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lect09-第4部分

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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 th
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