登陆注册
15416700000004

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.

同类推荐
  • 三洞神符記

    三洞神符記

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • 念佛警策

    念佛警策

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • Studies of Lowell

    Studies of Lowell

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • 相和歌辞·铜雀妓

    相和歌辞·铜雀妓

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。
  • Alcibiades II

    Alcibiades II

    The two dialogues which are translated in the second appendix are not mentioned by Aristotle, or by any early authority, and have no claim to be ascribed to Plato. They are examples of Platonic dialogues to be assigned probably to the second or third generation after Plato.
热门推荐
  • 云中藏锋记

    云中藏锋记

    十年武侠梦,江湖终成空,红尘扑满面,云中藏青锋
  • 人生如梦亦如雾

    人生如梦亦如雾

    根据历史上著名cp改编而成,故事短小精悍。有帝王,有王侯,还有寻常人家的子女,他们在那个不一样的年代,上演着爱恨离合。
  • 绑个老婆,回家宠

    绑个老婆,回家宠

    一个“善举”,霸道总裁苏桐桦爱上御宅剩女洛怡心,宠她入骨,爱她入髓。某女想法设法拒绝,“我可是情场老手,男票一箩筐。”“没事,老手有经验,和谐…”几日后,某女一脸黑线吼道,“我要离婚。”“离婚?”某男挑眉沉思一秒,“可以,拼觉生娃和陪我四天,二选一。”“我选后者。”苏桐桦一边解纽扣,一边朝她走去,“别后悔噢,我说的四天是指春天,夏天,秋天,冬天。”下一秒,洛怡心又被扛进房间……
  • 异界之唯吾独尊

    异界之唯吾独尊

    一个倒霉的厨师穿越到异界,在家庭的逼迫下差点又一次挂掉,遇到一个心怀不轨的老头,拜其为师。机缘巧合下觉新了异能,召唤英雄们为其而战。最终,独霸异世,成就不朽王朝
  • 从总统到囚徒:卢泰愚、全斗焕案始末

    从总统到囚徒:卢泰愚、全斗焕案始末

    卢泰愚,韩国第六共和国总统(1988,2—1993,2),陆军上将。1995年10月因受贿政治资金5000亿韩元一事败露,于11月17日被捕受审。全斗焕,韩国第五共和国总统(1980,8—1988,2),陆军上将。1980年5月18日,镇压光州人民起义,造成2000多人受伤,近200人死亡。此后不久,逼迫文职总统崔圭夏下台,自任总统。1995年12月,现任总统金泳三以军事政变罪、内乱罪下令逮捕全斗焕,重新审查光州事件。
  • 弹指繁华

    弹指繁华

    他,自诩天下第一,但却败给了她;她,为了他,甘愿堕落;他,为了友情甘愿从世间消失,永不超生。他们跨越神与魔界限,只为守护她一日绽放……
  • 不昧今生喜逢君

    不昧今生喜逢君

    有着温暖笑容的女孩彩辉,因为被选中为梁氏集团的继承人,成为阴谋漩涡的中心。不昧今生酒吧里,彩辉被不明身份的男子侮辱。侥幸存活的她,想不到竟会与那个叫叶澜的男人重逢。叶澜桀骜轻狂,热情睿智。彩辉冷冽聪慧,单纯善良。硝烟四起时:叛逆?忠诚?仇怨?爱情?是非难辨。
  • 福妻驾到

    福妻驾到

    现代饭店彪悍老板娘魂穿古代。不分是非的极品婆婆?三年未归生死不明的丈夫?心狠手辣的阴毒亲戚?贪婪而好色的地主老财?吃上顿没下顿的贫困宭境?不怕不怕,神仙相助,一技在手,天下我有!且看现代张悦娘,如何身带福气玩转古代,开面馆、收小弟、左纳财富,右傍美男,共绘幸福生活大好蓝图!!!!快本新书《天媒地聘》已经上架开始销售,只要3.99元即可将整本书抱回家,你还等什么哪,赶紧点击下面的直通车,享受乐乐精心为您准备的美食盛宴吧!)
  • 星炼龙帝

    星炼龙帝

    母亲被人杀害,为了寻找仇人,少年云枫踏上了变强的道路;为了寻找父亲,云枫付出一切代价,寻父寻仇,一段故事,从此拉开继幕……上古时代一代圣龙陨落,化为一块五星石,并传统万年之后,落入家族废物之手,从此得传统,成为新的一代龙帝。PS:新书上传,求收藏,求推荐票,求支持!欢迎加入星炼龙帝VIP粉丝群,群号码:630932723,群主是我哦!
  • 耳书鲊话

    耳书鲊话

    本书为公版书,为不受著作权法限制的作家、艺术家及其它人士发布的作品,供广大读者阅读交流。