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I HAVE shown elsewhere, that the successful party in an Athenian suit had not the assistance of a public officer, like our Sheriff, to levy execution; and that, if the sum awarded to him by judgment were not paid by the appointed time, he had to satisfy himself by taking personal possession of his adversary's goods or lands. It is obvious that this course was attended with some disadvantages. In the first place, there was not the same security for the preservation of the public peace, as where the process of the law is executed by its known officer; and in the next place, the remedy of the creditor, in case of resistance or dispute, was not quite so speedy.
We are not however to suppose, because the creditor in levying execution was not aided by any officers of the law, that resistance to an execution commonly or frequently led to acts of outrage or violence. That this sometimes happened, we may take for granted? it would be strange if it had not; but, that in the ordinary course of things it was otherwise, may be with some certainty gathered from what we read in the Attic orators and elsewhere. The Athenians, in the settled times of the republic, were a people accustomed to obey the law, and to observe its outward forms and processes. Dishonest men would endeavour to evade or defeat the law by artful shifts and contrivances, but seldom dared to infringe it openly. Fraud was common enough; violence not so. The course of things upon an execution was the same as in taking possession of property upon any other occasion. If a man desired to assert his title, say, to a piece of land, (whether his title accrued by inheritance, or by purchase, or in any other way), and if he had reason to think that it would be disputed, he made a formal entry upon the land, and thereby became seised, or possessed of it. If the adverse claimant came then to disturb his possession, he might bring against him an action of ejectment: but, before entry, he was not in a condition to bring such action. The supposed ejectment however was (in general) a mere formality. The opponent, upon entry being made, turned him off, either by gently laying hands upon him, or by commanding him to leave. All this took place quietly, and in the presence of witnesses. The party who turned the other off the land became a trespasser in the eye of the law, and liable to the action, which was brought to try the title.3
(1) Vol. III. Appendix ix. page 391.
(2) See the Oration against Apaturius, ante page 162.
(3) This was the Fouдns diκn. See Meier and Schömann, Att. Proc. 371. 748—752.
This was precisely what occurred in the case of Demosthenes. He made entry upon the farm of Aphobus, which he had a right to take in execution. Onetor, claiming it as mortgagee, comes and orders him off, or turns him off, and thereby subjects himself to an action of ejectment. There is no actual force used. Demosthenes indeed says, that Onetor did it in an insulting manner. This was perhaps an exaggeration on the part of the orator; but, whether so or not, he does not pretend to charge Onetor with the exercise of any violence. It was nothing but the formal act of ejectment.
It was the same in the case of personal property. We have an example in the speech written by Demosthenes for his uncle Demon, in an action brought against him by Zenothemis. The case was this. Zenothemis claimed a cargo of corn, which one Protus, an agent of Demon, had imported. Upon his proceeding to enforce his claim by taking possession, Protus goes to remove him. Zenothemis will not give up possession to Protus, but insists that Demon shall join in the removal; his object being, that he may acquire a cause of action against Demon as well as against Protus, probably because he regarded Demon as the more responsible person of the two. Demon, desiring to retain possession of the corn, consents to join in the trespass, goes through the required formality of laying hands upon Zenothemis, and thus subjects himself to the action, which Zenothemis afterwards brings against him; in which, the formal trespass being admitted, the title to the corn is the substantial question in dispute. These formalities were a relic of ruder times, when people used to assert their rights with violence, and the complaint of the injured party was founded upon a real and not a supposed trespass. Lawyers preserved the form when the reality no longer existed, and even considered the form necessary as a foundation for legal proceedings. It is interesting and instructive to observe, how the same sort of practices have prevailed in different countries, as if the one had borrowed them from the other, or as if the attachment of lawyers to unnecessary forms were the same all the world over. I shall mention a few examples by way of illustration.
At Rome in the early times, if the title to land were in dispute, the claimant summoned his adversary by the words "ex jure te manum consertum voco," to go with him to the land, and turn him off in the presence of the Prætor and others; which ceremony was afterwards changed to the symbolical act of breaking a clod of earth upon the land, intimating that the person who broke it claimed the right of property.
In ancient times, no conveyance of lands was complete in this country without livery of seisin, or corporal delivery of possession;
(1) πάνυ ὑβριστικῶς ἐξεβλήθην. (864.) Afterwards he uses the more ordinary ex pression, ἐξήγαγέ με ἐκ τῆς γῆς. (365.) (2) See ante, page 155, and see the argument of the speech.
and this was generally performed by the giving of a clod, or turf, or twig. Of such symbolical tradition there are plenty of examples in other countries. Thus among the Jews the evidence of a purchase is defined in the book of Ruth, ch. iv. 7, 8.
"Now this was the manner in former time in Israel concerning redeeming and concerning changing, for to confirm all things; a man plucked off his shoe, and gave it to his neighbour; and this was a testimony in Israel.
"Therefore the kinsman said unto Boaz: Buy it for thee. So he drew off his shoe."
The giving of the shoe to the purchaser signified that he had full right to walk and tread upon the land as his own.
Among the Goths and Swedes contracts for sale of lands were made in the presence of witnesses, who extended the cloak of the buyer, while the vendor cast a clod into it, and a staff or wand was delivered from the vendor to the vendee, which passed through the hands of the witnesses. Blackstone (Commentaries II. 313) notices a similar ceremony in the conveyance of our copyhold estates, from the seller to the lord or his steward, by the delivery of a rod or verge, and then from the lord to the purchaser, by the re-delivery of the same, in the presence of a jury of tenants.
In England the heir of land did not get complete ownership, till he had made actual entry; and a lessee was obliged to enter, in order to become a complete tenant. And if a man was disseised, or ousted from possession, his remedy was to make entry upon the land, declaring that he thereby took possession; which entry restored him to his seisin and ownership, and thereby to the capacity of conveying it from himself by purchase or transmitting it by descent. It was sufficient however to enter into a part of the lands in the name of the whole, in the case of lands lying all in one county. If the disseised party was prevented from making a peaceable entry by menaces or bodily fear, he might make claim, going as near to the land as he could, with the like forms and solemnities; which claim continued in force for a year and a day.
One of the most remarkable instances of legal fiction is the process in the English action of ejectment, which continued for many centuries to be the regular mode of trying the title to land. The claimant (say Joseph Smith) pretended to have granted a lease to one John Doe, who pretended to have made an entry on the land, and to have been ousted, or turned off, by one Richard Roe, against whom he commenced an action for the trespass. Richard Roe sent notice of this, with a copy of the declaration, to the real tenant, (say William Rogers), advising him to appear to the action and defend his title. The service of this notice on Rogers was the first real proceeding in the case. Rogers then applied to be made defendant in the place of Richard Roe, which he was allowed to do, on condition of his confessing the series of legal fictions above mentioned, (the lease, the
entry, and the ouster,) and consenting to go to trial upon the real question. Such consent being given, the action proceeded under the name of "Doe on the demise of Smith against Rogers ;" and, proof of the mere formalities being dispensed with, the only question to be tried was, whether Smith could make out a good title against Rogers, or the landlord of Rogers. The object of this contrivance was to supersede the cumbrous machinery of real actions, the more ancient method of trying titles to land. All this however has been recently abolished, and a simpler method of bringing actions of ejectment has been substituted.
I shall lastly refer to two other fictions, which until a recent period were necessary in the commencement of actions in two of our English courts; one of which will be found to resemble this fiction of the Athenian law.
Anciently the court of King's Bench had not cognizance of actions of debt or any purely civil actions. In order to acquire it, the Judges allowed a defendant to be brought into court upon a pretended charge of trespass, over which the court always had jurisdiction. The bill or process, by which he was brought in, alleged that he was in custody of the marshal upon a supposed arrest; this assertion the defendant was not allowed to dispute; and being in such custody, the plaintiff was allowed to proceed against him for any other cause of action of a personal nature. Thus the court of King's Bench enlarged their criminal jurisdiction to a civil one.
In a similar way the court of Exchequer, which formerly only entertained causes concerning the royal revenue, invented a process by which it acquired the right to try ordinary civil actions. It had always been held, that the king's debtors, farmers and accomptants of the Exchequer, were privileged to sue other parties in that court; and so the form of a writ was devised, in which the plaintiff pretended that he was a debtor to the king, and that the withholding of his debt or damages from him by the defendant prevented him from discharg ing his debt to the royal treasury. The writ was called a writ of quo minus, because it alleged in Latin, "that the defendant had done the plaintiff an injury, by which he was the less able to pay his debt to the king:" "quo minus sufficiens existit, &c." This surmise, like that in the other court, the defendant was not at liberty to contest; and down to the reign of William IV. it continued to be a necessary part of the process in a civil action, and indeed the foundation of the proceeding. Blackstone and other English lawyers have boasted of these ingenious devices, and referred complacently to the maxim"in fictione juris consistit æquitas."
In this case of Onetor the real question for the jury to try was, whether Aphobus had mortgaged his land bona fide, or whether it was merely a colourable and collusive contrivance. Onetor alleged in proof of its validity, that the mortgage was given before Demosthenes recovered his judgment. Had it been given after, probably it would
have been bad in law altogether; but the fact of its being regular ir point of form and other external matters would not render the transaction valid, if it was designed for a fraudulent purpose, viz. to defeat the rights of a third party. Demosthenes answers Onetor by saying "True, you took the mortgage before my judgment, but you took it under the expectation that I should recover judgment, and in order to prevent my levying execution." And if this was so, the transaction, as against Demosthenes, was a mere nullity.
The same tricks are played in modern times that were played two thousand years ago; and similar questions are tried in our English courts, and brought to trial in a manner not very dissimilar. sheriff, levying an execution for A against B, receives a notice from C, that the property seized belongs to him, alleging that it has been transferred or mortgaged to him by bill of sale. If the Sheriff disregards the notice and proceeds with the execution, the claimant C brings an action against him: but if he wishes to relieve himself, as he generally does, and leave the battle to be fought out between A and C, he obtains an order of interpleader, directing an issue to be tried between those parties, to determine whether the title of C is good against A. Here the same question frequently arises as between Demosthenes and Onetor; whether the alleged bill of sale is not all a pretence, whether C is not a friend of B, lending his name for the purpose of defrauding A. If that be the case, the bill of sale is mere waste paper. The way to get at the truth is, by inquiring into the circumstances of the alleged transfer, the relation of the parties to each other, the consideration given, &c. &c.
The consequence of a verdict for the plaintiff in such a case as this of Onetor was, in the first place, that the property was adjudged to the plaintiff, and secondly, that the defendant was condemned to pay to the public treasury a sum equal to the value of the property. This was the means by which the plaintiff ultimately got the fruits of his judgment. For the defendant became a state-debtor, and was thereby disfranchised, and might in course of time become liable to imprisonment, as we have already seen. I incline to Schömann's opinion, that the state did not discharge the defendant from the public debt, unless he also satisfied the plaintiff by giving up to him the property in question or paying him his damages.
The Athenians, for an ordinary mortgage of real property, appear not to have used deeds or writings. The only evidence of the hypothecation were these opou, or tablets, of which mention is frequently made in Demosthenes. They were stone tablets, or marble slabs, (steinerne Tafeln Meier calls them,) which were set up on the boundaries of the land, or on some conspicuous part of the house, as over the door or on the wall, with an inscription, stating that the land or house was mortgaged to such and such a person for so much money. The name of the Archon, in whose year of office the security was given, was always mentioned. Böckh has published two inscrip