0 si si er ts er ts e f t e these excavations, just as injury was to public to make use of the enclosure, he be apprehended from the instincts or was also responsible for any mischief known propensities of an animal. Hence resulting from his carelessness. Again infractions of the law coming under the-and this was a common case, owing to d category of "the pit " rendered the offend- the necessity of tanks for the purposes of a ing party in every case liable to the full irrigation and agriculture-if the pit or amount of the damage or loss occasioned well abutted or opened upon a neighbor's by reason of his imprudence or careless- property, the proprietor was responsible chness. Again, if an ox known to be a only for damage occasioned to this neighmuad, having vicious propensities, killed bor by negligence. a man, the owner was condemned to pay the penalty designated khofer, amounting to thirty shekels, as ordained in the Pentateuch (Exodus xxi. 32). If the animal had slain a human being, there was further what the Ghemara terms asur behana'a― the proprietor was forbidden to have any profit or advantage from the be beast; he was not permitted to use it for field-labor; nor was he allowed to eat the flesh thereof. But in the case of "the nd pit," notwithstanding that this excavation was legally regarded as a muad, the person owning it was acquitted of the payment khofer if a human being fell into the pit and was killed in consequence. to The proprietor was, however, liable for hurt or injury sustained when the fall did not prove mortal. One other distinction was made in the two categories here contrasted. If an ox or other animal did any mischief to another beast, and damaged also the harness or trappings of that other, the owner of the vicious brute was compelled to pay for the deterioration in the value of the injured animal, and for the harness or trappings spoiled and broken. In the case of an animal falling into a pit, the defendant was condemned to pay for the animal, but according to the majority of Hebrew legists, not for any damage to either trappings or har e urds he di at ed of the alls any ness. It is evident that the greater number of cases wherein loss was occasioned by an excavation in such a manner as to be comprised in the category of "the pit" would be those where animals had fallen into the opening, uncovered or imperfectly protected, and had been injured or killed by the fall. The law therefore enacted that to render the defendant liable in such cases for the death of an ox the depth of the pit must have been at least ten tephalim-each tophal being about four hands? breadth. This depth was considered sufficient to cause the death of such an animal. If the pit was not so deep, the proprietor was acquitted if the ox was killed, but was responsible for any injury or hurt which caused a deterioration in the value of the beast. The reasoning of the Hebrew legists here is evident. The case was considered as that of an ox regarded as a tham—a generally docile and well-behaved animal who committed damage in an unexpected and unusual manner. The vicious outbreak of the beast was not anticipated by the owner, who apprehended no serious mischief to arise from his neglect. In like manner the owner of the pit did not expect his carelessness in respect of a comparatively shallow excavation to prove fatal to cattle -a fall of less than ten tephalim not being calculated to cause the death of so large an animal as an ox. Any less depth was, however, likely to injure or wound; hence the liability in every case for hurt inflicted in this manner upon either man or beast. One foot of water was accounted equal to two feet of earth. pit eight tephalim deep and having two tephalim of water, or one six tephalim deep and having four of water, was considered equivalent to the legal ten tephalim. And the proprietor in such cases was liable if an ox fell into the tank or pit and was either killed by the shock or suffocated or drowned. If two persons used a well, or tank, or pit, in common, and it so happened that both left it uncovered, and subsequently damage was caused by reason of this negligence, the last of the two who made use thereof was No one under any circumstances had a right to trespass upon another's property. Hence an owner could not be held responsible for damage or injury caused by a pit, tank, or well on his own private domain, or situated in a courtyard to which he alone had right of access. The obligation to see that these excavations were properly covered or fenced off extended only to the following cases specified by law. If the pit or tank was dug Coin such a manner as to abut upon a public al highway, or in a field across which the public possessed a right of way, he was liable for damage occasioned by reason of his having such pit or tank imperfectly protected. If the excavation was on a piece of waste or common ground, or if on his own property and he permitted the A accountable for whatever mischief result- | harm. Any individual who placed his ed. Again, if two individuals dug a pit, merchandise or goods or property in the one completing nine tephalim, and the public streets where they were calculated other afterwards adding one tophal un- to impede traffic - or where during dark known to his fellow-laborer-in this case ness they were not clearly discernible at both parties were liable if injury was oc- a distance was responsible for any loss casioned, or if an ox was wounded or incurred or injury inflicted in accordance hurt. But if an animal was killed by fall-with the law applicable to damage com ing into the excavation the person who prised in the category of "the pit." added the last tophal (thus rendering the Those who were cleaning out the eaves pit sufficiently deep to create liability for and gutters of their houses during the such an accident) was adjudged to pay the seasons when this was customary and value of the beast. If the defendant in permitted were liable for any hurt result any case of damage caused by a pit could ing from water thrown from the roofs and prove that he had provided a proper and housetops. If, however, the person who strong covering or fence in order to pre- was hurt could have avoided the stream vent the occurrence of any accident likely of water by passing on the opposite side to cause injury, he was of course acquit of the road, the defendant was acquitted. ted. The covering, must, however, have In like manner, any person or persons in been strong enough to permit not only the habit of keeping goods for sale or artipedestrians to use the road where the pit cles in process of manufacture as pots was situated in perfect safety, but must to dry-in a public street, according to have been calculated to prove an effective known custom, and in places invariably so protection in the case of the heaviest occupied, were exonerated from blame in traffic in the habit of passing that way. the event of such goods or articles doing If the tank or well or excavation had been damage of any kind to passengers and left in care of an idiotic person, or a deaf- passers-by. If a street was encumbered mute, or a young child not capable of by things which had no business there in exercising proper supervision and taking such a manner as to prevent a passage, it sufficient precautions to prevent accidents, was permitted to break the things in the proprietor was condemned to pay for order to make a road. So, too, where a all the mischief resulting from his care- private court was filled with goods with lessness. out the permission of the proprietor o the building where it was situated. Every case of damage occasioned by anything in the nature of an obstacle, or In a number of cases assimilated to temporarily partaking of or having the those coming under the category of "the nature of an obstacle, was regarded as pit" the damage might have been caused legally assimilated to those wherein by things which only temporarily became the mischief was caused by an open obstacles. For instance, a man carrying excavation. Hence the category be- a beam of wood upon his shoulders and comes extremely important. A hedge hurting another walking in front of him of thorns was considered a muad in re- or breaking anything carried by the per gard of its likelihood to do mischief when son in front of him, was condemned to the proprietor suffered it to grow wild and pay for the damage he occasioned. Th encumber the road or pathway, or hang beam for the time being partook of th over into a neighbor's field, garden, or nature of an obstruction that occasione orchard. He was obliged to keep it in hurt and caused mischief. If, however good condition, and properly trimmed, in the man carrying the beam was in front c order to prevent damage to the persons or the other and suddenly stopped shor clothing of wayfarers, or to cattle. Ma- thus too converting his beam into an ob nure heaps, masses of rotting straw, stub-struction, he was only liable if the othe ble, and other matter required for manure, had neither time nor warning in orde were regarded in the light of obstruc- that he might have avoided a collision tions; and, though the respective owners If one person walking slipped and a had the right at prescribed seasons of other immediately behind him fell ov year to place these in certain public places, they were held directly accountable for any damage or injury caused by these encumbrances. Heaps of rubbish and broken things entailed responsibility upon the person who placed them in a position where they were likely to do ca the former and was injured or suffere loss by breaking anything he was rying, the first-named was condemn to pay according to the laws applicable damage caused by "the pit." So, too, one was carrying or dragging anythi through the streets, and the object brok th up and caused the hurt. The defendant adjudged as negligent was liable in the penalty of one-half, applicable to an animal regarded as a tham. But if in any of the instances here mentioned the force of the wind or the intrinsic weakness of the beam occasioned the fall of the tool or utensil and the subsequent loss and injury, the case was assimilated to that wherein the damage was directly caused by fire. hi and a passenger subsequently stumbled over the fragments; or if water was late spilled and a passer-by slipped and was dar injured or damaged his clothing, the perle a son who left the fragments or threw away the water was condemned to make good and the damage. An animal permitted to lie Con down in the street so as to prevent or impit pede locomotion; and in fact every movaeave ble or immovable thing placed in such a gth manner as to cause damage or injury to a those entitled to pass where the temporary obstruction was found, rendered the s person guilty of negligence liable to an #action for indemnity, in accordance with tre the law applicable to damage coming un-place, a proprietor was liable for any esder the category of "the pit." est Litte ODS or an s po me here gs VI. DAMAGE caused by the agency of fire ing was regarded as the type or representaably tive of all cases coming under the third category of which the Hebrew code took doit cognizance. The toldoth derived cases -comprised in the same division, and bere determined in accordance with the same principles, included all instances wherein ge the mischief was done by an object falling from an elevation, moved in the first inhert stance by either the force of the wind or sits own weight and the inadequacy of the etor support provided for it. For example, if a tool were carelessly left on a roof, and ated the wind hurled it down into the street so fas to cause mischief; if a building was cas found to be unstable or improperly shored beca up and it fell in, thus doing injury; or if an a tree grew in such a situation on one ers person's property that its branches overof hung the public highway or projected into the courtyard of a neighbor, and a ne limb snapping fell and occasioned hurt to persons or property-all these were conof sidered toldoth cases assimilated to that asion of damage caused by fire. the p in ord T Responsibility in cases of damage included under this category differed somewhat from that thrown upon individuals in the two former categories- those of "the ox " and "the pit." In the first mischief caused by either an animal or an excavation left in charge of a deaf-mute, an idiot, or a young child incapable of properly supervising them. In cases where damage was done by fire, the defendant was not liable if the mischiefworking element had been in charge of one of the three guardians named, notwithstanding their legal incompetency. Loss occasioned by fire differed also as regards the indemnity payable by the party to whose negligence the damage was attributable from that imposed under the other two categories in the following respects: the penalty of one-half inflicted in the case of a tham could not, under any circumstances, be applied to this division; and unlike the instances of injury caused by "the pit". the culpable person in cases of fire was liable for everything destroyed through his imprudence and negligence. As, however, the liability for all the damage resulting from a conflagration might under easily conceivable circumstances render one man responsible for the destruction of an entire town, some amount of latitude was allowed to the local tribunals in assessing the compensation. As one of the most eminent of the Mischnic doctors, Rabbi Simon, observes, "Everything depends upon the nature, extent, and circumstances under which the conflagration occurred." Accordingly, the law laid down only general principles applicable to the majority of instances likely to arise. These were such as to admit of an equitable construction in all cases not provided for by the letter of the law. In a similar manner, and with a view of preventing any undue straining of the enactment which held the defendant liable to compensate the plaintiff for every thing consumed by a fire, the Hebrew jurists established the princi The distinction between these cases and those of indirect damage classed under the category of that committed by the horns of an animal must be clearly he understood. If a tool or utensil was left on the roof of a house or rested on a beam, and a fowl flying that way flapped and its wings against the tool or utensil so as to cause it to fall; or an animal broke the beam so that anything above it was hurled to the earth, and mischief was wrought by the falling object, the case was one of indirect damage coming under the category of "the horn." It was likened to fell den licali ant that of an ox who trampled upon an object ple of non-payment for what is technically Ect brunder foot, the fragments of which flew known in the Ghemara as tamun-that The which is concealed or hidden. This we | four ells in height, and a street more than shall presently explain. sixteen ells in breadth, as calculated in The three principal cases in which ordinary cases to arrest the spread of a damage could be occasioned by a fire fire, and therefore sufficient to free the were necessarily the following: (1) where culpable party from responsibility for the fire broke out in a private house, and, damage committed by a conflagration_ex spreading, caused further mischief- the tending beyond such boundaries. origin of the conflagration being an oven liability of the defendant for the mischief or open hearth within-doors; (2) where a committed by the fire within these limits light was carried about or placed outside, and boundaries was of course in no wise or a heap of any kind was fired and burned affected by this restriction. without the house, and the flames spread owing to gusts of wind or culpable neglect, and damage resulted in consequence; or (3) where one person was carrying a light or firebrand or torch, and another suddenly brought some combustible matter in contact with the flame, thus kindling a fire that extended so as to entail loss and injury. The laws applicable to each of these three instances are concise and clear. If a In the case of damage caused by a naked light carried from one place to another, the law likewise held the negli gent person responsible for all the mischief occasioned by such carelessness. The liability extended to a smith, in re spect of his forge and the sparks flying therefrom; to a baker in respect of the cinders from his ovens; to a shopkeeper in respect of the lights and illuminations outside his shop or stall or booth. naked light or movable fire of any description was in charge of a deaf-mute, idiot, or child, the exemptions which existed when damage resulted from an immovable fire-i.e. an oven or hearth within-doors -in charge of the same incompetent guardians could not be pleaded. From a torch or lantern in the hands of such irresponsible persons mischief was always to be anticipated; hence the defendant's liability in this, though not in the generality of cases comprised in the category of damage caused by fire. To prevent, as far as ordinances of this description could, the occurrence of conflagrations arising from within-doors, the communal regulations of each town and village provided that no person should have an enclosed oven or furnacethanur- in his house unless there was a clear space of three tephalim (each four hands' breadth) between the ceiling or roof and the top of the said oven or furnace. In the case of an open hearth a distance of one tophal was considered sufficient. If a conflagration originated in a private house, the cause being un- In the third class above mentioned, known, and spread so as to cause damage where one person held a light or brand or injury, the proprietor of the dwelling and a second carried the matter or matewas exonerated from all liability if he had rial which caught fire and caused the complied with the regulation which pro- mischief, the responsibility was with him hibited him from using improperly con- who brought the two into contact. If the structed furnaces or hearths. If, on the person holding the light was in his own other hand, he had neglected these pre- door or yard, and another passing brought cautionary ordinances he was condemned the inflammable stuff so near that it to pay the whole amount of the mischief. caught and was consumed or did damage If, however, the fire extended in an un- the second was liable for any loss in usual manner, leaping over walls of a cer- curred. If the bearer of the flame carried tain height, spreading across streets of a his light in such a manner or dropped a definite width, or crossing intervening spark so that it kindled something on o spaces of a specified breadth, the defend-in a neighbor's yard or house; or on a ant was only liable for the damage committed within the lesser confined area of the original conflagration. It was held that an ordinary fire might be anticipated to result from carelessness or neglect of necessary precautions; but an extended conflagration was not as a rule to be anticipated in such cases. The direction and force of the wind would also be important factors in causing a fire to leap over unusual obstacles and wide spaces. The Mischna regards a wall more than laden cart that was passing by him or his premises, he was responsible for the dam age he occasioned. It is worthy of not here that an incendiary who purposely set fire to a neighbor's stack or field wa subject to no additional punishment. A in the case of one who by negligenc destroyed another's property or belong ings, he was simply required to mak good the damage he had committed. The liability of the defendant was, how ever, in every case limited by the reserv door Deter rom in dant ep tio e es ex ha tion before mentioned, known as tamun questionable wisdom, for the expulsion of Hiie. non-payment for anything hidden. the Jesuits. But whatever may be thought of, for example, the fire occurred in a of the policy and probable results of the thfield, the plaintiff could not claim compen- rebuke thus administered to the Senate fo sation for anything in the field not usually | for its rejection of the seventh clause of found in such a place. Ploughs, rakes, the Ferry Bill, the feeling which prompted Th and implements used in husbandry; ani- the measure opens out an inquiry of conhie mals goats, oxen, and asses tethered siderable interest, which the indiscreet mit or pasturing there; in fact, all objects method of its expression in the present wis generally or likely to have been in the case tends rather to heighten than to meadow or cornfield where they were diminish. For the existing hostility of alleged to have been burned, had to be French Republicans to the Jesuits is no paid for. But if the plaintiff alleged that isolated or exceptional phenomenon, nor valuables or property of any kind were is it at all peculiar either to France or to contained in a barn or outhouse where the Republic. It is of course true, as we such things are not as a rule kept, the have been copiously reminded in the defendant was not held responsible for course of the recent debates in the French their destruction. If, on the other hand, Chambers, that the monarchy of the Resta private dwelling-house was destroyed toration maintained an equally unfriendly by fire the owner could demand compen-attitude towards the order, while about a sation for all he alleged to have been century ago the court of France joined li consumed by reason of the defendant's the other Catholic powers in demanding Snegligence. Here the condition tamun its suppression. But this is only a very idio could not of course apply. To prevent small part of the truth. From its very ist any exorbitant or extortionate demands foundation the Jesuit society has someagainst the defendant, the law, however, how or other enlisted against itself the ordained that if a person whose house jealous hostility both of civil and ecclesihad been burned down claimed indem- astical authorities in every Roman Cathonity for anything unusually valuable-a lic country of Europe, not less than of jewel, an important document, or precious Protestants, against whose advance it was stones-he should bring witnesses either specially organized. This is surely a that his position and means were such as sufficiently remarkable fact, and it does to warrant or render it probable that he not become less remarkable when we rehad possessed such property; or that he flect that the conflict appears always to had shown or allowed two other persons have been keenest in those countries to see the said property on some one where the Jesuits were most intimately occasion to which they could testify. In known. The order was founded by a the absence of the two witnesses required Spanish knight, and it bears in its charby law to establish a claim of any kind, acter and constitution the traces of its the plaintiff was in all cases of damage Spanish origin. Yet it was Charles III. committed by fire compelled to take the of Spain who brought about the league rabbinical oath before explained-in of Catholic sovereigns which led to its order to obtain compensation as claimed suppression by Pope Clement XIV. In for objects within the house, or in the Italy, again, the new society found its field alleged to have been destroyed. He earliest home, and has always had its was obliged to swear, according to the headquarters and the base of its operaprescription of the rabbins, that he had tions; and in Italy - and among their really owned and possessed the valuables own former pupils - the Jesuits have and chattels payment for which he sought met their bitterest and most uncomproto enforce; and that they had really been mising assailants. We have said that consumed by the conflagration which had from the first they had provoked the anioccurred by reason of the defendant's mosity of both civil and ecclesiastical carelessness and neglect. authorities, and in saying this we did not refer only or chiefly to the rivalry - often exceedingly bitter-between the secular and regular clergy, which dates from the earliest introduction of religious orders into the Church, and is intelligible enough, even apart from the justice or injustice of their mutual recriminations. Yet even here it may be worth noting that no other order- not even the Franciscans, who ion bra d t h is o rou that t car pped From The Saturday Review. THE JESUITS AND THE CIVIL POWER. WE have discussed elsewhere the decree issued by the French government, with questionable justice and more than |