The Common Law | Page 7

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. /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