The Common Law [7]
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. /1/ 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.
Let us turn to one of the old books of the Scotch law, where the old principle still appears in full force and is stated with its reasons as then understood, /2/
"Gif ane wylde or head-strang horse, carries ane man [21] against his will over an craig, or heuch, or to the water, and the man happin to drowne, the horse sall perteine to the king as escheit.
"Bot it is otherwise of ane tame and dantoned horse; gif any man fulishlie rides, and be sharp spurres compelles his horse to take the water, and the man drownes, the horse sould not be escheit, for that comes be the mans fault or trespasse, and not of the horse, and the man has receaved his punishment, in sa farre as he is perished and dead; and the horse quha did na fault, sould not be escheit.
"The like reason is of all other beastes, quhilk slayes anie man, [it is added in a later work, "of the quhilk slaughter they haue gilt,"] for all these beasts sould be escheit." /1/
"The Forme and Maner of Baron Courts" continues as follows: --
"It is to witt, that this question is asked in the law, Gif ane lord hes ane milne, and any man fall in the damne, and be borne down with the water quhill he comes to the quheill, and there be slaine to death with the quheill; quhither aught the milne to be eseheir or not? The law sayes thereto nay, and be this reason, For it is ane dead thing, and ane dead thing may do na fellony, nor be made escheit throw their gilt. Swa the milne in this case is not culpable, and in the law it is lawfull to the lord of the land to haue ane mylne on his awin water quhere best likes him." /2/
The reader will see in this passage, as has been remarked already of the Roman law, that a distinction is taken between things which are capable of guilt and those which [22] are not,--between living and dead things; but he will also see that no difficulty was felt in treating animals as guilty.
Take next an early passage of the English law, a report of what was laid down by one of the English judges. In 1333 it was stated for law, that, "if my dog kills your sheep, and I, freshly after the fact, tender you the dog, you are without recovery against me." /l / More than three centuries later, in 1676, it was said by Twisden, J. that, "if one hath kept a tame fox, which gets loose and grows wild, he that hath kept him before shall not answer for the damage the fox doth after he hath lost him, and he hath resumed his wild nature." /2/ It is at least doubtful whether that sentence ever would have been written but for the lingering influence of the notion that the ground of the owner's liability was his ownership of the offending: thing and his failure to surrender it. When the fox escaped, by another principle of law the ownership was at an end. In fact, that very consideration was seriously pressed in England as late as 1846, with regard to a monkey which escaped and bit the plaintiff, /3/ So it seems to be a reasonable conjecture, that it was this way of thinking which 1ed Lord Holt, near the beginning of the last century, to intimate that one ground on which a man is bound at his peril to restrain cattle from trespassing is that he has valuable property in such animals, whereas he has
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.
Let us turn to one of the old books of the Scotch law, where the old principle still appears in full force and is stated with its reasons as then understood, /2/
"Gif ane wylde or head-strang horse, carries ane man [21] against his will over an craig, or heuch, or to the water, and the man happin to drowne, the horse sall perteine to the king as escheit.
"Bot it is otherwise of ane tame and dantoned horse; gif any man fulishlie rides, and be sharp spurres compelles his horse to take the water, and the man drownes, the horse sould not be escheit, for that comes be the mans fault or trespasse, and not of the horse, and the man has receaved his punishment, in sa farre as he is perished and dead; and the horse quha did na fault, sould not be escheit.
"The like reason is of all other beastes, quhilk slayes anie man, [it is added in a later work, "of the quhilk slaughter they haue gilt,"] for all these beasts sould be escheit." /1/
"The Forme and Maner of Baron Courts" continues as follows: --
"It is to witt, that this question is asked in the law, Gif ane lord hes ane milne, and any man fall in the damne, and be borne down with the water quhill he comes to the quheill, and there be slaine to death with the quheill; quhither aught the milne to be eseheir or not? The law sayes thereto nay, and be this reason, For it is ane dead thing, and ane dead thing may do na fellony, nor be made escheit throw their gilt. Swa the milne in this case is not culpable, and in the law it is lawfull to the lord of the land to haue ane mylne on his awin water quhere best likes him." /2/
The reader will see in this passage, as has been remarked already of the Roman law, that a distinction is taken between things which are capable of guilt and those which [22] are not,--between living and dead things; but he will also see that no difficulty was felt in treating animals as guilty.
Take next an early passage of the English law, a report of what was laid down by one of the English judges. In 1333 it was stated for law, that, "if my dog kills your sheep, and I, freshly after the fact, tender you the dog, you are without recovery against me." /l / More than three centuries later, in 1676, it was said by Twisden, J. that, "if one hath kept a tame fox, which gets loose and grows wild, he that hath kept him before shall not answer for the damage the fox doth after he hath lost him, and he hath resumed his wild nature." /2/ It is at least doubtful whether that sentence ever would have been written but for the lingering influence of the notion that the ground of the owner's liability was his ownership of the offending: thing and his failure to surrender it. When the fox escaped, by another principle of law the ownership was at an end. In fact, that very consideration was seriously pressed in England as late as 1846, with regard to a monkey which escaped and bit the plaintiff, /3/ So it seems to be a reasonable conjecture, that it was this way of thinking which 1ed Lord Holt, near the beginning of the last century, to intimate that one ground on which a man is bound at his peril to restrain cattle from trespassing is that he has valuable property in such animals, whereas he has