Anomalies of the English lawChester, S. Beach (Samuel Beach)
History
Anomalies of the English law
Chester, S. Beach (Samuel Beach)
Law; Law -- Great Britain -- History
“Under the (Roman) empire, every judgment required to be reduced to
writing, and signed by the judge. It was entered in a register, and a
copy was delivered to the parties. In the East, after Arcadius, the
judgment might be drawn up in Greek, but the use of Latin was retained
at Constantinople down to Justinian’s time.... After sentence, the
debtor was allowed thirty days for the payment of the debt under
the law of the Twelve Tables. At the expiration of that time he was
assigned to the creditor by the prætor, and was kept in chains for
sixty days, during which he was publicly exposed for three market-days,
and the amount of the debt proclaimed; then, if no person released the
prisoner by paying the debt, the creditor could sell him as a slave
to foreigners. When there were several creditors, the letter of the
law allowed them to cut the body of the debtor in pieces, and divide
it among them in proportion to their debts; but some writers contend
that the words _partes secanto_ are to be taken in a figurative sense,
as referring to a division of the price when the debtor was sold as a
slave.... The prætor allowed a delay of two months for payment of a
judgment debt; and Justinian extended the period to four months, both
to the defendant and his sureties, after which the debtor might be
imprisoned, not in the house of the creditor, as in early times, but in
a public prison.”[20]
One can scarcely leave a chapter on civil--as opposed to criminal
[law]--coercion, without some mention of the writ of _ne exeat regno_.
It has, perhaps, a certain distant relationship to “imprisonment for
debt:” “It sometimes happens (for instance, where a plaintiff is unable
to establish his case except upon the admissions of his adversary)
that a defendant may, by leaving the country and so putting himself
beyond the jurisdiction of the English Courts, seriously prejudice or
perhaps altogether defeat a just claim. To prevent such a miscarriage
of justice, suitors in the High Court of Chancery could for many years
before the coming into operation of the Supreme Court of Judicature
Act, 1873, apply for and in a proper case obtain a writ of _ne exeat
regno_, addressed to the Sheriff of the county where the party named
therein was supposed to be residing, and commanding him to cause such
party to come before him and give sufficient bail in the sum endorsed
on the writ, that he would not go or attempt to go into parts beyond
the seas without leave of the Court, and on his refusal or neglect to
comply with this demand to commit him to prison.... This writ, which
issued only out of the Court of Chancery or the Court of Exchequer
on its equity side, so long as it had an equitable jurisdiction, was
originally a high prerogative writ by which the Crown was enabled
to prevent any of its subjects from leaving the country when their
services were required in it. The writ was subsequently applied to
cases between subjects, and the principles which guided the Court in
Public-domain text, read in full here on John Shaqi.
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