lect10
Author: Unknown
Date: 0101-01-01T00:00:00+00:00

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 features of the Irish system, which are wholly absent from the Continental Teutonic procedure, or very faintly marked in it, belong conspicuously to the English law. Among these may be placed the impounding, and the ‘taking in withernam,’ but the great.

Resemblance of all, and the common point of dissimilarity from the most ancient of the Leges Barbarorum, lies in the fact that the Irish procedure, like the English, requires neither assistance nor permission from any Court of Justice. In all the Teutonic bodies of custom except the English and the Lombardic, even when the greatest latitude of seizure is allowed to litigants out of Court, some. judicial person or body must be applied to before they proceed to extremities. With us, however, the entire seizure is completed before authority is called in; and the Irish law has exactly the same peculiarity. Not only so, but the Irish law corresponds to the English law of Distress in a very advanced stage of development. It does not employ the seizure of cattle merely as a method of extorting satisfaction.

It provides, as you have seen, for their forfeiture in discharge of the Demand for which they were taken; and thus is distinguished by an improvement which was only added to the English law by statute after the lapse of several centuries.

The true difficulty in estimating the place of this Irish procedure in the historical development of law arises from doubts as to the part really played by the legal proceeding in which it terminated. The English process of distress, wherever it was felt to be unjust, led up to, and ended in, the action of replevin, and the court, which ultimately tried the action, practically acquired its jurisdiction through the interposition of the Sheriff in restoring the cattle upon security given. No such interference with a high hand as that of the Sheriff appears to be contemplated by the Irish law. but the Brehon lawyer who ought properly to accompany the distrainor is expressly stated by the Senchus Mor to aid him ‘until the decision of a Court.’ (‘Ancient Laws of Ireland,’ i. 85.) What was the proceeding thus referred to? What authority had the Irish Courts at any time at which the Brehon law was held in respect? What were these Courts? To what extent did they command the public force of the sovereign State?

was there any sovereign power at any time established in any part of Ireland which could give operative jurisdiction to Courts of Justice and operative force to the law? All these questions — of which the last are in truth the great problems of ancient Irish history — must in some degree be answered before we can have anything, like a confident opinion on the actual working of the Law of Distress set forth at such length in the Senchus Mor.

The learned Editors of the various Introductions prefixed to the official publications of Ancient Irish Law are plainly of opinion that such jurisdiction as any Irish Courts possessed was, to use the technical phrase, voluntary. The Law of Distress, in this view, was clearly enough conceived by the Brehon lawyer, but it depended for the practical obedience which it obtained on the aid of public opinion and of popular respect for a professional Caste. Its object was to force disputants to submit to what was rather an arbitration than an action, before a Brehon selected by themselves, or at most before some recognised tribunal advised by a Brehon. At the same time, it would seem that there are ancient Irish tracts or fragments of tracts in existence which describe the ancient Irish as having had a most elaborate public organisation, judicial as well as legislative. Dr Sullivan, in his Introduction, admits that the information which has come down to us on these subjects is very fragmentary, and so obscure that it will be impossible to give a satisfactory account of them until the whole of the law-fragments in Irish MSS. are published or at least made accessible to scholars; but he nevertheless believes in the historical reality of this organisation, and he speaks (Introduction, pp. cclii. cclxii.) of the Irish Courts in language of extremely modern tinge. Enough is known of Irish history to make it very difficult to understand when this elaborate judicial system can have existed; but a place is found for it by attributing it to a period not only before the Anglo-Norman invasions of Ireland, but before the Viking descents on the Irish coasts. The safest course is certainly to reserve one’s opinion on the subject until the authorities for Dr Sullivan’s statements have been much more critically examined than they have been; but I am bound to say that they are not so inherently improbable, nor are Dr Sullivan’s opinions so hard to reconcile with the views of the Editors of the translations, as persons unacquainted with legal history might suppose. There are analogies to many of the tribunals described among the rudimentary institutions of several communities. Such tribunals might further be highly developed and yet their jurisdiction might be only voluntary. Sohm appears to me to have proved that the Frankish Popular Courts did not execute their own decrees; if the defendant had promised to submit to an award, the local deputy of the King might be required to enforce it, but, if there had been no such promise, the plaintiff was forced to petition the King in person. There is much reason in fact for thinking that, in the earliest times and before the full development of that kingly authority which has lent so much vigour to the arm of the law in most Aryan communities, but which was virtually denied to the Irish, Courts of Justice existed less for the purpose of doing right universally than for the purpose of supplying an alternative to the violent redress of wrong. Even then if we suppose that the Ireland which is said to have enjoyed an elaborate judicial organization was greatly ruder and wilder than Irish patriots would probably allow it to have been, there is no such inconsistency between the prevalence of disorder and the frequency of litigation as would make them exclude one another.

The Norse literature, which Mr Dasent has popularised among us, shows that perpetual fighting and perpetual litigation may go on side by side, and that a highly technical procedure may be scrupulously followed at a time when homicide is an everyday occurrence. The fact seems to be that contention in Court takes the place of contention in arms, but only gradually takes its place; and it is a tenable theory that many of the strange peculiarities of ancient law, the technical snares, traps, and pitfalls with which it abounds, really represent and carry on the feints, stratagems, and ambuscades of actual armed strife between man and man, between tribe and tribe. Even in our own day, when a wild province is annexed to the British Indian Empire, there is a most curious and instructive rush of suitors to the Courts which are immediately established. The arm of the law summarily suppresses violence, and the men who can no longer fight go to law instead, in numbers which sometimes make Indian officials believe that there must be something maleficent in the law and procedure which tempt men into Court who never saw a Court before. The simple explanation is that the same natural impulse is gratified in a new way; hasty appeals to a judge succeed hurried quarrels, and hereditary law-suits take the place of ancestral blood-feuds. If the transition from one state of 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 difficult to distinguish between those who believe in the direct derivation of the English law from pre-existing Celtic customs common to Britain and Ireland, and those who see a sufficient explanation of the resemblances between the two sets of rules in their common parentage. I am not at all prepared to deny that recent researches, and particularly those into old French customary law, render it easier to believe than it once was that portions of primitive or aboriginal custom survive the most desolating conquests. But I need scarcely say that the hypothesis of the direct descent of any considerable branch of English law from British usage is beset by extraordinary difficulties, of which not the least is the curiously strong case which may also be made out for the purely Roman origin of a good many institutions and rules which we are used to consider purely English and Germanic. On this last point a very interesting little volume, which has attracted too little notice, Mr Coote’s ‘Neglected Fact in English History,’ may be read with advantage, and should be compared with the reply to its arguments, on the whole a successful one, which Mr. Freeman published in ‘Macmillan’s Magazine, for July, 1870. The true rival of all these theories of the derivation of one body of custom from another is, of course, the theory of the common descent of all from an original basis of usage which we must, provisionally at all events, call Aryan. Confining ourselves to the practice which we have been investigating, the remedy for supposed wrong by distress, if there could be a doubt of its being a legacy from the primitive Aryan usages, it would be removed by the remarkable detail which connects the Irish with the Hindoo law. The Irish rules of distraint very strongly resemble the English rules, less strongly resemble the Continental Teutonic rules, but they include one rule not found in any Teutonic Code, almost unintelligible in the Irish system, but known to govern conduct even at this hour all over the East, where its meaning is perfectly clear. This is the rule that a creditor who requires payment from a debtor of higher rank than himself shall ‘fast upon him.’ What possible explanation will cover all the fact except that the primitive Aryans bequeathed the remedy of distress to the communities which sprang from them, and that varieties of detail have been produced by what Dr. Sullivan, in his Introduction, has happily called dynamical influences?

Here is the leading provision of the Senchus Mor on the subject (i. 113): —

‘Notice precedes every distress in the case of the inferior grades except it be by persons of distinction or upon persons of distinction. Fasting precedes distress in their case. He who does not give a pledge to fasting is an evader of all; he who disregards all things shall not be paid by God or man.’

Mr. Whitley Stokes was the first, I believe, to point out that the institution here referred to was identical with a practice diffused over the whole East, and called by the Hindoos ‘sitting dharna.’ I will presently read you a passage in which the proceeding is described as it was found in India before the British government, which has always regarded it as an abuse, had gone far in its efforts to suppress it. But perhaps the most striking examples of the ancient custom are to be found at this day in Persia, where (I am told) a man intending to enforce payment of a demand by fasting begins by sowing some barley at his debtor’s door and sitting down in the middle. The symbolism is plain enough. The creditor means that he will stay where he is without food, either until he is paid or until the barley-seed grows up and gives him bread to eat.

The corresponding Indian practice is known, I before stated, as ‘sitting dharna’ — dharna, according to the better opinion, being exactly equivalent to the Roman ‘capio,’ and meaning ‘detention’ or ‘arrest.’ Among the methods of enforcing payment of a debt described in the collection of rules attributed to the semi-divine legislator, Manu (viii. 49), is one which Sir William Jones renders ‘the mediation of friends;’ but more recent Sanscrit scholars assert that the expression of the original text signifies ‘dharna.’ And in the Vyavahara Mayukha, a Brahminical law-book of much authority, Brihaspiti, a juridical writer sometimes classed with Manu, is cited as enumerating, among the lawful modes of compulsion by which the debtor can be made to pay, ‘confining his wife, his son, or his cattle, or watching constantly at his door.’ This remarkable passage not only connects Hindoo law with Irish law through the reference to ‘watching constantly at the door,’ but it connects it also with the Teutonic, and among them with the English bodies of custom, by speaking of the distraint of cattle as a method of enforcing a demand. We have not in the Western world, so far as I am aware, any example of so strong a form of distress as seizing a man’s wife or children, but it is somewhat curious that we have evidence of its having been common in ancient Ireland to give a son as a pledge to the creditor for the purpose of releasing the distrained property.

Lord Teignmouth has left us a description (in Forbes’

‘Oriental Memoirs,’ ii. 25) of the form which the ‘watching constantly at the door’ of Brihaspiti had assumed in British India before the end of the last century. ‘The inviolability of the Brahmin is a fixed principle with the Hindoos, and to deprive him of life, either by direct violence or by causing his death in any mode, is a crime which admits of no expiation. To this principle may be traced the practice called dharna, which may be translated caption or arrest. It is used by the Brahmins to gain a point which cannot be accomplished by any other means, and the process is as follows: The Brahmin who adopts this expedient for the purpose mentioned proceeds to the door or house of the person against whom it is directed, or wherever he may most conveniently arrest him; he then sits down in dharna with poison or a poignard or some other instrument of suicide in his hand, and threatening to use it if his adversary should attempt to molest or pass him, he thus completely arrests him. In this situation the Brahmin fasts, and by the rigour of the etiquette the unfortunate object of his arrest ought to fast also, and thus they both remain till the institutor of the dharna obtains satisfaction. In this, as he seldom makes the attempt without the resolution to persevere, he rarely fails; for if the party thus arrested were to suffer the Brahmin sitting in dharna to perish by hunger, the sin would for ever lie upon his head. This practice has been less frequent of late years, since the institution of the Court of Justice at Benares in 1793; but the interference of the Court and even of the Resident has occasionally proved insufficient to check it.’

You will observe that the old Brahminical writer merely speaks of confining a man to his house by ‘watching constantly at the door’ as one among several modes of extorting satisfaction.

He classes it with forms of distraint more intelligible to us —
the seizure of the debtor’s cattle, of his wife, or of his child.

Though the ancient rule has not descended to us along with its original context, we need not doubt that even in the earliest times it was enforced by a supernatural sanction, since every violation of the Brahminical Code was regarded by its authors not only as a civil offence but as a sin. Thus a Brahmin might quite well be conceived as saying with the writer in the Senchus Mor, ‘He who does not give a pledge to fasting is an evader of all; he who disregards all things shall not be paid by God or man.’ Many centuries then elapse, which it would be vain to calculate, and almost in our own day we find the ancient usage practised in India, but with modifications corresponding to a great deal of change which is suspected to have occurred in Hindoo theology.

The indefinite supernatural penalty has become the definite supernatural penalty incurred by destroying life, and particularly human life. The creditor not only ‘watches at the door,’ but kills himself by poison or dagger if the arrest is broken, or by starvation if payment is too long delayed. Finally, we have the practice described by Lord Teignmouth as one peculiarly or exclusively resorted to by Brahmins. The sanctity of Brahminical life has now in fact pretty much taken, in Hindoo idea, the place once occupied by the sanctity of human life, and ‘sitting dharna,’ when the English law first endeavoured to suppress it, was understood to be a special mode of oppression practised by Brahmins for a consideration in money This is the view taken of it by the Indian Penal Code, which condemns it in the following terms (s. 508): —

‘Whoever voluntarily causes… any person to do anything which that person is not legally bound to do… by inducing…

that person to believe that he… will become by some act of the offender an object of Divine displeasure, if he does not do the thing which it is the object of the offender to cause him to do… shall be punished with imprisonment, &c.’

It seems to me that a reasonable explanation may be given of the origin of these practices which now seem so strange. Let us not forget that all forms of Distress, the seizure of wife, child, or cattle, even when wholly unregulated by law, were improvements on older custom. The primitive proceeding was undoubtedly the unceremonious, unannounced, attack of the tribe or the man stung by injury on the tribe or the man who had inflicted it. Any expedient by which sudden plunder or slaughter was adjourned or prevented was an advantage even to barbarous society. Thus, it was a gain to mankind as a whole when its priests and leaders began to encourage the seizure of property or family, not for the purpose of permanent appropriation, but with a view to what we should now not hesitate to call extortion.

Similarly, it was a step forwards when men learned to pause before attacking instead of attacking at once. We are told, in the Compendium of Kafir Laws and Customs published by Mr Dugmore and other missionaries (p. 38), that the regular procedure of a Kafir law-suit simulates an expedition in force of the plaintiff and his friends against the village to which the defendant belongs. ‘On their arrival they sit down together in some conspicuous position and await quietly the result of their presence. This… is the signal for mustering all the adult male residents that are forthcoming. These accordingly assemble and also sit down within conversing distance.’ After long silence a conversation ensues, and the proceeding, which is a perfectly peaceable one, is continued by a long series of technical formalities and intricate pleadings. This silent pause of the attacking party is an early form of Notice, in itself one of the most valuable of institutions; and with it is connected another primitive contrivance, shutting a man up in his house till he gives satisfaction, instead of setting on him at once. A very striking illustration of it is found in a law of Alfred, familiar to historical scholars (Kemble, ‘Saxons,’ i. 272; Thorpe, ‘Ancient Laws,’ i. 91): —

‘Let the man who knows his foe to be homesitting fight not before he have demanded justice of him. If he have power to beset his foe and besiege him in his house, let him keep him there for seven days but not attack him if he will remain indoors. If then, after seven days, he be willing to surrender and give up his weapons, let him be kept safe for thirty days, and let notice be given to his kinsmen and friends. But if the plaintiff have not power of his own, let him ride to the Ealdorman, and, if the Ealdorman will not aid him, let him ride to the King before he fights.’ The passage ends with a provision of which the spirit, strange to say, survives in the modern Code making the loudest claim to civilised principle, the Code Napoléon (Code Pénal, s.

324), to the effect that if the man who is homesitting be really shut up in his house with the complainant’s wife, daughter, or sister, he may be attacked and killed without ceremony.

The object of the Law of Alfred is plainly the same with that aimed at by the ancient rule of Brihaspiti. The man who, if nature had her way, would be slain at once, is shut up in his house but left otherwise unharmed till he or his kinsmen pay the debt or compound for the money. The English rule is to be enforced by the civil power, the Ealdorman or the King; the Hindoo Brahminical rule by the fear of punishment in another world. The Irish law-tract retains the Brahminical rule as an alternative in certain cases to Notice. But an institution which was perfectly intelligible in a society which included an order of lawyers who were also priests has lost all meaning when this society has been introduced by Christianity to a wholly new set of religious ideas.

The course of our enquiry has led us backwards and forwards between the extreme Easterly and the extreme Westerly branches of the Aryan race. Let me now add one word to connect the Eastern usage with the most ancient law of the community which once occupied with its government nearly the whole space between the two. ‘Sitting dharna,’ placed under the ban of British law, chiefly survives in British india in an exaggerated air of suffering worn by the creditor who comes to ask a debtor of higher rank for payment, and who is told to wait. But it is still common in the Native Indian States, and there it is pre-eminently an expedient resorted to by soldiers to obtain arrears of pay.

You will remember that the ‘pignoris capio’ of the Romans is stated by Gaius to have survived as a remedy in two classes of cases, one of them being the default of a military paymaster.