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familiar in England； since the fragment of the system which has
survived in our Common law （and it is to this that it probably
owes its survival） was from the first pre…eminently a remedy by
which the lord compelled his tenants to render him their
services。 But on the other hand it is interesting to observe that
our English distress is in some particulars of a more archaic
character than the corresponding compulsory process of the Leges
Barbarorum。 Thus notice of the intention to distrain was never in
England essential to the legality of distress （Trent v。 Hunt； 9
Exch。 Rep。 20）； although statute…law renders it necessary to make
a sale of the distrained property legal； and again； in the oldest
ascertainable state of our Common…law； though distraint sometimes
followed a proceeding in the lord's Court； yet it did not
necessarily presuppose or require it。
It should be understood that the Frankish procedure was
completely at the disposal of the complainant。 It is not a
strictly judicial procedure； but rather a procedure regulating
extrajudicial redress。 If the complainant observes the proper
forms； the part of the Court in licensing seizure is purely
passive。 Even after the exhaustive examination which this part of
the Salic Law has undergone from Professor Sohm； it is very
difficult to say whether at any point of the procedure the
defendant had the opportunity of putting in a substantial
defence； but it seems certain that； whenever he could do this； he
appeared virtually as a plaintiff like the distrainee in our
Action of Replevin； and there is no doubt that； if he submitted
or was unsuccessful in attacking the proceedings of the other
side； he paid not only the original debt but various additional
penalties entailed by neglect to comply with previous notices to
discharge it。 Such a procedure seems to us founded on the now
monstrous assumption that plaintiffs are always in the right and
defendants always in the wrong。 Yet the assumption would not
perhaps have struck the earliest authors of legal improvement as
altogether monstrous； nor could they have quite comprehended the
modern principle which compels the complainant to establish at
all events a prim* facie case。 With them； the man most likely to
be in the right would appear to be the man who faced the manifold
risks attending the effort to obtain redress； the man who
complained to the Popular Assembly； the man who cried for justice
to the King sitting in the gate。 It is only when violent wrong
has ceased to be rife； when the dangers of contesting the
oppressions of powerful men have become insignificant； when the
law has been long and regularly administered according to
technical procedure； that unjust claims are seen to be hardly
less common than unjust refusals to satisfy them。 In one
particular case； the complaint of the King； the old assumption
that complainants are presumably in the right was kept long alive
among us； and had much to do with the obstinate dislike of
lawyers to allowing prisoners to be defended by Counsel。
Gaius speaking of the Legis Actiones generally； observes that
'they fell into discredit； because through the excessive subtlety
of the ancient lawyers； things came to such a pass that he who
committed the smallest error failed altogether。'
Blackstone； many centuries afterwards； has the following
remark on the English Law of Distress： 'The many particulars
which attend the taking of a distress used formerly to make it a
hazardous kind of proceeding； for； if any one irregularity was
committed； it vitiated the whole。'
I quote these passages； not only on account of the curious
similarity of language between two writers of whom the later
could not possibly have read the earlier； but because the
excessive technicality of ancient law which they both notice goes
some way to explain the severity and one…sidedness of the old
Teutonic procedure。 The power of seizing a man's property
extra…judicially in satisfaction of your demand was； as Professor
Sohm justly remarks； a sort of two…edged sword。 You might bring
your adversary to the ground by it； but you were extremely likely
to injure yourself。 For； unless the complainant who sought to
distrain went through all the acts and words required by the law
with the most rigorous accuracy； he in his turn； besides failing
in his object； incurred a variety of penalties； which could be
just as harshly exacted as his own original demand。 The
difficulty of putting the procedure into operation thus at once
made disputants cautious in resorting to it； and seemed to men in
general to compensate for its inherent inequitableness。 This
consideration； however； though it explains in part how the harsh
ancient law reconciled itself to the sense of right； is not by
itself sufficient to account for the form which it assumed in the
Teutonic Codes； or for the vitality of a portion of it amid our
own institutions。
I cannot doubt that the practice which I have called by the
general name of Distress kept its place in ancient Teutonic law
partly as a mere 'survival。' I have already insisted that one
great characteristic of the primitive ages was the fewness of
human ideas。 Societies； just emerging from the savage state； had
been used to associate redress of wrong with the seizure of a
wrong…doer's goods； and they were unable mentally quite to
disconnect the two even when they began to regulate the practice。
They did not； therefore； supersede distress by a wholly new
system； but engrafted it on a later procedure； which occasionally
took the form so curiously preserved in its main features to our
own day by the English Common law； but which at a relatively
later date and more generally may be believed to have shaped
itself on the model of the rules observed by the Salian Franks。
It is not possible to explain all survivals by some
convenience which they incidentally serve。 Some have undoubtedly
been continued by superstition； some by mere habit。 But those
relics of ancient thoug