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Lecture X





The Primitive Forms of Legal Remedies









            II





    I pass from the early law of procedure in the roman and


Teutonic societies to the corresponding branch of another。


ancient legal system which has been only just revealed to us; and


which; so far as its existence was suspected; was supposed until


lately to be separated by peculiarly sharp distinctions from all


Germanic bodies of usage。


    Rather more than half of the Senchus Mor is taken up with the


Law of Distress。 The Senchus Mor; as I told you; pretends to be a


Code of Irish law; and indeed to be that very Code which was


prepared under the influence of St。 Patrick upon the introduction


of Christianity into Ireland。 I added that in the present state


of our knowledge; no theory can be very confidently advanced as


to the date of this Brehon compendium。 It may be that some such


revision of the pre…Christian law did take place; it may be that


the Brehon lawyers only conjectured that it must have taken


place; it may be that a tract of unusual dimensions and


proportionately valued by the Brehon law…school which happened to


possess it; came gradually to be associated with a name held in


pre…eminent honour or pre…eminently sacred; a process of which


there are believed to be several examples in the history of


eastern jurisprudence; These doubts; however; as to the true date


of the Senchus Mor do not take away from the significance and


instructiveness of the fact that in a volume of great antiquity;


of undoubted genuineness; and evidently thought by its possessors


to contain all that was important in the law; the Law of


Distress; now an extremely subordinate branch of our legal


system; occupies a space so extraordinarily large。


    I borrow from the Editor of the First Volume of 'Ancient Laws


of Ireland;' the following epitome of the old Irish law of


distress as laid down in the Senchus Mor: 


    'The plaintiff or creditor; having first given the proper


notice; proceeded; in the case of a defendant or debtor; not of


chieftain grade; to distrain。 If the defendant or debtor were a


person of chieftain grade; it was necessary not only to give


notice; but also to 〃fast upon him。〃 The fasting upon him


consisted in going to his residence and waiting there for a


certain time without food。 If the plaintiff did not within a


certain time receive satisfaction for his claim; or a pledge


therefor; he forthwith; accompanied by a law…agent; witnesses;


and others; seized his distress。 The distress; when seized; was


in certain cases liable to a Stay; which was a period varying。


according to fixed rules; during which the debtor received back


the distress; and retained it in his own keeping; the creditor


having a lien upon it。 Such a distress is a 〃distress with time;〃


but under certain circumstances and in particular cases an


〃immediate distress〃 was made; the peculiarity of which was that


during the fixed period of the Stay the distress was not allowed


to remain in the debtor's possession; but in that of the


creditor; or in one of the recognised greens or pounds。


    'If the debt was not paid by the end of the Stay; the


creditor took away the distress; and put it in a pound。 He then


served notice of the distress on the debtor whom he had


distrained; letting him know where what was distrained was


impounded。 The distress remained in the pound a certain period;


fixed according to its nature (dithim; translated 〃delay in


pound;〃 is the name of this period)。 At the end of the delay in


pound; the Forfeiting Time began to run; during which the


distress became forfeited at the rate of three 〃seds〃 per day;


until entirely forfeited。 If the entire value of the distress


thus forfeited was exactly equal to the original debt and the


subsequent expenses; the debt was liquidated; if it was less than


this; a second distress was taken for the difference; and; if


more; the overplus was returned。 All this proceeding was managed


by the party himself; or his law…agent; with the several


witnesses of the various steps; and other necessary parties。


    'But if; instead of allowing his cattle to go to pound; the


debtor gave a sufficient pledge; e。g。; his son; or some article


of value; to the creditor; that he would within a certain time


try the right to the distress by law; the creditor was bound to


receive such pledge。 If he did not go to law; as he so undertook;


the pledge became forfeited for the original debt。 At any time;


up to the end of the 〃dithim;〃 the debtor could recover his


cattle by paying the debt and such expenses as had been incurred。


But; if he neglected to redeem them until the 〃dithim〃 had


expired; then he could only redeem such as were still


unforfeited。'


    The very existence in ancient Ireland of the law thus


summarised is almost enough by itself to destroy those reckless


theories of race which assert an original; inherent difference of


idea and usage between Teuton and Celt。 The Irish system of


Distress is obviously; in all essential features; the Germanic


system。 It wears; on its face; a very strong general resemblance


to the corresponding branch of Our Common Law; and I have seen


some very ingenious attempts to account for the differences


between the two by suggestions that the primitive contour of the


English law of Distress has been impaired。 The object of such


speculations is to argue for the direct derivation of the English


set of rules from the Celtic; but it does not appear to the


necessary to resort to a supposition which has great and special


difficulties of its own。 The virtual identity of the Irish law of


Distress with the Teutonic law is best brought out by comparing


it with the Teutonic systems of procedure collectively。 Thus the


Distress of the Senchus Mor is not; like the Distress of the


English Common Law; a remedy confined in the main to demands of


the lord on his tenants; as in the Salic and other Continental


Germanic Codes; it extends to breaches of contract; and indeed;


so far as the Brehon law is already known; it would appear to be


the universal method of prosecuting claims of all kinds。 The


Notice again to the person whose goods are to be distrained which


it strenuously insists upon; though not found in the surviving


English Common law; fills an important place; as I stated; in


other Teutonic collections of rules。 So too the attendance of


witnesses is required by the Continental Codes; and; though the


presence of the Brehon law agent is peculiar to the Irish system


and very characteristic of it; certain persons having much the


same duties are required by some of the Teutonic systems to be


present during the process of distraint。 Further; the Stay of


proceedings; which has been compared to an Attachment; seems to


me better explained by certain provisions of the 'Leges


Barbarorum。' Under some of them when a person's property is about


to be seized he makes a mimic resistance; under the Salic law; he


protests against the injustice of the attempt; under the


Ripuarian law; he goes through the expressive formality of


standing at his door with a drawn sword。 Thereupon; the seizure


is interrupted and an opportunity is given for enquiring into the


regularity of the proceedings and; probably also; into the


justice of the claim。 The Lien or charge upon the distrained


property; which the Irish law confers on the creditor during the


currency of the Stay; is not found in the Continental Teutonic


law in this exact shape; but; at a particular stage of the Salic


proceedings; the creditor has the power of interdicting the


debtor from selling or mortgaging any part of his property until


the debt has been satisfied。 On the other hand; several f

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