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Mr Poste for the observation that the ideal institutions of
Plato's Laws include something strongly resembling the Roman
Pignoris Capio； and here again it is a remedy for breach of
public duties connected with military service or religious
observance。
I take the Pignoris Capio as the immediate starting…point of
all which I am about to say on the subject of Ancient Civil
Procedure。 First of all let us ask whether Gaius himself gives us
any hint of its meaning and significance in the primitive Roman
system。 The clue is slender； but it seems to me sufficiently
traceable in the statement that the Pignoris Capio could be
resorted to in the absence of the Praetor and generally in that
of the person under liability； and also that it might be carried
out even when the Courts were not sitting。
Let us go back for a moment to the parent Legis Actio the
L。 A。 Sacramenti。 Its venerable forms presuppose a quarrel and
celebrate the mode of settling it。 It is a passing arbitrator
whose interposition is simulated by the Praetor。 But suppose
there is no arbitrator at hand。 What expedient for averting。
bloodshed remains； and is any such expedient reflected in that
ancient procedure which； by the fact of its existence； implies
that the shedding of blood has somehow been prevented？
I dare say I shall at the outset appear to be making a
trivial remark when I say that one method of gaining the object
is to lay a wager。 Even now this is one of the commonest ways of
postponing a dispute as to a matter of fact； and the truth is
that the tendency to bet upon results lies extremely deep in
human nature； and has grown up with it from its remote infancy。
It is not everybody who； when his blood is hot； will submit to
have a quarrel referred to a third person present； much less to a
third person absent； but he will constantly do so； if he lays a
wager on it； and if； besides being found in the right； he has a
chance of receiving the amount staked。 And this I suppose
differing； I own； from several high authorities to be the true
significance of the Sponsio and Restipulatio； which we know to
have been of the essence of the ancient Roman Condictio； and of
the agreement to appear before the Praetor in thirty days。 The
Legis Actio Sacramenti assumes that the quarrel is at once
referred to a present arbitrator； the Condictio that the
reference is to the decision of an arbitrator after thirty days'
interval； but meantime the parties have entered into a separate
wager on the merits of their dispute。 We know that the liability
to an independent penalty attached to the suitor by Condictio
even when it had become one of the most important Roman actions；
and that it was still exacted in the age of Cicero。
There is yet another primitive contrivance by which； in the
absence of a present arbitrator； a quarrel may be prevented from
issuing in bloodshed。 The claimant willing to go to arbitration
may； in the absence of his adversary； or if he be the stronger；
in his presence； take forcible possession of his moveable
property and detain it till he too submits。 I believe this to
have been the true primitive office of the Pignoris Capio； though
the full evidence of my opinion will not be before you till I
have tracked the same institution through the twilight of other
legal systems。 Among the Romans； even at the date of the Twelve
Tables； it had become （to employ Mr Tylor's phrase） a mere
survival； confined to cases when the denial of justice was
condemned by superstition or by a sense of the sternest public
emergency； and this was a consequence of the exceptionally rapid
development of Roman law and procedure； and of the exceptionally
early date at which the Roman tribunals became the organs of the
national sovereignty。 You will see hereafter how much reason
there is for thinking that the progress of most societies towards
a complete administration of justice was slow and gradual； and
that the Commonwealth at first interfered through its various
organs rather to keep order and see fair play in quarrels than
took them； as it now does always and everywhere； into its own
hands。 To this period； long forgotten among the Romans； those
peculiar rules pointed back which survived along with the
Pignoris Capio； and which provided for its exercise out of court
and during the judicial vacation。
I turn to the Teutonic societies for vestiges of a practice
similar to that which the Romans called Pignoris Capio。 They seem
to be quite unmistakeable in that portion of our own English law
which is concerned with the power of Distraint or Distress and
with the connected legal remedy known as Replevin。 The examples
of the right to distrain another man's property which are most
familiar to you are； I dare say； the landlord's right to seize
the goods of his tenant for unpaid rent； and the right of the
lawful possessor of land to take and impound stray beasts which
are damaging his crops or soil。 The process by which the latter
right is made effectual retains far more of the ancient
institution than does distress for rent。 For the peculiar power
of the landlord to distrain for rent； while it remains an
extrajudicial remedy； has been converted into a complete remedy
of its kind by a series of statutes comparatively modern。 It has
always； however； been the theory of the most learned English
lawyers that distress is in principle an incomplete remedy； its
primary object is to compel the person against whom it is
properly employed to make satisfaction。 But goods distrained for
rent are nowadays not merely held as a security for the
landlord's claim； they are ultimately put up for sale with
certain prescribed formalities； the landlord is paid out of the
proceeds； and the overplus is returned to the tenant。 Thus the
proceeding has become merely a special method by which payment of
rent； and certain other payments which are placed on the same
footing； are enforced without the help of a Court of Justice。 But
the distraint of cattle for damage s