Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/155

 5. JENKS: EDWARD I 141 himself for refusing to satisfy a commercial claim, however just, which could not be legally enforced against him. Scan- dalous as the position seems now to us, it had grown easily and naturally out of the history of the law of debt. The earliest " debts " did not arise out of voluntary transactions : they were bloodfines reluctantly offered by guilty men, robbers and murderers, to appease the just vengeance of the injured or their relatives. Quite naturally, these offenders resisted payment until the last possible moment. Nowhere are a priori conceptions more inadequate to explain facts, than in the discussions of legal morality. But a patient study of the history of legal ideas not only removes all difficulties: it leaves the student wondering at the simplicity of the explanation, so long sought in vain by the exalted methods of deductive speculation. Thus it becomes clear, why the merchant of the thirteenth century, especially the foreign merchant, was helpless in the hands of his debtors. Three difficulties stood in his way. First, he could not, in all probability, appear as the ostensible plaintiff before a tribunal which did not recognise him as one of its proper " suitors " or constituents. He had to trust himself in the hands of a nativg ap ^ent. or " attorney," who might decamp with his money. Second, he would find his adversary resorting, perhaps with the secret goodwill of the tribunal, to every trick and delay that chicane could suggest V — and no one who "Toiows anything of legal history will believe that chicane is a modern vice — to postpone the evil day on which judgment should be pronounced against him. Finally, if the plaintiff were successful in procuring a judg- - mwrt, he would find himself obstructed in enforcing it by a defective procedure which, once more, is intelligible only by a reference to the history of the action of debt. In the days when debts were, as we have said, mere alternatives of corporal vengeance, the man who could not satisfy them " paid with his body." In other words, if the avenger of blood did not get his money, he got his revenge, either in the form of imprisonment of his debtor, or even by exacting the extreme penalty. This is the simple explanation of the horrible system of debt-slavery, of which students of Roman history r