Bees-at-Law

1

Use to Us

A1 Classification

In order to understand many of the points that are made in the discussion of the cases and the reason for the respective decisions, it is essential to grasp the importance of the relative classification of animals. It is unnecessary to understand every legal nicety and nuance, indeed who does be he the lawyer or the judge. However it is necessary to consider the underlying principles that are analysed. Although this analysis will avoid getting involved in issues about abstract bees and abstruse legalese, it will examine in some detail how the law impinges on the natural beauty of our bees and the interaction of bee-keepers with their neighbours. That will extend to a range of victims who could be other people and animals. The range is so wide such victims could include other bee-keepers and opportunistic burglars.

Although it is rare, given the effect of viruses that currently affect bees and the value of a handful of hives, now the bee-keeper and the burglar could even be the same one. At least that is the belief of Amanda Clayton who lost four ‘irreplaceable’ queens and 24,000 bees from her home: ‘It has got to be someone who knows about bees, someone who knows how to transport them and handle them because otherwise they would have been stung to death. It has to be another beekeeper, which breaks my heart to say. I think someone has had their eye on them, there were pounds of honey ready to harvest, and whoever stole them won’t have to do much work.’ [See: The Times: 5/5/17]

While such acts are now on the increase around the world the burglar only commits a crime because the bees were not wild. Stealing tame bees is theft simply because they are owned by a human. When they are liberated they live outside the law. Bees are then free to fly and forage until they are claimed by a new owner or reclaimed by the old one.

Bees are seen by us through the narrow vision of the law as lacking sentience and hence accepted to be merely living ‘things’, just chattels. As animals are legally classified as our ‘property’, the discussion by jurists and judges usually revolves around that status. To that end there are two categories which are commonly used and relied upon in the various cases throughout all common law countries namely:

1. Ferae naturae which are wild animals; and

2. Domitae naturae which are domesticated animals.

This classification stems from the mists of memory that is steeped in Greek philosophy and Roman law plus the judicial patina of English common law. Although in historical terms it is ancient, the classification is still relevant for our purpose and legal system. For it has been used in the past and at present and will continue to be in the future.

Those categories are part of the sinews of our law. As a corollary the courts decide who is liable and which one is a victim according to which category governs the respective animal. The terms have nothing to do with how ferocious or vicious or tame an animal is or might become, but depends upon this precise historical position:

The keeper of an animal was liable without proof of any ‘fault’ by him in given circumstances. That was dependent upon and subject to one of two polar positions namely that the animal that had caused the injury to a person or their property was either one that was:

(a) within the class of wild animals, ferae naturae ; or

(b) a tame animal, domitae naturae , with a vicious propensity that was known to the owner.

The importance of that distinction can be gleaned from the result which depends upon the category relating to the respective animal. Where wild animals were concerned the liability was based on a scienter [‘knowingly’] action as the knowledge of the keeper was ‘presumed’ as a matter of law. Therefore regardless of any fault on his part he was deemed to be ‘strictly’ liable. If a person kept a bear or a bonobo which escaped and caused damage or injury he would already ‘know’ – or ought to have known – that such an animal was likely to do so.

Where tame animals were concerned the keeper was only liable if he had ‘knowledge’ of his individual animal’s vicious propensity. That meant actual knowledge rather than that presumed by law. It would be gained by him from a previous incident or his own observation as to his animal’s action and reaction around people or other animals.

A2 Scienter

The scienter action created problems as every court had to decide whether an animal belonged to a particular species as a fact and not to the particular animal. So a danger to mankind was the sole criterion of wildness, without any reference to the animal being a danger to other property. In order to have any liability for harm done by animals that were tame, the defendant had to have knowledge of his particular animal’s vicious propensity. Therefore it related to the specific animal if he was tame.

Numerous other problems developed over the years which caused a lack of certainty in court decisions as it was unclear when liability would follow after an injury to a person or damage to property. It was uncertain whether it related to an attack by an animal or by an escape or an injury caused by an animal’s natural propensity to defend his territory or himself.

Bees were in a peculiar category as though they were not usually classified as being ‘wild’ animals nevertheless they were not as ‘domesticated’ as the family cat or dog or horse. Lawyers would understandably try to label them as wild as it would mean the keeper was liable whether or not he was negligent. Thus to counteract the potential bias towards the bees, many of the judges interpreted the facts of a case favourably to the bee-keeper.

As a result a court would sometimes take account of that position knowing that otherwise the owner would be liable for any kind of injury if the scienter concept was applied to the action. It can be seen in the judgment of Parsons v. Manser [1903] 119 Iowa 88 where a team of horses hitched to a post close to the bee-keeper’s property were alleged to have been attacked by the bees occupying the hives on Manser’s property. Applying the principle with a cautious positive view in favour of the bee-keeper, the court initially observed that:

‘Bees may not be confined like the wild beasts. To roam seems to be necessary to their existence. They fly great distances, and if interfered with, or their course obstructed, are likely to resent by the use of their only available weapon...bees, while generally classed as ferae naturae, are so useful and common as to be all but domesticated. Keepers of the apiary have carefully studied their habits and instincts and control them as certainly as domestic animals.’ [See: G8]

There the court was departing from the normal rule which had classified bees as wild animals. Had that rule been applied it would mean that liability would follow on a ‘strict’ basis. In Parsons v. Manser the court made an observation that was used in previous cases and has since become commonplace throughout many judgments: bees are equally ‘useful’ to society and us. Then and thereafter the courts have constantly distinguished that feature as being favourable for the owner particularly in the absence of negligence or other fault on his part.

In contrast if an animal was deemed to be ‘useless’ to us, it was considered by the courts to be of less value to society. A dangerous animal was then interpreted to be toxic to people. Consequently declaring the status of such animals as ‘wild’ was more natural for the courts. Then the owner’s liability would follow and flow too due to his ‘presumed’ knowledge via the application of the concept of scienter. Hence when the animal was legally branded as wild the owner’s liability would evolve from that obstacle unless he could establish a defence.

Some foolish bee-keepers are heard to boast how they have bred or possess ‘fierce’ bees. Their boast is borne of a self-engendered belief that fierce bees gather more honey. Whether that claim is true or false is immaterial, for the fact that they have that belief could lead to a liability if the fierceness is exhibited when their bees attack a person or his property. Their boast could be the equivalent of ‘knowledge’ which would then aid any action against them while defeating their defence. An injured person could use that knowledge as evidence. His boast would serve to underline his liability and undermine his potential defence. [See: D3]

Bragging about bees can lead to an unwitting admission of guilt. Even an unguarded explanation of their bees’ propensity to sting can have the same result.

In that context it is salutary to note the word of one who knows about bees and their nature. Professor Lars Chittka, a renowned expert, explained the spatial vision and foraging disposition of wandering bees as they travelled from flower to flower. In his useful tests he found them to be ‘very intelligent’ and concluded that ‘bees are vegetarian and so peaceful.’ [See: BBC R2: 24/4/17]

Perhaps the peripatetic Professor J. R. R. Tolkien had bees in mind when he made his delightful insightful observation in Lord of the Rings that ‘all who wander are not lost...’

A3 Ploughing

Bees and horses do not mix. Such a position is now so well-known it is almost a classic form of an anticipated incident. It could even be an example of ‘judicial notice’ and so accepted as a matter of common knowledge. Where horses are concerned we have learned that they make a bee-line for them as animal instinct meets animal magnetism.

In that vein a jury found in favour of a farmer against a bee-keeper in Ammons v. Kellogg [1925] 137 Miss 551. Ammons, the farmer, sued the bee-keeper for the value of his horses which were stung and killed by Kellogg’s bees. Kellogg had over 80 hives upon the elevated embankment of a drainage canal that ran through certain lands on which Ammons was a tenant. A swarm of bees came from the direction of the hives and attacked the horses while the farmer and his son were using the horses in ploughing work near the embankment.

The lower court found in favour of the farmer. Kellogg lodged an appeal.

The appeal court acknowledged that because bees were useful to society and were property of value, the rule of absolute liability that was generally applied to liability for injuries inflicted by wild animals was not applicable to them. So the rule applicable to injuries caused by domestic animals would be applied, namely that to be held liable the owner must know of his bees vicious tendencies and such owner is under a reasonable duty to locate the bees in a place where they will not be in contact with persons travelling the roads and similar places.

As it was an appeal the deciding factor was that the farmer and his son had testified that after the bees had stung both of them and their horses, the bee-keeper admitted to them that the bees had stung his own horses on a prior occasion. That meant Kellogg was both aware of their tendency and failed to take any action to control them. Whether they were different bees was immaterial. The fault started and ended with the bee-keeper. It followed that liability did too. So the appeal court confirmed the trial court verdict in favour of Ammons.

That was an example of scienter in action. [See: G2]

A4 Abolition

English law was so complex and chaotic the long-term position was badly in need of reform. Finally in 1963 it was investigated by the Law Commission who prepared a detailed report on the subject and made several important recommendations. Their report, Law Com No 13 on the Civil Liability for Animals was published in 1967. They made many recommendations including that the scienter action should be abolished. Their reasoning relied upon the twin limbs of pragmatism and money: ‘We see a great deal of common sense in the broad distinction which the law makes between dangerous and non-dangerous animals. It does not seem unreasonable that the keeper of a dangerous animal should bear the special risk which is created by keeping it; moreover, it is a risk against which he can more conveniently insure than can the potential victim.’

Their main recommendations were adopted by the government to become the Animals Act 1971 [AA]. While the Law Commission had good intentions, the bad points that filtered through at common law remain to the present day. There is still a complexity in what should be as simple and natural as the ABC of the birds and the bees without undue legalese.

Yet the concept of scienter is still occasionally relied upon by advocates and referred to by the courts, though usually to indicate that it is inapplicable. While that is the rule, an angry victim harmed by an ‘angry’ swarm of bees could still make a claim in certain circumstances such as where the bee-keeper’s knowledge is derived from his bees’ propensity which coincides with their action in a specific incident. His liability would arise because of his failure to learn a lesson and take action to avoid the prior incident happening in the future. A past case against a bee-keeper could be used as ‘evidence’ in a subsequent case to prove the propensity of the bees as well as the knowledge of the keeper and the result of his act or omission. If he failed to remedy the known propensity he would be potentially awaiting a re-occurrence of another or a similar incident.

So though it would be rare, in the case of bees it could apply if they were especially ‘angry’ and arbitrarily attacked people or animals. It would be similar to the owner of a dog that has previously bitten a postman, that past behaviour would alert the owner to take action to protect him and other postmen in the future. Otherwise that knowledge of the first incident would fix the owner’s liability if his dog bit or swarm stung a second time around.

A5 Ownership

The importance of the classification is its effect on legal ownership and liability. For if property is owned by a person then he can take action to protect his rights relating to it. Conversely if his property causes a problem for another person or their property, then he can be liable for any consequent damage.

It is surprising how often bees produce a crop of legal problems that require detailed discussions and analytical advocacy. Usually they concern the problems of identification and ownership of the alleged culprit bees. Then the court has to weigh up the evidence for and against each party’s claim for compensation balanced by a respective denial of liability. Allied to that position an appeal can often create doubt rather than certainty even in the mind of an experienced judge. Even the odd High Court judge has openly expressed concern about the judgment they have delivered. Barton J, during the difficult appeal case of O’Gorman v. O’Gorman [1903] 2 I.R. 573, said ‘This case certainly cannot be represented as a mere case of a man who has been injured in consequence of a sting from a neighbour’s bee. If that was all, there could be no duty and no liability.’ For good measure he concluded his judgment in the same manner: ‘The case is, in my opinion, by no means free from difficulty, and I have arrived at the conclusion that the verdict ought not to be disturbed after much hesitation.’ [See: G4]

In a microscopic manner the ownership of a swarm of bees causes so many problems because when they fly onto another’s person’s land who has the possession and who has the title is in immediate conflict. If the bees are wild the problem is magnified. As long as an animal had an animus revertendi [‘an intention to return’] the original owner retained the proprietary rights. Proving what is in the mind of a bee needs more than a behaviourist. That is why so many judges have been confused by the nature of bees. [See: M2; cf. J15]

Roman Law attempted to resolve the issue with a cautiously ambiguous and meaningless stance that an animal is ‘considered to have lost the intention of returning when they have given up the habit of returning.’ Figuring out what that means has led many judges towards different solutions thereby causing confusion rather than clarity. [See: B2; B5]

A6 Common Law

The main areas that are considered in this book are concerned directly and indirectly with English Law. However many cases from other ‘Common Law’ countries are considered too. The reason is that their legal system is based on our common law. Their jurisprudential principles are similar to ours as they are influenced by English Law which they have then adapted for their own respective jurisdiction.

The common law is an all-embracing term that has evolved after the Norman Conquest in 1066 as a legal system that applies to the whole country as opposed to only affecting local customs. Hence it is ‘common’ to all the people. The Normans did not attempt to make new law for the country or impose French law on the people. They were mainly concerned with establishing a strong central administration and safeguarding the royal revenues. As a result of that approach the machinery of justice enabled the common law to develop.

Royal representatives were sent on tours of the shires to check on the conduct of local affairs generally and this involved them directly participating in the practice and work of local courts. At the same time the curia regis, [the King’s Court] ‘a body of advisers’ surrounding the King set up the first permanent Royal court, the Court of Exchequer. They began sitting at Westminster to hear disputes concerning the revenues. Under Henry II, who reigned during the period 1152-89, the development of common law grew and is principally due to him as his Royal representatives were sent out on a regular basis. Their tours became known as ‘circuits’ and their functions began to be exclusively judicial. They were known as ‘justiciae errantes’ [wandering justices] as they swiftly took over the work of the local courts.

Although the ‘common law’ evolved from precedent to precedent by judge to judge, it has a wider meaning in that it includes (a) the rules of law developed by the court as opposed to those created by statute and (b) the general system of law derived exclusively from court decisions. Perhaps the best description is that tendered by an American judge in his laconic corn-cob down-home fashion, Lemuel Shaw, the Chief Justice of the Supreme Judicial Court of Massachusetts, who said in Norway Plains Company v. Boston and Maine Railroad [1854] 67 Mass (1 Gray) 263:

‘The common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to all circumstances of all the particular cases that fall within it.’

A rare active beauty of the common law can be seen in motion by the bold prescient judgment of Lord Mansfield on slavery when he declared in R. v. Somerset 20 State Howell’s Trials 1 K. B. [1772], ‘The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law...It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England: and therefore the black must be discharged.’ How important that decision was and is can be deduced from the fact it is now used in 2017 in the New York Supreme Court for the ‘rights’ of an animal slave. Three Centuries later Somerset’s Case may yet be the cornerstone of our concerted effort in freeing bees too. [See: T1]

The strength of the common law can be seen from its spread that speaks to its power to shape the future of the world. The common law has been catalytic throughout the world in enabling other countries to adopt and adapt those inherent principles for the protection of their own citizens. That is so even where the country has a written constitution. Those countries that have used the common law as their democratic model include America, Australia, Canada, India, Jamaica, New Zealand, South Africa and the Virgin Islands.

In The Origins of Reasonable Doubt [2008] Professor James Whitman has identified the theological base of our common law: ‘English law put all of the moral burden on the witness and the accuser – which is to say, in effect, that it put all the moral burden on the jury...The theological drama of the common law is the drama of the two judicial actors of jury trial, the judge and the jury.’ That is why the wisest judgments on bees are delivered by the jury rather than a judge.

A7 Persuasive

So the reader does not run away with the idea that the common law is some dusty fusty musty old pile of parchment decaying like the inhabitants in the House of Commons Library, it is worth dwelling on the stark fact that ‘two billion people, or 30 per cent of the world’s population, use English common law.’ [See: The Times: 21/7/16] So although many of the cases cited are not within the United Kingdom, the principles of English Law are generally applied by those courts in their respective jurisdictions. They rely on common law principles as a ‘persuasive’ precedent which they then tend to follow if the evidence and facts are similar. Even if they ‘distinguish’ the case in question from a past common law precedent, they apply a similar reasoning to arrive at their decision.

The advantage of that position is that on a national and international level the cases from other countries can be followed as they are of ‘persuasive’ authority. They can distinguish between the cases if there are differences between them which affect the facts and law. Equally the English courts are referred to cases from other common law countries for the same reason. On a reciprocal level the English courts then derive authority from another country which in turn benefits both countries and the law.

In Ingamells v. Pickford [1966] 9-10/66: Bee Craft, a judge, His Honour Judge Robson Q.C. [HHJ], even complained about the dearth of cases on bees. He could not understand why ‘Those quoted were colonial and useful in their way’ but he ‘could not find any reference to previous English cases.’ Before delivering his judgment HHJ Robson lamented, ‘You see I have nothing to go on.’ [See: O4]

In all of the relevant jurisdictions that deal with cases involving bees, the judges often refer to the position under the common law rather than statute. As a result our common law can directly protect bees from human folly which is more common than common sense. Moreover bee-keepers, providing they act in a careful and prudent way, taking account of their neighbours and other passing strangers, can use the inherent remedies available as a matter of principle in the mechanics of law.

Significantly in one of the greatest Scottish cases by one of the greatest judges that has shaped the colour of English law, Donoghue v. Stevenson, the debt to the advanced principle that was already practised in America was acknowledged by Lord Atkin: ‘It is always a satisfaction to an English lawyer to be able to test his application of fundamental principles of the common law by the development of the same doctrines by the lawyers of the Courts of the United States.’ [See: F1]

A8 Utility

Everything to do with bees and liability depends on who is to blame and who is to escape. For the fact that someone has been injured by bees does not lead to an immediate claim. As often the one who is injured is the one who is at fault. Then it would be illogical and wrong to award compensation to the one who was culpable for causing his own hurt.

A strict application of the law is rarely valid when applied to bees as it could create an injustice. A balance has to be achieved between each claim so blame is not heaped upon the voiceless bees and the conscientious bee-keeper. That was exemplified by the leading case of Earl v. Van Alstine [1850] NY 8 Barb 630 where the judge, Selden J, in the New York Supreme Court relied upon the common law to decide a case in favour of the bee-keeper. Earl was successful partly because ‘The utility of bees no one will question, and hence there is nothing to call for the application of a very stringent rule to the case.’ He added with a biased truth in favour of the bee-keeper, ‘I would observe that however it may have been anciently, in modern days the bee has become almost as completely domesticated as the ox or the cow.’ Though it is over 150 years old that sound judgment still stands amid the shifting sand of culture and custom, national and international. [See: G2]

Karl von Frisch, the Austrian biologist, proved that fish can hear sounds the other side of a wall. His experiments were based on his deliberate action in removing the eyes of and blinding a catfish. The purblind experimenter also discovered the dance language of honeybees. [See: The Bee Battles: Journal of the History of Biology: [2005] 38: 535-70] Bees may hear such sounds no less than fish. Then they could be ready and able to meet any unwelcome visitors and ensure they make a hasty retreat from the home of their owners. Their calculating action includes seeing off a pair of bungling burglars. [See: E3]

A9 Category

Bees should not be seen as being in some neat category that simply serves our selfish needs. In Stormer v. Ingram [1987] 21 S.A.S.R. 93, a far-reaching case in the Australian Supreme Court, the judge, Legoe J, held a strong view in favour of bees and their keepers:

‘It would be contrary to nature and reason to hold that apis mellifera [the black bee] is a wild animal in South Australia...Legislation imposes licensing fees on beekeepers when housing apis mellifera in box hives, and imposes other controls. The imposition of absolute liability without proof of negligence for the damage or harm done is not justified...

I hold that apis mellifera is not an animal fera naturae in South Australia, nor can the scienter principle apply...’

Legoe J analysed the history of bees from the Greeks onwards. He cited case-after-case from America, Canada, England, Ireland and New Zealand. His conclusion is borne of a quiet sapience that coincides with experience and law and nature. [See: O8]

Consequently the judgment of Legoe J should be followed by others in authority as well as in court when considering the behaviour of bees and the conduct of their keepers. His examination of the fundamental principles applying to each one, bee and keeper and neighbour, is a master class in analysing law as a living instrument.

A10 Extinction

The influence of the common law is so wide it echoes to and through other jurisdictions in their categorisation and consequent treatment of animals. In State v. Bartree [1994] 894 S. W. 2d 34 the judge, Onion J, in the Texas Court of Appeal considered the position of animals within society. He was cognisant of how we deem wild animals as our property throughout Roman law and Salic law and the Napoleonic Code. He related how the history has affected the formation of a young country having broken free from its oppressor:

‘The common law of England also based property in game upon the principle of common ownership, and therefore treated it as subject to governmental authority.

Unqualified property rights in wild animals can arise when they are legally removed from their natural liberty and made the subjects of man’s dominion. This qualified right is lost, however, if the animal regains its natural liberty.’

Near the end of the 20th Century the point raised in that passage was presaged by Matthews CJ in the Alaska Supreme Court in McDowell v. State [1989] 785 P. 2d 1. With a remarkable insight into the future of wildlife in general and bees in particular he said, ‘The common right, which one individual of the whole community is entitled to enjoy as much as another, cannot be made by law the exclusive privilege of the people of a certain class or section upon terms and conditions that do not apply to the whole people alike.

These rights were confirmed and established ever thereafter in England by Acts of Parliament, and they have come down to us from the laws of England and may be regarded as a common heritage of the English-speaking people. The only justification for a law regulating and restricting the common right of individuals to take wild game and fish is the necessity for protecting the same from extinction, and thus to preserve and perpetuate to the individual members of the community the inalienable rights which they have had from time immemorial.’

There is a defined wryness to that plea to protect bees from extinction when in May 2017 the bee-keepers in Nova Scotia were concerned about being extinguished following a government decision to import honey bee colonies from Ontario, another area of Canada with small hive beetles. Nova Scotian bee-keepers are concerned lest the invasion affects the future of their bees. The politicians justify the move by saying it is a ‘business decision’. [See: Bee Culture: 3/5/17]

At the start of the 21st Century we know the ecological and legal problem and the solution. A sharp sense of perspective is gained by our knowledge that we alone have created the growing problem of an endangered species. Within that self-engendered problem we are in danger of failing to use the law to save bees from extinction. Ignoring a problem we know exists will only serve to prove we are blinded by our own myopia. [See: T1]

2

Bee History

B1 Language

The history and mystery of bees was considered by the late great Buddy Holly in Think It Over. While Buddy was making a teenage plea to be saved from love’s misery, the ageless sentiment also applies to that timeless legal mystery.

That is why our judges have time