annexed to the perfons of men, and are then called jura perfonarum, or the rights of perfons; which, together with the means of acquiring and lofing them, compofed the first book of thefe 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 thefe, with the means of transferring them from man to man, were the fubject of the fecond book. I am now therefore to proceed to the confideration 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 neceflary, that, before we entered at all into the discussion of wrongs, we fhould entertain a clear and diftinct 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 divifible into two forts or fpecies; private aurongs, 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 misdemefnors. To investigate the first of these species 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 redrefs 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 these [3] courts of juftice; that is, by civil fuit or action. For which reafon our chief employment in this volume will be to confider the redrefs 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 fpeedy remedy, than can can be had in the ordinary forms of juftice, there is allowed in those cases an extrajudicial or eccentrical kind of remedy; of which I fhall first of all treat, before I confider the feveral remedies by fuit: and, to that end, fhall diftribute the redrefs of private wrongs into three feveral fpecies: 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 arifes from fuit or action in courts, which confifts in a conjunction of the other two, the act of the parties co-operating with the act of law. AND, firft, of that redrefs 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, master 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 (1); 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 himfelf, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate juftice, to which he is prompted by nature, and which no prudential motives [ 4 ] are ftrong enough to reftrain. It confiders, that the future procefs of law is by no means an adequate remedy for injuries d 2 Roll. Abr. 546. 1 Hawk. P. C. 131. (1) It is faid, that the defence of his fervant is not a fufficient justification in an action brought against the master, for he may maintain an action for the lofs of the fervice of his fervant. Salk. 407. accompanied with force; fince it is impoffible to say, to what wanton lengths of rapine or cruelty outrages of this fort might be carried, unlefs 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 fociety. 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 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 husband, 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 justify 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 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 recap[5]tion fhall never be exerted, where fuch exertion muft occafion ftrife and bodily contention, or endanger the peace of fociety. If, for instance, my horse is taken away, and I find him in a common, a fair, or public inn, I may lawfully feife him e * 3 Inft. 134. Hal, Anal. § 46. to to my own ufe: but I cannot justify breaking open a private ftable, or entering on the grounds of a third perfon, to take him, except he be feloniously stolen'; but must have recourse to an action at law. III. As recaption is a remedy given to the party himself, for an injury to his personal property, fo, thirdly, a remedy of the fame kind for injuries to real property, is by entry on lands and tenements, when another perfon without any right has taken poffeffion thereof. This depends in fome measure on like reasons with the former; and, like that too, must be peaceable and without force. There is fome nicety required to define and diftinguish the cafes, in which fuch entry is lawful or otherwife: it will therefore be more fully confidered in a fubfequent chapter; being only mentioned in this place for the fake of regularity and order. IV. A FOURTH fpecies of remedy by the mere act of the party injured, is the abatement, or removal, of nuances. What nufances are, and their several species, we fhall find a more proper place to inquire under fome of the fubfequent divifions. At prefent I fhall only observe, that whatsoever unlawfully annoys or doth damage to another is a nufance; and fuch nufance may be abated, that is, taken away or removed, by the party aggrieved thereby, fo as he commits no riot in the doing of it. If a house or wall is erected so near to mine that it stops my antient lights, which is a private nufance, I may enter my neighbour's land, and peaceably pull it down". Or if a new gate be erected across the public highway, which is a common nufance, any of the king's fubjects paffing that way may cut it down, and destroy it. And the reason why the law allows this private and fummary [6] method of doing one's felf juftice, is because injuries of this kind, which obftruct or annoy such things as are of daily convenience and use, require an immediate remedy; and cannot wait for the flow progrefs of the ordinary forms of justice. V. A FIFTH cafe, in which the law allows a man to be his own avenger, or to minister redrefs to himself, is that of dif treining cattle or goods for nonpayment of rent, or other duties; or, diftreining another's cattle damage-feafant, that is, doing damage, or trefpaffing, upon his land. The former intended for the benefit of landlords, to prevent tenants from fecreting or withdrawing their effects to his prejudice; the latter arifing from the neceflity of the thing itfelf, as it might otherwife be impoffible at a future time to ascertain, whofe cattle they were that committed the trefpafs or damage. As the law of distresses is a point of great use and consequence, I fhall confider it with fome minutenefs: by inquiring, first, for what injuries a distress may be taken; fecondly, what things may be diftreined; and, thirdly, the manner of taking, difpofing of, and avoiding diftreffes. 1. AND, first, it is neceffary to premife, that a diftrefs', districtio, is the taking of a perfonal chattel out of the poffeffion of the wrongdoer into the cuftody of the party injured, to procure a fatisfaction for the wrong committed. 1. The most usual injury, for which a diftrefs may be taken, is that of nonpayment of rent. It was obferved in a former volume, that diftreffes were incident by the common law to every rentfervice, and by particular refervation to rent charges also; but not to rent-feck, till the ftatute 4 Geo. II. c. 28. extended the fame remedy to all rents alike, and thereby in effect abolished all material distinction between them (2). So that now we may lay it down as an univerfal principle, [7] that a diftrefs may be taken for any kind of rent in arrear; the detaining whereof beyond the day of payment is an injury to him that is entitled to receive it. 2. For neglecting to do fuit to the lord's court', or other certain perfonal fervice, the lord may diflrein, of common right. 3. For * Book II. ch. 3. The thing itself taken by this procefs, as well as the process itfelf, is in our law-books very frequently called a distress. 1 Bro. Abr. tit. diftrefs. 15. |