“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.” 2

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 [22] 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.” 1 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.” 2 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, 3 So it seems to be a reasonable conjecture, that it was this way of thinking which led 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. 4 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 [23] right of property can exist, I am bound to take care that it does not stray into the land of my neighbor.” 1

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. 2 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. 3