For the first time one man was made answerable for the wrongs of another who was also answerable himself, and who had a standing before the law.This was a great change from the bare permission to ransom one's slave as a privilege.But here we have the history of the whole modern doctrine of master and servant, and principal and agent.All servants are now as free and as liable to a suit as their masters.Yet the principle introduced on special grounds in a special case, when servants were slaves, is now the general law of this country and England, and under it men daily have to pay large sums for other people's acts, in which they had no part and for which they are in no sense to blame.And to this day the reason offered by the Roman jurists for an exceptional rule is made to justify this universal and unlimited responsibility. So much for one of the parents of our common law.Now let us turn for a moment to the Teutonic side.The Salic Law embodies usages which in all probability are of too early a date to have been influenced either by Rome or the Old Testament.The thirty-sixth chapter of the ancient text provides that, if a man is killed by a domestic animal, the owner of the animal shall pay half the composition (which he would have had to pay to buy off the blood feud had he killed the man himself), and for the other half give up the beast to the complainant. So, by chapter thirty-five, if a slave killed a freeman, he was to be surrendered for one half of the composition to the relatives of the slain man, and the master was to pay the other half.But according to the gloss, if the slave or his master had been maltreated by the slain man or his relatives, the master had only to surrender the slave. It is interesting to notice that those Northern sources which Wilda takes to represent a more primitive stage of German law confine liability for animals to surrender alone. There is also a trace of the master's having been able to free himself in some cases, at a later date, by showing that the slave was no longer in his possession. There are later provisions making a master liable for the wrongs committed by his slave by his command. In the laws adapted by the Thuringians from the earlier sources, it is provided in terms that the master is to pay for all damage done by his slaves. In short, so far as I am able to trace the order of development in the customs of the German tribes, it seems to have been entirely similar to that which we have already followed in the growth of Roman law.The earlier liability for slaves and animals was mainly confined to surrender; the later became personal, as at Rome.
The reader may begin to ask for the proof that all this has any bearing on our law of today.So far as concerns the influence of the Roman law upon our own, especially the Roman law of master and servant, the evidence of it is to be found in every book which has been written for the last five hundred years.It has been stated already that we still repeat the reasoning of the Roman lawyers, empty as it is, to the present day.It will be seen directly whether the German folk-laws can also be followed into England.
In the Kentish laws of Hlothhaere and Eadrie (A.D.680) it is said, "If any one's slave slay a freeman, whoever it be, let the owner pay with a hundred shillings, give up the slayer," &c.
There are several other similar provisions.In the nearly contemporaneous laws of Ine, the surrender and payment are simple alternatives."If a Wessex slave slay an Englishman, then shall he who owns him deliver him up to the lord and the kindred, or give sixty shillings for his life." Alfred's laws (A.D.
871-901) have a like provision as to cattle."If a neat wound a man, let the neat be delivered up or compounded for." And Alfred, although two hundred years later than the first English lawgivers who have been quoted, seems to have gone back to more primitive notions than we find before his time.For the same principle is extended to the case of a tree by which a man is killed."If, at their common work, one man slay another unwilfully, let the tree be given to the kindred, and let them have it off the land within thirty nights.Or let him take possession of it who owns the wood." It is not inapposite to compare what Mr.Tylor has mentioned concerning the rude Kukis of Southern Asia."If a tiger killed a Kuki, his family were in disgrace till they had retaliated by killing and eating this tiger, or another; but further, if a man was killed by a fall from a tree, his relatives would take their revenge by cutting the tree down, and scattering it in chips."
To return to the English, the later laws, from about a hundred years after Alfred down to the collection known as the laws of Henry I, compiled long after the Conquest, increase the lord's liability for his household, and make him surety for his men's good conduct.If they incur a fine to the king and run away, the lord has to pay it unless he can clear himself of complicity.But I cannot say that I find until a later period the unlimited liability of master for servant which was worked out on the Continent, both by the German tribes and at Rome.Whether the principle when established was an indigenous growth, or whether the last step was taken under the influence of the Roman law, of which Bracton made great use, I cannot say.It is enough that the soil was ready for it, and that it took root at an early day. This is all that need be said here with regard to the liability of a master for the misdeeds of his servants.
It is next to be shown what became of the principle as applied to animals.Nowadays a man is bound at his peril to keep his cattle from trespassing, and he is liable for damage done by his dog or by any fierce animal, if he has notice of a tendency in the brute to do the harm complained of.The question is whether any connection can be established between these very sensible and intelligible rules of modern law and the surrender directed by King Alfred.
