Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/109

 3. POLLOCK: ANGLO-SAXON LAW 95 things it did provide for, it was, to modern eyes, strangely defective in its lack of executive power. Among the most important functions of courts as we know them is compeUing the attendance of parties and enforcing the fulfilment both of final judgments and of interlocutory orders dealing with the conduct of proceedings and the like. Such things are done as of course under the ordinary authority of the court, and with means constantly at its disposal; open resistance to judicial orders is so plainly useless that it is seldom attempted, and obstinate preference of penalties to submission, a thing which now and then happens, is counted a mark of eccentricity bordering on unsoundness of mind. Exceptional difficulties, when they occur, indicate an abnormal state of the common- wealth or some of its members. But this reign of law did not come by nature; it has been slowly and laboriously won. Jurisdiction began, it seems, with being merely voluntary, derived not from the authority of the State but from the consent of the parties. People might come to the court for a decision if they agreed to do so. They were bound in honv)ur to accept the result ; they might forfeit pledges deposited with the court ; but the court could not compel their obedience any more than a tribunal of arbitration appointed at this day under a treaty between sovereign States can compel the rulers of those States to fulfil its award. Anglo-Saxon courts had got beyond this most early stage, but not very far beyond it. The only way to bring an unwilling adversary before the court was to take something of his as security till he would attend to the demand ; and practically the only things that could be taken without personal violence were cattle. Distress in this form was practised and also regulated from a very early time. It was forbidden to distrain until right had been formally demanded — in Cnut's time to the extent of three summonings — and refused. Thus leave of the court was re- quired, but the party had to act for himself as best he could. If distress failed to make the defendant appear, the only resource left was to deny the law's protection to the stiff- necked man who would not come to be judged by law. He might be outlawed, and this must have been enough to coerce