Fowl Play

Originally appeared in the December 1998 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Fowl Play

BY ANDREW J. McCLURG

Under modern law, if an animal causes harm, the owner is held responsible. But it hasn’t always been that way. Under old European codes, the animals themselves were put on trial. They even had counsel appointed to represent them. No joke.

The practice apparently developed from the Mosaic law that “if an ox gore a man or a woman that they die, then the ox shall be surely stoned, but the owner of the ox shall be quit.” Thomas Frost documented 92 such trials in France in his 1897 essay, Trials of Animals.

Roosters were especially at risk of being hauled into court because of the superstition that they were in league with the devil and laid eggs that hatched horrible winged serpents called basilisks. A chronicle from Basel reports that in August 1474 a Swiss rooster was accused of laying such an egg. He was tried before a magistrate and convicted. Both the cock and his alleged egg were sentenced to death.

Check out the cross-examination of the defendant in this travesty:

Prosecutor: Mr. Chicken, I show you what’s been marked as Exhibit “A.” Do you recognize it?

Defendant: I’ve never seen that egg before in my entire life.

Prosecutor: Oh really. Maybe your confession will refresh your memory. Do you recall making this statement to the police? I quote: “Baccck, baccck, baccck, baccck, baccck, bacck, baccck, baccccccccccck!”

Defendant: Lies! I never said that. I don’t even know what it means!

Prosecutor: Do you deny this is your signature?

Defendant: Those chicken scratchings? It’s a forgery. I’ve been framed.

Prosecutor: Isn’t it true you’ve hatched horrible winged serpents in the past?

Defendant: No! I’m a rooster.

Prosecutor: Then perhaps you can explain this photograph seized from your coop. For the record, the photo shows eight horrible winged serpents in the back of a minivan wearing soccer uniforms with the defendant in the driver’s seat.

Defense counsel: Your honor, there’s a simple way to resolve this case. Let my client sit on the egg. If it does not fit, you must acquit.

Judge: Request denied. We’re not going to turn this trial into a circus, counselor, so get down from the tightrope and take that red ball off your nose.

Prosecutor: Isn’t it true that you acted very frightened when the authorities came to your dwelling?

Defendant: Of course, I’m chicken.

Prosecutor: The inquisition rests. Your honor, the evidence is overwhelming that the defendant is guilty of sorcery, consorting with a known Beelzebub and unlawful possession of a demon egg within the city limits.

Judge: I have no choice but to find you guilty and sentence you and your egg to death.

Defendant: No, please judge. I hate running around like a chicken with my head chopped off, especially when it really is. I’m innocent.

Execution day drew a huge crowd of media pundits who analyzed the case endlessly until the egg hatched and a horrible winged serpent devoured them.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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