FullReads

In the order of damages, containing rules how to tax the damages done by man or beast, or other casualties, their distinctions are as nice as their cases are numerous. What beasts are innocent and what convict. By the one they mean creatures not naturally used to do mischief in any particular way; and by the other, those that naturally, or by a vicious habit, are mischievous that way. The tooth of a beast is convict, when it is proved to eat its usual food, the property of another man, and full restitution must be made; but if a beast that is used to eat fruits and herbs gnaws clothes or damages tools, which are not its usual food, the owner of the beast shall pay but half the damage when committed on the property of the injured person; but if the injury is committed on the property of the person who does the damage, he is free, because the beast gnawed what was not its usual food. As thus; if the beast of A. gnaws or tears the clothes of B. in B.’s house or grounds, A. shall pay half the damages; but if B.’s clothes are injured in A.’s grounds by A.’s beast, A. is free, for what had B. to do to put his clothes in A.’s grounds? They made such subtile distinctions, as when an ox gores a man or beast, the law inquired into the habits of the beast; whether it was an ox that used to gore, or an ox that was not used to gore. However acute these niceties sometimes were, they were often ridiculous. No beast could be convicted of being vicious till evidence was given that he had done mischief three successive days; but if he leaves off those vicious tricks for three days more, he is innocent again. An ox may be convict of goring an ox and not a man, or of goring a man and not an ox: nay; of goring on the sabbath, and not on a working day. Their aim was to make the punishment depend on the proofs of the design of the beast that did the injury; but this attempt evidently led them to distinctions much too subtile and obscure. Thus some rabbins say that the morning prayer of the Shemah must be read at the time they can distinguish blue from white; but another, more indulgent, insists it may be when we can distinguish blue from green! which latter colours are so near akin as to require a stronger light. With the same remarkable acuteness in distinguishing things, is their law respecting not touching fire on the Sabbath. Among those which are specified in this constitution, the rabbins allow the minister to look over young children by lamp-light, but he shall not read himself. The minister is forbidden to read by lamp-light, lest he should trim his lamp; but he may direct the children where they should read, because that is quickly done, and there would be no danger of his trimming his lamp in their presence, or suffering any of them to do it in his. All these regulations, which some may conceive as minute and frivolous, show a great intimacy with the human heart, and a spirit of profound observation which had been capable of achieving great purposes.

The owner of an innocent beast only pays half the costs for the mischief incurred. Man is always convict, and for all mischief he does he must pay full costs. However there are casual damages,–as when a man pours water accidentally on another man; or makes a thorn-hedge which annoys his neighbour; or falling down, and another by stumbling on him incurs harm: how such compensations are to be made. He that has a vessel of another’s in keeping, and removes it, but in the removal breaks it, must swear to his own integrity; i.e., that he had no design to break it. All offensive or noisy trades were to be carried on at a certain distance from a town. Where there is an estate, the sons inherit, and the daughters are maintained; but if there is not enough for all, the daughters are maintained, and the sons must get their living as they can, or even beg. The contrary to this excellent ordination has been observed in Europe.