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 they incur a fine to the king and run
away, the lord has to pay it unless he can clear himself of
complicity. But I cannot say that I find until a later period the
unlimited liability of master for servant which was worked out on
the Continent, both 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.
Public-domain text, read in full here on John Shaqi.
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