« PreviousContinue »
pear before the court, by a public officer belonging to it, a week before-hand: if no regard is paid to such summons twice repeated, the plaintiff (or his attorney) is admitted to make before the court a formal reading of his demand, which is then granted to him, and he may proceed to execution.*
In this mode of proceeding, it is taken for granted, that a person who declines to appear before a judge, to answer the demand of another, after being properly summoned, acknowledges the justice of such demand; and this supposition is very just and rational. However, the above-mentioned practice of securing before-hand the body of a person sued, though not so mild in its execution as that just now described, nor even more effectual, appears more obvious, and is more readily adopted, in those times when courts of law begin to be formed in a 'nation, and rules of distributive justice to be established; and it is, very likely, followed in England as a continu
* A person against whom a judgment of this kind has been passed (which they call in France un jugement par défaut) may easily obtain relief: but as he now in his turn becomes in a manner the plaintiff, his deserting the cause, in this second stage of it, would leave him without remedy.
ation of the methods that were adopted when the English laws were yet in their infancy.
In the times we mention, when laws begin to be formed in a country, the administration of justice between individuals is commonly lodged in the same hands which are intrusted with the public and military authority in the state. Judges, invested with a power of this kind, like to carry on their operations with a high hand: they consider the refusal of a man to appear before them, not as being barely an expedient to avoid doing that which is just, but as a contempt of their authority: they of course look upon themselves as being bound to vindicate it; and a writ of capias is speedily issued to apprehend the refractory defendant. A preliminary writ or order of this kind becomes in time the first regular step of a lawsuit; and hence it seems to have happened, that, in the English courts of law, if I am rightly informed, a writ of capias is either issued before the original writ itself (which contains the summons of the plaintiff, and a formal delineation of his case), or is joined to such writ, by means of an ac etiam capias, and is served along with it.
In Rome, where the distribution of civil justice was at first lodged in the hands of the
kings, and afterwards of the consuls, the method of seizing the person of a man against whom a demand of any kind was preferred, previously to any judgment being passed against him, was likewise adopted and continued to be followed after the institution of the prætor's court, to whom the civ il branch of the power of the consuls was afterwards delegated; and it lasted to very late times; that is, to the times when those capital alterations were made in the Roman civil law, during the reigns of the later emperors, which gave it the form it now
has in those codes or collections of which we are in possession.
A very singular degree of violence even took place in Rome, in the method used to secure the persons of those against whom a legal demand was preferred. In England, the way to seize a to seize a man under such circumstances, is by means of a public officer, supplied with a writ or order for that purpose, supposed to be directed to him (or to the sheriff his employer) from the king himself. But, in Rome, every one became a kind of public officer in his own cause, to assert the prætor's prerogative; and, without any ostensible legal licence or badge of public authority, had a right to seize by force the person of his oppo
nent, wherever he met him. was, that the plaintiff first person sued with a loud voice to follow him before the court of the prætor.* When the defendant refused to obey such summons, the plaintiff, by means of the words licet antestari? requested the bye-standers to be witnesses of the fact; as a remembrance of which, he touched the ears of each of them; and then proceeded to seize his opponent, by throwing his arms round his neck (obtorto collo), thus endeavouring to drag him before the prætor. When the person sued was, through age or sickness, disabled from following the plaintiff, the latter was directed by the law of the twelve tables to supply him with a horse (jumentum dato).
The above method of proceeding was however in after times mitigated, though very late and slowly. In the first place, it became unlawful to seize a man in his own house, as it was the abode of his domestic gods. Women of good family were in time protected from the severity of the above custom, and they could no longer be dragged by force before the tribunal of the prætor. The method of
* Ad tribunal sequere, in jus ambula.
placing a sick or aged person by force upon a horse seems to have been abolished during the later times of the republic. Emancipated sons, and freed slaves, were afterwards restrained from summoning their parents, or late masters, without having expressly obtained the prætor's leave, under the penalty of fifty pieces of gold. However, so late as the time of Pliny, the old mode of summoning, or carrying by force, before a judge, continued in general to subsist; though, in the time of Ulpian, the necessity of expressly obtaining the prætor's leave was extended to all cases and persons; and, in Constantine's reign, the method began to be established of having the legal summons served only by means of a public officer appointed for that purpose. After that time, other changes in the former law were introduced, from which the mode of proceeding now used on the continent of Europe has been borrowed.
In England likewise, some changes, we may observe, have been wrought in the law and practice concerning the arrests of sued persons, though as slowly and late as those effected in the Roman republic or empire, if not more so; which evinces the great impediments of various kinds that obstruct the improvement of laws