Page:Harvard Law Review Volume 10.djvu/369

THE PLEDGE-IDEA. 343 hanced, moreover, when we find that the phrases in the other h'ne of doctrines about private redress — pledge-taking, etc. — and about the later judicial execution are constantly contrasted with the terms indicating a voluntary pledge.^ hypothec ; and the terms versetzen and vorkummern are in later times often grouped as covering all kinds (see examples in Meibom, 429), much z% pignus vel hypotheca were in Roman law, the former being the generic term, and the latter a species. Kisteytpfand in some regions was used to denote the hypothec; "posuit domum suam pro cistoli pignare," "sette sin hus to eyme kistenpande": Meibom, 423; Amira, I, 216. Fiin Pfand, or contingent pfand, was another name used in Bavaria: Heusler, II, 148, Kohler, 234, 1 The contrast of ideas appears in the two words nam and set, nehmen and setzen ("seize " and "hand over") : Meibom, 24; Amira, I, §§ 15-21. Other words in some places used instead of nam have the same idea: badian (force), raf {raub, seize); Brunner, II, § no. This antithesis in the verb idea of the transactions lasts till modern limes. The development of one is a part of the history of procedure; of the other, a part of the history of substantive law; and all the associations of the hypothec trans- action are with the latter, not with the former. But there is one confusing circumstance ; pfand, pant, used for both transactions; and this must be accounted for. Now the sources of the later law of execution were, roughly speaking, two (Heusler, II, § 117; Brunner, II, §§ 110-112; Amira, I, §§ 15-21, 28 ; II, §§ 1 1-16). (i) The creditor or injured person could primitively, in limited cases and following certain rules, go himself and carry off {nam) movable goods of the debtor sufficient to pay ; they then became to him a forfeit-payment of the ordinary sort, i. e. they were at his risk till redeemed, and if not redeemed they were forfeited to him absolutely without regard to any surplus value ; in Scandinavia the thing thus taken was designated (from the verb idea) as nam, while in Germanic tribes the thing taken was called usually /a;// (a word of uncertain origin, but probably having the same force). (2) Where the debtor's outlawry had occurred, the injured person might by a striides legitima or " legal rape," go and get satisfaction from the outlaw's confiscated personalty ; and, much later, the doctrine of missio in bannum regis obtained for him a similar satisfac- tion out of the confiscated realty, — the phrases being missio in vorbannum,/ronbotef fronung, and the like. Now these two processes worked towards each other, so that they came to share the common feature of securing satisfaction from any defaulting debtor subject to the control of the court. But the distinctive feature of the former process was still that the creditor got the res as a redeemable pledge only ; while in the latter he got a true payment on execution. Hence the former process had bonds of relation with both the ordinary ived transaction and with the execution or vorbannun^ process; and for the one relation the /aw/ word came to serve, while for the other the nam or nehmen idea was emphasized. Moreover, since what the creditor almost always got by nam was personalty, personalty pledges came naturally to be called /^rw/" generi- cally, and the wed term was thus largely driven out of usage for personalty (though wadium originally covered both personalty and realty, and though the process itself — the nam — from which pant was borrowed, had a history independent of the wed) ; more- over, the original state of things is further shown by the fact that in Scandinavia ved was not thus driven out, though fant when borrowed from the German in later times covered, as in Germany, pledges both nam and set. Later still, />/^«i/ partly extends to realty also, — in such compound words as kistenpfand, pfandschaft. The case is much like that of our "pledge"; originally pleifie, a personal surety, it practically drove out gage for personal property and restricted it (as "mortgage") to realty; yet the old law