lect09-第4节
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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
