Life, Law and Taxes

The function of today’s juror is to serve as a “finder of fact.” The duty of the judge is to know the law and apply it to the facts found by the jury. The jury system is not a new concept.

It existed in medieval times, although it functioned in a different way than it does now. But jurors remain the “finders of fact.” In those early times there often was no written law on a particular subject, so the judgment of a court often depended on the application of “local custom” as legal precedent.



The following is an example taken from a first-year class in law school. Assume that Fred is hunting for deer with his bow and arrow. The land on which Fred is hunting is owned by the lord of the manor – not by Fred.

Fred spots a deer and shoots it with an arrow. The deer runs over the top of a hill and momentarily disappears. Fred follows and upon reaching the top of the hill is sees the deer lying on the ground with Bill standing over the deer with a bow in his hand.

A dispute follows with both claiming ownership of the deer which was killed in the lord’s land. Who is entitled to the deer? In early feudal times, the case would probably be tried in the manorial court (the lowest court), since the lord was the owner of the manor where the deer was killed, and the dispute developed. Jurors would be selected from the community who were considered qualified to serve, even though they had knowledge of the facts before the trial.

Let us say that the medieval jury found the following facts: Fred first shot the deer, and that Bill later shot the deer while it was out of sight of Fred. If there was no written law on the subject, the judge of the manorial court would apply “custom” in deciding the case. Custom would have the force of law.

By using custom, the court would find that “ferae naturae” was a Latin term meaning “wild by nature” or to any animal “that is not considered domesticated by law.” Custom also provided that a deer is wild by nature and therefore not owned by anyone; therefore, a person could only obtain a property interest in such an animal by capturing it. The fact that Fred lost sight of the animal, and it was in Bill’s possession when Fred reached the top of the hill with Bill’s arrow in it, would cause the manorial court to apply to custom and declare that the animal belonged to Bill – not Fred.

The doctrine of ferae naturae remains in effect today but is limited in its application. The usual argument today is presented by landowners who argue that they are not responsible for injuries caused by “animals of a wild nature or disposition.” This can be very important to a landowner since in some jurisdictions the possessor of a ferae naturae is “presumed negligent” when ferae naturae causes harm.

This is not the rule in Texas unless certain conditions exist such as if the animal was in the landowner’s possession, or the landowner has attracted the animal to the property or the landowner was aware of an unreasonable risk and fails to warn or mitigate the danger. Banker Phares is a practicing attorney and founding member of the Estate Planning and Probate Law certification by the Texas Board of Legal Specialization. He maintains offices in Beaumont and Nacogdoches.

He writes these articles as a public service..