Before the Animals Act: The Historical Fiction of a Base Property in Dogs and the Paradox of Scienter Liability
![handle is hein.journals/holdslr16 and id is 123 raw text is: BEFORE THE ANIMALS ACT: THE HISTORICAL
FICTION OF A BASE PROPERTY IN DOGS
AND THE PARADOX OF SCIENTER LIABILITY
PETER COOK'
An hounde is trewe to his lord or to his maystere ... an hounde
is of greet undiratondyng and of greet knowynge, a hounde has
greet strength and grete bounte. An hounde is a wise beast and a
kynde, an hounde hath greet mynde and greet smelling....2
Now, jist to show you the difference atwixt the two perfessions [i.e.
possessions]: - I steals a dog - walue, maybe, fifty pound, or
p'raps more. Even if I'm catched i' the fact I may get fined twenty
pound, or have six months' imprisonment; vile, if you steals an
old fogle [ie. handkerchief], walue three fardens, you'll get seven
years abroad, to a dead certainty ...... Now, ve generally escapes by
payin' the fine, 'cos our pals goes and steals more dogs to raise
the money. Ve always stands by each other ...... The law seems
made for dog-fancier ...... The only vay you can go wrong is to
steal a dog wi' a collar on, for if you do you may get seven years'
transportation, for a bit o' leather and a brass plate vorth a
shillin'. vile the animal, though vorth a hundred pound, can't hurt
you.... Nothin' can touch us till dop is declared by statute to be
property, and stealin' 'er a misdemeanour. And that won't occur
in my time.'
ABSTRACT
Dogs have been domesticated since earliest times but curiously
they were not regarded as valuable property or chattels by the
common law until the early modem period. This meant that they were
neither ferae naturae nor averia in the eyes of the law. Nevertheless
these companions without value, although they could not in law be
stolen, could render an owner responsible for their injurious deeds
provided that the owner had some knowledge (or, somewhat
ungrammatically from the words of the old writ, scienter) of their
propensity to do damage of the nature and kind alleged. Moreover, in
I Lecturer is Law, University or Birmingham.
2 Edward, Duke of York, The Mauer of Gams, c.1406.
3 From the early 19th century Do-Fancier's dialogue in W. Harrison Ainsworth's
Auriol or The Elixir of Life, 1865.](ViewImageLocal?handle=hein.journals/holdslr16&div=14&collection=&method=preview&ext=.png&size=3)
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Before the Animals Act: The Historical Fiction of a Base Property in Dogs and the Paradox of Scienter Liability
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