Page:Popular Science Monthly Volume 20.djvu/387

Rh most curious features of our anecdote. For, even when ancient societies sought to discourage contracts made in contravention of law, morals, or public policy, it was their practice not to deny their validity but to rely for their suppression upon penalties denounced against parties who should enter into them. This indirect method of reform was eminently characteristic of such societies, and the evidences are abundant of its application to all branches of the law.

The conservatism of such communities was so controlling that, when, through changed social conditions, a modification of existing law became unavoidable, the tendency was, while adhering nominally to the old law, to inflict penalties upon or in some way obstruct those who attempted to assert rights under it; an expedient whereby the effects of amendment might be obtained without a confessed abandonment of ancient principles. The proverbial unchangeability of the laws of the Medes and Persians represents only in aggravated form the extreme aversion to change almost universal in early societies; and the effectual manner in which the unchangeable proclamation of King Ahasuerus for the extermination of the Jews was annulled by his subsequent decree, declaring it lawful for them to defend themselves, is not a bad example of the tortuous method of reform which we are now considering. Another example equally in point is afforded by the history of the doctrine of jurisdiction. In Europe certainly, and probably elsewhere, the jurisdiction of courts was originally voluntary. They tried causes only in the presence and with the consent of both of the litigating parties. It would have been regarded as an unwarrantable encroachment upon the liberty of the citizen for a court to entertain a controversy at the solicitation of the complainant only, and without the express consent of the defendant. This theory of jurisdiction disappeared in the different nations of Northern Europe at an early or late day in proportion to the strong or weak influence of the Roman law, and remained unshaken in England until within a century. At a very early day the principle was perceived to be inconsistent with the maintenance of social order. But, instead of renouncing it in favor of the rule since adopted, that the service of citation upon the defendant shall confer jurisdiction whether he consent or not, the old doctrine was rigidly maintained, and outlawry, forfeitures, and attachments were resorted to, to compel the defendant to signify his indispensable consent. If, in spite of these severe measures, the jurisdiction was still resisted, the court remained powerless to proceed.

The historical as well as the dramatic interest of our story culminates in the celebrated quibble through which the judge, after dispelling the forlorn hopes and realizing the worst fears of the debtor by sustaining the validity of the bond, suddenly puts an entirely new and happy face on the transaction. He says: