Blackstone's Commentaries on the Laws of England Volumes I-IV

Wayne Morrison

• Publisher: Routledge-Cavendish
• Year: 2013
• Print ISBN: 9781859414828
• eBook ISBN: 9781135345396
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First published in 2001. This is Volume III of commentaries on the laws of England that covers Private Wrongs. 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 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 misdemeanours.

CHAPTER 1
CHAPTER THE FIRST

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 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.^*

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 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 misdemeanours. 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.

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 remedy is therefore principally to be sought by application to these 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 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, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and breach of the peace, which happens, is chargeable upon him only who began the affray.^d For the law, in this case, respects the passions of 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 prompted by nature, and which no prudential 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.

II. Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens, when any one has 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, wherever 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 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 public inn, I may lawfully seise 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,^f 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, so, thirdly, a remedy of the same kind for injuries to real property, is by entry on lands and tenements, when another person without any right has taken possession thereof. 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; 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. What nuisances are, and their several species, we shall find a more proper place to inquire under some of the subsequent divisions. At present I shall only observe, that whatsoever unlawfully annoys or does 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.ⁱ And the 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 nonpayment of rent, or other duties; or distraining another’s cattle damage-feasant, that is, doing damage, or trespassing, upon his land. The former intended for the benefit of landlords, to prevent tenants from secreting or withdrawing their effects to his prejudice; the latter arising from the necessity of the thing itself, as it might otherwise be impossible at a future time to ascertain, whose cattle they were that committed the trespass or damage.

As the law of distresses is a point of great use and consequence, I shall consider it with some minuteness: by inquiring, first, for what injuries a distress may be taken; secondly, what things may be distrained; and thirdly, the manner of taking, disposing of, and avoiding distresses.

1. And, first, it is necessary to premise, that a distress,ⁱ districtio, is the taking a personal chattel out of the possession of the wrong-doer into the custody of the party injured, to procure a satisfaction for the wrong committed. 1. The most usual injury, for which a distress may be taken, is that of non-payment of rent. It was observed in a former volume,^k that distresses were incident by the common law to every rent-service, and by particular reservation to rent-charges also; but not to rent-seck, till the statute 4 Geo. II. c.28. extended the same remedy to all rents alike, and thereby in effect abolished all material distinction between them. So that now we may lay it down as an universal principle, that a distress 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. F...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• APPENDIX
• CHAPTER 1: CHAPTER THE FIRST
• CHAPTER 2: CHAPTER THE SECOND
• CHAPTER 3: CHAPTER THE THIRD
• CHAPTER 4: CHAPTER THE FOURTH
• CHAPTER 5: CHAPTER THE FIFTH
• CHAPTER 6: CHAPTER THE SIXTH
• CHAPTER 7: CHAPTER THE SEVENTH
• CHAPTER 8: CHAPTER THE EIGHTH
• CHAPTER 9: CHAPTER THE NINTH
• CHAPTER 10: CHAPTER THE TENTH
• CHAPTER 11: CHAPTER THE ELEVENTH
• CHAPTER 12: CHAPTER THE TWELFTH
• CHAPTER 13: CHAPTER THE THIRTEENTH
• CHAPTER 14: CHAPTER THE FOURTEENTH
• CHAPTER 15: CHAPTER THE FIFTEENTH
• CHAPTER 16: CHAPTER THE SIXTEENTH
• CHAPTER 17: CHAPTER THE SEVENTEENTH
• CHAPTER 18: CHAPTER THE EIGHTEENTH
• CHAPTER 19: CHAPTER THE NINETEENTH
• CHAPTER 20: CHAPTER THE TWENTIETH
• CHAPTER 21: CHAPTER THE TWENTY-FIRST
• CHAPTER 22: CHAPTER THE TWENTY-SECOND
• CHAPTER 23: CHAPTER THE TWENTY-THIRD
• CHAPTER 24: CHAPTER THE TWENTY-FOURTH
• CHAPTER 25: CHAPTER THE TWENTY-FIFTH
• CHAPTER 26: CHAPTER THE TWENTY-SIXTH
• CHAPTER 27: CHAPTER THE TWENTY-SEVENTH
• APPENDIX NO I
• APPENDIX NO II
• APPENDIX NO. III