In ancient Rome, as at one time in Modern Athens, there was a practice of throwing or emptying things out of window not without danger or damage to the passer-by. This was the law on that point:—
“If anything was thrown from the windows of a house near a public thoroughfare, so as to injure any one by its fall, the inhabitant or occupier was, by the Roman law, bound to repair the damage, though it might be done without his knowledge by his family or servants, or even by a stranger. This affords an illustration of liability arising quasi ex delicto.
“In like manner, when damage was done to any person by a slave or an animal, the owner might in certain circumstances be liable for the loss, though the mischief was done without his knowledge and against his will; but in such a case, if no fault was directly imputable to the owner, he was entitled to free himself from all responsibility by abandoning the offending slave or animal to the person injured, which was called noxæ dare. Though these noxal actions are not classed by Justinian under the title of obligations quasi ex delicto, yet, in principle, they evidently fall within that category.
“All animals feræ naturæ, such as lions, tigers, bears, and the like, must be kept in a secure place to prevent them from doing mischief; but the same vigilance is not required in the case of animals mansuetæ naturæ, the presumption being, that no harm will arise in leaving them at large, unless they are known to be vicious or dangerous. So, where a foxhound destroyed eighteen sheep belonging to a farmer, it was decided by the House of Lords in an appeal from Scotland, that the owner of the dog was not liable for the loss, there being no evidence necessarily showing either knowledge of the vicious propensities of the dog or want of due care in keeping him; and it was observed that, both according to the English and the Scotch law, ‘the culpa or negligence of the owner is the foundation on which the right of action against him rests.’”
The subject of succession is treated by Lord Mackenzie in a very ample and satisfactory discussion. In particular, the chapter on ‘Intestate Succession in France, England, and Scotland’ will be found highly useful to the international jurist. Lord Mackenzie has not failed to observe here the striking peculiarity of the Scotch law, by which, with some qualifications very recently introduced, intestate succession, whether in real or personal estate, goes entirely to the agnates or paternal relations, and not at all to cognates or those on the mother’s side. This was the law of the Twelve Tables, but it was wholly altered in process of time, and, under Justinian’s enactments, paternal and maternal relations were equally favoured. In retaining the old distinction, the law of Scotland seems now to stand alone. The peculiarity may perhaps be explained by the strong feelings of family connection or clanship which so long prevailed in Scotland, and which bound together the descendants of the same paternal ancestor by so many common interests. But it is certainly singular that it should have continued to the present day with such slender modifications; and it is no small anomaly that, while a man may succeed to any of his maternal relations, none of his maternal relations can in general succeed to him, even in property which he may have inherited from the mother’s side.
The portion of the work devoted to actions and procedure introduces a clear light into a subject extremely technical, and often made very obscure by the mode in which it is treated. We have only room for a short extract as to the remedium miserabile of Cessio Bonorum:—
“The cessio bonorum has been adopted in France as well as in Scotland. By the ancient law of France, every debtor who sought the benefit of cessio was obliged by the sentence to wear in public a green bonnet (bonnet vert) furnished by his creditors, under the penalty of being imprisoned if he was found without it. According to Pothier, this was intended as a warning to all citizens to conduct their affairs with prudence, so as to avoid the risk of exposing themselves to such ignominy; but he explains that in his time, though the condition was inserted in the sentence, it was seldom acted on in practice, except at Bordeaux, where it is said to have been rigidly enforced.
“Formerly, a custom somewhat similar prevailed in Scotland. Every debtor who obtained the benefit of cessio was appointed to wear ‘the dyvour’s habit,’ which was a coat or upper garment, half yellow and half brown, with a cap of the same colours. In modern times this usage was discontinued. ‘According to the state of public feeling, it would be held a disgrace to the administration of justice. It would shock the innocent; it would render the guilty miserably profligate.’ For a considerable time it had become the practice in the judgment to dispense with the dyvour’s habit, and by the statute of Will. IV. it is utterly abolished.”
The work concludes with a very agreeable chapter on the Roman bar, from which we shall borrow a couple of passages. A certain portion of time was generally allowed to advocates for their speeches, but which varied before different judges and at different periods.
“A clepsydra was used in the tribunals for measuring time by water, similar in principle to the modern sand-glass. When the judge consented to prolong the period assigned for discussion, he was said to give water—dare aquam. ‘As for myself,’ says Pliny, ‘whenever I sit upon the bench (which is much oftener than I appear at the bar), I always give the advocates as much water as they require; for I look upon it as the height of presumption to pretend to guess before a cause is heard what time it will require, and to set limits to an affair before one is acquainted with its extent, especially as the first and most sacred duty of a judge is patience, which, indeed, is itself a very considerable part of justice. But the advocate will say many things that are useless. Granted. Yet is it not better to hear too much than not to hear enough? Besides, how can you know that the things are useless till you have heard them?’