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lect09-第3部分

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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 th
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