Kings Peace and English Peace-Magistracy. 29 



taken up with the law of distress ; and distress there appears 

 "to be the universal method of prosecuting claims of all kinds," 

 but it must be accompanied by notice, witnesses, "stays," and 

 other legal restrictions, showing that the state has already 

 encroached considerably on the domain of self-redress.^ 



Distress is recognized by nearly all of the early Germanic 

 codes. It is forbidden by the laws of the West Goths. 

 Among the Lombards it may be resorted to after simple 

 demand of satisfaction ; while according to the Lex Salica it 

 may be used even in cases of breach of contract; but "a suc- 

 cession of notices has to be given in solemn form by the 

 complainant to the person of whom he complains, and whose 

 property he proposes to seize. Nor can he proceed to seizure 

 until he has summoned this person before the popular court, 

 and until the popular officer of the court, the Thunginus, has 

 pronounced a formula licensing distraint." Still, this is "not 

 a strictly judicial procedure, but rather a procedure regulating 

 extrajudicial redress." ^ 



But nowhere can the cautious and tardy processes by which 

 the state built up her jurisdiction, preserving so far as possi- 

 ble the forms of self-help which she found already in use, be 

 studied to better advantage than in the ancient English 

 actions of distress and replevin. Although it may have had 

 a broader application before the Norman Conquest, the action 

 by distress, in the age of Henry III, was practically restricted 

 to the seizure of the chattels of a tenant for arrears of rent 

 or service ; or a stranger's cattle found trespassing on another 

 person's grounds.^ By the common law neither notice nor 



1 " Notice precedes every distress in the case of the inferior grades except it be 

 by persons of distinction. Fasting precedes distress in their case. He who does 

 not give a pledge to fasting is an evader of all; he who disregards all things 

 shall not be paid by God or man " : Scnchus Mor, I, 113: Maine, Early Hist, of 

 Inst., 297. 



2 Maine, Early Hist, of Inst., 270-71. See Behrend, Lex Salica, c. L, pp. 

 65-8, for the text of the law. 



3 For the law of distress and replevin, see Home, Mirroir des lustices (Lon- 

 don, 1642), 156-60; Greenwood, Curia Comitatus Kediviva, 36-53; Blackstone, 

 Commentaries, III, 6-13, 412; Powell, A Treatise of the Antiquity, etc., of the 



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