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.