The Common Law | Page 7

the owner to protect his interest. /3/
But it may be asked how inanimate objects came to be [11] 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. /1/
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. /2/
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 [12] 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. /1/ 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, /2/ and that it is equally a matter of course to send the body when the wrong-doer has perished. /3/
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 [13] 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. /1/ 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. /2/
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 [14] for assault; /1/ 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. /2/ 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. According to that law, if a man was indebted to several creditors and insolvent, after certain formalities they might cut up his body and divide it among them. If there was a single creditor, he might put his debtor to death or sell him as a slave. /3/
If no other right were given but to reduce a debtor to slavery, the law might be taken to look only to compensation, and to be