Deodand

Deodand (pronounced dee-uh-dand)

(1) In English law (prior to 1846), an animal or a personal chattel (the scope later extended) that, having been the immediate, accidental cause of the death of a human being, was forfeited to the Crown to be sold with the money gained applied originally to pious uses.

(2) In English law (prior to 1846), A fine paid to the Crown, equal to the value of a deodand, paid by the owner of the object and subsequently applied originally to pious uses.

1520–1530: From the late thirteenth century Anglo-French deodande, from the Medieval Latin deōdandum (a thing) to be given to God, the construct being the Classical Latin deō (to God (dative singular of deus (god)) + dand(um) to be given (neuter gerund of “dare to give”) from the primitive Indo-European root do- (to give).  Deus was from the primitive Indo-European root dyeu- (to shine and (in derivatives” “sky, heaven, god”).  Deodand is a noun; the noun plural is deodands.

That the doctrine of deodand was a medieval legal relic (the earliest recorded instances of use in England dating from the eleventh century) is not that remarkable because in that it was one of a number; what’s remarkable is it remained part of the common law until the mid-1800s.  The concept was first well documented in thirteenth century legal texts and historians have concluded this “semi-codification” reflected the earlier religious tradition which held an object which caused a death was “tainted” and should be removed from profane use.  In that, it inherited older notion from Roman civil law of noxae deditio (literally “surrender for the wrongdoing” and in English law written usually as “noxal surrender”), the construct being noxae (harm, injury, wrongdoing) + deditio (surrender, giving up).  Noxae deditio was a legal mechanism (in response to what would now be called a writ) with which the owner of an animal or slave (The Romans really did make a distinction) could avoid liability for delicts (wrongs) committed by them by surrendering the animal or slave to the injured party as an alternative to paying damages.  Intriguingly, at certain times, the doctrine was extended to sons (though apparently not daughters) in circumstances where an action was brought against a paterfamilias (the head of a household), on the basis he was held to be responsible for the son’s acts.  Literally, the son could be “handed over”, either until they attained statutory adulthood or for a specified period, depending on the damages assessed.  A similar idea was the Old English wergeld, from the Proto-West Germanic werageld, the construct being wer (man) +‎ ġield (payment).  It was a form of compensation paid by a transgressor to a victim, or (as “blood money) to the victim's family if the victim were dead (the quantum decided by social rank).  The concept is familiar in many societies and is sometimes formalized in Islamic systems using the Sharia Law where the victim’s family can be involved in determining not only how much blood money should be paid but also whether there should be a payment as an alternative to a death sentence.

What evolved in English common law was the rule under which, if a person was killed by an animal, vehicle, tool or other inanimate object, that object was declared a “deodand” to be forfeited to the Crown.  Reflecting the theological basis for this, notionally the surrender was “to God”, but quickly the standard practice became to appraise the value of the beast or object and levy a fine in that sum.  Although the documentary evidence is patchy, it appears originally the forfeited property (or cash from the fine) was devoted to pious uses such as alms (ie charity for the poor) or (as was the usual trend when a revenue stream was identified) ecclesiastical purposes such as building churches or stained glass windows.  Later (another trend being squabbles between church & state), deodans became a source of consolidated royal revenue.  The rationale was partly religious (atonement), partly superstitious (removing the dangerous object), and partly fiscal (Crown revenue).

The school bus scene: In Mean Girls (2004), had Regina George (Rachel McAdams (b 1978)) been killed by the school bus, the vehicle would have been declared a deodand and forfeited to the state although the usual practice was for its value to be assessed and an order for a payment in that sum to be served on the owner.

It was a simple concept but because there was much variation in the circumstances in which a deodand could be declared, the case law reveals inconsistencies in the verdicts.  Were someone to be killed by being run over by a horse-drawn cart, depending on this and that, the deodand might be found to be the cart and horse, the cart or horse alone or even just the particular wheel which crushed the unfortunate deceased.  One of the reasons for the variance is that in many instances the matter was determined not by a judge or magistrate working from precedent but (at coroners’ inquests) by juries which would both define the deodand and assess its value.  Given that, on what appear to be similar facts (a sailor who drowned after being struck by a mast), the deodand might be found to be the whole vessel or merely the mast.  In such cases, the issue was which object (or part of an object) should be held to be the “guilty instrument” and that was a process not simple to define, things made more difficult still by the opinions of jury members being so diverse and prone to be influenced by the identity of both the victim(s) and the owner of the object(s).

Aftermath of the explosion of a locomotive’s steam boiler.  If reduced to scrap by the event in which someone died, the jury could assess the value of the object in its "pre-event" condition.

By the eighteenth century, deodands had become largely devices of reference in that actual confiscation of objects was rare with an assessment of their monetary value to set the fine to be paid the standard practice.  Lawyers, politicians and (especially) those in commerce were critical of the system as irrational and even then there were traces of what would evolve as the modern notions of negligence and responsibility; critiques of deodand came both from what would now be described as “the right” and “the left”.  Those who owned the objects which became lethal instruments argued it was unfair they be punished so severely for what were, however tragic, “mere accidents”, pointing out the system discouraged industrial enterprise while those advocating for victims pointed out it was the state which gained the proceeds of the fines while victims’ families (many of which had lost their sole breadwinner) gained nothing.  What finally brought about the end of deodand was it being overtaken by the industrial age in which deaths came routinely to occur in clusters.  It was the multiple fatalities in marine and train accidents (infamously the Hull Tragedy (1838) and the Sonning Cutting Disaster (1840)) which attracted press coverage and public debate; in each case a “certificate of deodand” was attached to the machinery and, given the cavalier attitude of railway operators towards safety, it was hardly surprising coroners’ juries had little hesitation in declaring a locomotive and its rolling-stock a deodand.  That was obviously an expensive threat to capitalism and the lobbying by these vested interest resulted in parliament abolishing deodands by the Deodands Act 1846 (9 & 10 Vict. c.62).

Tallahassee Democrat, 13 October 1991.

The Daytona Yellow 1969 Chevrolet Corvette ZL1 coupé is the rarest and most valuable C3 Corvette (1968-1982) made, the “other ZL1” a Monaco Orange Roadster having a less pure pedigree (although at auction in January 2023 it realized US$3.14 million.  The yellow ZL1 last changed hands in October 1991 when it was sold in a government forfeiture auction for US$300,000 (then a lot of money) after being seized by the DEA (Drug Enforcement Agency).

The Act however was part of a reform process and the early initiatives included the statutes which would by the mid twentieth century evolve into modern negligence and compensation law, the most significant of the early steps being the Fatal Accidents Act 1846 (Lord Campbell’s Act) which for the first time codified the idea of the “wrongful death claim” and permitted families to sue on this basis.  Although now largely forgotten, the 1846 act was a significant marker of the transition of English law from a medieval, semi-religious system of atonement to a modern, rationalized law of tort, product liability and compensation.

Echoes do however remain in certain legal doctrines of forfeiture (such as state seizures of the proceeds of crime) and the US practice of civil asset forfeiture does, at least in a philosophical sense, sometimes treat property as “guilty”.  The US law provides for property (cars, boats, money etc) connected with the commission of a crime to be seized by the state even if the owner, personally, wasn’t “guilty”; it’s a modern interpretation of the medieval view the object itself bore responsibility.  What this means is the legal rationale is structurally similar to what once was the religious justification: What once was “given to God” as expiation as atonement for sin translates now into deterrence as an expression of public policy (removing dangerous tools or preventing criminals from profiting).  As a kind of “legal fiction”, under both regimes the object is treated as if it possesses some kind of independent agency.  Intriguingly, as an administrative convenience, that idea survived in Admiralty Law under which vessels can in suits be “personified”, thus cases like “The SS <ship name> v. Cargo”, the model for civil asset forfeiture procedures in which the object is the defendant (such as “United States v. One 1969 Chevrolet Corvette”).

Building from Biblical tradition, the idea of independent agency had a curious history in the legal systems of Christendom and in Europe from the Middle Ages through the early modern period, animals could be put on trial (in both secular courts and ecclesiastical courts) for murder.  These trials followed legal procedures similar to those in which a human was the accused although, obviously, cross-examination was somewhat truncated.  The most commonly tried animals were pigs, simply because it wasn’t uncommon for them freely to roam in urban areas and attacks on babies and infants were frequent.  In Normandy in 1386, a sow was dressed in human clothing and publicly executed for killing a child while at Châlons in 1499, a sow and her six piglets were tried; the sow was executed for killing a man, while the piglets were acquitted due to “lack of evidence.”  Nor were the defendants exclusively porcine, bulls and horses occasionally executed for killing people and in ecclesiastical courts there are many records of rodents and insects being charged with damaging crops.  Presumably because every day of the week rodents and insects were killed just for “being guilty of being rodents and insects”, ceremonial executions wouldn’t have had much symbolic value so the usual result handed down was excommunication(!) or a demand (from God, as it were) the creatures vacate the fields in which they were consuming the crops.

Perpetually hungry weevils enjoying lunch in a granary.

Sometimes the ecclesiastical courts could be imaginative.  In the Italian region of Tyrol in 1713, the priests ordered the hungry weevils to leave the vineyards where they were such a plague but in compensation granted their occupation of a barren piece of land as an alternative habitat.  The reaction of the insects to the ruling would have been rather as King Cnut (better known as Canute, circa 990–1035; King of England 1016-1035) would have predicted but despite that, there’s no record of the weevils being held in contempt of court.  Regrettably, there's no generally accepted collective noun for weevils but weevilage (a portmanteau word, the blend being weevil + (vill)age) seems more compelling than Adelognatha (the scientific term referring to a group of Curculionidae (a family of weevils) characterized by a specific anatomical feature).  There was at least some theological basis for the ecclesiastical courts claiming entomological jurisdiction because in scripture it was written beasts are God’s creatures like all others and over them God granted dominion to man (Genesis 1:26-28 (King James Version of the Bible (KJV, 1611)):

26 And God said, Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth.

27 So God created man in his own image, in the image of God created he him; male and female created he them.

28 And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.

Bovine trial in progress, rendered as a line drawing by Vovsoft.

The principle was animals could be held accountable for causing harm and this was taken especially seriously when the harm caused was something like that of a crime a human might commit (like murder) and in the secular courts, if the victim was someone of some importance, the proceedings could involve defense lawyers, witnesses, and formal sentencing.  In the ecclesiastical courts, it was more symbolic or ritualistic: insects and rodents might be “summoned” but of course they never turned up so excommunication or other curses were invoked.  By the eighteenth century, the thinkers of the Enlightenment had prevailed and the idea of animals as moral agents was so ridiculed the practice of charging them was almost wholly abandoned although in certain circumstances an owner could be held liable for the damage they caused.  There was though the odd, rural holdout.  In Normandy in 1845 a sow was executed for killing a child (in the legal archives listed as the last “classic pig trial” (the last in the US held in New Hampshire in 1819)) and in Switzerland in 1906 a dog was sentenced to death for a similar offence (this believed to be Europe’s last “animal trial”).