The Laws of England, Compiled and translated into the Māori language.
Part Second. — Civil Injuries
In this Chapter it is intended to set forth and explain the provisions of the Law with respect to Civil Injuries, that is, those wrongful acts of a man whereby he becomes an offender against his fellow man individually.
The provisions of the Law with respect to Criminal Offences, that is, those acts of a man whereby he becomes an offender against the public, have already been set forth and explained with the punishments assigned to each offence.
A wrongful act whereby a man becomes an offender against the public is called a Criminal Offence, and the person committing it is punished. In the case of an offence against an individual, it is different; compensation may be awarded to the person injured by the wrongful act, or Civil Injury.
The Courts of Justice, already described, are instituted for the purpose of trying and punishing Criminal Offences, and also of giving redress and compensation for Civil Injuries. It is one great principle of the Law, that no man may fix the compensation to be given to himself for any Injury: he must not step over the Law to redress the wrong done to himself: he must look for redress to the Courts of Justice.
The injuring and injured parties may, however, confer together, and arrange terms of satisfaction, instead of carrying the case into Court. This would be perfectly right: indeed the only reason why any matter of this kind is taken into a Court of Justice, is because the parties at variance are unable to settle it amicably themselves.
The principle just stated, that no man is permitted to enforce compensation for the injury he may sustain by the wrongful act of another, is correct; but there are some exceptions. There are cases in which a man is not required to wait for the ordinary course of the Law. Of such cases we will now speak.
|1.||A man may ward off a blow aimed by another at himself, his wife, his child, or his parent. If a violent attack be made upon these, his dependents, or upon his own person or property, he may repel the assailant, opposing force to force, according to the violence of the attack; and in so doing he will be exonerated from blame which will fall upon the one who began the affray. A man cannot rightly be blamed for defending himself from a blow aimed at him by another. But care must be taken that what is done be only a warding off or preventing the violence offered by the other; lest it pass the bounds of mere self defence, and become an aggression on the part of the person first assailed; in which case, he would be doing wrong, and committing an offence against the Law.|
|2.||A man may go and take his property of which he has been unlawfully deprived by another, or his wife, or child, unlawfully detained by another. He may take them wherever he finds them; but must take them peaceably, and, if this cannot be done, he must leave them and apply to the Law to recover and restore them to him. For instance; if my horse be taken, and I find him on a common, or public road, or other public place; I may go and take him forthwith. But if I find him in the enclosed grounds of another or in his stable; I may not forthwith proceed to enter that person's enclosure, to fetch my horse, or break into his stable to take him; but I must apply to the Law to recover my horse for me. The reason why it has been thus ordered is to avoid disturbance and contention. The law is most careful of the public order and the peace of the community that it be not disturbed by contention, but that men should live orderly and peaceably together. Hence, the property of an individual is regarded as of less consideration than the public peace; and the public peace may not be disturbed by an individual, though for the recovery of his own property. Another reason is, that if individuals were permitted to redress their own injuries, the provisions of the Law for this purpose would come to be disregarded, and the Law of the strong arm would prevail.|
Another instance in which a man may redress an injury done him is in the removal of Nuisances.
The name of Nuisance is given to any thing which unlawfully inconveniences or annoys, and the person aggrieved thereby may remove such nuisance, if he can do so peaceably, without causing a disturbance by such removal, and without needless injury to anything belonging to the party causing the Nuisance which is removed.
There are Private nuisances and Public nuisance.
If a person unlawfully place an obstruction before the window of my house; this is a Private nuisance, affecting me individually; and I may quietly remove such nuisance.
But if a person obstruct the Queen's highway; this is a Public nuisance, affecting the whole community; and any of the Queen's subjects may proceed quietly to remove such nuisance.
This power is not, however, to be used on slight occasions; but only on those which are urgent. It is much better to have recourse to the Law, that is, to a Court of Justice.
Another case in which a man may himself redress his own injury, is when Cattle, belonging to another, trespass and do damage on his cultivation, garden, or plantation; when they may be taken by him, driven to a pound, and there kept until compensation be made for the damage done by them. The Law permits this, considering that if the animals were merely driven out and then search made for their owner, the latter might not be found, or, if found, might deny that the Cattle committing the trespass or damage belonged to him. But if the trespass was owing to a defective fence, or a gate left open, the Cattle may not be impounded.
If a man's cattle are lawfully impounded, he must notattempt to recover them by force, or he will be guilty of a Criminal Offence. See Criminal Offences, "Pound Breach," 73.
A person impounding animals for trespass, or damage, may not work or use them. But he must supply them with sufficient food, for which the owner must pay when he releases them. The owner must pay for two things: for the damage his animals have done, and for the food they have consumed while in the Pound, before lawfully released by him.
|1.||In Self defence.|
|2.||Recovering goods unlawfully taken.|
|4.||Impounding animals committing trespass or damage.|
We will now speak of those Civil Injuries for which redress must be sought in the Courts of Justice instituted for that purpose.
The mode of obtaining such redress is by a Suit, This proceeding is called by the Pakeha an Action, or Suit at Law. The person sueing is called the Plaintiff, and the person sued is called the Defendant. For example: suppose one man owes money to another, and will not pay it on being requested to do so, and the creditor wishes payment to be compelled by the Court; he commences an "Action;" that is, he applies to the Court for a summons to cause the person owing him the money to appear, in order that the Court may hear what both have to say, and adjudicate upon the case. Or in the case of a breach of contract: as, when a person has engaged to perform certain work, or to pay certain money, or has made any other agreement and fails to perform his engagement, an Action may be brought. The person who has suffered by the breach of agreement may apply to the Court for redress, and to compel the other party to make compensation. Or if a man's personal goods are unlawfully detained by another, he may bring an action to obtain the restoration of his property by the Court. Or if a person receive injury accompanied with violence, as in the case of a serious assault, and seeks to obtain damages;page 41
He brings an Action against the person who assailed him. And in all cases where damages are claimed for injury by another to person or property, the mode of procedure is the same: and this is called a "Civil Action."
We will now consider those wrongful acts which affect a man's personal rights, in the enjoyment of which the Law is his protector.
|(I.)||To his life; that he be not deprived of it unlawfully.|
|(II.)||To his body; that it be not unlawfully subjected to pain or inconvenience.|
|(III.)||To his good name; that it be not defamed.|
Another of these rights, in the enjoyment of which the Law protects a man, is that of personal liberty; by which a man is master of his actions, and is free to come and go as he pleases, without being subjected to unlawful restraints or interference by any. These are the personal rights of a man, in the enjoyment of which the Law is his protector.
|(I.)||We will speak first of injuries which affect a man's natural life, that is, of those which tend unlawfully to deprive him of it. These are not regarded as merely Civil Injuries, but as Criminal Offences; for they are heinous Crimes in the sight of both God and Man. They will not therefore be considered here. Information respecting them will be found in the First Part of this Book, where Criminal Offences are treated of.|
|(II.)||We will next speak of Injuries which affect a man's body. These are regarded by the Law as of a two-fold character. They are regarded as Criminal Offences,—Offences against the Community: they are also regarded as Civil Injuries,—Injuries for which the injured party may seek redress. The proceedings in reference to these eases, when regarded as Criminal Offences, will not be entered on here: they are described in that part of this Book which treats of Criminal Offences. We will here speak of the proceedings in reference to such cases, when regarded as Civil Injuries.|
|1.||Assaulting a man's person by an attempt or offer to strike him, though a blow be not actually struck. As, if one lifts up his hand, or his stick, to strike another; or if he aims a blow at him with his fist, or stick, and misses him: in any such case it is an Assault. This is not serious, and the compensation awarded to the person so assaulted will not be great, and, in very trivial cases, none whatever.|
|1.||Battery, or striking another. If a man touch another in anger and intentionally, it is a Battery. The Law thus regards it, because it cannot distinguish between the degrees of violence with which a blow may be inflicted. It therefore says that a man's person must not be touched in anger; it must be held sacred, and may not be molested in any way by another.|
|3.||Inflicting serious hurt upon the person of another. This is the offence of Battery, just described, in an aggravated form.|
Listen, however, to what is essential to make these acts Offences of which the Law will take cognizance: they must be done without authority, that is, contrary to the Law. For they may sometimes be done without an Offence being thereby committed, viz., when a person is properly authorised to do them. A parent who moderately corrects his child will not be deemed to have committed such an Assault as the Law reproves. So a teacher in administering moderate correction to his pupil, would not commit an Offence, because he has a lawful authority for his act.page 42
There are also other cases where a man may do acts similar to those here described, without being guilty of an Offence against the Law.
Again; if a person should come and unlawfully take possession of my goods, I may justify laying hands on him to prevent his taking my property, and, if he persist with violence, I may beat him away. So also an Officer, in the execution of his duty, may lay hands upon another without committing an Offence; as in the case of creating a disturbance in a place of Public Worship; the person in charge may quietly expel the person offending, and will not be wrong in doing so.
There are some kind of injuries, affecting the bodies of men, which are not the result of intention on the part of the person causing the injury, but arise out of an act of carelessness or negligence. Thus, in the case of a person embarking in a canoe which is upset through carelessness or unskillulness, and sustaining injury, it will be chargeable upon the person who caused the accident, as it resulted from his carelessness. The same applies in the case of a person travelling in a carriage, when, through the carelessness of the driver, the carriage is overturned and bodily injury is sustained.
Another case is where a vicious dog or mischievous animal attacks a person, and inflicts injury. The blame in such case will fall upon the owner of the animal, if he were aware of its evil propensity. But if the dog were carefully kept for the protection of his premises, and a person incautiously entered by night and was attacked; the owner would not be answerable, as it was the fault of the person entering the premises without proper caution.
(III.) Injuries which affect a man's good name. For instance; when defamatory words are maliciously spoken. The cases in which the speaking of defamatory words would be regarded as a Civil Injury, and actionable, are as follows. When any thing is uttered of another, imputing the commission by him of an Offence punishable by Law; as if one should say of another, that he had administered poison to some person; or that he had spoken falsely on oath: any such imputation would be a Civil Injury. Or if defamatory or disparaging words are uttered of any public Officer, in his official capacity.—as, if one should say of a Magistrate, that he is partial in his decisions; or that he receives bribes:—this would be a Civil Injury.
In the case of words which do not convey a direct charge of a crime punishable by Law, the Plaintiff must show that he has suffered injury from the use of those words, or an action will not lie: if no injury has been sustained, a Court of Law will not entertain a suit for redress. For instance; if one should impute inchastity to a woman, and she, in consequence of such imputation, lose her situation; or otherwise suffer; this is a Civil Injury, and redress may be sought in a Court of Law. Or if misconduct were falsely imputed to a Native Teacher, and he were to be dismissed in consequence of such imputation; it would be a Civil Injury, and actionable.
But if the disparaging words were spoken by way of advice and in a friendly manner, they will not furnish proper ground for an Action, because they were not spoken maliciously. It was said in the beginning, that only defamatory words, maliciously spoken, were regarded as injuries cognizable by the Law. And so in the case of statements properly made by one man in respect of another; as when a man communicates to a Magistrate a statement respecting a third person, which may be disparaging to his reputation; it is no wrong if such statement relate to matters which the Magistrate ought to know. Also, if the statement be true, and the defendant, that is, the person making the statement, can prove it to be true, a Court of Justice will give no compensation to the person respecting whom such statement be made; for the Law does not compel a man to pay for speaking that which is true, although it may be defamatory.
There is a rule to be observed in reference to taking legal proceedings for injuries of this kind: they must not be delayed. If two years are allowed to pass after the defama-page 43
tory words have been spoken, no legal proceedings can then be taken. There are a few exceptions, where a longer time is allowed, but in most cases much delay is not permitted.
Another injury which affects a man's good name is a Libel, that is, a written or printed paper put forth to the public containing malicious and defamatory matter. Although it may contain no actionable word, yet if it contain anything tending to injure or degrade a man in the estimation of his fellow men, or to make him the subject of ridicule; whether it be printed or in writing, or a picture; it is a Libel. A Libel is regarded in a twofold light:—as a Civil Injury, and as a Criminal Offence. See List of Criminal Offences, "Libel"57.
Another injury, affecting a man's good name, is by a false and malicious prosecution. The Law gives large compensation for this injury. But the Plaintiff must show that there were no probable grounds for instituting the prosecution, as only in such case can he with propriety sue in a Court of Justice for compensation.
There are four things necessary in order to justify legal proceedings against any person for this injury, that is, for a malicious and false criminal prosecution: these four circumstances must all concur in order to form sufficient ground for an Action.
|1.||There must have been no probable ground for instituting the prosecution.|
|2.||The accusation must have been false.|
|3.||There must have been malice on the part of the prosecutor.|
|4.||The person prosecuted must have sustained injury in consequence of such prosecution; in his person, by imprisonment; in his good name, which has been aspersed; or in his property, which has been wasted by the expense entailed by such a prosecution.|
The injury which affects the liberty of a man, that is, the right which the Law gives him of being master of his own actions, is False Imprisonment.
The Law has decreed a punishment for this, which is a Criminal Offence. It also gives reparation to the person falsely imprisoned, by a Civil Action in a Court of Justice to recover, from the person who inflicted the injury, compensation for any loss sustained in consequence of such imprisonment.
|1.||The detention of the person.|
|2.||Such detention must be contrary to Law.|
Any detention of the person is an Imprisonment, whether the place of confinement be a common prison, or a private house; or even a forcible detention in a public road; and it will be called a False Imprisonment, when a person is so confined or detained by another without authority.
We will now speak of those injuries which affect a man individually in his private relations; such as may be done to a person, as a husband, as a wife, as a parent, or as a child.
|1.||Unlawfully taking away his wife.page 44|
|2.||Committing adultery with her.|
|3.||Beating or otherwise maltreating her.|
|1.||Unlawfully taking away a man's wife. There are two ways in which this injury may be done; one by frand, and persuasion; another by a forcible taking. The Law, however, supposes a forcible taking, or violence, in both cases, as it does not recognize a power to consent in the wife. The remedy for the husband is by an Action at Law, and he may recover damages for taking her away.|
|2.||Committing adultery with a man's wife. This is a Civil Injury, and a grievous wrong. The Law gives satisfaction to the husband by an action against the adulterer. The damages awarded by the Court are not the same in all cases. In some cases they are large; in others, small. The standing of the husband and of the seducer will be considered; whether high or low in rank, affluent or poor; and the award will be affected thereby. The relation in which they stand with each other, whether relatives or strangers. The nature and degree of seduction employed: the conduct and character of the woman before her seduction, whether correct or otherwise; and her previous treatment by her husband, whether kind or harsh, will also be considered. If it be proved that the husband had been first guilty of adultery, this will go in mitigation of damages. If it appear that the husband consented to the adultery of his wife, or that she had been forsaken by him, and that he was living in a state of permanent separation from her at the time of adultery, no action can be sustained. In these cases it is required that actual marriage be proved, but, generally, common report, and their living together, will be sufficient evidence of marriage.|
|3.||Beating or maltreating a man's wife. If it be a common Assault, Battery, or Imprisonment, the Law gives redress by an Action in a Court of Justice for damages. The husband and wife must be joined as plaintiffs in such Action. But if the beating or other maltreatment be of an aggravated character, causing such serious injury to the wife as to deprive the husband of her company and assistance, the Law will give him compensation in an Action brought by himself alone.|
If a girl is seduced, her parent or guardian may bring an Action against the seducer and recover damages. In order to sustain such Action, it will be sufficient to prove that the girl was under 21 years of age at the time of the seduction. If she were above 21 years of age, it will be necessary for the parent or guardian to prove that the girl was living with him at the time of her seduction, and that he has suffered loss by being deprived of her services. This must be proved in order to sustain an Aetion against the seducer.
And, in assessing damages, the dishonour done to the plaintiff by the conduct of the defendant will be considered by the Court. And, as in the case of adultery previously described, the behaviour of the parties, of the girl and of the parents, will be considered as forming ground for diminishing the compensation to be given to the plaintiff. It must be remembered, that in such a case, the woman herself cannot sue, but the action or suit for damages must be brought by her parent or guardian; for the woman could not be said to have sustained an injury by the act of the seducer, because she was a consenting party.page 45
There is a provision of the Law which prescribes Limits within which an action for a Civil Injury must be brought. When the time allowed has past, no action can afterwards be brought. There are many particular rules fixing such limits; one rule applying to one case; another rule to another case. Those only, however, will be stated here which are most important to be known by the Maori people.
The reasons why the Law has fixed these limitations to actions are; to prevent uncertainty about titles to land and other property, and to make them permanently secure; to preserve peace; to prevent perjury; and also to secure, as far as possible, that all evidence relating to any matter to be brought to trial be produced while the persons who saw or knew anything of the circumstances are living, and remember those circumstances; for if no limit were fixed within which cases must be brought for trial, and long delays were permitted, it might not be possible to produce the evidence of the persons having knowledge of the circumstances, when required, from their having gone elsewhere, or having died, or having forgotten those circumstances, during the interval.
One limitation is in the case of Debt. The Law requires that the action must be brought within 6 years. If 6 years pass after the debt was contracted; or after the last payment on account was made; or after a written promise to pay was given; an Action cannot then be brought. The Law refuses to interfere on behalf of the creditor, because he was himself to blame for the delay. The rule is the same in the case of a Contract. If it be broken, and one of the parties wishes to sue the other on account of such breach; the proceedings must be taken within the space of 6 years.
The rules with respect to actions at Law in reference to Land will not be stated here, because the Maori tenure of land is quite different from that of the Pakeha. The Law of the Pakeha in reference to land, does not apply to land held under the Maori title. If, however, the Maori tenure were made similar to that of the Pakeha, the provisions of the Law of the Pakeha, in reference to land, might be brought into operation for the adjustment of those disputes which now arise among the Maori people, and cause strife between their tribes. If their lands were divided, and each individual had his own portion, and held it under the same kind of title as the Pakeha holds his land, that is, under a title which could be recognized by the Law, the Pakeha Law might then with propriety and advantage be brought to bear upon all cases of disputed ownership. It is a good and just Law, and there is no case of dispute about land among the Pakehas which cannot be properly adjusted by it. Possibly the Maori people may soon adopt the Pakeha mode of holding land, when the same Law will extend to both alike, and protect each individual land owner, of both races, in the peaceable enjoyment of his own estate.
We have here endeavoured to explain some of the principal features of the English Laws, and if the Maori reader makes himself master of what has been written, he will understand enough of the Law of the Pakeha to convince him of its justice, and of the advantages which must result from its being acknowledged and obeyed, by the Maori as well as the Pakeha.
There are many other matters respecting which rules have been laid down by the Law. There is the Law about Wills, or written documents, by which a man arranges who is to possess his land, or other property after his decease: there are also rules about many other matters. Those we shall leave for some future time. That which has been already explained may suffice for the present.
Glossary of Maoriized English Words.
This Chapter contains explanations of some English words which have been Maoriized and used in this Book. These words are here arranged in the Maori alphabetical order. This has been done for the sake of the Maori reader, who, when he comes to a ward which he does not understand, may refer to this Chapter, where he will find all such words with their explanations or a reference to the place where such explanation is given. Words commencing with the letter "A" will be found together under A, those of which the first letter is "K" under K, and so on to the end.
[This Glossary of Maoriized English words, many of which are now first introduced into the Maori language, contains definitions of such words, suited to the Maori reader, which, it is hoped, may prove intelligible and useful to him. It would, however, be difficult to render these definitions into English in such a manner as to give at once an accurate translation and a precise definition of the English word. As moreover, no practical advantage would be gained by giving an English translation, it has not been attempted.]