More on the law of strays
Okay, so The Legal Genealogist is having some fun with this topic, but hey… if you can’t have fun with a blog on genealogy and the law, where can you have fun?
Don’t answer that.
At least if it isn’t legal.
So…
We’re talking about strays, or estrays, and the law.
First, some background for our hypothetical.
Let’s say your ancestors were neighbors of my ancestors, who lived in Kentucky in the 1850s. And let’s say that, in 1855 or so, one of those ancestors found two stray cattle roaming around and decided to take them up (capture them), in the hopes of being able to keep them if the owners never stepped forward to claim them.
The law in Kentucky had the same basic concept as the law we’ve been talking about in Massachusetts,1 that stray cattle could be taken up by anybody who found them, at least if he was a landowner, long-term tenant or keeper of a toll-gate.2
Under Kentucky law, you had to publicly announce within a set time that you’d found the stray beasties, there had to be a record made in court with the value of the animals assessed at the time, and the owner had to come forward within a specific time to claim them and would have to pay all fees and costs to get the cattle back.3
The big difference between Kentucky in the 19th century and Massachusetts in the 17th century was that Kentucky simply let the finder keep the animal if the owner didn’t show up and claim it,4 while Massachusetts expected the finder to pay the town some portion of the animal’s value.5
The end result in either case, if the owner didn’t show and the finder wanted to keep the stray, was that the finder became the new owner of the animal.
With that background, here’s today’s question, posed with the help of Kentucky attorney and blog reader Foster Ockerman, Jr.:
What sound would the two stray cattle your ancestor took up have made?
Sounds like a ridiculous question, doesn’t it?
I mean, okay, so maybe we didn’t all grow up on a farm, but we can all easily define the word cattle, can’t we?
“Cows, bulls, or steers that are kept on a farm or ranch for meat or milk,” according to Merriam-Webster.6 The Oxford Dictionaries website agrees: “Large ruminant animals with horns and cloven hoofs, domesticated for meat or milk, or as beasts of burden; cows.”7 “Any of various domesticated ruminant mammals of the genus Bos, including cows, steers, bulls, and oxen, often raised for meat and dairy products,” says the Free Dictionary.8
So easy answer, huh?
Moo, of course.
Except maybe it wasn’t moo at all.
Maybe it was baaaaaa.
Maybe it was oink.
Maybe it was a bleat.
Or a bray.
Or even a neigh.
Because the word “cattle” in the Kentucky statute didn’t just mean cows. The term as it was generally understood by lawyers at the time included “domestic animals generally; all the animals used by man for labor or food.”9 And the Kentucky law specifically mentioned some I sure wouldn’t think of as “cattle”: horses, mules, jacks and jennets.10
Even today, Kentucky law defines the term “stray cattle” to mean “any animal of the bovine, ovine, porcine, or caprine species for which the owner is no longer claiming ownership or for which the owner cannot be determined, but not including any member of the equine species.”11
In other words, horses and donkeys aren’t cattle today, since the law was amended in 2010.
But pigs and sheep and goats are cattle.
And, of course, cows too.
So your ancestor who took up those cattle?
He might have ridden one home and made bacon of the other.
The things you learn when you want to understand family history…
SOURCES
Note: Major league thanks to reader Foster Ockerman, Jr., who alerted me by email that, as he put it, the law used to say a horse was a cow.
- See generally Judy G. Russell, “A beastly problem,” The Legal Genealogist, posted 5 Jan 2015 (https://www.legalgenealogist.com/blog : accessed 6 Jan 2015). ↩
- §1, Chapter XCVI, “Strays,” in The Revised Statutes of Kentucky (Frankfort, KY: State Printer, 1852), 652-653; digital images, Google Books (http://books.google.com : accessed 6 Jan 2015). ↩
- Ibid., §§1-6. ↩
- Ibid., §3. ↩
- §3, Chapter 9, “Act Relating to Strays and Lost Goods,” 15 June 1698, in Acts and Resolves … of the Province of Massachusetts Bay (Boston: State Printers, 1869), I: 326-327; digital images, Google Books (http://books.google.com : accessed 4 Jan 2015). ↩
- Merriam-Webster Online Dictionary (http://www.m-w.com : accessed 6 Jan 2015), “cattle.” ↩
- Oxford Dictionaries Online (http://oxforddictionaries.com/ : accessed 6 Jan 2015), “cattle.” ↩
- The Free Dictionary (http://www.thefreedictionary.com : accessed 6 Jan 2015), “cattle.” ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 180, “cattle.” ↩
- §2, Chapter XCVI, “Strays,” in The Revised Statutes of Kentucky (1852). ↩
- Kentucky Revised Statutes (2010) §259.105(2). ↩
I’m loving this series. One of the first records I found on my Scots ancestor William Munroe was in the court records. I was just a teenager, and I thought those records were the ultimate find. In the 1650s Cambridge, Massachusetts he was fined for not having a ring in his pig’s nose. Later, I learned from Diane Rapaport about another court record about William Munroe (filed as William ROE – great catch, Diane!). He had removed to Cambridge Farms (now Lexington, Massachusetts) and was involved with a lawsuit with a neighbor who took some of his stray pigs. If it wasn’t for William’s wandering pigs and those court records, I wouldn’t have all those great stories.
We urban/suburban folks tend to forget how important animals were to our ancestors, even in places like Boston! It’s good to stop and remember every so often!
Estray records for Powhatan County, Virginia record that my 5x great grandfather, Robert Taylor, was called in several times in 1803, 1804 and 1805 to appraise estray horses. Thank you Judy, now I understand why an appraisement was necessary and this supports other records that indicate he was a trusted neighbor and knowledgable about horses. One wonders though, how could a valuable piece of property like a horse stray?
Remember how undeveloped the land was, Vanessa — if a horse managed to free itself from a paddock or barn and got even a few miles away, that would be a very long distance!
How could they stray?
1) Bad fences. Neither electric fences nor barbed wire were invented yet. 2) No fences. Those quaint town greens in New England were common grazing areas, where perhaps a boy was set to watch the stock. Pigs were let loose in the woods to eat whatever they found, and often cows were also simply allowed to wander. Another chore for a child would be to go find the cow and bring her home for milking.
As a locality became more settled, these roaming animals became a nuisance, and were dealt with through regulations.
Without looking it up, I have long thought that “cattle” derived from “chattel,” with the general meaning of livestock that also included slaves.
In deeds one sometimes finds chattel mortgages, as well as in Town Records in New York (and perhaps elsewhere). Where itemized, one might find cows and sheep and pigs mentioned in the same document.
One can also find them in the occasional estate inventory which may not itemize what they were. I do not know whether geese and chickens were included in this category.
The etymology for cattle is “mid-13c., “property,” from Anglo-French catel “property” (Old North French catel, Old French chatel), from Medieval Latin capitale “property, stock,” noun use of neuter of Latin adjective capitalis “principal, chief” (see capital (n.1)). Compare sense development of fee, pecuniary. Sense originally was of movable property, especially livestock; it began to be limited to “cows and bulls” from late 16c.” (Online Etymology Dictionary, accessed 8 Jan 2015.) The same source says, for chattel, “early 13c., chatel “property, goods,” from Old French chatel “chattels, goods, wealth, possessions, property; profit; cattle,” from Late Latin capitale “property” (see cattle, which is the Old North French form of the same word). Application to slaves (1640s) is a rhetorical figure of abolitionists, etc.” So it looks like you’re right.