late receded from the doctrine. By the older law the owner of a domestic animal which had injured a person was liable only when he knew of the evil propensities of the animal or was negligently ignorant of them; and if the animal was under the care of a keeper or herdsman at the time, the owner was liable only upon proof of negligence.

The Civil Code of 1896 (Art. 734) now, however, provides as follows: "Any one who owns an animal is bound, in fulfilling the duties of a good paterfamilias, to take the measures of watchfulness necessary to prevent the animal causing damage. If this duty is not fulfilled the owner of the animal is bound to make good the damage caused to a third person in accordance with ss. 704, 722-726, 728. The same responsibility rests on any one charged with looking after the animal in the stead or place of the owner."

There is a material difference, it will be noted, between this and the corresponding article of the French code. In the French code the presumption is against the owner of the offending animal. In the German code the onus of proving negligence is on the complainant-an onus not much less troublesome than that of proving the scienter. German law also makes it a penal offence for a man to keep savage or dangerous animals at his home without the permit of the police, or let them wander about without taking precautions, and this is common to other systems of law. An edict of the Roman ædiles forbade the keeping of a dog, a boar, a wild boar, a bear, or a lion where there was a path in common use. By English law a man may keep a fierce watch-dog for the protection of his yard or house, but he is not justified in placing a ferocious dog in the way of access to his house, with such a length of chain that a person innocently going there for a lawful purpose in the daytime may be bitten by it (Sarch v. Blackburn, 4 C. & P. 297). In America a householder can only let loose a fierce dog at night as a protection against felony or violence by surprise (Woolf v. Chalker, 31 Coun. 121).

American law, as has been already said, does not accept the English doctrine of insuring safety in the case of fierce animals; it requires only special care and precautions (Scribner v. Kelley, 38 Barbour N. Y. Sc. 14). But in regard to injuries by domestic animals, it substantially coincides with the English law as laid down in May v. Burdett (9 Q. B. 101), emphasising rather more strongly, however, the truth that the keeper of a ferocious dog is not exempted from all duty of restraint until the dog has effectually mangled or killed at least one person (Godeau v. Blood, 51 Vermont 251).

A dog's barking may be a nuisance by American law (Britt v. Hagler, 23 Wendt 354), but the law of England is not very clear on this point. "It is very disagreeable," as Lord Kenyon observed in Street v. Tugwell (2 Selw. N. P. 104), "to have such neighbours" (a kennel of howling pointers), "but we cannot" (there had been a verdict for the defendant) "grant a new trial."

Keeping dogs so as to be a nuisance or injurious to health is now provided for by s. 91 of the Public Health Act, 1875.

Straying and trespassing-the other class of injuries by animals-belong to the period of defined and settled boundaries. In a nomadic state, if Abraham and Lot find their herdsman at strife, the whole land is before them; they can separate and go, one east and the other west. The oldest legislation on this subject is to be found in the code of Manu. "Let the owner of the field," says the Hindoo sage, "enclose it with a hedge of thorny plants, over which a camel could not look, and let him stop every gap through which a dog or a boar could thrust his head (viii. 239). Should cattle attended by a herdsman do mischief near a highway, in an enclosed field, or near the village, he shall be fined a hundred panas, but against cattle which have no keeper let the owner of the field secure it."1 Looking at the height of the camel and the well-known capacity of the boar for getting through obstacles (Child v. Hearn, L. R. 9, Ex. 176), this injunction seems certainly exacting, but like all laws it must be judged by reference to the state of society existing at the time-the condition of the country: and, in a primitive community, self-help in the shape of self-protection is the prevailing law. In England, as in France and Germany, the onus is now just the other way. Instead of requiring the owner of a field to surround himself with a lofty and impregnable fence, and so ward off intruders, it casts on the owner of cattle the obligation of keeping them from straying on to a neighbour's land (Ellis v. Loftus Iron Co., L. R. 10, C. P. 10; Saunders v. Teape, 51 L. T. 2632). If they do, he-the cattle owner-is liable for any such trespass, and to have his cattle distrained, damage faiseant, unless the neighbour has a fence and has neglected to keep it in repair. Thus in Lee v. Riley, where a mare strayed from off the defendant's land on to the plaintiff's through the defective condition of the defendant's fences, and kicked the plaintiff's horse, the defendant was held liable; and no proof of the scienter is necessary in such a case.

But England is an old country-long enclosed, densely populated; and what may be practicable and convenient in one place and stage of national development--in the India of Manu-may be impracticable and highly inconvenient in another. The transitional stage is well illustrated in the America of to-day. In some of the States the English rule is adopted, that if through neglect of the owner to maintain proper fences a horse strays into the field of a neighbour, and there kicks a neighbour's horse, the owner is liable for the damage. But in most, if not all, of the Western and Southern States the common law rule, says Mr. Irving Browne, has been so far modified or abrogated as to allow cattle to range at will without liability of their owners to actions of trespass unless the lands trespassed on were enclosed by good fences (Morris v. Fraker, 5 Colorado 425; Seeley v. Peters, 11

Some animals possessed a special immunity-a cow before ten days since her calving, bulls kept for impregnation, and cattle consecrated to the deity, whether attended or unattended; for damage done by these, Manu ordained no fine.

This law is as old as the Year Books (see per Brian, C.J., 20 Ed. IV. 11, Pl. 10).

Illinois 130). In Macon Railway Company v. Lester, 30 Georgia 914, the court said: "Such a law as this-'of trespass by cattle'-would require a revolution in our people's habits of thought and action. A man could not walk across his neighbour's unenclosed land, nor allow his horse or his hog or his cow to range in the woods, nor graze on old fields or 'old wire grass,' without subjecting himself to damages for a trespass. Our whole people, with their present habits, would be converted into a set of trespassers."

But no law has gone so far as to require a landowner to fence for the protection of his neighbour's straying cattle. Consequently, if A's animals stray into B's unfenced land, and fall into an open quarry, or eat a poisonous plant, or are killed by the falling of a stack, B is not answerable. Looking, however, at the liberty which the law of England allows the domestic animal, prudence may well dictate fencing for a man's own protection a fortiori if his land adjoins a highway. Tillett v. Ward (10 Q. B. D. 17) illustrates the inconvenience to which a shopkeeper may be put by the uninvited entry of an ox from the highway. In the matter of trespassing there is a difference, founded on good sense, between an ox or a horse and a dog. Large animals like horses and oxen may do great damage; not so a dog. If the master of a dog knows it to be of a mischievous nature and given to chasing game, and the dog enters a wood and destroys game, he will be liable (Ready. Edwards, 17 C. B. N. S.); but a dog's trespassing is, generally speaking, trivial and no justification for shooting or poisoning him. “A dog," as Lord Ellenborough said in Vane v. Cawdor (11 East 568), “does not incur the penalty of death for running after a hare on another man's ground; and the same is the law in America, even though the delinquent has a bad record (Dodson v. Mock, 4 Dev. & Batt. 146).

In France it would: seem, under the Rural Code, the owner or occupier of land may kill domestic fowls-" des volailles de quelque espèce que ce soit qui causent le dommage "-hens, ducks, geese, or turkeys-but only if he catches them in the act of committing damage "au moment du dégât.” The Dogs Act, 1871, now empowers constables to apprehend savage or dangerous dogs straying on any highway and not under control.

To sum up the matter, our scienter doctrine is become an anachronism, answerable for a good deal of injustice, and might very well be parted with. But the dog owner and the horse owner-the persons whom the doctrine unduly favours-to say nothing of the owners of other animals, represent in this country a formidable force of public opinion, which will have to be reckoned with by any intending legislator. If we are to choose our law France seems best to have hit the juste milieu in raising a presumption of liability against the owner of an animal which has done any damage, unless such owner displaces the presumption by proving no fault on his part. He keeps the animal for his pleasure, profit, or protection, and in such a case the maxim may fairly be applied: “Qui sentit commodum sentire debet et onus."

SOME NOTES ON NEUTRALITY.

[Contributed by JOHN MACDONELL, ESQ., C.B.]

A REMARKABLE change with respect to the beginning of warfare has taken place in recent times. It was once the custom to precede hostilities with a formal declaration of war. In modern times this custom is no longer invariably observed. Hostilities often begin without any formal notice; and according to modern writers on international law there is nothing irregular in this. On the other hand, in this country and in several others it has become the practice for neutrals, whenever a war breaks out, to publish a proclamation of neutrality. In this country, at all events, such a proclamation imposes on subjects, speaking broadly, no duties by which they would not be bound in the absence of a proclamation: the object is to warn persons of the consequences of committing breaches of the neutrality laws; perhaps also to prove to the world the desire of the government to be impartial. This practice is admitted to be comparatively modern, but I have found no clear statement of its origin. In the collections of State papers which I have consulted there is no such proclamation of earlier date than the sixteenth century. There is none, so far as I can find, in Rymer, for example, nor is any such in Leibnitz's collection, entitled the "Codex Juris." The conception of strict neutrality comes late; its possibility appears to have been doubted in some ages, and it is for a long time regarded only as a right to be bargained and paid for. It is probably true that even in the beginning of the seventeenth century "neuter," "neutral," and "neutrality" had a connotation of reproach. When Bacon writes of the "foul calumny of neutrality," and Shakespeare asks, “Who can be temperate and furious, loyal and neutral in a moment?" they are thinking of the duty of making election as to the merits of every quarrel. Manning in his work on international law and Dr. Geffcken1 refer to many treaties in the Middle Ages containing stipulations of neutrality in the event of any of the parties to the treaties being at war with other nations. But each case was considered on its merits.2

Handbuch des Völkerrechts 4, 617.

2 Sir Edward Littleton, in his argument in the Shipmoney Case (3 St. Tr., p. 930), says: "It is a Droit Royal to meddle with war and peace. Subjects have nothing

A complete history of the growth of the modern notions of neutrality would be a very laborious task. I do not pretend to do more than note here a few stages in the evolution of the present form of proclamation which has grown up gradually. In this country proclamations of neutrality originated with the Privy Council. Exercising a wide, ill-defined legislative jurisdiction, civil and criminal, as to matters affecting the commonwealth, it from time to time enjoined subjects not to take part in hostilities between other countries. For example, with reference to the war between France and Spain is the following entry in the register of the Privy Council in 1551

"Lettres to all the Portes, commaunding the Justices and other officers there not to suffer any violence or wrong to be don within any theyr jurisdictions by themperialles to the Frenche or by the Frenchemen to themperours subjectes, notwithstanding the present warre and hostilitie that is betwene them."1

Another entry in the same year contains the germ of a well-known rule of international law (p. 369):

"A lettre to the Capten of thile of Wight to take such ordre that nether the Imperiall nor French ships be suffered to lie in awayt there for to robbe or spoyle eche other, but that in respect of the Kinges Majesties amitie with both Princes, he doo so that the subjects of nether syde do attempt thother's annoyance within any his Majesty's portes or creekes there, but see the same preserved inviolate."

The following entry is interesting (p. 466) :

"A lettre to Mr. Dudley, willing hym to looke substantially to the preservacion of the neutralitie betwene themperialles and Frenche uppon all the Kinges Majesties limites within his charge, using such meanes as he can best devise for thapprehencion of those that shall attempt to violate the same; whom yf he can cume bee in caase they be Inglishmen serving either or both parties, to cause them to be put under sure warde, and advertise hither thereof that ordre may be gyven for theyr execution; or yf they be subjectes to themperour or Frenche King to se them safely kept that they may be punisshed as appertaineth."

With the aid of the Earl of Crawford's index to the proclamations, I find that proclamations such as the following become pretty frequent from the reign of Henry VIII. to that of Charles I. :-Proclamations declaring the king's neutrality in the quarrels of France and Germany (Henry VIII., 1536); proclamations against serving foreign princes as soldiers or sailors (Elizabeth, 1575); forbidding the issuing of letters of marque against Spain or Portugal (1546); against carrying munitions of war to Algiers or Tunis to do with it." (Rot. Parl. 13 Ed. III. M. 5, 19 Ed. IV., fol. 160 or 6.) "Brian, Chief Justice, saith that if all the subjects of England do war with the subjects of another Kingdom, this is no war; but if the King denounce it, it is war." Probably lawyers from the fifteenth century onwards believed that it was within the royal prerogative to prevent subjects from taking part in hostilities against friendly states. There are excellent remarks on the subject of "Neutrality in the Middle Ages" in Beiträge zum Kriegsrecht im Mittelalter, von Dr. Albert Levy, p. 76.

1 Acts of Privy Council, 1550-52, p. 365.