seems to have been no other or more extensive liability by the old law, even where a slave was guilty with his master's knowledge, unless perhaps he was a mere tool in his masters hands.[1] Gaius and Ulpian showed an inclination to cut the noxæ deditio down to a privilege of the owner in case of misdeeds committed without his knowledge; but Ulpian is obliged to admit, that by the ancient law, according to Celsus, the action was noxal where a slave was guilty even with the privity of his master.[2]
All this shows very clearly that the liability of the owner was merely a way of getting at the slave or animal which was the immediate cause of offence. In other words, vengeance on the immediate offender was the object of the Greek and early Roman process, not indemnity from the master or owner. The liability of the owner was simply a liability of the offending thing. In the primitive customs of Greece it was enforced by a judicial process expressly directed against the object, animate or inanimate. The Roman Twelve Tables made the owner, instead of the thing itself, the defendant, but did not in any way change the ground of liability, or affect its limit. The change was simply a device to allow the owner to protect his interest.[3]
But it may be asked how inanimate objects came to be
- ↑ D. 19. 5. 14, § 3 ; Plin. Nat. Hist., XVIII. 3.
- ↑ “In lege antiqua si servus sciente domino furtum fecit, vel aliam noxiam commisit, servi nomine actio est noxalis, nec dominus suo nomine tenetur.” D. 9. 4. 2.
- ↑ Gaius, Inst. IV. § 77, says that a noxal action may change to a direct, and, conversely, a direct action to a noxal. If a paterfamilias commits a tort, and then is adopted or becomes a slave, a noxal action now lies against his master in place of the direct one against himself as the wrong-doer. Just. Inst. 4. 8, § 5.
