Page:The Common Law by Oliver Wendell Holmes.djvu/25

8 failed to surrender the slave, he was bound to make good the loss. 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. Nor was all this an ideal creation of merely imagined law, for it was said in one of the speeches of Æschines, 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. 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. Plutarch attributes the institution to Draco. In the Roman law we find the similar principles of the noxae deditio gradually leading to further results. The Twelve Tables (451 ) provided that, if an animal had done damage, either the animal was to be surrendered or the damage paid for. We learn from Gaius that the same rule was applied to the torts of children or slaves, and there is some trace of it with regard to inanimate things.

The Roman lawyers, not looking beyond their own