy for recovery of vided, that if a person retain possession of the rent, by way of distress, was derived from the estate after the expiration of his tenancy, the civil law; for anciently, in the feudal law, the landlord, if his interest continue, may distrain neglect to attend at the lord's courts, or not within six months. Before this statute it was doing feudal service, was a forfeiture of the usual, and still may be expedient, to provide estate; but these feudal forfeitures were after that the last half year's rent shall be paid at a wards turned into distresses according to the day prior to the determination of the lease, so pignotary method of the civil law, that is, the as to enable the landlord to distrain before the land let out to the tenant is hypothecated, or removal of the tenant. Co. Lit. 47. b. If by as a pledge in his hands, to answer the rent agreement or custom the tenant has an away agreed to be paid to the landlord, and the going crop, and right to hold over to clear the whole profits arising from the land are liable same, the landlord may, during such excresto the lord's seizure for the payment and sa- cence of the term, distrain at common law. tisfaction of it. Gilb. Dis. 2. Gilb. Rents, 3. 1 Hen. Bla. 8. So the 11 Geo. II. c. 19. s. 18. Bacon on Gov. 77. Vigillius, 257. 271. 326. enables a landlord to distrain for double rent, Cromp. Int. 9. 2 New. R. 224. The distress if a tenant do not deliver up possession after could not at common law, before the stat. 2 W. the expiration of his own notice to quit, by & M. c. 5. be sold, but could only be impound. which he incurs double rent so long as he ed and detained, in order to induce the tenant holds over. When a lessor has not the legal to perform the feudal service.* Distresses, estate or a reversion, he should reserve a pow. therefore, were at common law only allowed er to distrain, which will entitle him to do so. when the relation of landlord and tenant sub- Co. Lit. 47. a. 5 Co. 3. But though the prin sisted, and when consequently there remained cipal object of a distress was to compel the per feudal service to be performed; and hence the formance of feudal services, and consequent necessity at the present day, that the landlord ly if rent be reserved on a letting merely of distraining should, at the time of the distress, personal property, no distress can be taken. 5 be entitled to the legal reversion; and hence Co. 17. 3 Wils. 27. Yet a distress may be rent reserved out of any lands or tenements, shall not be paid or rendered when due, the person entitled thereto may distrain for the same. Does not this authorize a distress even where there is no reversion in the owner of the rent? No distress for rent can be made unless the warrant to distrain be accompanied by an affidavit of the amount due, and of the time when it became due. 2 R. S. 501, § 8. 4

* See 2 R. S. 500, detailing the mode of proceeding on distress for rent. By that act it is provided ( 1), that within 6 months after the determination of any lease for life, years, or at will, any one to whom rent is due on such demise, may distrain either the goods remain ing on the premises, or such as have been removed, in the same way as if the lease had not ended. By 1 R. S. 747, 18, it is enacted, that when any certain services, or certain VOL. II.