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t 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 modelled on the natural working of self…redress。 /4/ The principle of our own law； that taking a man's body on execution satisfies the debt； although he is not detained an hour； seems to be explained in that way。 But the right to put to death looks like vengeance； and the division of the body shows that the debt was conceived very literally to inhere in or bind the body with a vinculum juris。
Whatever may be the true explanation of surrender in connection with contracts； for the present purpose we need not go further than the common case of noxoe deditio for wrongs。 Neither is the seeming adhesion of liability to the very body which did the harm of the first importance。 ＇15＇ The Roman law dealt mainly with living creatures； with animals and slaves。 If a man was run over； it did not surrender the wagon which crushed him； but the ox which drew the wagon。 /1/ At this stage the notion is easy to understand。 The desire for vengeance may be felt as strongly against a slave as against a freeman； and it is not without example nowadays that a like passion should be felt against an animal。 The surrender of the slave or beast empowered the injured party to do his will upon them。 Payment by the owner was merely a privilege in case he wanted to buy the vengeance off。
It will readily be imagined that such a system as has been described could not last when civilization had advanced to any considerable height。 What had been the privilege of buying off vengeance by agreement； of paying the damage instead of surrendering the body of the offender； no doubt became a general custom。 The Aquilian law； passed about a couple of centuries later than the date of the Twelve Tables； enlarged the sphere of compensation for bodily injuries。 Interpretation enlarged the Aquilian law。 Masters became personally liable for certain wrongs committed by their slaves with their knowledge； where previously they were only bound to surrender the slave。 /2/ If a pack…mule threw off his burden upon a passer…by because he had been improperly overloaded； or a dog which might have been restrained escaped from his master and bit any one； the old noxal action； as it was called； gave way to an action under the new law to enforce a general personal liability。 /3/ Still later； ship…owners and innkeepers were made liable ＇16＇ as if they were wrong…doers for wrongs committed by those in their employ on board ship or in the tavern； although of course committed without their knowledge。 The true reason for this exceptional responsibility was the exceptional confidence which was necessarily reposed in carriers and innkeepers。 /1/ But some of the jurists； who regarded the surrender of children and slaves as a privilege intended to limit liability； explained this new liability on the ground that the innkeeper or ship…owner was to a certain degree guilty of negligence in having employed the services of bad men？ This was the first instance of a master being made unconditionally liable for the wrongs of his servant。 The reason given for it was of general application； and the principle expanded to the scope of the reason。
The law as to ship…owners and innkeepers introduced another and more startling innovation。 It made them responsible when those whom they employed were free； as well as when they were slaves。 /3/ For the first time one man was made answerable for the wrongs of another who was also answerable himself； and who had a standing before the law。 This was a great change from the bare
permission to ransom one's slave as a privilege。 But here we have the history of the whole modern doctrine of master and servant； and principal and agent。 All servants are now as free and as liable to a suit as their masters。 Yet the principle introduced on special grounds in a special case； when servants were slaves； is now the general law of this country and England； and under it men daily have to pay large sums for other people's acts； in which they had no part and ＇17＇ for which they are 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 K