Cattle were the principal property known,
and cattle-stealing the principal form of wrongful taking of
property. Of law there was very little, and what there was
depended almost wholly upon the party himself to enforce. The
Salic Law of the fifth century and the Anglo-Saxon laws of Alfred
are very full in their directions about following the trail. If
the cattle were come up with before three days were gone, the
pursuer had the fight to take and keep them, subject only to
swearing that he lost them against his will. If more than three
days went by before the cattle were found, the defendant might
swear, if he could, to facts which would disprove the claimant's
loss.
This procedure was in truth a legal procedure; but it depended
for its beginning and for its execution on the party making the
claim. From its "executive" nature, it could hardly have been
started by any other than the person on the spot, in whose
keeping the cattle were. The oath was to the effect that the
party had lost possession against his will. But if all that a man
had to swear was that he had lost possession against his will, it
is a natural conclusion that the right to take the oath and make
use of [166] the procedure depended on possession, and not on
ownership.
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