Carl Van Vechten (18801964). The Tiger in the House. 1922.
The Cat and the Law
FROM the epoch of the cats godhood down to the modern moment laws have been passed to protect the cat, laws which have demanded that man treat the cat in such and such a fashion. Egyptians cat-killers were punished by death. Diodorus writes of a brave Roman soldier who was the victim of this law. It is interesting to compare this extreme measure with the old English common law which held both cats and dogs as no property, being base by nature, but it is also well to remember that at one time in England larceny was punished by the death penalty. If a cat had been considered property the theft of a puss would have led the thief to the block or the scaffold. The English Rule of Nuns issued in the early thirteenth century, forbade the holy women to keep any beast but a cat. A canon of a date nearly a hundred years earlier forbade nuns, even abbesses, from wearing costlier skins than those of lambs and cats. The Welsh laws concerning domestic lions were formulated in the tenth century. In 1818 a decree was issued at Ypres in Flanders forbidding the throwing of pussies from high towers in commemoration of a Christmas Spectacle. And today the Society for the Prevention of Cruelty to Animals endeavours to make the punishment fit the crime for anyone who maliciously mistreats a cat.
But through the ages law-makers have wisely, it would seem, allowed puss to go more or less her own way, while restricting her masters actions in regard to her. I say wisely, for it cannot be considered the part of wisdom to create laws which will not be obeyed, and I think I have made it fairly clear that the cat will not obey laws. A cat makes no attempt to govern other cats and he will not tolerate such an attempt on the part of man. While other animals are leashed and muzzled, barned and fenced in, puss wanders free. The unclean dog is expelled from the mosque but grimalkin is welcomed there. She rubs her legs against the sultans guests at dinner and attends state banquets at the White House.21 So she sits at the prelates table or by the humble farmers hearth, but by night she wanders the heath or the rooftop, to view, as one poet has ingeniously explained, the surrounding country!
Even in the middle ages when it was quaintly held that animals were responsible for crimes2 (I say quaintly because it is perfectly obvious that both the word and the idea are human inventions) and they were tried and condemned to death and to other punishments, including torture, the cat escaped.3 In the list of these trials given by E. P. Evans4 there is not one single case in which a cat was the defendant. The cat appears, indeed, only in the testimony of these trials. Once, for instance, a sixteenth century French jurist, Bartholomew Chassenée, complained that his clients, some rats, were prevented from appearing in court at Autun, because of a stretch of cat country that they would be forced to cross on their journey. Modern lawyers will be glad to know that Chassenée successfully defended his rats. By virtue of the old Germanic law cats often appeared as witnesses at the trials of thieves and murderers.5
In passing it is interesting to observe that St. Ives, the patron saint of lawyers is represented as accompanied by a cat. And here again, if it were necessary, we might invoke symbolism to explain the simple truth that holy men as well as devils found the cat the most attractive of animals. The profound wisdom, the concealed claws, the stealthy approach, and the final spring, all seem to typify the superior attorney. We should not be astonished, therefore, that Cardinal Wolsey placed his cat by his side while acting in his judicial capacity as Lord Chancellor.
The most interesting laws concerning cats were formulated during the tenth century by Howel Dda, a King of South Wales, who, perceiving that the customs of his country were being violated, called the archbishops, the bishops, the nobles, and other chosen men to meet at Y ty Gwyn ar Dav with him. The whole of Lent was spent by this body in the presence of the King in fasting and prayer; then Howel selected from the assembly twelve of the wisest men and adding to their number a doctor of laws, Blegywryd by name, committed them to the task of examining, retaining, expounding, and abrogating the laws. When the work was completed Howel sanctioned it. Wales, however, was of considerable size and it was not long before local distinctions arose which resulted in the eventual formulation of three separate Codes, Venedotian, Dimetian, and Gwentian. It is from these Codes that the following curious passages relating to cats have been extracted.
According to the Venedotian Code: The worth of a kitten from the night it is kittened until it shall open its eyes is a legal penny; and from that time until it shall kill mice, two legal pence; and after it shall kill mice, four legal pence; and so it shall always remain. The penny, at this period, was equal to the value of a lamb, a kid, a goose, or a hen; a cock or a gander was worth twopence, a sheep or a goat fourpence. The qualities of a cat, continues the Code, are to see, to hear, to kill mice, to have her claws entire, to rear and not to devour her kittens, and if she be bought and be deficient in any of these qualities, let one third of her worth be returned.
In the Dimetian and Gwentian Codes distinctions are drawn between cats and cats. The Dimetian Code says: The worth of a cat that is killed or stolen: its head is to be put downwards upon a clean, even floor, with its tail lifted upwards, and thus suspended, whilst wheat is poured about it, until the tip of its tail be covered and that is to be its worth; if the corn cannot be had, a milch sheep with her lamb and its wool is its value, if it be a cat which guards the Kings barn. The worth of a common cat is four legal pence.
The Gwentian Code says: Whoever shall kill a cat that guards a house or a barn of the King or shall take it stealthily; it is to be held with its head to the ground and its tail up, the ground being swept and then clean wheat is to be poured about it until the tip of its tail be hidden: and that is its worth. Another cat is four legal pence in value.
There seem to be obvious difficulties involved in the carrying out of this law. In the first place it would appear to be necessary to capture both the thief and the stolen cat. In the second place no self-respecting cat would permit herself to be suspended by the tail. She would scratch and bite and turn and twist and curl until it would be impossible to go through with the experiment unless she were dead and certainly the Welsh judges would not kill the Kings cat merely in order to punish her thief. Thirdly it would seem to be manifestly impossible to enforce this law if the Kings cat happened to be a tailless Manx cat.
There are further laws: The Dimetian Code says: Whoever shall sell a cat is to answer for her not going a caterwauling every moon; and that she devour not her kittens; and that she have ears, eyes, teeth, and nails, and is a good mouser. The Gwentian Code provides that there shall be no Manx cats: The qualities of a cat are that it be perfect of ear, perfect of eye, perfect of teeth, perfect of tail, perfect of claw, and without marks of fire; and that it kill mice well and that it shall not devour its kittens and that it be not caterwauling on every new moon.
The importance of the cat to the community was recognized by these Welsh laws which provided that one cat was necessary to make a lawful hamlet together with nine buildings, one plough, one kiln, one churn, one bull, one cock, and one herdsman. The dog and the horse are not mentioned.
Another interesting detail of the Dimetian Code relates to the separation of man and wife: the goods and chattels were to be divided but the husband took the cat if there was but one; if there were others they went to the wife. The stress laid on puss at this period, her comparatively high value, leads Pennant6 to the very credible conclusion that her importation must have been recent, as the animal breeds so rapidly that in a few years a dozen felines could populate a country.
Notwithstanding the laws of Howel the question as to whether or not the cat is a property continues to be discussed in its legal aspects down to the present day. There seems to be difference of opinion in the matter and the judgments in law suits of this character seem to depend on whether or no the judge is a cat-lover. Fortunately most judges are catlovers.
In 1865, Monsieur Richard, the juge de paix of Fontainebleau rendered a memorable decision. An inhabitant of the town, annoyed by cats who molested his garden, set traps and caught fifteen. The owners of the cats7 brought the man to trial.
That article 479 of the Penal Code, and Article 1385 of the Code Napoleon, recognize several kinds of cats, notably the wild cat, as a noxious animal for the destruction of which a reward is granted, but that the domestic cat is not affected by these articles in the eyes of the legislator;
That even the domestic cat is in some degree of a mixed nature, that is to say, an animal always partly wild, and which must remain so by reason of its destiny and purpose, if it is to render those services which are expected from it;
That although the law of 1790, art. 12 in fine, permits the killing of poultry, the assimilation of cats with these birds is by no 4means correct, since the fowl species are destined to be killed sooner or later, and that they can be kept in a manner under the hand of their owners, sub custodia, in a completely enclosed and secure place, while this cannot be said of the cat, for it is impossible to put that animal under lock and key, if it is to obey the law of its nature;
That the asserted right in certain cases of killing the dog, which is a dangerous animal and prompt to attack without being rabid, cannot be held to imply as a consequence the right to kill a cat, which is an animal not calculated to inspire fear, and always ready to run away;
That all goods being either movables (meubles) or immovables (immeubles) according to article 516 of the Code Napoleon, it results therefrom that the cat, contrary to article 128 of the same Code, is incontestably a movable (meuble) protected by the law, and therefore that the owners of animals which are destroyed are entitled to claim the application of article 479, clause 1, of the Penal Code, which punishes those who have voluntarily caused damage to the movable property of others.8
A similar decision was rendered in the sheriffs court at Perth, Scotland, in the late seventies. The cat had killed the plaintiffs pigeon on a neighbours premises. The learned sheriff in his decision said:
It was quite legitimate for the plaintiff to keep a pigeon, but just as much so for the defendant to keep a cat. The latter is more a domestic animal than a pigeon. But there are no obligations on the owner of a cat to restrain it to the house. The plaintiffs plea is that the natural instinct of the feline race is to prey on birds as well as mice. So it was argued that the owner of the cat should prevent the possibility of its coming into contact with its favourite sport. But it is equally true that the owner of a bird should exercise similar precaution to prevent its coming within the range of a hostile race. If the defendants cat had trespassed into the plaintiffs house or aviary where the bird was secured, there might be ground for finding the owner of the cat liable for the consequences of its being at large. With parity of reason had the bird intruded itself upon the territory of the cat and there had been slain, there could have been no recourse because the owner of the bird should have prevented its escape. In the present case it appears that both the quadruped and the winged animal were in trespass on neutral territory. It was the duty of the plaintiff to take the guardianship of the bird said to be so valuable and therefore both owners are equally to blame and the case must be viewed as arising from natural law, for which neither owner without culpa can be answerable. The defendant being at first not sympathetic with the loss of the plaintiff, but rather put him at defiance, and forced him to prove it was the defendants cat who slew his bird, the defendant will be acquitted but without costs.9
In Maine it has been decided that the cat is a domestic animal within the jurisdiction of the statute which provides that any person may lawfully kill a dog which is found worrying, wounding, or killing any domestic animal, when said dog is outside of the inclosure or immediate care of its owner and keeper. The plaintiff sued the defendant, alleging that he had killed a valuable foxhound belonging to him, and the defendant replied that he had killed it because the dog was chasing and worrying his cat. The court held that this was sufficient justification and gave an exhaustive view of the law as to felines.10 Ingham cites a Canadian case in which the judge decided: A person may have property in a cat and therefore an action will lie to recover damages for killing it. There may be circumstances under which it would be justifiable to kill a cat; but it is not justifiable to do so merely because it is a trespasser, even though after game.
In another case the owner of a cat was not held liable to the owner of a canary bird killed by it, the court considering that cats to some extent may be regarded as still undomesticated and their predatory habits are but a remnant of their wild nature.11
But an Attorney-General of the State of Maryland, evidently no felinophile, handed down a decision which was a cruel blow to the owners of cats. A certain citizen of Baltimore (I hope this was not Mencken) stole a fine maltese cat from a neighbour, who had him arrested for theft. When the case came up for trial the prisoners counsel entered the plea that it was impossible for any one to steal a cat, as that animal is not property, and that to take forcible possession of a feline, even though it be a pet and wear a ribbon and answer to its name, is not a legal offense.12 The astonishing judge held the argument to be good and the more astonishing Attorney-General, to whom the case was appealed, agreed with him. The latter in his formal opinion, declared that the cat is really nothing but a wild animal, that it is of no use to man, and that the taking of a cat without the owners consent is not an indictable offence. Since this extraordinary decision was rendered cat-owners with pussy-baskets have been seen leaving Baltimore on every train. Cats themselves, however, have as yet entered no objection to the decree, arguing doubtless that it stands to reason if a man steals you he wants you pretty badly and is therefore likely to give you more liver, fish, and other delectables than the man with whom you were living before.
It is not an uncommon occurrence for cats to be left property by will. I shall presently discuss the case of Mademoiselle Dupuy. Lord Chesterfield left life pensions to his cats and their offspring. This sounds eternal. Others have done this. In fact every few months you may read of such a will in the public prints. It is the custom of relatives in such cases to attempt to break the wills, and in most instances they have been successful. But there is at least one case in which a notable cat charity has been preserved through several centuries. About 658 of the Hegira (A. D. 1280) the Sultan, El-Daher-Beybars, having a particular affection for cats, at his death bequeathed a garden known as Gheyt-el-Qouttah (the cats orchard), situated near his mosque outside Cairo, for the support of needy cats. This garden has been sold and resold, but until at least a comparatively recent date and probably up to the present moment, the owner still continues to carry out the terms of the will. At the hour of afternoon prayer a daily distribution of refuse from the butchers stalls is made to the cats of the neighbourhood. At the usual hour, all the terraces in the vicinity of the Mehkémeh (outer court) are crowded with cats; they come jumping from house to house across the narrow streets of Cairo, in haste to secure their share; they slide down the walls, and glide into the court, where, with astonishing tenacity and much growling, they dispute the scanty morsels of a meal sadly out of proportion to the number of guests. The old hands clear the food off in a moment; the youngsters and the new-comers, too timid to fight for their chance, are reduced to the humble expedient of licking the ground.14
There are other ways in which cats figure in the law. Marine insurance does not cover damage done to cargo by the depredations of rats, but if the owner of the damaged goods can prove that the ship was sent to sea without a cat he can recover damages from the shipmaster. Again, according to English law, a ship found at sea with no living creature on board is considered a derelict and is forfeited to the Admiralty, the finders, or the King, but it has often happened that, from its hatred of facing the waves, a cat remaining on board has saved the vessel from being condemned.
Periodically letters and editorials appear in the American newspapers concerning the advisability of licensing cats or in some way depriving them of their power of increasing, or restraining their actions. In the bird journals hysterical gentlemen moan loudly over the destruction of feathered songsters and demand that strong measures be taken as preventatives. I am not at all sure that laws have not been passed in certain states limiting the freedom of puss.
Nevertheless the cat preserves his liberty. As the learned judge of Fontainebleau remarked, you cannot restrain a cat without changing his nature; he might have added that you cannot change his nature. A cat will preserve his independence at any cost, even that of his life. Recently an adventurous tom climbed the switchboard of the lighting works of Cardiff, became entangled in the wires, and plunged the city n darkness. The effort cost him his life but he accomplished his purpose. Therefore senators and representatives, who find no difficulty in fettering human-kind in a hundred ways, go very slowly in formulating laws regarding the cat. They know perfectly well that the cat will refuse to obey these laws. It is amusing and delightful to observe this little animal escaping the onerous obligations of these United States, where a dog can only walk abroad on a chain with his jaw bandaged and a man is not permitted to raise a cup to his lips unless it contain lemonade or water, or to set pen to paper unless he scratches hieroglyphics that can be read without a blush by nasty-minded old gentlemen on the lookout for obscenity.
Note 1. See Slippers, the White House Cat, by Jacob A. Riis: Saint Nicholas; January 1908. Theodore Roosevelt was not the first of our presidents to be a cat-lover. There was at least one other, Abraham Lincoln. [back]
Note 2. The middle ages cannot be held entirely responsible for these laws. It was incorporated into the Mosaic Law that an ox who killed a man was subject to death, just as if it had been a man who had murdered one of his fellows. See Exodus, XXI, 28: If an ox gore a man or a woman, that they die; then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit. [back]
Note 3. As a witchs companion she did not escape, but I have fully covered that point in a preceding chapter. [back]
Note 4. The Criminal Prosecution and Capital Punishment of Animals. [back]
Note 7. This phrase and such words as master, mistress, etc., which occur in this book are used purely for convenience. Of course no one ever owned a cat. [back]
Note 8. This decision was afterwards disputed before the Correctional Tribunal. [back]
Note 9. Harrison Weir (Our Cats and All About Them, p. 207) quotes an Articled Clerk writing in The Standard with regard to the illegality of killing cats: It is clearly laid down in Addison on Torts, that a person is not justified in killing his neighbours cat, which he finds on his land, unless the animal is in the act of doing some injurious act which can only be prevented by its slaughter. And it has been decided by the case of Townsend v. Watken, 9 last 277, that if a person sets on his lands a trap for foxes, and baits it with such strong-smelling meat as to attract his neighbours cat on to his land, to the trap, and such animal is thereby killed or injured, he is liable for the act, though he had no intention of doing it, and though the animal ought not to have been on his land. [back]
Note 10. The cat a domestic animal and property: The American Law Review; Vol. 49, p. 917. [back]