CHAPTER III.

PROTECTION OF THE BODY AGAINST INJURIES INTENTIONAL, BUT NOT MALICIOUS.

Wilful or intentional injuries classified.-Having stated the provisions which the law has made against the threat and well-founded apprehension of wrong to the body, and against such actual injuries as are caused by negligence or the thoughtlessness of others, we now come to consider what the law does for the protection of the body against actual, wilful, and intended wrong. In the first case the law seeks to prevent mischief; in the other cases to punish in some way the party who has already committed it. The one remedy looks to the future, the other remedies redress the past. It is true that the difference between the two kinds of remedy is very slight, for no kind of punishment or of preventive means that can be named or devised, can wholly prevent pain or injury from being caused by one human being to another. The mind is too subtle and mysterious in its movements to be controlled, except by adding fresh motives against acting in such a manner as to occasion damage to a fellow creature, in other words, by increasing the punishment that will be exacted if the thing prohibited should be done. Motives of this kind, being the only weapons which the law can devise for controlling the acts of man and directing the movements of a free mind, the preventive machinery already described of swearing to the peace is only another name for doubling the punishment if the offence should be committed. For if the party should, notwithstanding all the formalities and deliberate warnings attending his finding sureties for keeping the peace, actually break the peace, all that will then happen is, that besides the ordinary punishment

assigned to the act or crime, he and his sureties must pay a sum of money to the crown or be imprisoned for not doing so. And a marked distinction may be made in classifying actual personal injuries which are wilful or intended. Some are the fruit of hasty passion or fits of temper, and though often attended with serious pain, yet in the great majority of instances they are trifling and soon forgotten; while others are characterised by a studied, malignant, and revengeful spirit, that stops short at nothing less than death, or something near it. While murder and malicious wounding are of this studied and deliberate kind, those of the lighter kind are treated separately under the head of assault, which, though sometimes accompanied by a malicious and deliberate intention, are yet more frequently caused by temporary heat and irritation. Our present subject, therefore, will be assaults only.

Assault and battery.-The smallest of the injuries which are done to the body intentionally, and which the law furnishes the means of punishing, are classed under the general name of assault and battery. These injuries include almost every kind of pain or suffering intentionally caused to the body, and also every kind of threat of immediate injury, which, though applied to the mind rather than the body, is nevertheless oftentimes more intensely painful, and causes a more serious interruption of business. And where insolence accompanies the act or threat, though the actual bodily suffering may be none at all, or of the slightest degree, yet the accompanying circumstances magnify its importance, and constitute it a good ground of action, which may often sound in heavy damages.

An assault consists in an attempt to touch or strike another's person against his will, or in using an imminent threat to do so forthwith. Thus to strike at one, but not hit him, is said to be an assault, but no battery;1 and so is the throwing of water upon one's body.2 An assault is resolvable into four elements :-(1) the intention of the assailer; (2) the attempt to touch the person, or the threat to do so forthwith; (3) the non-consent of the assaulted; and (4) the want of lawful excuse. A battery is a term more 1 Com. Dig. Battery, C. 2 Pursell v Horne, 8 A. & E. 604.

limited in meaning and denotes a later stage of the assault, when an actual blow has been given, direct or proximate, or a touch accompanied with insolence or anger. But in popular and even in legal language, assault and battery are used as almost synonymous terms, and the offence is usually the fruit of hasty temper.1

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Intention as an ingredient of an assault.-The intention is a leading legal element in every assault and battery, for it is obvious that a stroke may be given, and even pain inflicted, without the knowledge or consent of the person from whom it proceeded; and hence, because the hostile motive is wanting, there may be no real ground of action. Thus it is, if one were to touch a person to call attention to something affecting his duty or interest; 2 by way of joke or friendship; or in the exercise of a legal right, such as elbowing one's way through a crowd with as little force as possible. In such cases the offensive intention is wanting, and so there is nothing blamable in the eye of the law, at least if moderation be observed in the act which is done. There are many acts of rudeness, the result of habitual thoughtlessness or selfish indifference to the feelings of others, which run close to this department of legal redress, but are too slight and insignificant for the cognisance of the law. The courts of law are wholly incompetent to inculcate or enforce good manners or punish incivility; and the experience of every one suggests how wide a field of annoyance to others is thereby left unguarded. There must be a limit drawn somewhere to divide petty provocations from those substantial annoyances, which usually operate on sensible minds as a hindrance to the business of life.

As the intention to commit the act is thus a necessary ingredient of an assault, it also follows as a necessary consequence, that if the act imputed was nothing but what is popularly known as an accident, not involving

1 It is said that the Aleutians, when a quarrel occurs, do not come to blows, but take their revenge out by fixing an apt nickname on the wrongdoer, to which the aggrieved often adds a recital of the shortcomings of the wrongdoer's parents.-Dall's Alaska, 392.

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2 Coward v Baddeley, 4 H. & N. 481; Wiffin v Kincaid, 2 B. & P. 472. 3 Per L. Hardwicke, Williams v Jones, Hardr. 301. v Turner, 6 Mod. 149.

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blame or negligence, this negatives the unlawful intention : as, where, in course of a common employment, one man, throwing skins to another, hits him in the eye;1 or a horse is frightened by a clap of thunder, runs away, and knocks down a passenger in the street.2 It is also no assault where in course of a game one hits another. But if cudgelplaying take the form of a deliberate fight, and is not mere play, then, being unlawful in itself, a hostile intent is not rebutted by proof of an accident, as will be seen when one of the combatants accidentally strikes a third person. And it may be said, that, though it is often difficult to distinguish an assault from a mere accidental collision, the assault is nevertheless so far a prima facie presumption, that he, who seeks to excuse or justify what is ex facie an assault, is bound to set up that as a special defence.

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The means used to assault.-Whether, the assault and battery be committed by a direct stroke, or by some less immediate means, is wholly immaterial; and the actual pain or suffering caused is of little consequence as regards the right to redress. If one were to upset another's chair or carriage, and so cause a fall: 3 or strike the horse and so throw its rider: or throw water over one: 5 or spit in one's face or without leave cut another's hair or knock off his hat or when tossing a squib into the market-place, one man catches it and sends it on to another, who is wounded:8 or when a drunken man is pushed against another or when unlawfully aiming a blow at one person, another is struck :10 or, as Holt said, the least touch of the person in an angry manner: 11 in all such cases an assault and battery is committed in the eye of the law.

Though nothing is deemed to be a battery, unless a blow be actually struck, or is the immediate consequence of the act of another, it is not to be supposed that the law takes no cognisance of the injury, merely because it is one of the more remote consequences of another's act. All that is

1 R. v Gill, 1 Str. 190. 2 Gibbons v Pepper, 4 Mod. 405; 1 L. Raym. 38; 2 Salk. 637. 3 Hopper v Reeve, 7 Taunt. 698. 4 Dodwell v Burford, 1 Mod. 24; Sid. 433. 5 Simpson Morris, 4 Taunt. 821. 6 R. v Cotesworth, 6 Mod. 172. 7 Forde v Skinner, 4 C. & P. 239. 8 Scott Shepherd, 2 W. Bl. 892. 9 Short Lovejoy, Bull. N. P. 16. 10 James v Campbell, 5 C. & P. 372. 11 Cole v Turner, 6 Mod. 149.

meant is, that the injury, whatever it be, will not come within the head of assault and battery or be dealt with by the appropriate proceeding of an action of trespass, or the other punishments applicable thereto. Nevertheless, such injury may be punishable in another action which is often called an action on the case, as having been caused by the negligent act or conduct of others. Indeed, the general rule is, that whenever a trespass has been committed, nothing but inevitable necessity, or at least the absence of any blame, will excuse the person whose act or conduct materially contributed to produce such an effect.1 If, for example, from a sudden fright a horse were to run away with its rider and run over a man, it would be no battery; but if this consequence was occasioned by a third person whipping the horse, then such third person would be liable for the battery.2 And an assault has even been deemed to be committed by withholding food from, or exposing to inclement weather, a child whom one is under a duty to feed and clothe; though it is so, only when some hurt or injury results. And hanging a child up in a bag is deemed by the law an assault on such child.5

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The assault or blow must be actual or imminent.—And where no actual blow is struck either immediate or mediate, but an assault or threat is used, if such threat is imminent and made by one who is in a position to carry out forthwith, and it is so understood by the person assaulted or threatened, this will be deemed in law an assault; as where the hand is lifted to strike, or a horse is urged to ride one down: where a gun or stick is aimed or sword drawn within range:7 or the sleeves are tucked up to fight. While, on the other hand, if the threat is merely to be carried out at some future time, and is not attended with any immediate inconvenience, the action will not lie.9

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1 Dickenson v Watson, T. Jones, 205; Underwood v Hewson, Str. 596; 1 L. Raym. 467. 2 Gibbons v Pepper, 4 Mod. 405; 2 Salk. 637; 1 L. Raym. 38. 3 R. Ridley, 2 Camp. 650. 4 R. v Renshaw, 2 Cox, C. C. 285 5 R. v March, 1 C. & K. 496. 6 Martin Shopper, 3 C. & P. 373; Stephens v Myers 4 C. & P. 350. 7 R. St. George, 9 C. & P. 493; Osborn v Veitch, 8 Read v Coker, 13 C. B. 860. 9 Cobbett v Grey,

1 F. & F. 317. 4 Exch. 744.