Page:The Common Law by Oliver Wendell Holmes.djvu/41

24 offending animal, which was the ancient ground of responsibility, might have been adopted safely enough as the test of a liability based on the fault of the owner. But the responsibility for damage of a kind not to be expected from such animals is determined on grounds of policy comparatively little disturbed by tradition. The development of personal liability for fierce wild animals at Rome has been explained. Our law seems to have followed the Roman.

We will now follow the history of that branch of the primitive notion which was least likely to survive, — the liability of inanimate things.

It will be remembered that King Alfred ordained the surrender of a tree, but that the later Scotch law refused it because a dead thing could not have guilt. It will be remembered, also, that the animals which the Scotch law forfeited were escheat to the king. The same thing has remained true in England until well into this century, with regard even to inanimate objects. As long ago as Bracton, in case a man was slain, the coroner was to value the object causing the death, and that was to be forfeited as deodand “pro rege.” It was to be given to God, that is to say to the Church, for the king, to be expended for the good of his soul. A man’s death had ceased to be the private affair of his friends as in the time of the barbarian folk-laws, The king, who furnished the court, now sued for the penalty. He supplanted the family in the claim on the guilty thing, and the Church supplanted him.

In Edward the First’s time some of the cases remind us of the barbarian laws at their rudest stage. If a man fell from a tree, the tree was deodand. If he drowned in a