The Common Law | Page 9

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. /1/
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. /2/ 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. /3/ 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. /4/
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

[18] his possession. /1/ There are later provisions making a master
liable for the wrongs committed by his slave by his command. /2/ 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. /4/
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) [19] 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. /1/ 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." /2/ 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." /3/ 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." /4/
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." /5/
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, [20] increase the lord's liability for
his household, and make him surety for his men's good conduct. If