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lect09-第5部分

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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 prim* 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 fragme
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