19 Cambrian Law Review 45 (1988)
Amimal Liability in Early Law

handle is hein.journals/camblr19 and id is 47 raw text is: ANIMAL LIABILITY IN EARLY LAW

PHILIP JAMIESON*
The law embodies the story of a nation's development through many centuries, and
it cannot be dealt with as if it contained only the axioms and corollaries of a book of
mathematics. '
One such axiom is that of the liability of an owner for the conduct of his
animal. However, as recently as a few generations ago, its corollary-that an
animal was not itself the subject of legal liability-was a concept still not
recognised in some modern jurisdictions. Since the present must depend
very much upon the past, in understanding the modern axiom of liability, it
is useful to remind ourselves that the criminal prosecution and punishment of
animals was a practice which survived even into the twentieth century.
More than two hundred such prosecutions have been chronicled,2 the last
to take place in 1906 in the village of D6l6mont in Switzerland when a dog was
put to death as an accomplice to murder.3 As late as 1916, it was reported
that animals were then still being tried and punished by the mountaineers of
Kentucky and Tennessee in the United States.4
Of one hundred and ninety-one such prosecutions tabled by E. P. Evans in
his book on this subject,5 the author assigns their number to the centuries as
follows:
9th      3           13th      2          17th      56
10th     -            14th     12          18th      12
llth     -            15th     36          19th       9
12th      3           16th     57          20th       1
However, the records of these prosecutions, spanning the period from A. D.
824, when moles were prosecuted in the valley of Aosta, until last recorded in
1906, almost certainly represent only a very small percentage of those which
actually took place.
The proceedings, best documented in France, occurred in almost every
European country-Belgium, Denmark, Russia, Germany, Italy, Portugal,
Spain, Turkey, England and Scotland-as well as in the United States,
Canada and Brazil.6 The Russians, true to their historic mode of punishment,
are known to have banished a he-goat to Siberia toward the end of the
seventeenth century.' Two such prosecutions have been recorded as having
taken place in England-a dog at Chichester in 1771 and a cock at Leeds in
the nineteenth century, and one in Scotland-a dog in the first half of the
sixteenth century. 8 However, that they were a commonplace in England
during the Elizabethan Age seems evident from a passage in Gratiano's
invective against Shylock in Shakespeare's Merchant of Venice:9
Thy currish spirit
Govern'd a wolf, who, hang'd for human slaughter.
Even from the gallows did his fell soul fleet.

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