Exploring Unclarity in James Barr Ames
Bill Long 11/29/05
Continuing our Imaginative Journey
As I suggested in the previous essay, the purpose of historical study is to give one a series of clear thoughts to aid the imagination. Sometimes you just get lost in the imagination itself of another time and place, and then you join the Society for Creative Anachronism. Other times you want to have an imagined past in your mind so that you can actually explain the flow of history in a plausible fashion to other people and to yourself. So, we are trying to imagine early Germanic society as a prelude to understanding the origins of the action of Covenant at common law which will help us figure out how early seals worked. When we have the origin and early meaning of a thing, we have captured, if not its essence, then at least its shadow. So let's continue with Ames, still on p. 97 of his Lectures on Legal History--on Covenant.
The Germanic Formal Ceremony of Hostage-Taking
Ames goes on to say:
"A part of the formal ceremony by which this obligation of the surety was established was the handing of a spear to the creditor, in token that the hostage was in the power of the creditor. Afterwards a straw (festuca) took the place of the spear. The creditor handed the straw to the surety, which gave him the power to go against the debtor" (97).
I think I am starting to lose my grip on reality here. At the end of the previous paragraph we have hostages who are now sureties--i.e., liable for the debt of a defaulting debtor. We now turn to the ceremony where this hostage-taking was formalized. Very clear. Ok, a spear was handed to the creditor. Does that mean that the debtor handed him a spear? Was it his own spear? Did the creditor get to keep it? If so, did he offset the amount of debt by the present value of the spear? Or, was the spear sort of something belonging to the tribes generally or a specific tribe? (How were these societies organized, anyway?) I get the impression that the creditor gets to keep the spear, as a sign that he controls the hostage. Ok, I can live with that, even though my questions are starting to drown out my ability to read. They just are too insistent in my mind. But let's try to finish the paragraph. It goes on to say that "afterwards," probably a synonym of "later" in an earlier paragraph, a straw took the place of a spear. Maybe a downturn in the local economy, or one realized that he was giving away valuable property just to indicate he was indebted to another. Give something of no value, then, and say that it has a lot of value. Is that the process we are envisioning here?
But then it says, "The creditor handed the straw to the surety, which gave him the power to go against the debtor." Whoops. I think I am lost. So, the debtor in this later time gives the creditor a straw instead of the spear. Got it. The creditor then has the straw and the hostage. Got it. But now, apparently, the creditor is handing the straw to the surety. Well, why not? He needs someone to hold it. But is there meaning in this act? Well, it "gave him the power to go against the debtor." I suppose the "him" here is the surety or the hostage, though it could relate to either the creditor or the hostage. Don't you just hate it when people write and a "he" could refer to more than one person and the author doesn't clarify it, especially if you could spin out quite different scenarios based on who is meant? Well, we have to make a decision as a reader of which one he is referring to in order not to go crazy. So, let's decide that he is referring to the hostage/surety. So, it means that this handing of the straw to the hostage/surety now gave the hostage/surety the right to go against the original debtor.
But I guess this is where my credulity and ability to picture what is happening is stretched to the breaking point. We now have a hostage who is also a surety (which is hard enough to understand) with a piece of straw in his hand. As a hostage it means (to me at least) that you don't have much freedom of movement. You are confined, controlled by the creditor. If you are a surety, you have to pay off the debtor's debt, too. How do you do that other than by working for the creditor? I don't know. But, now the hostage has a piece of straw in his hand, and this means, according to Ames, that he has "power" against the debtor. Does that mean he can initate a formal legal action (oh, oh, what kind of legal actions does Ames or anyone else posit for this "later" period of Germanic history?) against him? Lead a war? Make him "pay up?" I suppose Ames is trying to explain where our doctrine of sureties originated, but he is doing a terrible job at it.
Why would the creditor even let the hostage pursue something against the original debtor when he, the creditor, would run the risk of losing everything in the process? Or, did the creditor carry the hostage around in chains or with constant supervision so that if he went back to pursue an action against the debtor, he (the creditor) didn't run the risk of losing his hostage? But, if this is the situation, doesn't it mean that the creditor, what with paying for transportation, lodging, lost work of his own people who are supervising the hostage, is actually expending a lot of dough just to hold the hostage with this new power? Why, then, would a creditor have handed over the straw to the hostage in the first place? I am totally confused, and I haven't even gotten to the second page of the article.
But, unfortunately, I need to write one more essay, to bring us up to Ames' reference to covenant. Bear with me.
Copyright © 2004-2008 William R.Long