lect10-第3章
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society to another in modern India were not sudden but gradual
and slow; as it universally was in the old Aryan world; we should
see the battle with technicalities going on in Court at the same
time that the battle was waged out of Court with sword and
matchlock。
When; however; we are considering the place in legal history
of the old Irish Law of Distress; the point to which we have to
attend is not so much the mere existence of Courts of Justice as
the effectiveness of their process; or in other words the degree
in which they command the public force of the Commonwealth。 I
think I have shown it to be probable that; in proportion as
Courts grow stronger; they first take under their control the
barbarous practice of making reprisals on a wrongdoer by seizing
his property; and ultimately they absorb it into their own
procedure。 Now; the Irish Law of Distress belongs in one respect
to a very early stage in this course of development; since it is
even more completely extrajudicial than is that fragment of the
primitive barbarous remedy which has survived among ourselves。 On
the other hand; there are several particulars in which it is not
more but distinctly less archaic than the English Common law。 The
'Notice' to the defendant; for which it provides the 'Stay;'
or temporary retention of the goods by the owner; subject to a
lien the witnesses who have to be present; and the skilled
legal adviser who has to attend throughout the proceedings
belong to a range of ideas greatly more advanced than that under
which all these precautions are dispensed with。 Even stronger
evidence of maturity is furnished by the almost inconceivable
multitude of rules and distinctions which the Senchus Mor applies
to every part of the proceedings; and our own experience shows
that the most remarkable feature of the old Irish law; the
forfeiture of the property taken in distress when the original
debt and the expenses of custody come up to its full value; has
its place among the latest improvements in jurisprudence。
Whatever; then; be the truth as to the Ireland of the golden
age; these characteristics of the Irish Law of Distress leave on
my mind a very distinct impression that it was brought to the
shape in which we find it amid a society in which the action of
Courts of Justice was feeble and intermittent。 It says much for
the spirit of equity and reasonableness which animated the Brehon
lawyers who gave it its form; and much also for their ingenuity;
but suggests that they relied little on the assistance of Courts
and directed their efforts to making the most of a remedy which
was almost wholly extrajudicial。 The comparison of the Teutonic
laws shows that they had a basis of Aryan custom to work upon;
but; while in other communities the superstructure on this
foundation was the work of Courts ever feeling themselves
stronger; in Ireland it seems to have been the work of lawyers
dependent in the main for the usefulness of their labours on
popular respect for their order。 I do not affect to say how the
ancient law of Ireland is to be fitted to the ancient history。 It
may be that the picture of judicial organisation found in some
law…tracts is; like the description of private law found in
others; rather a representation of what ought to be than of what
is or has been。 It may be also that the law laid down in the
Senchus Mor is of much later date than the compilers of that
tract pretend; and that therefore it received its shape in times
of disturbance and confusion。 But I cannot believe that it ever
synchronised with a period of judicial activity and efficiency。
From what I have said I think you will have collected the
chief points of difference between the Irish Law of Distress; as
laid down in the Senchus Mor; and the english Common Law of
Distress; as declared by the earliest authorities which our
Courts recognise。 Both had the same origin; but the Irish
distraint was an universal; highly developed proceed ing employed
in enforcing all kinds of demands; while the corresponding
English remedy; though much less carefully guarded by express
rules; was confined to a very limited and special class of cases。
I have a melancholy reason for calling your attention to the
contrast。 Edmund Spenser has spoken of it; in his 'View of the
State of Ireland;' and here is the passage:
'There are one or two statutes which make the wrongful
distraining of any man's goods against the forme of Common Law to
be fellony。 The which statutes seeme surely to have been at first
meant for the good of the realme; and for restrayning of a foul
abuse; which then reigned commonly among that people; and yet is
not altogether laide; that; when anyone was indebted to another;
he would first demand his debt; and; if he were not paid; he
would straight go and take a distress of his goods and cattell;
where he could find them to the value; which he would keep till
he were satisfied; and this the simple churl (as they call him)
doth commonly use to doe yet through ignorance of his misdoing;
or evil use that hath long settled among them。 But this; though
it be sure most unlawful; yet surely me seems it is too hard to
make it death; since there is no purpose in the party to steal
the other's goods; or to conceal the distress; but he doeth it
openly for the most part before witnesses。 And again the same
statutes are so slackly penned (besides there is one so
unsensibly contryved that it scarcely carryeth any reason in it)
that they are often and very easily wrested to the fraude of the
subject; as if one going to distrayne upon his own land or
tenement; where lawfully he may; yet if in doing thereof he
transgresse the least point of the Common Law; he straight
committeth fellony。 Or if one by any other occasion take any
thing from another; as boyes sometimes cap one another; the same
is straight fellony。 This is a very hard law。
Spenser goes on; in a passage which I need not quote in full;
to account for these statutes by a special provision in the
charters of most of the Anglo…Irish corporate towns。 The English
law had not currency; he tells us; beyond the walls; and the
burgesses had the power conferred on them of distraining the
goods of any Irishman staying in the town or passing through it;
for any debt whatsoever。 He suggests that the Irish population
outside was led in this way to suppose it lawful to distrain the
property of the townspeople。 The explanation; if true; would be
sad enough; but we know that it cannot convey the whole truth;
and the real story is still sadder。 The Irish used the remedy of
distress because they knew no other remedy; and the English made
it a capital felony in an Irishman to follow the only law with
which he was acquainted。 Nay; those very subtleties of old
English law which; as Blackstone says; made the taking of
distress 'a hazardous sort of proceeding' to the civil
distrainor; might bring an Irishman to the gallows; if in
conscientiously attempting to carry out the foreign law he fell
into the smallest mistake。 It is some small consolation to be
able; as one result of the inquiries we have been prosecuting; to
put aside as worthless the easy justification of those who pass
over these cruelties as part of the inevitable struggle between
men of different races。 Both the Irish law; which it was a
capital crime to obey; and the English law; which it was a
capital crime to blunder in obeying; were undoubtedly descended
from the same body of usage once universally practised by the
forefathers of both Saxon and Celt。
Among the writers who have recognised the strong affinities
connecting the English and Irish Law of Distress; I find it
d