Continuing the Confusion
Bill Long 11/29/05
Trying to Get to Covenant and Seals
When we last left Ames, we were in the midst of the hostage, who is now a surety, clutching the straw (festuca) in his hand as a sign that he has a legal action of some kind ("power") against the debtor. That notion confused me mightily for the reasons set forth at the end of the previous essay. Let's continue with his text.
"By this transaction the creditor had a right to payment of the debt, not by the debtor, but by the surety; and the surety only had a right against the debtor. The remedy was by distress upon the property of the party bound."
We are, of course, still on page 97. Ames is saying that by handing the straw to the hostage, the creditor had a right of payment against the hostage/surety. It is like saying, "Here, take the straw; you owe me." That must be what Ames is saying. But, what does that mean? When the debtor gave the straw to the creditor, it was saying that he, the debtor, owed the creditor. Right? When he gave the spear to him in the "old" days, this meant that the hostage was in the creditor's power--that the debtor was, in fact, indebted. So, we would think that the straw signified the indebtedness. Right? Am I missing something here (he shouts)? Ok. Now once the creditor hands the straw to the surety, as Ames says, presto, this means that the creditor had a right of payment by the surety/hostage. Now, the holding of the straw means that you owe, not that you are owed. Hm. How did that signification change? I could see academic papers in the ancient Germanic society of law..."On the Origin and Meaning of the Transformation of Signification upon Straw Exchange..." People could get doctorates in the field. Well, as you can tell, I am further confused. So, let's go on.
He concludes the paragraph with: "the remedy was by distress upon the property of the party bound." By this Ames means, no doubt, that the surety's remedy was by distress upon the debtor's property. But why would any creditor in his right mind have given up so easily? That is, why should he put all his "eggs" in the hostage's basket, so to speak? By not being able to exact revenge or get distraint on the debtor's goods, the creditor was leaving it up to the whims, it seems of some shadowy hostage. I am distressed, myself, by this history and not convinced a whit.
Next Paragaph, Please
So, Ames continues:
"Where the debtor could neither pay nor produce a surety, he was finally allowed to furnish himself as a surety. He took the festuca in his left hand, transferred it into his right hand, and gave it to the creditor. At about the same time the right was given to the creditor not only of distraining, but also of treating the debtor as personally liable to pay" (still on p. 97).
OK. Now we are in the situation where no hapless hostage was available to the debtor, and he had to be the surety himself. What really does that mean? Is it different from saying he just owed the debt? I don't know. But now comes the most fun part of the whole page: the solemn transferring of the festuca (the straw) from the left to right hand before giving it to the creditor. It symbolizes indebtedness. But this left to right hand stuff is interesting, though Ames doesn't explain it. And, how does he know it happened? Does it suggest that if a hostage was handed over with the festuca that the festuca was given with the left hand, and that, absent a hostage, it had to be given with the right hand? I supppose in ancient societies (Biblical examples come to mind), the right hand was the hand of power, so a handing over of something with the right hand might signify that you are giving over your power to another person. Actually, I could live with that explanation.
But it implies that when a hostage/surety was turned over with the festuca, that the festuca would have been given with the left hand. But Ames doesn't tell us if this is so. Actually, it would have made more sense for the festuca to have been given by the debtor to the hostage, who would have then given it to the creditor. But now I am just making it up as I am going along, and not doing "sober" history like the distinguished professor.
So, we have now the remedy of "distress" or "distraint," which allows the creditor now (and not the surety) to pursue an action of distraint (if that isn't too formal a term) against the debtor but also to treat the debtor as "personally liable to pay." What could that mean other than if the debtor didn't pay the creditor had "other" options against him? What could those options have been? Maybe to take him hostage? So, is the bottom line of failure to pay back your debts getting taken as a hostage? I really don't know, but by the time we get near the bottom of p. 97 (we still have a paragraph to go), we are mightily confused about the origins of almost everything Ames speaks of.
Unfortunately, we need another essay, because we haven't followed Ames fearlessly to covenant. He has more loose limbs sticking out of the bed now than if Procrustes had welcomed six guests and bedded them down for the night. But Ames will fearlessly push on. I am so glad he writes in short sentences.
Copyright © 2004-2008 William R.Long