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).
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).
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.
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”).