But such has not been the view of those most competent to
judge. A consideration of the earliest instances will show, as
might have been expected, that vengeance, not compensation, and
vengeance on the offending thing, was the original object. The ox
in Exodus was to be stoned. The axe in the Athenian law was to be
banished. The tree, in Mr. Tylor's instance, was to be chopped to
pieces. The [35] slave under all the systems was to be
surrendered to the relatives of the slain man, that they might do
with him what they liked. /1/ The deodand was an accursed thing.
The original limitation of liability to surrender, when the owner
was before the court, could not be accounted for if it was his
liability, and not that of his property, which was in question.
Even where, as in some of the cases, expiation seems to be
intended rather than vengeance, the object is equally remote from
an extrajudicial distress.
The foregoing history, apart from the purposes for which it has
been given, well illustrates the paradox of form and substance in
the development of law. In form its growth is logical. The
official theory is that each new decision follows syllogistically
from existing precedents. But just as the clavicle in the cat
only tells of the existence of some earlier creature to which a
collar-bone was useful, precedents survive in the law long after
the use they once served is at an end and the reason for them has
been forgotten.
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