.jpg)
The Laws of England, Compiled and translated into the Māori language.
Civil Injuries
page 39
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. |
| 3. |
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. |
| 4. |
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. |
| 3. | Removing nuisances. |
| 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.