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. [See note 2, page 25.] 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 the breach of the peace, which happens, is chargeable upon him only who began the affray. For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connexion) makes it lawful in him to do himself that immediate justice, to which he is [4] 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 hath 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

d 2 Roll. Abr. 546. 1 Hawk. P. C. 131.

**Quoted with omission, 11 Ind. 557. 71 Am. Dec. 379: partly, 3 Heisk. 197: 12 Tex. 476; last clanse, 25 Wend. 587; 37 Am. Dec. 349; 1 Hill, 420. Cited, 6 Conn, 457; 10 Ired. 217; 75 N. C. 175; 53 N. H. 419.

master, may lawfully claim and retake them, wherever he happens to find them* [see note 3, page 25]; so it be not in a riotous manner, or attended with a breach of the peace. 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 [5] shall never be exerted, where such exertion must occasion strifo and bodily contention, or endanger the peaco of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a 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; 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

e 3 Inst. 134. Hal. Anal. § 46.

f 2 Roll. Rep. 55, 56. 208. 2 Roll. Abr. 565, 566.

+-* Quoted, 18 Conn. 17. Cited, 9 Humph. 699.

*- Quoted, Marsh. J. J. 611. Cited, 53 N. H. 423; 16 Am. Rep. 365. - Quoted, 50 Ala. 148; partly, Marsh. J. J. 611. Cited, 71 Ala. 115; G Blackf. 376; 28 Mass. 388; 110 Mass. 43; 14 Am. Rep. 579; 34 N. H. 459; 69 Am. Dec. 507.

- Quoted, 3 Pa. St. 20; 45 Am. Dec. 619. Cited, 1 Houst. 259.

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 doth 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. If a house or wall is erected so near to mine that it stops my antient lights, which is a private nuisance, I may enter my neighbour's land, and peaceably pull it down. 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.12 [6] And the reason why the law allows this private and summary method of doing one's self justice, is because injuries of this kind,

g 5 Rep. 101. 9 Rep. 55.

h Salk. 459.

i Cro. Car. 184.

*Cited, 19 Ga. 30; 3 Pa. St. 20; 45 Am. Dec. 620; may be with force, 9 Wend. 202; 1 Swan, 104; 2 Swan, 543; 51 N. H. 240; 12 Am. Rep. 97.

t-t Quoted, 98 Ill. 308; 38 Am. Rep. 92.

1- Quoted, 5 Cal. 122; 63 Am. Dec. 112: 23 Wend. 357; 34 Tex. 232. Cited, 35 N. H. 269; 69 Am. Dec. 543; 24 Mich. 512; 99 Pa. St. 309; 44 Am. Rep. 110; as to dangerous animals, 53 N. H. 414; 6 Jones (N. C.) 295.

- Quoted, 15 Ga. 62; 9 Wend. 589. Cited, 21 Ohio St. 256; 8 Am. Rep. 61; 100 Ind. 579.

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 distreining cattle or goods for non-payment of rent, or other duties; or, distreining 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 distreined; and, thirdly, the manner of taking, disposing of, and avoiding distresses.

1. And, first, it is necessary to premise, that a distress, districtio, ¶ is the taking of 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, that distresses were incident by the common law to every rentservice, and by particular reservation to rent-charges

The thing itself taken by this process, as well as the process tself, is in our law books very frequently called a distress. k Book II. ch. 3.

Quoted, 8 Martin N. S. 552; 20 Am. Dec. 262; 9 Wend. 610; 24 Am. Dec. 196; 2 Watts, 27: 26 Am. Dec. 100; 21 Ohio St. 256; 15 N. H. 436; 99 Pa. St. 309. Cited, 59 N. H. 9; 47 Am. Rep. 177.

t-t Quoted, 30 Mich. 211.

+- Quoted, with omission, 63 Me. 88. Cited, 33 N. H. 327; 1 Watts & S. 411.

1-1 Quoted, 3 McCord, 40. Cited, 27 Md. 665.

1

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, [7] that a distress may be taken for any kind of rent in arrere; the detaining whereof beyond the day of payment is an injury to him that is entitled to receive it.* 2. For neglecting to do suit to the lord's court, or other certain personal service,m the lord may distrein, of common right.† 3. For amercements in a court-leet a distress may be had of common right; but not for amercements in a courtbaron, without a special prescription to warrant it." 4. Another injury, for which distresses may be taken, is where a man finds beasts of a stranger wandering in his grounds, damage-feasant; that is, doing him hurt or damage, by treading down his grass, or the like; in which case the owner of the soil may distrein them, till satisfaction be made him for the injury he has thereby sustained.‡ 5. Lastly, for several duties and penalties inflicted by special acts of parliament (as for assessments made by commissioners of sewers, or for the relief of the poorP), remedy by distress and sale is given; for the particulars of which we must have recourse to the statutes themselves: remarking only, that such distresses are partly analogous to the antient distress at common law, as being repleviable and the like; but more resembling the common law process of execution, by seising and selling the goods of the debtor under a writ of fieri facias, of which hereafter.? ||

Of the five cases enumerated, distress damage-feasant alone remains in common use in the United States. Distress for rent has been abolished in most of them: but a landlord's lien on the tenant's goods is frequently substituted for it by statute.