Front Page Titles (by Subject) LECTURE IX.: THE PRIMITIVE FORMS OF LEGAL REMEDIES. I. - Lectures on the Early History of Institutions
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LECTURE IX.: THE PRIMITIVE FORMS OF LEGAL REMEDIES. I. - Sir Henry Sumner Maine, Lectures on the Early History of Institutions 
Lectures on the Early History of Institutions, 7th edition (London: John Murray, 1914).
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THE PRIMITIVE FORMS OF LEGAL REMEDIES.
I stated on a former occasion (Lecture I. p. 8) that the branch of law which we now call the Law of Distress occupies the greatest part of the largest Brehon law-tract, the Senchus Mor. The importance thus given to Distress is a fact of much significance, and in this and the following Lecture I propose to discuss the questions it raises and the conclusions it suggests.
The value of the precious discovery made by Niebuhr, when he disinterred in 1816 the manuscript of Gaius, does not solely arise from the new light which was at once thrown on the beginnings of the legal system which is the fountain of the greatest part of civilised jurisprudence. There are portions of the treatise then restored to the world which afford us glimpses of something older than law itself, and which enable us to connect with law the practices dictated to barbarous men by impulses which it has become the prime office of all law to control. At the head of the passages in the work of Gaius which allow the mind’s eye to penetrate some little way into the chaos out of which social order sprang, I place the fragmentary and imperfect account, given near the commencement of the Fourth Book, of the old Legis Actiones, which in the age of Gaius himself had ceased to have more than an historical and antiquarian interest.
Legis Actio, of which the exact meaning does not seem to have been known to Gaius, may be conjectured to have been the substantive form of the verbal expression, legem or lege agere, and to have been equivalent to what we now call Procedure. It has been several times observed that among the Legis Actiones are included several proceedings which are not of the nature of Actions or Suits, but are rather modes of executing decrees. The fact seems to be that, by a course of change which may be traced in the history of Roman law, one portion, ‘Actio,’ of the venerable phrase ‘Legis Actio’ has been gradually disjoined from the rest, and has come to denote that stage of the administration of justice which is directly conducted by the Court, together, in some judicial systems, with the stage immediately preceding it. I suppose that originally lex, used of the assumed written basis of Roman law, and legis actio, corresponded roughly to what many centuries afterwards were called Substantive and Adjective Law, the law declaring rights and duties and the rules according to which the law declaring rights and duties is administered. On the expression just mentioned, Adjective Law, with which Bentham and his school have familiarised us, I will make a remark which applies to much in the phraseology and classifications of the Analytical Jurists, that it is correct and convenient according to the ideas of their day, but that, if used of very old law, it is apt to lead to an historical misconception. It would not be untrue to assert that, in one stage of human affairs, rights and duties are rather the adjective of procedure than procedure a mere appendage to rights and duties. There have been times when the real difficulty lay, not in conceiving what a man was entitled to, but in obtaining it; so that the method, violent or legal, by which an end was obtained was of more consequence than the nature of the end itself. As a fact, it is only in the most recent times or in the most highly developed legal systems that remedies have lost importance in comparison with rights and have ceased to affect them deeply and variously.
The first and in many respects the most interesting of these ancient modes of proceeding is the Legis Actio Sacramenti, the undoubted parent of all the Roman Actions, and consequently of most of the civil remedies now in use in the world. Several years ago I pointed out (Ancient Law, pp. 376, 377) that the technical formalities appeared plainly, upon inspection, to be a dramatisation of the Origin of Justice. ‘Two armed men,’ I said, ‘are wrangling about some disputed property. The Prætor, vir pietate gravis, happens to be going by and interposes to stop the contest. The disputants state their case to him, and agree that he shall arbitrate between them, it being arranged that the loser, besides resigning the subject of the quarrel, shall pay a sum of money to the umpire as remuneration for his trouble and loss of time.’ ‘This interpretation,’ I then added, ‘would be less plausible than it is, were it not that, by a surprising coincidence, the ceremony described by Gaius as the imperative course of proceeding in a Legis Actio is substantially the same with one of the two subjects which the God Hephæstus is described by Homer as moulding into the First Compartment of the Shield of Achilles.’ Since these passages were written, the labours of more recent enquirers enable us to class this judicial picture of the origin of one great institution, Civil Justice, with other pictorial or dramatic representations of forgotten practices which, in various parts of the world, survive in the forms attending institutions of at least equal importance. It may be seen, for example, from Mr. McLennan’s work on ‘Primitive Marriage,’ that a large part of mankind still simulate in their marriage ceremonies the carrying off the bride by violence, and thus preserve the memory of the reign of force which, at all events as between tribe and tribe, preceded everywhere the reign of law. It is not at the same time to be supposed that these long-descended dramas imply or ever implied any disrespect for the institutions with which they are associated. In all probability they intentionally commemorate not the evil but the remedy for the evil: and, until they degenerate into meaningless usages, they are enacted, not in honour of brute force, but in honour of the institutions which superseded it, Marriage and Civil Justice.
Almost every gesture and almost every set of formal words in the Legis Actio Sacramenti symbolise something which, in some part of the world or another, in some Aryan society or another, has developed into an important institution. The claimant places his hand on the slave or other subject of dispute, and this grasp of the thing claimed, which is reproduced in the corresponding procedure of the ancient Germans and which, from them, was continued in various modified forms far down into the Middle Ages, is an early example of that Demand before action on which all civilised systems of law insist. The wand, which the claimant held in his hand, is stated by Gaius to have represented a spear, and the spear, the emblem of the strong man armed, served as the symbol of property held absolutely and against the world, not only in the Roman but in several other Western societies. The proceedings included a series of assertions and reassertions of right by the parties, and this formal dialogue was the parent of the Art of Pleading. The quarrel between plaintiff and defendant, which was a mere pretence among the Romans, long remained a reality in other societies, and, though its theory was altered, it survived in the Wager of Battle which, as an English institution, was only finally abolished in our fathers’ day. The interposition of the Prætor and the acceptance of his mediation expanded into the Administration of Justice in the Roman State, one of the most powerful of instrumentalities in the historical transformation of the civilised world. The disputants staked a sum of money—the Sacramentum, from which the proceedings took their name—on the merits of their quarrel, and the stake went into the public exchequer. The money thus wagered, which appears in a singularly large number of archaic legal systems, is the earliest representative of those Court-fees which have been a more considerable power in legal history than historians of law are altogether inclined to admit. The very spirit in which a Legis Actio was conducted was that which, in the eyes of laymen, has been most characteristic of lawyers in all historical times. If, says Gaius, you sued by Legis Actio for injury to your vines, and called them vines, you would fail; you must call them trees, because the text of the Twelve Tables spoke only of trees. The ancient collection of Teutonic legal formulas, known as the Malberg Gloss, contains provisions of precisely the same character. If you sue for a bull, you will miscarry if you describe him as a bull; you must give him his ancient juridical designation of ‘leader of the herd.’ You must call the forefinger the ‘arrow’-finger, the goat the ‘browser upon leeks.’ There are lawyers alive who can recollect when the English system of Special Pleading, now just expiring, was applied upon principles not remotely akin to these and historically descended from them.
The description given by Gaius of the Legis Actio Sacramenti is followed by a lacuna in the manuscript. It was once occupied with an account of the Judicis Postulatio, which was evidently a modification of the older Sacramental Action by which this ancient remedy was adapted to a particular class of cases. The text of the treatise begins again with a description of the Condictio, which is said by Gaius to have been created, but which is believed to have been only regulated, by two Roman statutes of the sixth century of Rome—the Lex Silia and the Lex Calpurnia. The Condictio, which afterwards developed into one of the most useful of the Roman actions, originally derived its name from a notice which the plaintiff gave the defendant to appear before the Prætor in thirty days, in order that a Judex or referee might be nominated; and immediately (as I myself think) on this notice being given, the parties entered into a ‘sponsio’ and ‘restipulatio,’ that is, they laid a formal wager (distinct from the stake called Sacramentum) on the justice of their respective contentions. The sum thus staked, which was always equal to a third of the amount in dispute, went in the end to the successful litigant, and not, like the Sacramentum, to the State. Lawyers wondered, Gaius tells us, that such an action should be needed when property could have been recovered by the older and unmodified procedure. Many technical answers to this question have been given by modern commentators on Roman law, but we will see whether a better explanation of it cannot be obtained by approaching it from another side.
Gaius, leaving the Condictio, proceeds to discuss two of the Legis Actiones, the Manus Injectio and the Pignoris Capio, which cannot be made to square in any way with our modern conception of an action. The Manus Injectio is expressly stated to have been originally the Roman mode of execution against the person of a judgment debtor. It has considerable historical interest, for it was undoubtedly the instrument of the cruelties practised by the Roman aristocracy on their defaulting plebeian debtors, and thus it gave the first impetus to a series of popular movements which affected the whole history of the Roman Commonwealth. The Pignoris Capio also, possibly under a slightly altered name, was a mode of execution in later times against property after decree; but this was not its original purpose as a Legis Actio. It was at first a wholly extra-judicial proceeding. The person who proceeded by it seized in certain cases the goods of a fellow-citizen, against whom he had a claim, but against whom he had not instituted a suit. The power of seizure could be exercised by soldiers against public officers bound to supply them with pay, horse, or forage; and it could also be resorted to by the seller of a beast for sacrifice against a defaulting purchaser. It was thus confined to claims of great urgency or of highly sacred obligation; but it was afterwards extended to demands for overdue arrears of public revenue. I am indebted to Mr. Poste for the observation that the ideal institutions of Plato’s Laws include something strongly resembling the Roman Pignoris Capio; and here again it is a remedy for breach of public duties connected with military service or religious observance.
I take the Pignoris Capio as the immediate starting-point of all which I am about to say on the subject of Ancient Civil Procedure. First of all let us ask whether Gaius himself gives us any hint of its meaning and significance in the primitive Roman system. The clue is slender, but it seems to me sufficiently traceable in the statement that the Pignoris Capio could be resorted to in the absence of the Prætor and generally in that of the person under liability, and also that it might be carried out even when the Courts were not sitting.
Let us go back for a moment to the parent Legis Actio—the L. A. Sacramenti. Its venerable forms presuppose a quarrel and celebrate the mode of settling it. It is a passing arbitrator whose interposition is simulated by the Prætor. But suppose there is no arbitrator at hand. What expedient for averting bloodshed remains, and is any such expedient reflected in that ancient procedure which, by the fact of its existence, implies that the shedding of blood has somehow been prevented?
I dare say I shall at the outset appear to be making a trivial remark when I say that one method of gaining the object is to lay a wager. Even now this is one of the commonest ways of postponing a dispute as to a matter of fact, and the truth is that the tendency to bet upon results lies extremely deep in human nature, and has grown up with it from its remote infancy. It is not everybody who, when his blood is hot, will submit to have a quarrel referred to a third person present, much less to a third person absent; but he will constantly do so, if he lays a wager on it, and if, besides being found in the right, he has a chance of receiving the amount staked. And this I suppose—differing, I own, from several high authorities—to be the true significance of the Sponsio and Restipulatio, which we know to have been of the essence of the ancient Roman Condictio, and of the agreement to appear before the Prætor in thirty days. The Legis Actio Sacramenti assumes that the quarrel is at once referred to a present arbitrator; the Condictio that the reference is to the decision of an arbitrator after thirty days’ interval, but meantime the parties have entered into a separate wager on the merits of their dispute. We know that the liability to an independent penalty attached to the suitor by Condictio even when it had become one of the most important Roman actions, and that it was still exacted in the age of Cicero.
There is yet another primitive contrivance by which, in the absence of a present arbitrator, a quarrel may be prevented from issuing in bloodshed. The claimant willing to go to arbitration may, in the absence of his adversary, or if he be the stronger, in his presence, take forcible possession of his moveable property and detain it till he too submits. I believe this to have been the true primitive office of the Pignoris Capio, though the full evidence of my opinion will not be before you till I have tracked the same institution through the twilight of other legal systems. Among the Romans, even at the date of the Twelve Tables, it had become (to employ Mr. Tylor’s phrase) a mere survival, confined to cases when the denial of justice was condemned by superstition or by a sense of the sternest public emergency; and this was a consequence of the exceptionally rapid development of Roman law and procedure, and of the exceptionally early date at which the Roman tribunals became the organs of the national sovereignty. You will see hereafter how much reason there is for thinking that the progress of most societies towards a complete administration of justice was slow and gradual, and that the Commonwealth at first interfered through its various organs rather to keep order and see fair play in quarrels than took them, as it now does always and everywhere, into its own hands. To this period, long forgotten among the Romans, those peculiar rules pointed back which survived along with the Pignoris Capio, and which provided for its exercise out of court and during the judicial vacation.
I turn to the Teutonic societies for vestiges of a practice similar to that which the Romans called Pignoris Capio. They seem to be quite unmistakeable in that portion of our own English law which is concerned with the power of Distraint or Distress and with the connected legal remedy known as Replevin. The examples of the right to distrain another man’s property which are most familiar to you are, I dare say, the landlord’s right to seize the goods of his tenant for unpaid rent, and the right of the lawful possessor of land to take and impound stray beasts which are damaging his crops or soil. The process by which the latter right is made effectual retains far more of the ancient institution than does distress for rent. For the peculiar power of the landlord to distrain for rent, while it remains an extrajudicial remedy, has been converted into a complete remedy of its kind by a series of statutes comparatively modern. It has always, however, been the theory of the most learned English lawyers that distress is in principle an incomplete remedy; its primary object is to compel the person against whom it is properly employed to make satisfaction. But goods distrained for rent are nowadays not merely held as a security for the landlord’s claim; they are ultimately put up for sale with certain prescribed formalities, the landlord is paid out of the proceeds, and the overplus is returned to the tenant. Thus the proceeding has become merely a special method by which payment of rent, and certain other payments which are placed on the same footing, are enforced without the help of a Court of Justice. But the distraint of cattle for damage still retains a variety of archaic features. It is not a complete remedy. The taker merely keeps the cattle until satisfaction is made to him for the injury, or till they are returned by him on an engagement to contest the right to distrain in an action of Replevin.
The practice of Distress—of taking nams, a word preserved in the once famous law-term withernam—is attested by records considerably older than the Conquest. There is reason to believe that anciently it was resorted to in many more cases than our oldest Common-law authorities recognise; but about the reign of Henry the Third, when it was confined to certain specific claims and wrongs, the course of the proceeding was as follows: The person assuming himself to be aggrieved seized the goods (which anciently were almost always the cattle) of the person whom he believed to have injured him or failed in duty towards him. He drove the beasts to a pound, an enclosed piece of land reserved for the purpose, and generally open to the sky. Let me observe in passing that there is no more ancient institution in the country than the Village-Pound. It is far older than the King’s Bench, and probably older than the Kingdom. While the cattle were on their way to the pound the owner had a limited right of rescue which the law recognised, but which he ran great risk in exercising. Once lodged within the enclosure, the impounded beasts, when the pound was uncovered, had to be fed by the owner and not by the distrainor; nor was the rule altered till the present reign. The distrainor’s part in the proceedings ended in fact with the impounding; and we have to consider what courses were thereupon open to the person whose cattle had been seized. Of course he might submit and discharge the demand. Or he might tender security for its acquittal. Or again he might remain obstinate and leave his beasts in the pound. It might happen, however, that he altogether denied the distrainor’s right to distrain, or that the latter, on security being tendered to him for the adjustment of his claim, refused to release the cattle. In either of these cases the cattle-owner (at least at the time of which we are speaking) might either apply to the King’s Chancery for a writ commanding the Sheriff to ‘make replevin,’ or he might verbally complain himself to the Sheriff, who would then proceed at once to ‘replevy.’ The process denoted by this ancient phrase consisted of several stages. The Sheriff first of all demanded a view of the impounded cattle; if this were refused, he treated the distrainor as having committed a violent breach of the King’s peace, and raised the hue and cry after him. If the cattle (as doubtless constantly was the case) had been driven to a distance and out of his jurisdiction, the Sheriff sought for cattle of the distrainor and seized them to double the value of the beasts which were not forthcoming—the ‘taking in withernam’ of old English law. In more peaceable times, however, and among law-abiding people, the deputy of the Crown was allowed to see the cattle, which he immediately returned to their original owner on a pledge to abide by the decision of a Court of Justice. A day was then appointed for the trial, which took place with the proceeding well known to lawyers as the Action of Replevin. A great deal of technical learning has clustered round it, but for our purposes it is enough to say that the plaintiff in the action was the owner of the distrained cattle and the defendant was the distrainor.
The comparative antiquity of the various steps in the procedure are not, I think, difficult to detect. Nothing can be more archaic than the picture presented by its more venerable details. The seizure of the cattle, the rescue and the counter-seizure, belong to the oldest practices of mankind. We were carried back, by the Legis Actio Sacramenti of the Romans, to a sudden fight over disputed property barely stopped by a casual passer-by. Here, not in a city-community, but among the ancient legal forms of a half-pastoral, half-agricultural people, we come upon plain traces of a foray. But the foray which survives in the old Law of Distress is not, like the combat of the ancient Roman Action, a mere dramatic representation. Up to a certain point it is a reality, and the most probable account of its origin is that it is a genuinely disorderly proceeding which the law steps in to regulate. You will see presently that there are other independent reasons for thinking that some of the earliest interferences of the power which we call the Law, the State, or the King, with high-handed violence consisted, neither in wholly forbidding it nor in assuming active jurisdiction over the quarrel which provoked it, but in limiting it, prescribing forms for it, or turning it to new purposes. Thus the next series of incidents in the practice of distraint—the impounding, the stress laid upon pledge or security, and the acknowledgment of continuing ownership which is implied in the liability of the person distrained upon to feed the cattle, and in the rule that the distrainor shall not work them—belong to a newer range of ideas which dictate the first attempts to moderate reprisals and regulate revenge for wrong. Distress now becomes a semi-orderly contrivance for extorting satisfaction. Many vestiges of this ancient function remain. It has been observed by Blackstone and others that the modified exemption of certain classes of goods from distraint—plough-oxen, for example, and tools of trade—was not in its origin the least intended as a kindness to the owner. It was entailed by the very nature of the whole proceeding, since without the instruments of tillage or handicraft the debtor could never pay his debt. A passage in the ‘Dialogus de Scaccario’ (ii. 14), prescribing the order in which the goods of the King’s debtors are to be sold, strongly bears out this view.
Latest in the order of proceeding, and latest probably in date, came the direct interposition of the State. The King steps in, first, in what we should now call his administrative capacity. His administrative deputy, the Sheriff, on complaint made by their owner, follows up the cattle, demands a sight of them, raises the hue and cry if it be refused, and seizes twice their number if the beasts have been driven away. Even when he obtains his view, he can do nothing unless the cattle-owner, denying the right of his adversary to distrain, is prepared with security that he will try the question between them in a Court of Justice. Thus tardily does that power make its appearance which according to our notions should long since have appeared on the scene, the judicial power of the Commonwealth. Its jurisdiction is obviously acquired through the act of the Sheriff in restoring the cattle upon pledge given. The distrainor has lost his material security, the cattle. The owner of the cattle has become personally bound. And thus both are placed under a compulsion which drives them in the end to a judicial arbitration.
Nearly six hundred years ago, the contrast between the ancient proceedings in Replevin and suits conducted on what were then modern principles was already striking. The second chapter of the Statute of Westminster the Second is aimed at certain contrivances by which tenants contrived to defeat the lord’s remedy by distress; and, in giving the King’s Justices jurisdiction in such cases, it goes on to say that such a provision does not militate against the principle of the Common Law which forbids the removal of suits to the Justices on the petition of a defendant. ‘For,’ it adds, ‘although at first sight the tenant may seem to be plaintiff and the lord defendant, yet in reality, regard being had to the fact that the lord distrains and sues for services and dues behind, he is rather plaintiff or complainant than defendant.’ The action of Replevin is in fact an excellent illustration of the difference between ancient and modern juridical principles. According to ideas now confirmed in us, the person who sets a Court of Justice in motion is the person who complains of a wrong. In the case supposed, this is not the man distrained upon but the man who distrains. He it is who has suffered an injury for which he made reprisals on his adversary’s property. Yet it is his adversary who has to start the legal procedure and to constitute himself plaintiff in the Action of Replevin. The reason why a modern Court of Justice would insist on taking the whole dispute into its own hands, and dealing with it in its own way from the very beginning, is that, having always the full command of the public force, it is sure of being able to compel the submission of the defendant to its jurisdiction and of coercing him in the end till he does justice, however long the coercion may be delayed. But at the era to which the procedure in distress originally belonged, the Court had no such assurance of power; and hence the person assumed to have a grievance is allowed to proceed according to the primitive method, which has the advantage of giving the other side the strongest inducements to call in the judicial authority of the State and submit to its decision.
The information furnished to us respecting this primitive procedure by the various bodies of Continental Teutonic law known collectively as the Leges Barbarorum is of a very interesting kind. Almost all of them contain references to Pignoratio or distraint of goods. The Visigothic law expressly prohibits it; and, at the other end of the scale, the Lombardic law has a trace of that licence of distress which has survived in the English Common-law and permits it after simple demand of payment. But the Salic law, which the most learned Germans now believe to have been drawn up at some period between the time at which Tacitus wrote and the time at which the Franks broke into the Empire, contains a series of very peculiar and instructive provisions on the subject, which have been for the first time fully interpreted by Sohm. Under this system, Distress is not yet a judicial remedy; it is still an extrajudicial mode of redress, but it has been incorporated with a regular and highly complex procedure. A succession of notices have to be given in solemn form by the complainant to the person of whom he complains, and whose property he proposes to seize. Nor can he proceed to seizure until he has summoned this person before the Popular Court, and until the Popular Officer of the Court, the Thunginus, has pronounced a formula licensing distraint. Then, and not till then, he can make what we should call a distress upon his adversary. It seems quite clear that, before the Conquest, attempts were made in England to narrow the liberty of distraint by the same class of restrictions which we find in the Salic Law and the allied Teutonic bodies of usage. These provisions have their close counterpart in the ordinance of Canute that no man is to take nams unless he has demanded right three times in the Hundred; if he obtain no justice the third time, he is to go to the Shire-gemot; the shire is to appoint him a fourth time, and, if that fails, he may take the distress.
It is to be remarked that the process of the Salic Law which answers to our distress is especially a remedy in certain cases of breach of contract. Distraint, the seizing of nams, was certainly employed to enforce a similar class of demands under old English law before the Conquest; and the practice seems to have been known in Bracton’s day, though the brevity of his notice does not permit us to understand fully its course and character. In this respect the Pignoration of the Continental Teutonic law is more archaic than the distress with which we are familiar in England, since the fragment of the system which has survived in our Common law (and it is to this that it probably owes its survival) was from the first pre-eminently a remedy by which the lord compelled his tenants to render him their services. But on the other hand it is interesting to observe that our English distress is in some particulars of a more archaic character than the corresponding compulsory process of the Leges Barbarorum. Thus notice of the intention to distrain was never in England essential to the legality of distress (Trent v. Hunt, 9 Exch. Rep. 20), although statute-law renders it necessary to make a sale of the distrained property legal; and again, in the oldest ascertainable state of our Common-law, though distraint sometimes followed a proceeding in the lord’s Court, yet it did not necessarily presuppose or require it.
It should be understood that the Frankish procedure was completely at the disposal of the complainant. It is not a strictly judicial procedure, but rather a procedure regulating extrajudicial redress. If the complainant observes the proper forms, the part of the Court in licensing seizure is purely passive. Even after the exhaustive examination which this part of the Salic Law has undergone from Professor Sohm, it is very difficult to say whether at any point of the procedure the defendant had the opportunity of putting in a substantial defence; but it seems certain that, whenever he could do this, he appeared virtually as a plaintiff like the distrainee in our Action of Replevin, and there is no doubt that, if he submitted or was unsuccessful in attacking the proceedings of the other side, he paid not only the original debt but various additional penalties entailed by neglect to comply with previous notices to discharge it. Such a procedure seems to us founded on the now monstrous assumption that plaintiffs are always in the right and defendants always in the wrong. Yet the assumption would not perhaps have struck the earliest authors of legal improvement as altogether monstrous, nor could they have quite comprehended the modern principle which compels the complainant to establish at all events a primâ facie case. With them, the man most likely to be in the right would appear to be the man who faced the manifold risks attending the effort to obtain redress, the man who complained to the Popular Assembly, the man who cried for justice to the King sitting in the gate. It is only when violent wrong has ceased to be rife, when the dangers of contesting the oppressions of powerful men have become insignificant, when the law has been long and regularly administered according to technical procedure, that unjust claims are seen to be hardly less common than unjust refusals to satisfy them. In one particular case, the complaint of the King, the old assumption that complainants are presumably in the right was kept long alive among us, and had much to do with the obstinate dislike of lawyers to allowing prisoners to be defended by Counsel.
Gaius, speaking of the Legis Actiones generally, observes that ‘they fell into discredit, because through the excessive subtlety of the ancient lawyers, things came to such a pass that he who committed the smallest error failed altogether.’
Blackstone, many centuries afterwards, has the following remark on the English Law of Distress: ‘The many particulars which attend the taking of a distress used formerly to make it a hazardous kind of proceeding; for, if any one irregularity was committed, it vitiated the whole.’
I quote these passages, not only on account of the curious similarity of language between two writers of whom the later could not possibly have read the earlier, but because the excessive technicality of ancient law which they both notice goes some way to explain the severity and onesidedness of the old Teutonic procedure. The power of seizing a man’s property extrajudicially in satisfaction of your demand was, as Professor Sohm justly remarks, a sort of two-edged sword. You might bring your adversary to the ground by it, but you were extremely likely to injure yourself. For, unless the complainant who sought to distrain went through all the acts and words required by the law with the most rigorous accuracy, he in his turn, besides failing in his object, incurred a variety of penalties, which could be just as harshly exacted as his own original demand. The difficulty of putting the procedure into operation thus at once made disputants cautious in resorting to it, and seemed to men in general to compensate for its inherent inequitableness. This consideration, however, though it explains in part how the harsh ancient law reconciled itself to the sense of right, is not by itself sufficient to account for the form which it assumed in the Teutonic Codes, or for the vitality of a portion of it amid our own institutions.
I cannot doubt that the practice which I have called by the general name of Distress kept its place in ancient Teutonic law partly as a mere ‘survival.’ I have already insisted that one great characteristic of the primitive ages was the fewness of human ideas. Societies, just emerging from the savage state, had been used to associate redress of wrong with the seizure of a wrong-doer’s goods, and they were unable mentally quite to disconnect the two even when they began to regulate the practice. They did not, therefore, supersede distress by a wholly new system, but engrafted it on a later procedure, which occasionally took the form so curiously preserved in its main features to our own day by the English Common law, but which at a relatively later date and more generally may be believed to have shaped itself on the model of the rules observed by the Salian Franks.
It is not possible to explain all survivals by some convenience which they incidentally serve. Some have undoubtedly been continued by superstition, some by mere habit. But those relics of ancient thought and conduct which have been kept alive longest have generally had an usefulness of their own. Here the private redress of wrong, taken into the legal procedure, served to compel the appearance of the defendant and his submission to jurisdiction at a time when judicial authority was yet in its infancy, and when Courts of Justice could not as yet completely and regularly command the aid of sovereign power. Gradually, as the public force, the arm of the State, was more and more placed at the disposal of tribunals, they were able more and more to dispense with extrajudicial assistance. In the state of Teutonic law represented by the Frankish Code, we find a specific class of cases tried throughout judicially (in our modern sense of the word) from the initial stage to the judgment; but the judgment is not by its own force operative. If the defendant has expressly promised to obey it, the Count or royal deputy, on being properly summoned, will execute it; but if no such promise has been made, the plaintiff has no remedy except an application to the King in person. No long time, however, after the Franks have been settled within the Empire, we find that another step has been taken towards the administration of justice on modern principles, and now the royal deputy will execute the judgment even though there has been no promise to submit to it. At this point Distress is wholly taken out of the hands of private litigants and extrajudicial seizure becomes judicial seizure. The change is obviously a result of the growing vigour of Courts, greatly due in our own country to the development of royal justice at the expense of popular justice. Still English judicial proceedings long savoured of the old practices. Every student of our ancient English forms of proceeding will recollect on what small apparent provocation the King constantly took the lands of the defendant into his hands or seized his goods, simply to compel or perfect his submission to the royal jurisdiction. It seems probable that Distress was gradually lost in and absorbed by Attachment and Distringas. The theory of Attachment now is that it is the taking of property into the actual or constructive possession of the judicial power, and the later course of change under which it has faded into an occasional and exceptional proceeding, requiring to be justified by special reasons, corresponds with the growing confidence of Courts of Justice in their possession of irresistible power confided to them by the sovereign. As regards that fragment of the primitive institution which remains in our law, I imagine that Distress would at most have become a mere survival, confined perhaps to the impounding of stray cattle, if several statutory innovations had not turned it into a convenient extrajudicial remedy for landlords, by giving the distrainor a power of sale which in old English law was limited to a few very special demands. The modern theory of Distress is that a landlord is allowed to distrain because by the nature of the case he is always compelled to give his tenant credit, and that he can distrain without notice because every man is supposed to know when his rent is due. But this theory, though it explains the continuance of Distress to our day, does not at all fit in with the most ancient ideas on the subject, and could not indeed be easily made to square with the practice of distraint even at a date so comparatively late as that at which Bracton wrote. How accidental is the association of Distress with the powers of landlords may be seen from the fact that, though there are plentiful traces of the institution in the ancient Scottish law, the same practical results which the English system produces by allowing landlords to distrain for rent are chiefly attained in Scotland by applying to landlord and tenant the Romanised Law of Hypothek.
The comparison of the various Teutonic bodies of law suggests then to my mind, as regards those systems, the following conclusions respecting the historical development of the remedies which grew out of the savage practice of violently seizing property in redress for supposed wrong. Two alternative expedients were adopted by nascent law. One of these consisted in tolerating distraint up to a certain point; it was connived at so far as it served to compel the submission of defendants to the jurisdiction of Courts, but in all other cases it was treated as wilful breach of the peace. The other was the incorporation of distraint with a regular procedure. The complainant must observe a great number of forms at his peril; but if he observes them he can distrain in the end. In a still more advanced condition of legal ideas, the tribunals take the seizure of land or goods into their own hands, using it freely to coerce defendants into submission. Finally, Courts of Justice resort to coercion before judgment only on the rarest occasions, sure as they at last are of the effectiveness of their process, and of the power which they hold in deposit from the Sovereign Commonwealth.