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BOOK III.

OF PRIVATE WRONGS.

COMMENTARIES

ON THE

LAWS OF ENGLAND

BOOK THE THIKD.

OF PRIVATE WRONGS.,

CHAPTER THE FIRST.

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

At the opening of these commentaries 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." 99 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 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.

a Introd. 2.

b Sanctio_justa, jubens honesta, et probibens contraria. Cic. 11 Philipp. 12. Bract. l. 1. c. 3.

c Book I. ch. 1.

[2] In the prosecution of the first of these inquiries, we distinguished 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 fas precedent to that of nefas.* [See note 1, page 23.]

Wrongs are divisible into two sorts of 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 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 volume.

Compare on this point note to book 2, at page , respecting Bentham's doctrine that wrongs are anterior to rights.

+ Quoted, 9 N. J. L. 305.

+ Cited, 4 N. H. 20.

?Cited, 74 N. C. 472.

4

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 law, 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 volume 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 cooperating 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,

4 Previously, "some injuries are."

4 Previously, "they furnish or."

*Cited, 3 Brev. 106.

† Cited, 59 N. H. 9; 47 Am. Rep. 177.
* Cited, 26 Wend. 86.

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