Lecture IX

The Primitive Forms of Legal Remedies

                            I.

    I stated on a former occasion (Lecture 1. 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 mountain 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 Praetor, 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 Hephaestus is
Described by Homer as moulding into the First Compartment of the
Shield of Achilles.' Singe 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 Praetor 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 Praetor 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 Praetor 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 Praetor. 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 Praetor 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 casts 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 one-sidedness of the old
Teutonic procedure. The power of seizing a man's property
extra-judicially 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 mother 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
extra-judicial 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.