The Common Law | Page 6

Greeks, we find the principle of the passage just quoted erected into a
system. Plutarch, in his Solon, tells us that a dog that had bitten a man
was to be delivered up bound to a log four cubits long. Plato made
elaborate provisions in his Laws for many such cases. If a slave killed a
man, he was to be given up to the relatives of the deceased. /2/ If he
wounded a man, he was to be given up to the injured party to use him
as he pleased. /3/ So if he did damage to which the injured party did not
contribute as a joint cause. In either case, if the owner [8] failed to
surrender the slave, he was bound to make good the loss. /1/ If a beast
killed a man, it was to be slain and cast beyond the borders. If an
inanimate thing caused death, it was to be cast beyond the borders in
like manner, and expiation was to be made. /2/ Nor was all this an ideal
creation of merely imagined law, for it was said in one of the speeches
of Aeschines, that "we banish beyond our borders stocks and stones and
steel, voiceless and mindless things, if they chance to kill a man; and if
a man commits suicide, bury the hand that struck the blow afar from its
body." This is mentioned quite as an every-day matter, evidently
without thinking it at all extraordinary, only to point an antithesis to the
honors heaped upon Demosthenes. /3/ As late as the second century
after Christ the traveller Pausanias observed with some surprise that
they still sat in judgment on inanimate things in the Prytaneum. /4/
Plutarch attributes the institution to Draco. /5/
In the Roman law we find the similar principles of the noxoe deditio
gradually leading to further results. The Twelve Tables (451 B.C.)
provided that, if an animal had done damage, either the animal was to
be surrendered or the damage paid for. /6/ We learn from Gains that the
same rule was applied to the torts of children or slaves, /7/ and there is
some trace of it with regard to inanimate things.
The Roman lawyers, not looking beyond their own [9] system or their
own time, drew on their wits for an explanation which would show that
the law as they found it was reasonable. Gaius said that it was unjust
that the fault of children or slaves should be a source of loss to their

parents or owners beyond their own bodies, and Ulpian reasoned that a
fortiori this was true of things devoid of life, and therefore incapable of
fault. /1/ This way of approaching the question seems to deal with the
right of surrender as if it were a limitation of a liability incurred by a
parent or owner, which would naturally and in the first instance be
unlimited. But if that is what was meant, it puts the cart before the
horse. The right of surrender was not introduced as a limitation of
liability, but, in Rome and Greece alike, payment was introduced as the
alternative of a failure to surrender.
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. /2/ 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. /3/ There [10]
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. /1/ 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. /2/
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