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lect10-第2部分
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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
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