Let us turn to one of the old books of the Scotch law, where the old principle still appears in full force and is stated with its reasons as then understood, "Gif ane wylde or head-strang horse, carries ane man against his will over an craig, or heuch, or to the water, and the man happin to drowne, the horse sall perteine to the king as escheit.
"Bot it is otherwise of ane tame and dantoned horse; gif any man fulishlie rides, and be sharp spurres compelles his horse to take the water, and the man drownes, the horse sould not be escheit, for that comes be the mans fault or trespasse, and not of the horse, and the man has receaved his punishment, in sa farre as he is perished and dead; and the horse quha did na fault, sould not be escheit.
"The like reason is of all other beastes, quhilk slayes anie man, for all these beasts sould be escheit." "The Forme and Maner of Baron Courts" continues as follows: --"It is to witt, that this question is asked in the law, Gif ane lord hes ane milne, and any man fall in the damne, and be borne down with the water quhill he comes to the quheill, and there be slaine to death with the quheill; quhither aught the milne to be eseheir or not? The law sayes thereto nay, and be this reason, For it is ane dead thing, and ane dead thing may do na fellony, nor be made escheit throw their gilt.Swa the milne in this case is not culpable, and in the law it is lawfull to the lord of the land to haue ane mylne on his awin water quhere best likes him."
The reader will see in this passage, as has been remarked already of the Roman law, that a distinction is taken between things which are capable of guilt and those which are not,--between living and dead things; but he will also see that no difficulty was felt in treating animals as guilty.
Take next an early passage of the English law, a report of what was laid down by one of the English judges.In 1333 it was stated for law, that, "if my dog kills your sheep, and I, freshly after the fact, tender you the dog, you are without recovery against me." /l / More than three centuries later, in 1676, it was said by Twisden, J.that, "if one hath kept a tame fox, which gets loose and grows wild, he that hath kept him before shall not answer for the damage the fox doth after he hath lost him, and he hath resumed his wild nature." It is at least doubtful whether that sentence ever would have been written but for the lingering influence of the notion that the ground of the owner's liability was his ownership of the offending: thing and his failure to surrender it.When the fox escaped, by another principle of law the ownership was at an end.In fact, that very consideration was seriously pressed in England as late as 1846, with regard to a monkey which escaped and bit the plaintiff, So it seems to be a reasonable conjecture, that it was this way of thinking which 1ed Lord Holt, near the beginning of the last century, to intimate that one ground on which a man is bound at his peril to restrain cattle from trespassing is that he has valuable property in such animals, whereas he has not dogs, for which his responsibility is less. To this day, in fact, cautious judges state the law as to cattle to be, that, "if I am the owner of an animal in which by law the right of property can exist, I am bound to take care that it does not stray into the land of my neighbor." I do not mean that our modern law on this subject is only a survival, and that the only change from primitive notions was to substitute the owner for the offending animal.For although it is probable that the early law was one of the causes which led to the modern doctrine, there has been too much good sense in every stage of our law to adopt any such sweeping consequences as would follow from the wholesale transfer of liability supposed.An owner is not bound at his peril to keep his cattle from harming his neighbor's person. And in some of the earliest instances of personal liability, even for trespass on a neighbor's land, the ground seems to have been the owner's negligence. It is the nature of those animals which the common law recognizes as the subject of ownership to stray, and when straying to do damage by trampling down and eating crops.At the same time it is usual and easy to restrain them.On the other hand, a dog, which is not the subject of property, does no harm by simply crossing the land of others than its owner.Hence to this extent the new law might have followed the old.The right of property in the offending animal, which was the ancient ground of responsibility, might have been adopted safely enough as the test of a liability based on the fault of the owner.But the responsibility for damage of a kind not to be expected from such animals is determined on grounds of policy comparatively little disturbed by tradition.The development of personal liability for fierce wild animals at Rome has been explained.Our law seems to have followed the Roman.
We will now follow the history of that branch of the primitive notion which was least likely to survive,--the liability of inanimate things.
It will be remembered that King Alfred ordained the surrender of a tree, but that the later Scotch law refused it because a dead thing could not have guilt.It will be remembered, also, that the animals which the Scotch law forfeited were escheat to the king.
The same thing has remained true in England until well into this century, with regard even to inanimate objects.As long ago as Bracton, in case a man was slain, the coroner was to value the object causing the death, and that was to be forfeited sa deodand "pro rege." It was to be given to God, that is to say to the Church, for the king, to be expended for the good of his soul.A man's death had ceased to be the private affair of his friends as in the time of the barbarian folk-laws.The king, who furnished the court, now sued for the penalty.He supplanted the family in the claim on the guilty thing, and the Church supplanted him.
