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Abstract

We call legal regimes of the world “justice systems” because they aim to provide us with just that—justice. As it turns out, a significant part of achieving justice involves finding someone or something to blame for the wrongs we endure. How successful the law is in ascertaining perpetrators and doling out just desserts is a complicated question. But on March 27, 1535, one such jury in Nottinghamshire, England was able to meet that extraordinary burden by carefully identifying the particular hay in a haystack that shifted and crushed Anthony Wylde.1 The offending hay, having killed the deceased, was appraised, and its value was forfeited to the state to be used for charitable purposes. It was, after all, a deodand.

A statute defining deodand procedure was enacted in 1280, but evidence suggests that the practice was already well-established.2 The word “deodand” comes from deo dandum, meaning “to be given to God.”3 In Medieval and Early Modern England, when an accidental death or suicide occurred by means of an animal or object, that item or its equivalent monetary value was turned over to the king. Corpus Juris recalls the practice as:

In English law, any personal chattel whatever, animate or inanimate, which, becoming the immediate instrument by which the death of a human creature was caused, was forfeited to the king, for sale and a distribution of the proceeds in alms to the poor by his high almoner, for the appeasing of God’s wrath.4

Historians generally consider deodands as the Crown’s attempt to confiscate private property or as a practice of primitive retributivism toward animals and inanimate objects involved in the deaths of human beings. These interpretations take the law of deodand at its confusing, uncomfortable face value and limit its societal contributions to government appropriation and misplaced vengeance. Both perspectives inherently acknowledge deodand law as a social and legal response to a sense of wrong that enters the community through unnatural death, but neither accurately portrays how the practice operated as a source of absolution in a pre-tort world.

For roughly 750 years, English communities conducted systematic legal proceedings for things like horses, wells, and ropes involved in accidental deaths and suicides before the nation formally abolished the practice in a solitary statute in 1846. The abruptness of the timeline does not suggest that the Crown unexpectedly came into new sources of revenue or that common law institutions suddenly grew out of an inclination for revenge. Rather, between the thirteenth and eighteenth centuries, the legal reaction to death in England changed. During this time, the concept of unnatural death (by homicide or misfortune) transformed from a mostly private to a mostly public affair.5 As that change manifested, so did society’s evolving ideas about culpability, guilt, and absolution in the law.

Over time, deodand law facilitated the evolution of the private wrongful death suit. But before the law reached that point, communities lacked a unique, formal process for resolution after accidental deaths. With no criminal to punish and no right to victim compensation, those grieving in the wake of untimely deaths had no procedural way to release responsibility, restitute loss, or reverse disorder, except through deodands. Deodand law was not the Crown’s construct for appropriating private property, nor was it misguided, primitive retributivism. At least, it was not only those things. A careful examination of the roots of the tradition, how the law was formulated to operate, and its legal end, reveals that it was predominantly a restorative measure intended to: (1) harmonize a discordant relationship between the public and private nature of unnatural deaths, and (2) provide the affected community with what it most needed: absolution. Understanding deodands as a method of absolution not only does justice to the law and those who practiced it, but it also provides us with insight into early modern social attitudes about blame, guilt, and resolution.

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