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 [24] 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, 1 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.

In Edward the First’s time some of the cases remind of the barbarian laws at their rudest stage.  If a man fell from a tree, the tree was deodand. 2 If he drowned in a [25] well, the well was to be filled up. 1 It did not matter that the forfeited instrument belonged to an innocent person.  “Where a man killeth another with the sword of John at Stile, the sword shall be forfeit as deodand, and yet no default is in the owner.” 2 That is from a book written in the reign of Henry VIII., about 1530.  And it has been repeated from Queen Elizabeth’s time 3 to within one hundred years, 4 that if my horse strikes a man, and afterwards I sell my horse, and after that the man dies, the horse shall be forfeited.  Hence it is, that, in all indictments for homicide, until very lately it has been necessary to state the instrument causing the death and its value, as that the stroke was given by a certain penknife, value sixpence, so as to secure the forfeiture.  It is said that a steam-engine has been forfeited in this way.