第4章

The action was not based, as it would be nowadays, on the fault of the parent or owner.If it had been, it would always have been brought against the person who had control of the slave or animal at the time it did the harm complained of, and who, if any one, was to blame for not preventing the injury.So far from this being the course, the person to be sued was the owner at the time of suing.The action followed the guilty thing into whosesoever hands it came. And in curious contrast with the principle as inverted to meet still more modern views of public policy, if the animal was of a wild nature, that is, in the very case of the most ferocious animals, the owner ceased to be liable the moment it escaped, because at that moment he ceased to be owner. There seems to have been no other or more extensive liability by the old law, even where a slave was guilty with his master's knowledge, unless perhaps he was a mere tool in his master's hands. Gains and Ulpian showed an inclination to cut the noxoe deditio down to a privilege of the owner in case of misdeeds committed without his knowledge; but Ulpian is obliged to admit, that by the ancient law, according to Celsus, the action was noxal where a slave was guilty even with the privity of his master. All this shows very clearly that the liability of the owner was merely a way of getting at the slave or animal which was the immediate cause of offence.In other words, vengeance on the immediate offender was the object of the Greek and early Roman process, not indemnity from the master or owner.The liability of the owner was simply a liability of the offending thing.In the primitive customs of Greece it was enforced by a judicial process expressly directed against the object, animate or inanimate.The Roman Twelve Tables made the owner, instead of the thing itself, the defendant, but did not in any way change the ground of liability, or affect its limit.The change was simply a device to allow the owner to protect his interest. But it may be asked how inanimate objects came to be pursued in this way, if the object of the procedure was to gratify the passion of revenge.Learned men have been ready to find a reason in the personification of inanimate nature common to savages and children, and there is much to confirm this view.Without such a personification, anger towards lifeless things would have been transitory, at most.It is noticeable that the commonest example in the most primitive customs and laws is that of a tree which falls upon a man, or from which he falls and is killed.We can conceive with comparative ease how a tree might have been put on the same footing with animals.It certainly was treated like them, and was delivered to the relatives, or chopped to pieces for the gratification of a real or simulated passion. In the Athenian process there is also, no doubt, to be traced a different thought.Expiation is one of the ends most insisted on by Plato, and appears to have been the purpose of the procedure mentioned by Aeschines.Some passages in the Roman historians which will be mentioned again seem to point in the same direction. Another peculiarity to be noticed is, that the liability seems to have been regarded as attached to the body doing the damage, in an almost physical sense.An untrained intelligence only imperfectly performs the analysis by which jurists carry responsibility back to the beginning of a chain of causation.The hatred for anything giving us pain, which wreaks itself on the manifest cause, and which leads even civilized man to kick a door when it pinches his finger, is embodied in the noxoe deditio and other kindred doctrines of early Roman law.There is a defective passage in Gaius, which seems to say that liability may sometimes be escaped by giving up even the dead body of the offender. So Livy relates that, Brutulus Papins having caused a breach of truce with the Romans, the Samnites determined to surrender him, and that, upon his avoiding disgrace and punishment by suicide, they sent his lifeless body.It is noticeable that the surrender seems to be regarded as the natural expiation for the breach of treaty, and that it is equally a matter of course to send the body when the wrong-doer has perished. The most curious examples of this sort occur in the region of what we should now call contract.Livy again furnishes an example, if, indeed, the last is not one.The Roman Consul Postumius concluded the disgraceful peace of the Caudine Forks (per sponsionem, as Livy says, denying the common story that it was per feedus), and he was sent to Rome to obtain the sanction of the people.When there however, he proposed that the persons who had made the contract, including himself, should be given up in satisfaction of it.For, he said, the Roman people not having sanctioned the agreement, who is so ignorant of the jus fetialium as not to know that they are released from obligation by surrendering us? The formula of surrender seems to bring the case within the noxoe deditio. Cicero narrates a similar surrender of Mancinus by the pater-patratus to the Numantines, who, however, like the Samnites in the former case, refused to receive him. It might be asked what analogy could have been found between a breach of contract and those wrongs which excite the desire for vengeance.But it must be remembered that the distinction between tort and breaches of contract, and especially between the remedies for the two, is not found ready made.It is conceivable that a procedure adapted to redress for violence was extended to other cases as they arose.Slaves were surrendered for theft as well as for assault; and it is said that a debtor who did not pay his debts, or a seller who failed to deliver an article for which he had been paid, was dealt with on the same footing as a thief. This line of thought, together with the quasi material conception of legal obligations as binding the offending body, which has been noticed, would perhaps explain the well-known law of the Twelve Tables as to insolvent debtors.