It's a dog case! said the junior partner, waving the paper. The dog bit somebody.
Ah! exclaimed Mr. Tutt, perceptibly brightening. Doubtless we shall find a precedent in Oliver Goldsmith's famous elegy:
And in that town a dog was found,
As many dogs there be,
Both mongrel, puppy, whelp, and hound,
And curs of low degree.
Only, explained Tutt, in this case, though the man recovered of the bite, the dog refused to die!
And so they want to prosecute the dog? It can't be done. An animal hasn't been brought to the bar of justice for several centuries.
No, no! interrupted Tutt. They don't-
There was a case, went on Mr. Tutt reminiscently Let me see-at Sauvigny, I think it was-about 1457, when they tried a sow and three pigs for killing a child. The court assigned a lawyer to defend her, but like many assigned counsel he couldn't think of anything to say in her behalf. As regards the little pigs he did enter the plea that no animus was shown, that they had merely followed the example of their mother, and that at worst they were under age and irresponsible. However, the court found them all guilty, and the sow was publicly hanged in the market place.
What did they do with the three little pigs? inquired Tutt with some interest.
They were pardoned on account of their extreme youth, said Mr. Tutt, and turned loose again-with a warning.
I'm glad of that! sighed Tutt. Is that a real case?
Absolutely, replied his partner. I've read it in the Sauvigny records.
I'll be hanged! exclaimed Tutt. I never knew that animals were ever held personally responsible.
Why, of course they were! said Mr. Tutt. Why shouldn't they be? If animals have souls why shouldn't they be responsible for their acts?
But they haven't any souls! protested Tutt.
Haven't they now? remarked the elder lawyer. I've seen many an old horse that had a great deal more conscience than his master. And on general principles wouldn't it be far more just and humane to have the law deal with a vicious animal that had injured somebody than to leave its punishment to an irresponsible and arbitrary owner who might be guilty of extreme brutality?
If the punishment would do any good-yes! agreed Tutt.
Well, who knows? meditated Mr. Tutt. I wonder if it ever does any good? But anybody would have to agree that responsibility for one's acts should depend upon the degree of one's intelligence-and from that point of view many of our friends are really much less responsible than sheep.
Which, as you so sagely point out, would, however be a poor reason for letting their families punish them in case they did wrong. Just think how such a privilege might be abused! If Uncle John didn't behave himself as his nephews thought proper they could simply set upon him and briskly beat him up.
Yes, of course, the law even to-day recognizes the right to exercise physical discipline within the family. Even homicide is excusable, under Section 1054 of our code, when committed in lawfully correcting a child or servant.
That's a fine relic of barbarism! remarked Tutt. But the child soon passes through that dangerous zone and becomes entitled to be tried for his offenses by a jury of his peers; the animal never does.
Well, an animal couldn't be tried by a jury of his peers, anyhow, said Mr. Tutt.
I've seen juries that were more like nanny goats than men! commentated Tutt. I'd like to see some of our clients tried by juries of geese or woodchucks.
The field of criminal responsibility is the No Man's Land of the law, mused Mr. Tutt. Roughly, mental capacity to understand the nature of one's acts is the test, but it is applied arbitrarily in the case of human beings and a mere point of time is taken beyond which, irrespective of his actual intelligence, a man is held accountable for whatever he does. Of course that is theoretically unsound. The more intelligent a person is the more responsible he should be held to be and the higher the quality of conduct demanded of him by his fellows. Yet after twenty-one all are held equally responsible-unless they're actually insane. It isn't equity! In theory no man or animal should be subject to the power of discretionary punishment on the part of another-even his own father or master. I've often wondered what earthly right we have to make the animals work for us-to bind them to slavery when we denounce slavery as a crime. It would horrify us to see a human being put up and sold at auction. Yet we tear the families of animals apart, subject them to lives of toil, and kill them whenever we see fit. We say we do this because their intelligence is limited and they cannot exercise any discrimination in their conduct, that they are always in the zone of irresponsibility and so have no rights. But I've seen animals that were shrewder than men, and men who were vastly less intelligent than animals.
Right-o! assented Tutt. Take Scraggs, for instance. He's no more responsible than a chipmunk.
Nevertheless, the law has always been consistent, said Mr. Tutt, and has never discriminated between animals any more than it has between men on the ground of varying degrees of intelligence. They used to try 'em all, big and little, wild and domesticated, mammals and invertebrates.