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

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T the opening of these commentaries munici pal law was in general defined to be, "a rule of "civil conduct, prescribed by the fupreme power

"in a ftate, commanding what is right, and "prohibiting what is wrong." From hence therefore it followed, that the primary objects of the law are the establishment of rights, and the prohibition of wrongs. And this occafioned the diftribution of these collections into two general heads; under the former of which we have already confidered the rights that were defined and established, and under the latter are now to confider the wrongs that are forbidden and redreffed, by the laws of England.

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In the profecution of the first of these inquiries, we diftinguished rights into two forts: first, such as concern or are annexed to the persons of men, and are then called jura perfonarum, or the rights of perfons; which, together with the means of acquiring and losing them, composed the first book of these commentaries: and, fecondly, fuch as a man may acquire over external objects, or things unconnected with his perfon, 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 reafon it was neceffary, that, before we entered at all into the difcuffion of wrongs, we should entertain a clear and distinct notion of rights the contemplation of what is jus being neceffarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas.

WRONGS are divisible into two forts or fpecies; private wrongs, and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, confidered 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, confidered as a community; and are distinguished by the harfher appellation of crimes and mifdemefnors. To investigate the first of these fpecies of wrongs, with their legal remedies, will be our employment in the prefent book; and the other fpecies will be referved till the next or concluding volume.

THE more effectually to accomplish the redress of private injuries, courts of juftice are inftituted in every civilized fociety, in order to protect the weak from the infults of the ftronger, by expounding and enforcing thofe laws, by which rights are defined, and wrongs prohibited. This remedy is therefore principally to be fought by application to thefe

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courts of juftice; that is, by civil fuit or action. For which reafon our chief employment in this volume will be to confider the redress of private wrongs, by fuit or action in courts. But as there are certain injuries of fuch a nature, that fome 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 fhall firft of all treat, before I confider the feveral remedies by fuit: and, to that end, fhall diftribute the redress of private wrongs into three several species; first, that which is obtained by the mere act of the parties themselves; fecondly, that which is effected by the mere act and operation of law; and, thirdly, that which arises from fuit or action in courts, which confists 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 forts; first, that which arifes from the act of the injured party only; and, fecondly, that which arifes from the joint act of all the parties together: both which I fhall confider in their order.

Of the first fort, or that which arifes from the fole act of the injured party, is,

I. THE defence of one's felf, or the mutual and reciprocal defence of fuch as ftand in the relations of husband and wife, parent and child, mafter and fervant. In thefe cafes, 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. For the law, in this cafe, refpects the paffions 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

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

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prompted by nature, and which no prudential motives are strong enough to reftrain. It confiders, that the future procefs of law is by no means an adequate remedy for injuries accompanied with force; fince it is impossible to say, to what wanton lengths of rapine or cruelty outrages of this fort 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, fo 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 excufe for breaches of the peace, nay even for homicide itself : but care muft be taken, that the refiftance does not exceed the bounds of mere defence and prevention; for then the defender would himfelf become an aggreffor.

II. RECAPTION Or reprifal is another fpecies 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 perfonal, or wrongfully detains one's wife, child, or fervant in which cafe the owner of the goods, and the hufband, parent, or master, may lawfully claim and retake them, wherever he happens to find them; fo it be not in a riotous manner, or attended with a breach of the peace. The reafon for this is obvious; fince it may frequently happen that the owner may have this only opportunity of doing himself justice his goods may be afterwards conveyed away or deftroyed; and his wife, children, or fervants, concealed or carried out of his reach; if he had no speedier remedy than the ordinary procefs of law. If therefore he can fo contrive it as to gain poffeffion of his property again, without force or terror, the law favours and will juftify his proceeding. But, as the public peace is a fuperior confideration 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 focial justice must ceafe, the ftrong 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 recap

3 Inft. 134. Hal. Anal. §. 46.

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