Page:Popular Science Monthly Volume 20.djvu/390

376 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 conceals 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 conservative 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 encumbering its exercise with stringent and technical limitations, the nonobservance of which would subject the party to heavy penalties.

It is in this tendency that we find the key to much that is otherwise unaccountably harsh, technical, or absurd in early judicial remedies 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 overshadowed 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 exercise. 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 adversary to the ground by it, but you were extremely likely to injure yourself. For, unless the complainant who sought to distrain went through