376 THE POPULAR SCIENCE MONTHLY. 



tions afterward discharged by equitable construction and still later by- 

 legislation, have been fitly grouped together under the common name 

 of legal fictions. Sir Henry Maine, in adopting such a classification, 

 explains that by a legal fiction he means any assumption which con- 

 ceals or affects to conceal the fact that a rule of law has undergone 

 alteration, its letter remaining unchanged, its operation being modified. 

 Now, a judicial quibble was a kind of legal fiction a product of the 

 same conditions and charged with the same functions as legal fictions 

 generally. That is to say, it was a thin disguise, under which, owing 

 to the prevailing laxity and vagueness of current intellectual processes, 

 reforms could be introduced without actively antagonizing the con- 

 servative propensity. 



"While amplifying the historical suggestions of our story, we must 

 not ignore the interest attaching to the circumstance that the quibble 

 employed by the judge was one which, though inspired by a desire 

 to defeat the forfeiture, took effect not through an impeachment of 

 the bond's validity, but in such a definition of the remedy upon it as 

 was calculated to discourage its enforcement. It thus represents the 

 very marked propensity of early societies to assail an obnoxious legal 

 right indirectly through its remedy ; impairing the latter either by 

 regulations making a resort to it difficult or impossible, or by encum- 

 bering its exercise with stringent and technical limitations, the non- 

 observance of which would subject the party to heavy penalties. 



It is in this tendency that we find the key to much that is other- 

 wise unaccountably harsh, technical, or absurd in early judicial reme- 

 dies and procedure. Whenever any recognized legal right came to be 

 regarded as unconscionable or otherwise objectionable, rules adapted 

 to hamper or imperil the complainant in the pursuit of his remedy 

 were sure to spring up. Procedure, instead of being shaped as now 

 with an eye single to the ascertainment and enforcement of the rights 

 of litigants, was therefore frequently designed to render those rights 

 nugatory ; and, as the latter function was often more influential than 

 the former in molding the procedure, so they were both at times over- 

 shadowed by such a regulation of remedies as would be most likely to 

 frighten both parties out of court and into an amicable adjustment of 

 their differences. We find ample illustration in the history of the 

 law of distress. The right of a creditor to seize without legal process 

 the goods of his debtor in satisfaction of his claim, which once so 

 widely prevailed, may be said generally to have fallen a victim to the 

 constantly increasing technicality of the procedure regulating its exer- 

 cise. The value of the right was destroyed by the technicality which 

 its harshness had induced ; so that creditors were usually glad to 

 abandon the right before it was taken from them. It was, as has been 

 well said, a kind of two-edged sword. "You might bring your adver- 

 sary to the ground by it, but you were extremely likely to injure your- 

 -ilf. For, unless the complainant who sought to distrain went through 



