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SUB-TITLE (IX): POLICIES SEEKING JUSTIFICATION IN
NECESSITIES DECLARED BY FIAT
OF LEGISLATURE

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CASES ON TORTS

INTRODUCTION: SCOPE OF THE LAW OF TORTS

1. SIR WILLIAM BLACKSTONE. Commentaries on the Laws of England. (1765. Book I, Chap. I, pp. 122-128, in part; Book III, Chap. VIII, pp. 115-236, in part.) The primary and principal object of the law are rights and wrongs. In the prosecution, therefore, of these commentaries, I shall follow this very simple and obvious division, and shall, in the first place, consider the rights that are commanded, and secondly the wrongs that are forbidden, by the laws of England.

Rights are, however, liable to another subdivision; being either, first, those which concern and are annexed to the persons of men, and are then called "jura personarum," or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are styled "jura rerum," or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemeanors.

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We are now first to consider the rights of persons, with the means of acquiring and losing them.

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The rights of persons considered in their natural capacities are also of two sorts, absolute and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.

By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. . . . And these may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property; . . .

I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. 1. Life is the immediate gift of God, a right inherent by nature in every individual. . . .

2. A man's limbs (by which for the present we only understand those members which may be useful to him in fight, and the loss of which alone amounts to mayhem by the common law) are also the gift of the wise Creator, to enable him to protect himself from external injuries in a state of nature. To these

therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled.without a manifest breach of civil liberty.

3. Besides those, limbs and members that may be necessary to a man, in order to defend himself or annoy his enemy, the rest of his person or body is also entitled, by the same natural right, to security from the corporal insults of menaces, ́ássaults, beating, and wounding; though such insults amount not to destriction of life or member.

4.The preservation of a man's health from such practices as may prejudice or annoy it; and

5. The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled, by reason and natural justice; since, without these, it is impossible to have the perfect enjoyment of any other advantage or right. . . .

II. Next to personal security, the law of England regards, asserts, and preserves, the personal liberty of individuals. This personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law. . . .

III. The third absolute right, inherent in every Englishman, is that of property: which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land. . . .

[Chapter VIII. Of Wrongs, and their Remedies, respecting the Rights of Persons.] Herein I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury: . . .

Now, since all wrongs may be considered as merely a privation of right, the plain natural remedy for every species of wrong is the being put in possession of that right, whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded: or where that is not a possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault, breach of contract, &c.: to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury;' though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments whereby this remedy is obtained (which are sometimes considered in the light of the remedy itself) are a diversity of suits and actions, which are defined by the Mirror 2 to be "the lawful demand of one's right:" or, as Bracton and Fleta express it, in the words of Justinian, "jus prosequendi in judicio quod alicui debetur." . . . But I must first beg leave to premise, that all civil injuries are of two kinds, the one without force or violence, as slander or breach of contract; the other coupled with force and violence, as batteries or false imprisonment. . . . And this distinction of private wrongs, into injuries with and without force, we shall find to run through all the variety of which we are now to treat. In considering of which, I shall follow the same method that was pursued with regard to the distribution of rights: for as these are nothing else but an infringement or breach of those rights, which we have before laid down and explained, it will follow that this negative system, of Inst. 4. 6. pr.

1 See book II, ch. 29.

2 Ch. 2, § 1.

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