the criminal prosecution and capital punishment of animals by e.p.evans (1906)

8/22/2019 The Criminal Prosecution and Capital Punishment of Animals by E.P.evans (1906)

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THE CRIMINAL PROSECUTIONAND CAPITAL PUNISHMENTOF ANIMALS


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THE CRIMINAL PROSECUTIONAND CAPITAL PUNISHMENT

OF ANIMALSBy E. p. EVANS

AUTHOR OF" ANIMAL SYMBOLISM IN ECCLESIASTICAL ARCHITECTURE,"

' EVOLUTIONAL ETHICS AND ANIMAL PSYCHOLOGY," ETC., ETC.

NEW YORKE. P. BUTTON AND COMPANY


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CONTENTSINTRODUCTION

SourcesAmira's distinction between retributive and pre-ventive processesAddosio's incorrect designation of thelatter as civil suitsInconsistent attitude of the Churchin excommunicating animalsCausal relation of crimeto demoniacal possessionSquatter sovereignty of devilsAura corrumpensDiabolical infestation and lackof ventilation" Bewitched kine " Greek furies andChristian demonsHomicidal bees, laying cocks andcrowing hensTheory of the personification of animalsBeasts in Frankish, Welsh, and old German lawsAnimal prosecutions and witchcraftThe Mosaic codein Christian courtsPagan deities as demonsBornmalefactors among beastsThe theory of punishmentin modern criminology ... ... p. i

CHAPTER IBUGS AND BEASTS BEFORE THE LAW

Criminal prosecution of ratsChassenee appointed to defendthemReport of the trialChassenee employed ascounsel in other cases of this kindHis dissertation onthe subjectNature of his argument Authorities andprecedentsThe withering of the fig-tree at Bethanyjustified and explained by Dr. TrenchEels and blood-suckers in Lake Leman cursed by the Bishop ofLausanne with the approval of Heidelberg theologiansWhite bread turned black, and swallows, fish, and flies


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vi Contentsdestroyed by anathemaSt. Pirminius expels reptilesVermifugal efficacy of St. Magnus' crosierPapalexecratoriesAnimals regarded by the law as laypersons, and not entitled to benefit of clergyMethodsof procedureJurisdiction of the courtsRecords ofjudicial proceedings against insectsImportant trial ofweevils at St. Jean-de-Maurienne extending over morethan eight monthsUntenableness of Menebr&'s theorySummary of the pleadingsFutile attempts at com-promiseFinal decision doubtfulSt. Eldrad and thesnakesViews of Thomas AquinasDistinction be-tween excommunication and anathema" Sweet beastsand stenchy beasts ''Animals as incarnations of devilsTheir diabolical character assumed in papal formulafor blessing water to kill verminAmusing treatise byPfere Bougeant on this subjectAll animals animated bydevils, and all pagans and unbaptized persons possessedwith themDemons the real causes of diseasesFather Lohbauer's prescription in such casesFormulaof exorcism issued by Leo XIII.Recent instances ofdemoniacal possessionHoppe's psychological explana-tion of themCharcot on faith-curesWhy not the dutyof the Catholic Church to inculcate kindness to animalsZoolatry a form of demonolatryGnats especiallydangerous devilsBodelschwingh's discovery of thebacillus infernalisGaspard Bailly's disquisition withspecimens of plaints, pleas, etc.Ayrault protests againstsuch proceedingsHenimerlein's treatise on exorcismsCriminal prosecution of field-miceVermin excom-municated by the Bishop of LausanneProtocol ofjudicial proceedings against caterpillarsConjurers ofcabbage-wormsSwallows proscribed by a ProtestantparsonCustom of writing letters of advice to ratsWrits of ejectment served on themRhyming ratsin IrelandAncient usage mentioned by KassianosBassosCapital punishment of larger quadrupedsBerriat- Saint-Prix's Reports and ResearchesList ofculpritsBeasts burned and buried alive and put to therackSwine executed for infanticideBaill/s bill ofexpensesAn ox decapitated for its demeritsPunish-ment of buggeryCohabitation of a Christian with aJewess declared to be sodomyTrial of a sow and sixsucklings for murderBull sent to the gallows forkilling a ladA horse condemned to death for homicide


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Contents viiA cock burned at the stake for the unnatural crime oflaying an eggLapeyronie's investigation of the subjectRacine's satire on such prosecutions in Les Plaideurs;Lex talionisTit for tat the law of the primitive manand the savageThe application of this iron rule inHebrew legislationFlesh of a culprit pig not to beeatenAthenian laws for punishing inanimate objectsRecent execution of idols in China Russian bellsentenced to perpetual exile in Siberia for abetting in-surrectionPillory for dogs in ViennaTreatmentprescribed for mad dogs in the AvestaCruelty of lawsof talion and decrees of corruption of bloodExamplesin ancient and modern legislationCicero approves ofsuch penalties for political offences Survival of thisconception of justice in theologyConstitutio CriminalisCarolinaLombroso opposed to trial by jury as a relicof barbarismCorruption of Swiss cantonal courtsDeodand in English lawApplications of it in Mary-land and in ScotlandBlackstone's theory of it untenablePenalties inflicted for suicideAncient legislationon this subjectLegalization of suicideAbolition ofdeodands in England p. i8

CHAPTER IIMEDIEVAL AND MODERN PENOLOGY

Recent change in the spirit of criminal jurisprudenceMediaeval tribunals cut with the executioner's sword theintricate knots which the modern criminalist essays tountiePhlebotomy a panacea in medicine and lawRestless ghosts of criminals who died unpunishedExecution of vampires and were-wolvesCase of a were-wolf who devoured little children " even on FridayPope Stephen VI. brings the corpse of his predecessorto trialMediaeval and modern conceptions of culpa-bilityProblems of psycho-pathological jurisprudenceDegrees of mental vitiationItalians pioneers in thescientific study of criminalityEffects of these specula-tions upon legislationBarbarity of mediseval penaljusticeGradual abolition of judicial tortureCruelsentence pronounced by Carlo Borromeo" Blue Laws "


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viii Contentsa great advance on contemporary English penal 'codesMoral and penal responsibilityAtavism and criminalityPhysical abnormitiesCapacity and symmetry of theskullCircumvolutions of the brainTattooing not apeculiarity of criminals, but simply an indication of lowEesthetic senseTheories of the origin and nature ofcrimeIntelligence not always to be measured by thesize of the encephalonRemarkable exceptions inGambetta, Bichat, Bischoff and Ugo FoscoloAd-vanced criminalists justly dissatisfied with the penalcodes of to-dayMeasures proposed by Lombroso andhis schoolTheir conclusions not sustained by factsCrime through hypnotic suggestionDifficulty of de-fining insanityColeridge's definition too inclusivePredestination and evolutionCriminality among thelower animalsPunishment preventive or retributiveSchopenhauer's doctrine of responsibility for characterRemarkable trial of a Swiss toxicomaniac, MarieJeanneret" Method in Madness " not uncommonSocial safety the supreme lawApplication of thisprinciple to " Cranks "Spirit of imitation peculiarlystrong in such classes Contagiousness of crimeCriminology now in a period of transition ... p. 193

APPENDIXA. De Actis Scindicorum Communitatis Sancti JuUianiagentium contra Animalia Bruta ad formam mus-carum volantia coloris viridis communi voce appellataVerpillions seu Amblevins p. 259B. Traite des Monitoires avec un Plaidoyer centre lesInsectes par Spectable Gaspard Bailly ... p. 287C. Allegation, Replication, and Judgment in the processagainst field-mice at Stelvio in 1 519 p. 307D. Admonition, Denunciation, and Citation of the Inger bythe Priest Bernhard Schmid in the name and by theauthority of the Bishop of Lausanne in 1478 p. 309E. Decree of Augustus, Duke of Saxony and Elector, com-mending the action of Parson Greysser in putting thesparrows under ban, issued at Dresden in 1559 ^.311


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Contents ixF. Chronological List of Excommunications and Prose-cutions of Animals from the ninth to the nineteenthcentury p, 313G. Receipt, dated January 9, 1386, in which the hangmanof Falaise acknowledges to have been paid by theViscount of Falaise ten sous and ten deniers toumoisfor the execution of an infanticidal sow, and also tensous tournois for a new glove / 335H. Receipt, dated September 24, 1394, in which JehanMicton acknowledges that he received the sum of fifty

sous tournois from Thomas de Juvigney, Viscount ofMortaing, for having hanged a pig, which had killed andmurdered a child in the parish of Roumaygne p. 336I. Attestation of Symon de Baudemont, Lieutenant of the

Bailiff of Nantes and Meullant, made by order of thesaid bailiff and the king's proctor, on March 15, 1403,and certifying to the expenses incurred in executing asow that had devoured a small child p. 338J. Receipt, dated October 16, 1408, and signed by ToustainPincheon, jailer of the royal prisons in the town ofPont de Larche, acknowledging the payment of nine-teen sous and six deniers toumois for food furnished tosundry men and to one pig kept in the said prisons oncharge of crime A 34K. Letters Patent, by which Philip the Bold, Duke ofBurgundy, on September 12, 1379, granted the petitionof the Friar Humbert de Poutiers, Prior of the townof Saint-Marcel-lez-Jussey, and pardoned two herds of

swine, which had been condemned to suffer the extremepenalty of the law as accomplices in an infanticidecommitted by three sows / 342L. Sentence pronounced by the Mayor of Loens de Chartreson the i2th of September, 1606, condemning GuillaumeGuyart to be hanged and burned together with abitch... ... ... ... ... ... ... ^.344M. Sentence pronounced by the Judge of Savigny inJanuary, 1457, condemning to death an infanticidal

sow. Also the sentence of confiscation pronouncednearly a month later on the six pigs of the said sowfor complicity in her crime p. 346


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ContentsN. Sentence pronounced, April i8, 1499, in a criminal

prosecution instituted before the Bailiff of the Abbeyof Josaphat, in the Commune of Sfeves, near Chartres,against a pig condemned to be hanged for having killedan infant. In this case the owners of the pig werefined eighteen francs for negligence, because the childwas their fosterling i^- 352

O. Sentence pronounced, June 14, 1494, by the GrandMayor of the church and monastery of St. Martin deLaon, condemning a pig to be hanged and strangledfor infanticide committed on the fee-farm of Clermont-lez-Montcomet p. 354

P. Sentence pronounced, March 27, 1567, by the RoyalNotary and Proctor of the Bailiwick and Bench of theCourt of Judicatory of Senlis, condemning a sow witha black snout to be hanged for her cruelty and ferocityin murdering a girl of four months, and forbidding theinhabitants of the said seignioralty to let such beastsrun at large on penalty of an arbitrary fine ... p. 356

Q. Sentence of death pronounced upon a bull, May 16, 1499,by the Bailiff of the Abbey of Beauprd, for furiouslykilling Lucas Dupont, a young man of fourteen orfifteen years of age / 3S8

R. Scene from Racine's comedy Les Plaideurs, in which adog is tried and condemned to the galleys for stealinga capon J>. 360S. Record of the decision of the Law Faculty of theUniversity of Leipsic condemning a cow to death forhaving killed a woman at Machern near Leipsic, July

20, 1621 p. 361Bibliography p. 362Index p. 373


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THE CRIMINAL PROSECUTION ANDCAPITAL PUNISHMENT OF ANIMALS

INTRODUCTIONThe present volume is the result of the revision

and expansion of two essays entitled " Bugs andBeasts before the Law," and " Modern andMediaeval Punishment," which appeared inThe Atlantic Monthly, in August and Sep-tember 1884. Since that date the author hascollected a vast amount of additional materialon the subject, which has also been discussedby other writers in several publications, themost noteworthy of which are Professor Karlvon Amira's Thierstrafen und Thierprocesse(Innsbruck, 1891), Carlo d'Addosio's BestieDelinquenti (Napoli, 1892), and G. Tobler'sThierprocesse in der Schweis (Bern, 1893),but in none of these works, except the first-mentioned, are there any important statementsof facts or citations of cases in addition to thoseadduced in the essays already mentioned, forwhich the writer was indebted chiefly to the

I


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The Criminal Prosecution andextensive and exceedingly valuable researchesof Berriat-Saint-Prix and M. L. Menebr6a, andthe Consilium Primum of Bartholomew Chas-senee, cited in the appended bibliography.Professor Von Amira is a very distinguishedand remarkably keen-sighted jurisprudent andtreats the matter exclusively from a jurispru-dential point of view, his main object being todiscover some general principle on which toexplain these strange phenomena, and thus toassign to them their proper place and truesignificance in the historical evolution of the ideaof justice and the methods of attaining it bylegal procedure.Von Amira draws a sharp line of technical

distinction between Thierstrafen and Thierpro-cesse; the former were capital punishments in-flicted by secular tribunals upon pigs, cows,horses, and other domestic animals as a penaltyfor homicide ; the latter were judicial proceedingsinstituted by ecclesiastical courts against rats,mice, locusts, weevils, and other vermin in orderto prevent them from devouring the crops, and toexpel them from orchards, vineyards, and culti-vated fields by means of exorcism and excom-munication. Animals, which were in the serviceof man, could be arrested, tried, convicted andexecuted, like any other members of his house-hold ; it was, therefore, not necessary to summonthem to appear in court at a specified time toanswer for their conduct, and thus make them,


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Capital Punishment of Animals 3in the strict sense of the term, a party to theprosecution, for the sheriff had already takenthem in charge and consigned them to thecustody of the jailer. Insects and rodents, onthe other hand, which were not subject to humancontrol and could not be seized and imprisonedby the civil authorities, demanded the interven-tion of the Church and the exercise of its super-natural functions for the purpose of compellingthem to desist from their devastations and toretire from all places devoted to the productionof human sustenance. The only feasible methodof staying the ravages of these swarms of noxiouscreatures was to resort to " metaphysical aid "and to expel or exterminate them by sacerdotalconjuring and cursing. The fact that it wascustomary to catch several specimens of theculprits and bring them before the seat ofjustice, and there solemnly put them to deathwhile the anathema was being pronounced,proves that this summary manner of dealingwould have been applied to the whole of them,had it been possible to do so. Indeed, theattempt was sometimes made to get rid of themby setting a price on their heads, as was the casewith the plague of locusts at Rome in 880, whena reward was offered for their extermination, butall efforts in this direction proving futile, onaccount of the rapidity with which they propa-gated, recourse was had to exorcisms and be-sprinklings with holy water.


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4 The Criminal Prosecution andD'Addosio speaks of the actions brought

against domestic animals for homicide as penalprosecutions, and those instituted against insectsand vermin for injury done to the fruits of thefield as civil suits (processi civili) ; but the latterdesignation is not correct in any proper sense ofthe term, since these actions were not suits torecover for damages to property, but had solelya preventive or prohibitive character. Thejudicial process was preliminary to the utteranceof the malediction and essential to its efficacy.Before fulminating an excommunication thewhole machinery of justice was put in motionin order to establish the guilt of the accused,who were then warned, admonished, and threat-ened, and, in cases of obduracy, smitten withthe anathema maranatha and devoted to utterdestruction. As with all bans, charms, exorcisms,incantations, and other magical hocus-pocus, theomission of any formality would vitiate thewhole procedure, and, by breaking the spell,deprive the imprecation or interdiction of itsoccult virtue. Ecclesiastical thunder would thusbe robbed of its fatal bolt and reduced to mereempty noise, the harmless explosion of a blankcartridge.The Church was not wholly consistent in itsexplanations of these phenomena. In general

the swarms of devouring insects and other noxi-ous vermin are assumed to have been sent atthe instigation of Satan (instigante sathana, per


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Capital Punishment of Animals 5maleficium diabolicum), and are denounced anddeprecated as snares of the devil and his satel-lites {diaboli et ministrorum insidias) ; againthey are treated as creatures of God and agentsof the Almighty for the punishment of sinfulman ; from this latter point of view every effortto exterminate them by natural means would beregarded as a sort of sacrilege, an impiousattempt to war upon the Supreme Being and towithstand His designs. In either case, whetherthey were the emissaries of a wicked demonor of a wrathful Deity, the only proper and per-missible way of relief was through the officesof the Church, whose bishops and other clergywere empowered to perform the adjurations andmaledictions or to prescribe the penances andpropitiations necessary to produce this result. Ifthe insects were instruments of the devil, theymight be driven into the sea or banished to somearid region, where they would all miserablyperish; if, on the other hand, they were recog-nized as the ministers of God, divinely delegatedto scourge mankind for the promotion of piety, itwould be suitable, after they had fulfilled theirmission, to cause them to withdraw from thecultivated fields and to assign them a spot,where they might live in comfort without injuryto the inhabitants. The records contain in-stances of both kinds of treatment.

It was also as a protection against evil spiritsthat the penalty of death was inflicted upon


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6 The Criminal Prosecution anddomestic animals. A homicidal pig or bull wasnot necessarily assumed to be the incarnation ofa demon, although it was maintained by eminentauthorities, as we have shown in the presentwork, that all beasts and birds, as well as creep-ing things, were devils in disguise ; but the homi-cide, if it were permitted to go unpunished, wassupposed to furnish occasion for the interventionof devils, who were thereby enabled to take pos-session of both persons and places. This beliefwas prevalent in the Middle Ages, and is stilltaught by the Catholic Church. In a littlevolume entitled Die Verwaltung des Exorcistatsnach Massgabe der romischen Benediktionale,of which a revised and enlarged edition waspublished at Stuttgart in 1893 for the use ofpriests as a manual of instruction in performingexorcisms, it is expressly stated by the reverendauthor. Dr. Theobald Bischofberger, that aspot, where a murder or other heinous crime hasbeen committed, if the said crime remains unde-tected or unexpiated, is sure to be infested bydemons, and that the inmates of a house orother building erected upon such a site will bepeculiarly liable to diabolical possession, how-ever innocent they may be personally. Indeed,the more pure and pious they are, the greaterwill be the efforts of the demons to enter intoand annoy them. Not only human beings, butalso all cattle after their kind, and even thefowls of the barnyard are subject to infernal


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Capital Punishment of Animals 7vexations of this sort. The infestation thus pro-duced may continue for centuries, and, althoughthe property may pass by purchase or inheritanceinto other hands and be held successively by anynumber of rightful owners, the demons remainin possession unaffected by legal conveyances.If each proprietor imagines he has an exclusivetitle to the estate, he reckons without the hostof devils, who exercise there the right of squattersovereignty and can be expelled only by sacer-dotal authority. Dr. Bischofberger goes so faras to affirm that it behoves the purchaser of apiece of land to make sure that it is unen-cumbered by devils as well as by debts, other-wise he may have to suffer more from a demoniaclien than from a dead pledge or any other formof obligation in law. Information concerningthe latter can be obtained at the registry ofdeeds, but it is far more difficult to ascertainwhether the infernal powers have any claimsupon it, since this knowledge can be derived onlyinferentially and indirectly from inquiries intothe character of the proprietors for many genera-tions and must always rest upon presumptiveevidence rather than positive proof. Our authordoes not hesitate to assert that houses whichhave been the abodes of pious people from timeimmemorial ought to have a higher market valuethan the habitations of notoriously wickedfamilies. It is thus shown that " godliness isprofitable " not only " unto all things," but also.


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8 The Criminal Prosecution andas mediaeval writers were wont to say, unto somethings besides, wliich the apostle Paul in hisadmonitions to his "son Timothy" neverdreamed of. We, are also told that the auracorrumpens resulting from diabolical infesta-tion imparts to the dwelling a peculiar taint,which it often retains for a long time after thedemons have been cast out, so that sensitivepersons cannot enter such a domicile withoutgetting nervously excited, slightly dizzy and allin a tremble. The carnal mind, which is atenmity with all supernatural explanations atnatural phenomena, would seek the source ofsuch sensations in an aura corrumpens arisingfrom the lack of proper ventilation, and findrelief by simply opening the windows instead ofcalling in a priest with aspergills, and censers,and benedictiones locorum.We have a striking illustration of this truthin the frequent cases of " bewitched kine."European peasants often confine their cattle installs so small and low that the beasts have notsufficient air to breathe. The result is that ashort time after the stalls are closed for the nightthe cattle get excited and begin to fret and fumeand stamp, and are found in the morning weakand exhausted and covered with sweat. Thepeasant attributes these phenomena to witchcraft,and calls in an exorcist, who proceeds to expelthe evil spirits. Before performing the ceremonyof conjuration, he opens the doors and windows


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Capital Punishment of Animals 9and the admission of fresh air makes it quiteeasy to cast out the demons. A German veter-inarian, who reports several instances of thiskind, tried in vain to convince the peasants thatthe trouble was due, not to sorcery, but to theabsence of proper sanatory conditions, andfinally, in despair of accomplishing his purposein any other way, told them that if the windowswere left open so that the witches could go inand out freely, the demons would not enter intothe cattle. This advice was followed and themalign influence ceased.The ancient Greeks held that a murder,

whether committed by a man, a beast, or aninanimate object, unless properly expiated,would arouse the furies and bring pestilenceupon the land; the mediaeval Church taught thesame doctrine, and only substituted the demonsof Christian theology for the furies of classicalmythology. As early as 864, the Council ofWorms decreed that bees, which had caused thedeath of a human being by stinging him, shouldbe forthwith suffocated in the hive before theycould make any more honey, otherwise the entirecontents of the hive would become demoniac-ally tainted and thus rendered unfit for use asfood; it was declared to be unclean, and thisdeclaration of impurity implied a liability todiabolical possession on the part of those who,like Achan, "transgressed in the thing ac-cursed." It was the same horror of aiding and


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lo The Criminal Prosecution andibetting demons and enabling them to extend;heir power over mankind that caused a cock,ivhich was suspected of having laid the so-called' basilisk-egg," or a hen, addicted to thejminous habit of crowing, to be summarily put:o death, since it was only by such expiation thathe evil could be averted.A Swiss jurist, Eduard Osenbriiggen (Studien',ur deutschen und schweizerischen Rechtsges--.hichte. Schaffhausen, 1868, p. 139-149), en-leavours to explain these judicial proceedings)n the theory of the personification of animals.\s only a human being can commit crime andhus render himself liable to punishment, he;oncludes that it is only by an act of personifica-ion that the brute can be placed in the sameategory as man and become subject to the same)enalties. In support of this view he refers tohe fact that in ancient and mediaeval timeslomestic animals were regarded as members ofhe household and entitled to the same legal)rotection as human vassals. In the Prankishapitularies all beasts of burden or so-calleduments were included in the king's ban andnjoyed the peace guaranteed by royal author-ty : Ut jumenta pacem habent similiter perlannum regis. The weregild extended to thems it did to women and serfs under cover of thenan as master of the house and lord of the(lanor. The beste covert, to use the old legalhraseology, was thus invested with human


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Capital Punishment of Animals 1rights and inferentially endowed with humanresponsibilities. According to old Welsh lawatonement was made for killing a cat or dogbelonging to another person by suspending theanimal by the tail so that its nozzle touched theground, and then pouring wheat over it until itsbody was entirely covered. Old Germanic lawalso recognized the competency of these animalsas witnesses in certain cases, as, for example,when burglary had been committed by night, inthe absence of human testimony, the house-holder was permitted to appear before the courtand make complaint, carrying on his arm a dog,cat or cock, and holding in his hand three strawstaken from the roof as symbols of the house.Symbolism and personification, as applied toanimals and inanimate objects, unquestionablyplayed an important part in primitive legislation,but this principle does not account for the excom-munication and anathematization of noxiousvermin or for the criminal prosecution andcapital punishment of homicidal beasts, nor doesit throw the faintest light upon the origin andpurpose of such proceedings. Osenbriiggen'sstatement that the cock condemned to be burnedat Bale was personified as a heretic (Ketzer) andtherefore sentenced to the stake, is a far-fetchedand wholly fanciful explanation. As we havealready seen, the unfortunate fowl, suspected oflaying an egg in violation of its nature, wasfeared as an abnormal, inauspicious, and there-


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12 The Criminal Prosecution andfore diabolic creature ; the fatal cockatrice, whichwas supposed to issue from this egg whenhatched, and the use which might be made ofits contents for promoting intercourse with evilspirits, caused such a cock to be dreaded as adangerous purveyor to His Satanic Majesty, butno member of the Kohlenberg Court everthought of consigning Chanticleer to the flamesas the peer of Wycliffe or of Huss in heresy.The judicial prosecution of animals, resultingin their excommunication by the Church or theirexecution by the hangman, had its origin in thecommon superstition of the age, which has leftsuch a tragical record of itself in the incrediblyabsurd and atrocious annals of witchcraft. Thesame ancient code that condemned a homicidalox to be stoned, declared that a witch shouldnot be suffered to live, and although the Jewishlawgiver may have regarded the former enact-ment chiefly as a police regulation designed toprotect persons against unruly cattle, it was, likethe decree of death against witches, geneticallyconnected with the Hebrew cult and had there-fore an essentially religious character. It wasthese two paragraphs of the Mosaic law thatChristian tribunals in the Middle Ages werewont to adduce as their authority for prosecut-ing and punishing both classes of delinquents,although in the application of them they wereundoubtedly incited by motives and influencedby fears wholly foreign to the mind of the


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Capital Punishment of Animals 13Levitical legislator. The extension of Christi-anity beyond the boundaries of Judaism and theconversion of Gentile nations led to its gradualbut radical transformation. The propagation ofthe new and aggressive faith among the Greeksand Romans, and especially among the Indo-Ger-manic tribes of Northern Europe, necessarilydeposed, degraded and demonized the ancestraldeities of the proselytes, who were taught hence-forth to abjure the gods of their fathers and todenounce them as devils. Thus missionary zealand success, while saving human souls fromendless perdition, served also to enlarge therealm of the Prince of Darkness and to increasethe number of his subjects and^ satellites. Thenew convert saw them with his mind's eyeskulking about in obscure places, hauntingforest dells and mountain streams by day,approaching human habitations by night andwaiting for opportunities to lure him back to theold worship or to take vengeance upon him forhis recreancy. Every untoward event furnishedan occasion for their intervention, which couldbe averted or repelled only by the benedictions,exorcisms or anathemas of the Church. Theecclesiastical authorities were therefore directlyinterested in encouraging this superstitious beliefas one of the chief sources of their power, and itwas for this reason that diabolical agencies wereassumed to be at work in every maleficent forceof nature and to be incarnate in every noxious


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14 The Criminal Prosecution andcreature. That this docrine is still held and thispolicy still pursued by the bishops and otherclergy of the Roman CaFholic Church, no onefamiliar with the literature of the subject candeny.

Besides the manuals and rituals already cited,consult, for example, Die deutschen Bischofe undder Aberglaube : Eine Denkschrift von Dr. Fr.Heinrich Reusch, Professor of Theology in theUniversity of Bonn, who vigorously protestsagainst the countenance given by the bishops tothe crassest superstitions. For specimens of theliterature condemned by the German professor,but approved by the prelates and the pope, seesuch periodicals as Monat-Rosen su Ehren derUnbefleckten Gottes-Mutter Maria and DerSendbote des gottlichen Herzens Jesu, publishedby Jesuits at Innsbruck in the Tyrol.

It is a curious fact that the most recent andmost radical theories of Juridical punishment,based upon anthropological, sociological andpsychiaterical investigations, would seem toobscure and even to obliterate the line of distinc-tion between man and beast, so far as theircapacity for committing crime and their moralresponsibility for their misdeeds are concerned.According to Lombroso there are i delinquentinati fra gli animali, beasts which are borncriminals and wilfully and wantonly injureothers of their kind, violating with perversityand premeditation the laws of the society in


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Capital Punishment of Aninaals 15which they live. Thus the modern criminologistrecognizes the existence of the kind of malefactorcharacterized by Jocodus Damhouder, a Belgianjurist of the sixteenth century, as bestia laedensex interna malitia; but although he might admitthat the beast perpetrated the deed with maliceaforethought and with the clear consciousness ofwrong-doing, he would never think of bringingsuch a creature to trial or of applying to it theprinciple of retributive justice. This exampleillustrates the radical change which the theory ofpunishment has undergone in recent times andthe far-reaching influence which it is beginningto exert upon penal legislation. In the secondpart of the present work the writer calls attentionto this important revolution in the province ofcriminology, discussing as concisely as possibleits essential features and indicating its generalscope and practical tendencies, so far as theyhave been determined. It must be remembered,however, that, although the savage spirit ofrevenge, that eagerly demands blood for bloodwithout the slightest consideration of the ana-tomical, physiological or psychological con-ditions upon which the commission of the specificact depends, has ceased to be the controllingfactor in the enactment and execution of penalcodes, the new system of jurisprudence, basedupon more enlightened conceptions of humanresponsibility, is still in an inchoate state andvery far from having worked out a satisfactory


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1 6 The Criminal Prosecution andsolution of the intricate problem of the originand nature of crime and its proper penalty.

In 1386, an infanticidal sow was executed inthe old Norman city of Falaise, and the scene wasrepresented in fresco on the west wall of theChurch of the Holy Trinity in that city. Thiscurious painting no longer exists, and, so far ascan be ascertained, has never been engraved. Ithas been frequently and quite fully described bydifferent writers, and the frontispiece of thepresent volume is not a reproduction of theoriginal picture, but a reconstruction of it accord-ing to these descriptions. It is taken fromArthur Mangin's L'Homme et la Bete (Paris,1872), of which all the illustrations are more orless fancy sketches. A full account of the trialand execution is given in the present volume.The iconographic edition of Jocodus Dam-houder's Praxis Rerum Criminalium (Antwerpix,1562) contains at the beginning of each sectionan engraving representing the perpetration ofthe crimes about to be discussed. That at thehead of the chapter entitled " De Damno Pecu-ario " is a lively picture of the injuries done byanimals and rendering them liable to criminalprocess; it is reproduced facing page 161 of thepresent work.The most important documents, from which

our knowledge of these judicial proceedings isderived, are given in the Appendix, together witha complete list of prosecutions and excommunica-


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Capital Punishment of Animals 17tions during the past ten centuries, so far as wehave been able to discover any record of them

.

The bibliography, although making no claimto be exhaustive, comprises the principal workson the subject. Articles and essays, which aremerely a rehash of other publications, it has notbeen deemed necessary to mention. Such, forexample, are " Criminalprocesse gegen Thiere,"in Miscellen aus der neuesten ausldndischenLiteratur (Jena, 1830, LXV. pp. 152-55), Jor-gensen's Nogle Frugter af mil Otium (Kopen-hagen, 1834, PP- 216-23); Cretella's " Gli Ani-mali sotto Processo," in Fanfulla della Domenica(Florence, 1891, No. 65), all three based uponthe archival researches of Berriat-Saint-Prix andM^nabr^a, and Soldan's "La Personificationdes Animaux in Helvetia," in Monatsschrift derStudentenverbindung Helvetia (VII. pp. 4-17),which is a mere restatement of Osenbriiggen'stheory.

In conclusion the author desires to express hissincere thanks to Dr. Laubmann, Director of theMunich Hof- und Staatsbibliothek, as well as tothe other custodians of that library, for theiruniform kindness and courtesy in placing at hisdisposal the printed and manuscript treasurescommitted to their keeping.


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1 8 The Criminal Prosecution and

CHAPTER IBUGS AND BEASTS BEFORE THE LAW

It is said that Bartholomew Chassehee,^ adistinguished French jurist of the sixteenthcentury (born at Issy-l'Ev^que in 1480), madehis reputation at the bar as counsel for some rats,which had been put on trial before the ecclesi-astical court of Autun on the charge of havingfeloniously eaten up and wantonly destroyed thebarley-crop of that province. On complaintformally presented by the magistracy, the officialor bishop's vicar, who exercised jurisdiction insuch cases, cited the culprits to appear on acertain day and appointed Chassen6e to defendthem.In view of the bad repute and notorious guiltof his clients, Chassenee was forced to emjployall sorts of legal shifts and chicane, dilatorypleas and other technical objections, hopingthereby to find some loophole in the meshes ofthe law through which the accused might escape,T ' ^HJ^j"?,^ "* ^* spelled Chassanfe and Chasseneux.In the Middle Ages, and even as late as the end of theeighteenth century, the orthography of proper names wasvery uncertain.


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Capital Punishment of Animals 19or at least to defer and mitigate the sentence ofthe judge. He urged, in the first place, thatinasmuch as the defendants were dispersed overa large tract of country and dwelt in numerousvillages, a single summons was insufficient tonotify them all; he succeeded, therefore, inobtaining a second citation, to be published fromthe pulpits of all the parishes inhabited by thesaid rats. At the expiration of the considerabletime which elapsed before this order could becarried into effect and the proclamation be dulymade, he excused the default or non-appearanceof his clients on the ground of the length anddifficulty of the journey and the serious perilswhich attended it, owing to the unweariedvigilance of their mortal enemies, the cats, whowatched all their movements, and, with fellintent, lay in wait for them at every corner andpassage. On this point Chassen^e addressed thecourt at some length, in order to show that ifa person be cited to appear at a place, to whichhe cannot come with safety, he may exercise theright of appeal and refuse to obey the writ, eventhough such appeal be expressly precluded in thesummons. The point was argued as seriously asthough it were a question of family feud betweenCapulet and Montague in Verona or Colonnaarid Orsini in Rome.At a later period of his life Chassen^e was

reminded of the legal principle thus laid downand urged to apply it in favour of clients more


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20 The Criminal Prosecution andworthy of its protection than a horde of vagrantrodents. In 1540 he was president of the judicialassembly known as the Parliament of Provenceon a memorable occasion when the iniquitousmeasure for the extirpation of heresy by exter-minating the Waldenses in the villages ofCabri^res and Merindol was under discussion.One of the members of the tribunal, a gentlemanfrom Aries, Renaud d'Alleins, ventured tosuggest to the presiding officer that it would beextremely unjust to condemn these unfortunateheretics without granting them a hearing andpermitting an advocate to speak in their defence,so that they might be surrounded by all the safe-guards of justice, adding that the eminent juristhad formerly insisted upon this right before thecourt of Autun and maintained that even animalsshould not be adjudged and sentenced withouthaving a proper person appointed to plead theircause. Chassen6e thereupon obtained a decreefrom the king commanding that the accusedWaldenses should be heard; but his death,which occurred very soon afterwards, changedthe state of affairs and prevented whatever goodeffects might have been produced by this simpleact of justice. [Cf . Desnoyers : Recherches, etc.(vide Bibliography), p. 18.]

In the report of the trial published in the ThemisJunsconsulte for 1820 (Tome I. pp. 194 sqq.)by Berriat Saint-Prix, on the authority of thecelebrated Jacques Auguste De Thou, President


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Capital Punishment of Animals 21of the Parliament of Paris, the sentence pro-nounced by the official is not recorded. Butwhatever the judicial decision may have been,the ingenuity and acumen with which Chassen^econducted the defence, the legal learning whichhe brought to bear upon the case, and the elo-quence of his plea enlisted the public interestand established his fame as a criminal' lawyer andforensic orator.

Chassen^e is said to have been employed inseveral cases of this kind, but no records ofthem seem to have been preserved, although it ispossible that they may lie buried in the dustyarchives of some obscure provincial town inFrance, once the seat of an ecclesiastical tribunal.The whole subject, however, has been treatedby him exhaustively in a book entitled Consiliumprimum, quod tractatus jure did potest, proptermultiplicem et reconditam doctrinam, ubi lucu-lenter et accurate tractatur quaestio ilia: Deexcommunicatione animalium. insectorum. Thistreatise, which is the first of sixty-nine consilia,embodying opinions on various legal questionstouching the holding and transmission of pro-perty, entail, loans, contracts, dowries, wills, andkindred topics, and which holds a peculiar placein the history of jurisprudence, was originallypublished in 1531, and reprinted in 1581, andagain in 1588. The edition referred to in the>present work is the first reprint of 1581, a copyof which is in the Royal Court and State Libraryof Munich.


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22 The Criminal Prosecution andThis curious dissertation originated, as it

appears, in an application of the inhabitants ofBeaune to the ecclesiastical tribunal of Autun fora decree of excommunication against certainnoxious insects called huberes or hurebers, pro-bably a kind of locust or harvest-fly. Therequest was granted, and the pernicious creatureswere duly accursed. Chassen^e now raises thequery whether such a thing may be rightfullyand lawfully done (sed an recte et de jure fieripossit), and how it should be effected. "Theprincipal question," he says, "is whether onecan by injunction cause such insects to withdrawfrom a place in which they are doing damage,or to abstain from doing damage there, underpenalty of anathema and perpetual malediction.And although in times past there has never beenany doubt on this point, yet I have thought thatthe subject should be thoroughly examined anew,lest I should seem to fall into the vice censuredby Cicero (De Off. I. 6), of regarding thingswhich we do not know as if they were well under-stood by us, and therefore rashly giving themour assent." He divides his treatise into fiveparts, or rather discusses the subject under fiveheads : " First, lest I may seem to discourse tothe populace, how are these our animals called inthe Latin language ; secondly, whether these ouranimals can be summoned; thirdly, whether theycan be summoned by procurators, and, if they arecited to appear personally, whether they canappear by proxy, i. e. through procurators ap-


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Capital Punishment of Animals 23pointed by the judge who summons them;fourthly, what judge, whether layman orecclesiastic, is competent to try them, and howhe is to proceed against them and to pass andexecute sentence upon them ; fifthly, what con-stitutes an anathema and how does it differ froman excommunication." Chassen^e's method ofinvestigation is not that of the philosophicthinker, who marshals facts under general lawsand traces them to rational causes, but combinesthat of the lawyer, who quotes precedents andexamines witnesses, with that of the theologian,who balances authorities and serves us with textsinstead of arguments. He scrupulously avoidsall psychological speculation or metaphysicalreasoning, and simply aims to show that animalshave been tried, convicted, and sentenced bycivil and ecclesiastical courts, and that the com-petence of these tribunals has been generallyrecognized.The documentary evidence adduced is drawnfrom a great variety of sources : the scriptures

of the Old and New Testament, pagan poetsand philosophers, patristic theologians andhomilists, mediaeval hagiologists, Virgil, Ovid,Pliny, Cicero, Cato, Aristotle, Seneca, SiliusItalicus, Boethius, Gregory the Great, Pico dellaMirandola, the laws of Moses, the prophecies ofDaniel, and the Institutes of Justinian are alikelaid under contribution and quoted as of equalauthority. All is fish that comes to his net out


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24 The Criminal Prosecution andof his erudition, be it salmon or sea-urchin. Iftwelve witnesses can be produced in favour ofa statement, and only two against it, his reasonbows to the will of the majority, and acceptsthe proposition as proved. It must be added,however, to his credit, that he proceeds in thismatter with strict impartiality and perfect recti-tude, takes whatever evidence is at hand, andnever tries to pack the witness-box.His knowledge of obscure and now utterly for-

gotten authors, secular and ecclesiastic, isimmense. Like so many scholars of his day hewas prodigiously learned, without being remark-able for clearness or originality of thought.Indeed, the vastness of his erudition seems ratherto have hampered than helped the vigorousgrowth of his intellectual faculties. He oftenindulges in logical subtilties so shallow in theirspeciousness, that they ought not to deceive theveriest smatterer in dialectics; and the reader isconstantly tempted to answer his laboured argu-mentations, as Tristram Shandy's Uncle Tobydid the lucubrations of Corporal Trim, by"whistling half-a-dozen bars of Lillibullero."The examples he adduces afford striking illustra-tions of the gross credulity to which the stronglyconservative, precedent-mongering mind of thejurisconsult is apt to fall an easy prey. Thehabit of seeking knowledge and guidance exclu-sively in the records and traditions of the past, inthe so-called " wisdom of ages," renders him


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Capital Punishment of Animals 25peculiarly liable to regard every act and utteranceof antiquity as necessarily wise and authoritative.

In proof of the power of anathemas, Chassen^erefers to the cursing of the serpent in the Gardenof Eden, causing it to go upon its belly for alltime; David's malediction of the mountains ofGilboa, so that they had neither rain nor dew;God's curse upon the city of Jericho, making itsstrong walls fall before the blasts of trumpets;and in the New Testament the withered fig-treeof Bethany. The words of Jesus, " Every treethat bringeth not forth good fruit is hewn downand cast into the fire," he interprets, not merelyas the best means of getting rid of a cumberer ofthe orchard, but as a condemnation and punish-ment of the tree for its delinquencies, and adds :" If, therefore, it is permitted to destroy anirrational thing, because it does not producefruit, much more is it permitted to curse it, sincethe greater penalty includes the less (cum si liceatquid est plus, debet licere quid est minus).An English professor of divinity, RichardChevenix Trench, justifies the withering of thefruitless fig-tree on the same ground or, at least,by a similar process of reasoning: "It waspunished, not for being without fruit, but forproclaiming by the voice of those leaves that ithad such; not for being barren, but for beingfalse." According to this exegesis, it was thetelling of a wilful lie that " drew on it the curse."The guilty fig is thus endowed with a moral


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26 The Criminal Prosecution andcharacter and made clearly conscious of the crimefor which it suffered the penalty of death" Almost as soon as the word of the Lord wasspoken, a shuddering fear may have run throughall the leaves of the tree, which was thus strickenat the heart." As regards the culpability andpunishableness of the object, the modern divineand the mediaeval Jurist occupy the same stand-point; only the latter, with a stricter judicialsense, insists that there shall be no infliction ofpunishment until the malefactor has been con-victed by due process of law, and that he shallenjoy all the safeguards which legal forms andtechnicalities have thrown around him and underwhose covert even the vilest criminal has theright to take refuge. The Anglican herme-neutist, on the contrary, would justify the curseand admit the validity of the anathema, althoughit was only the angry expression of an unreason-able impatience disappointed in not finding fruitat the wrong season, " for the time of figs wasnot yet."A curious and characteristic specimen of theabsurd and illogical inferences, which Chassen^eis constantly deducing from his texts, is the usehe makes of the passage in Virgil's first Georgic,in which the poet remarks that " no religion hasforbidden us to draw off water-courses for irrigat-ing purposes, to enclose crops with fences, or tolay snares for birds," all these things beingessential to successful husbandry. But from the


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Capital Punishment of Animals 27right to snare birds, our jurisprudent infers theright to excommunicate them, since " no snaresare stronger than the meshes of an anathema."Far-fetched deductions and wretched twaddle ofthis sort fill many pages of the famous lawyer'sdissertation.Coming down to more recent times, Chassen^e

mentions several instances of the effectiveness ofanathemas, accepting as convincing testimonythe ecstacies of saints and the extravagant state-ments of hagiologists without the slightest ex-pression of doubt as to the truth of these legends.Thus he relates how a priest anathematized anorchard, because its fruits tempted the childrenof his parish and kept them away from mass.The orchard remained barren until, at the solici-tation of the Duchess of Burgundy, the ban wasremoved. In like manner the Bishop of Lau-sanne freed Lake Leman from eels, which hadbecome so numerous as seriously to interfere withboating and bathing ; on another occasion in theyear 1451 the same ecclesiastic expelled from thewaters of this lake an immense number of enor-mous blood-suckers, which threatened to destroyall the large fish and were especially fatal tosalmon, the favourite article of food on fast-days.This method of procedure was both cheap andeffective and, as Felix Malleolus informs us in hisTractatus de Exorcisms (I), received the appro-bation of all the learned doctors of the Univer-sity of Heidelberg : omnes studii Heydelber-


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28 The Criminal Prosecution andgensis Doctores hujusmodi ritus videntes etlegentes consenserunt. By the same agency anabbot changed the sweet white bread of a Countof Toulouse, who abetted and protected heresy,into black, mouldy bread, so that he, who wouldfain feed souls with corrupt spiritual food, wasforced to satisfy his bodily hunger with coarseand unsavoury provender. No sooner was theexcommunication removed than the bread re-sumed its original purity and colour. Egbert,Bishop of Trier, anathematized the swallows,which disturbed the devotions of the faithful bytheir chirping and chattering, and sacrilegiouslydefiled his head and vestments with their drop-pings, when he was officiating at the altar. Heforbade them to enter the sacred edifice on painof death ; and it is still a popular superstition atTrier, that if a swallow flies into the cathedral,it immediately falls to the ground and gives upthe ghost. Another holy man, known as Johnthe Lamb, cursed the fishes, which had incurredhis anger, with results equally fatal to the finnytribe. It is also related of the honey-tongued St.Bernard, that he excommunicated a countlessswarm of flies, which annoyed the worshippersand officiating priests in the abbey church ofFoigny, and lo, on the morrow they were, likeSennacherib's host, "all dead corpses." William,Abbot of St. Theodore in Rheims, who recordsthis miraculous event, states that as soon as theexecration was uttered, the flies fell to the floor


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Capital Punishment of Animals 29in such quantities that they had to be thrown outwith shovels (palis ejicientes). This incident, headds, was so well known that the cursing of theflies of Foigny became proverbial and formed thesubject of a parable. [Vita S. Bernardi, auctoreWilhelmo abbate S. Thod. Rhem. I. 11.]According to the usual account, the maledictionwas not so drastic in its operation and did notcause the flies to disappear until the next day.The rationalist, whose chill and blighting breathis ever nipping the tender buds of faith, woulddoubtless suggest that a sharp and sudden frostmay have added to the force and efficacy of theexcommunication. The saint resorted to thissevere and summary measure, says the monkishchronicler, because the case was urgent and " noother remedy was at hand." Perhaps this lackof other means of relief may refer to the absenceof " deacons with fly-flaps," who, according to acontemporary writer, were appointed "to driveaway the flies when the Pope celebrateth."The island Reichenau in Lake Constance,which derives its name from its fertility and isespecially famous for the products of its vine-yards and its orchards, was once so infested byvenomous reptiles as to be uninhabitable byhuman beings. Early in the eighth century,as the legend goes, it was visited by St. Pir-minius, and no sooner had he set foot upon itthan these creatures all crawled and wriggledinto the water, so that the surface of the lake was


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30 The Criminal Prosecution andcovered for three days and three nights withserpents, scorpions and hideous worms. Peculiarvermifugal efficacy was ascribed to the crosierof St. Magnus, the apostle of Algau, which waspreserved in the cloister of St. Mang at Fiisseri inBavaria, and from 1685 to 1770 was repeatedlyborne in solemn procession to Lucerne, Zug,Schwyz and other portions of Switzerland forthe expulsion and extermination of rats, mice,cockchafers and other insects. Sometimesformulas of malediction were procured directlyfrom the pope, which, like saints' curses, couldbe applied without legal formalities. Thusin 1660 the inhabitants of Lucerne paid fourpistoles and one Roman thaler for a document ofthis kind; on Nov. 15, 173 1, the municipalcouncil of Thonou in Savoy resolved to join withother parishes of that province to obtain fromRome an excommunication against insects, theexpenses for which are to be assessed pro rata; ^in 1740 the commune of Piuro purchased fromHis Holiness a similar anathema; in thesame year the common council of Chiavennadiscussed the propriety of applying to Romefor an execratory against beetles and bears;and in December 1752 it was proposed bythe same body to take like summary measures

' " Item : a 6t6 dflibdrd que la villa sejoindra aux paroissesde cette province qui.voudront obtenir de Rome una excom-munication contre les insects et que Ton contribuera auxfrais au pro rata."


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Capital Punishment of Animals 31in order to get rid of a pest of rodents. In1729, 1730 and 1749 the municipal council ofLucerne ordered processions to be made on St.Magnus' Day from the Church of St. Francis toPeter's Chapel for the purpose of expellingweevils. This custom was observed annuallyfrom 1749 to 1798. The pompous ceremony hasbeen superseded in Protestant countries by anofficially appointed day of fasting and prayer.In his " First Counsel " Chassen^e not onlytreats of methods of procedure, and gives formsof plaints to be drawn up and tendered to thetribunal by the injured party, as well as usefulhints to the pettifogger in the exercise of histortuous and tricky profession, but he also dis-cusses many legal principles touching thejurisdiction of courts, the functions of judges,and other characteristic questions of civil,criminal, and canonical law. Animals, he says,should be tried by ecclesiastical tribunals, exceptin cases where the penalty involves the sheddingof blood. An ecclesiastical judge is notcompetent in causa sanguinis, and can imposeonly canonical punishments, although he mayhave jurisdrction in temporal matters and punishcrimes not involving a capital sentence. [Namjudex ecclesiasticus in causa sanguinis non estcompetens judex, licet habeat jurisdictionem intemporatibus et possit crimina poenam sanguinisnon existentia (exigentia is obviously the correctreading) castigare. Cons. prim. IV. 5.] For


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32 The Criminal Prosecution andthis reason the Church never condemnedheretics to death, but, having decided that theyshould die, gave them over to the secular powerfor formal condemnation, usually under thehollow and hypocritical pretence of recommend-ing them to mercy. In the prosecution ofanimals the summons was commonly publishedfrom the parish pulpit and the whole judicialprocess bore a distinctively ecclesiasticalcharacter. In most cases the presiding judge orofficial was the vicar of the parish acting as thedeputy of the bishop of the diocese. Occasion-ally the curate officiated in this capacity. Some-times the trial was conducted before a civilmagistrate under the authority of the Church,or the matter was submitted to the adjudicationof a conjurer, who, however, appointed twoproctors to plead respectively for the plaintiffand the defendant and who rendered hisverdict in due legal form. Indeed, the word"conjurer" seems to have been used as apopular designation of the person, whetherpriest or layman, who exercised judicatoryfunctions in such trials, probably because, as arule, the sentence could be executed only byconjuration or the invocation of supernaturalaid.Another point, which strikes us very comic-

ally, but which had to be decided before the trialcould proceed, was whether the accused were tobe regarded as clergy or laity. Chassenee


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Capital Punishment of Animals 33thinks that there is no necessity of testing eachindividual case, but that animals should belooked upon as lay persons. This, he declares,should be the general presumption ; but if anyone wishes to affirm that they have ordinemdericatus and are entitled to benefit of clergy,the burden of proof rests upon him and he isbound to show it (deberet estud probare). Pro-bably our jurist would have made an exceptionin favour of the beetle, which entomologists callclerus.; it is certain, at any rate, that if a bugbearing this name had been brought to trial, thelearning and acuteness displayed in arguing thepoint in dispute would have been astounding.We laugh at the subtilties and quiddities ofmediaeval theologians, who seriously discussedsuch silly


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34 The Criminal Prosecution anddamage. By this means he seeks to evade theobjection, that animals are incapable of commit-ting crimes, because they are not endowed withrational faculties. He then proceeds to showthat " things not allowable in respect to crimesalready committed are allowable in respect tocrimes about to be committed in order to preventthem." Thus a layman may not arrest anecclesiastic for a delict fully consummated, butmay seize and detain him in order to hinder theconsummation of a delict. In such cases, aninferior may coerce and correct a superior; evenan irrational creature may put restraint upon ahuman being and hold him back from wrong-doing. In illustration of this legal point hecites an example from Holy Writ, where" Balaam, the prophet and servant of the MostHigh, was rebuked by a she-ass."Chassen^e endeavours to clinch his argument

as usual by quoting biblical texts and adducingincidents from legendary literature. The pro-vince of zoo-psychology, which would havefurnished him with better material for the eluci-dation of his subject, he leaves untouched,simply because it was unknown to him. If crimeconsists in the commission of deeds hurtful toother sentient beings, knowing such actions tobe wrong, then the lower animals are certainlyguilty of criminal offences. It is a well-estab-lished fact, that birds, beasts and insects, livingtogether in communities, have certain laws.


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Capital Punishment of Animals 35which are designed to promote the general wel-fare of the herd, the flock or the swarm, and theviolation of which by individual members theypunish corporally or capitally as the case mayrequire. It is likewise undeniable, that domesticanimals often commit crimes against man andbetray a consciousness of the nature of their actsby showing fear of detection or by trying toconceal what they have done. Man, too, recog-nizes their moral responsibility by inflictingchastisement upon them, and sometimes feelsjustified in putting incorrigible offenders, avicious bull, a thievish cat or a sheep-killingdog, summarily to death. Of course this kindof punishment is chiefly preventive, neverthelessit is provoked by acts already perpetrated andis not wholly free from the element of retribu-tive justice. Such a proceeding, however, isarbitrary and autocratic, and if systematicallyapplied to human beings would be denouncedas intolerable tyranny. Chassen^e insists thatunder no circumstances is a penalty to be im-posed except by judicial decision nam poenanunquam imponitur, nisi lex expresse dicatand in support of this principle refers to theapostle Paul, who declares that " sin is notimputed when there is no law." He appears tothink that any technical error would vitiate thewhole procedure and reduce the ban of theChurch to mere brutum fulmen. If he lays sogreat stress upon the observance of legal forms.


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36 The Criminal Prosecution andwhich in the criminal prosecution of briatebeasts strike us as the caricature and farce ofjustice, it is because he deems them essential tothe effectiveness of an excommunication. Theslightest mispronunciation of a word, an in-correct accentuation or false intonation in utter-ing a spell suffices to dissolve the charm andnullify the occult workings of the magic. TheJack of a single link breaks the connection anddestroys the binding force of the chain ; every-Hhing must be "well-thought, well-said andwell-done," not ethically, but ritually, as pre-scribed in the old Avestan formula : humatahukhta huvarshta. All the mutterings andposturings, which accompany the performanceof a Brahmanical sacrifice, or a Catholic mass,or any other kind of incantation have their sig-nificance, and none of them can be omitted with-out marring the perfection of the ceremonial andimpairing its power. An anathema of animalspronounced in accordance with the sentencepassed upon them by a tribunal, belongs to thesame category of conjurations and is renderednugatory by any formal defect or judicial irregu-larity.Sometimes the obnoxious vermin were

generously forewarned. Thus the grand-vicarsof Jean Rohin, Cardinal Bishop of Autun,having been informed that slugs were devastat-ing several estates in different parts of hisdiocese, on the 17th of August, 1487, ordered


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Capital Punishment of Animals 37public processions to be made for three daysin every parish, and enjoined upon the said'slugs to quit the territory within this periodunder penalty of being accursed. On the 8thof September, 1488, a similar order was issuedat Beaujeu. The curates were charged to makeprocessions during the offices, and' the slugswere warned three times to cease from vexiingthe people by corroding and consuming theherbs of the fields and the vines, and to depart;" and if they do not heed this our command, weexcommunicate them and smite them with ouranathema." In 1516, the official of Troyes pro-nounced sentence on certain insects {adversusbrncos seu eurucas vel alia non dissimilia ani-malia, Gullice urebecs, probably a species ofcurculio), which laid waste the vines, and'threatened them with anathema, unless theyshould disappear within six days. Here it isexpressly stated that a counsellor was assignedto the accused, and a prosecutor heard in behalfof the aggrieved inhabitants. As a means ofrendering the anathema more effective, thepeople are also urged to be prompt and honestin the payment of tithes. Chassen^e, too,endorses this view, and in proof of its correct-ness refers to Malachi, where God promises torebuke the devourer for man's sake, provided allthe' tithes are brought into the storehouse.The archives of the old episcopal city of St.

Jean-de-Maurienne contain the original records


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38 The Criminal Prosecution andof legal proceedings instituted against someinsects, which had ravaged the vineyards of St.Julien, a hamlet situated on the route over Mt.Cenis and famous for the excellence of itsvintage. The defendants in this case were aspecies of greenish weevil (charan9on) known toentomologists as rychites auratus, and called bydifferent names, amblevin, b6che, verpillion, indifferent provinces of France.

Complaint was first made by the wine-growersof St. Julien in 1545 before Frangois Bonnivard,doctor of laws. The procurator Pierre Falconand the advocate Claude Morel defended theinsects, and Pierre Ducol appeared for the plain-tiffs. After the presentation and discussion of thecase by both parties, the official, instead of pass-ing sentence, issued a proclamation, dated the8th of May, 1546, recommending public prayersand beginning with the following characteristicpreamble: "Inasmuch as God, the supremeauthor of all that exists, hath ordained that theearth should bring forth fruits and herbs (animasvegetativas), not solely for the sustenance ofrational human beings, but likewise for thepreservation and support of insects, which flyabout on the surface of the soil, therefore itwould be unbecoming to proceed with rashnessand precipitance against the animals now actuallyaccused and indicted; on the contrary, it wouldbe more fitting for us to have recourse to themercy of heaven and to implore pardon for our


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Capital Punishment of Animals 39sins." Then follow instructions as to the mannerin which the public prayers are to be conductedin order to propitiate the divine wrath. Thepeople are admonished to turn to the Lord withpure and undivided hearts (ex toto et puro corde),to repent of their sins with unfeigned contrition,and to resolve to live henceforth justly andcharitably, and above all to pay tithes. Highmass is to be celebrated on three consecutivedays, namely on May 20th, 21st, and 22nd, andthe host to be borne in solemn procession withsongs and supplications round the vineyards.The first mass is to be said in honour of the HolySpirit, the second in honour of the BlessedVirgin, and the third in honour of the tutelarsaint of the parish. At least two persons of eachhousehold are required to take part in thesereligious exercises. A proces-verbal, signed bythe curate Romanet, attests that this programmewas fully carried out and that the insects soonafterwards disappeared.About thirty years later, however, the scourge

was renewed and the destructive insects wereactually brought to trial. The proceedings arerecorded on twenty-nine folia and entitledDe actis scindicorum communitatis Sancti Julli-ani agentium contra animalia bruta ad formammuscarum volantia colons viridis communi voceappellata verpillions seu amblevins. The docu-ments, which are still preserved in the archivesof St. Julien, were communicated by M. Victor


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40 The Criminal Prosecution aadDalbane, secretary of the commune, to M. LônMenebrâ, who printed them in the appendix tohis volume : De I'origine de la forme et deI'esprit des jugements rendus au moyen-dgecontre les animaux. Chambery, 1846. Thistreatise appeared originally in the twelfth tome ofthe Memoires de la Societe Royale Academiquede Savoie.

It may be proper to add that M6nebrâ's theoryof " the spirit, in which these judgments againstanimals were given," is wholly untenable. Hemaintains that "these procedures formedoriginally only a kind of symbol intended torevive the sentiment of justice among the massesof the people, who knew of no right except mightand of no law except that of intimidation andviolence. In the Middle Ages, when disorderreigned supreme, when the weak remained with-out support and without redress against thestrong, and; property was exposed to all sorts ofattacks and all forms of ravage and rapine, therewas something indescribably beautiful in thethought of assimilating the insect of the field tothe masterpiece of creation and putting them onan equality before the law. If man should betaught to respect the home of the worm, howmuch more ought he to regard that of his fellow-man and learn to rule in equity."This explanation is very fine in sentiment, but

expresses a modern, and not a mediasval way ofthinking. The penal prosecution of animals.


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Capital Punishmefit of Animals 41which prevailed during the Middle Ages,, was byno, means peculiar to that period, but has beenfpequently practised by primitive peoples andsavage tribes; neither was it designed to incul-cate any such moral lesson as is here suggested,nor did it produce any such desirable result.So far from originating in a delicate and sensi-tive sense of justice, it waSj as will be more fullyshown hereafter, the ouicome of an extremelycrude, obtuse, and barbaric sense of justice. Itwas the product of a social state, in which denseignorance was governed by brute force, and isnot to be considered as a reaction and protestagairast club-law, which it really tended to fosterby making a travesty of the administration ofjustice and thus turning it into ridicule. It wasalso in the interest of ecclesiastical dignities tokeep up this parody and perversion of a sacredand fundamental institute of civil society, sinceit strengthened their influence and extended theirauthority by subjecting even the caterpillar andthe canker-worm to their dominion and control.But to return to the records of the trial. On

the 13th of April, 1587, the case was laidbefore " his most reverend lordship, the prince-bishop of Maurienne, or the reverend lord hisvicar-general and official " by the syndics andprocurators, Frangois Amenet and PetremandBertrand, who, in the name of the inhabitants ofSt. Julien, presented the following statement andpetition : " Formerly by virtue of divine services


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42 The Criminal Prosecution andand earnest supplications the scourge and in-ordinate fury of the aforesaid animals did ceasenow they have resumed their depredations andare doing incalculable injury. If the sins of menare the cause of this evil, it behoveth the repre-sentatives of Christ on earth to prescribe suchmeasures as may be appropriate to appease thedivine wrath. Wherefore we the afore-men-tioned syndics, Franfois Amenet and PetremandBertrand, do appear anew {ex integro) andbeseech the official, first, to appoint anotherprocurator and advocate for the insects in placeof the deceased Pierre Falcon and ClaudeMorel, and secondly, to visit the grounds andobserve the damage, and then to proceed withthe excommunication."

In compliance with this request, the dis-tinguished Antoine Filliol was appointed pro-curator for the insects, with a moderate fee(salario moderato), and Pierre Rembaud theiradvocate. The parties appeared before theofficial on the 30th day of May and the casewas adjourned to the 6th of June, when theadvocate, Pierre Rembaud, presented his answerto the declaration of the plaintiffs, showing thattheir action is not maintainable and that theyshould be nonsuited. After approving of thecourse pursued by his predecessor in office, heaffirms that his clients have kept within theirright and not rendered themselves liable toexcommunication, since, as we read in the sacred


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Capital Punishment of Animals 43book of Genesis, the lower animals were createdbefore man, and God said to them : Let theearth bring forth the living creature after hiskind, cattle and creeping thing, and beast of theearth after his kind ; and he blessed them saying,Be fruitful and multiply and fill the waters ofthe seas, and let fowl multiply in the earth. Nowthe Creator would not have given this command,had he not intended that these creatures shouldhave suitable and sufficient means of support;indeed, he has expressly stated that to everything that creepeth upon the earth every greenherb has been given for meat. It is thereforeevident that the accused, in taking up their abodein the vines of the plaintiffs, are only exercisinga legitimate right conferred upon them at thetime of their creation. Furthermore, it is absurdand unreasonable to invoke the power of civiland canonical law against brute beasts, which aresubject only to natural law and the impulses ofinstinct. The argument urged by the counselfor the plaintiffs, that the lower animals are madesubject to man, he dismisses as neither true infact nor pertinent to the present case. Hesuggests that the complainants, instead of in-stituting judicial proceedings, would do betterto entreat the mercy of heaven and to imitate theNinevites, who, when they heard the warningvoice of the prophet Jonah, proclaimed a fastand put on sackcloth. In conclusion, he de-mands that the petition of the plaintiffs be dis-


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44 The Criminal Prosecution andmissed, the raonitorium revoked and annulled,and all further proceedings stayed, to which endthe gracious office of the judge is humbly im-plored (humiliter imflorato benigno officiojudicis).The case was adjourned to the 12th and

finally to the 19th of June, when Petre-mand Bertrand, the prosecuting attorney, pre-sented a lengthy replication, of which the defend-ants' advocate demanded a copy with due timefor deliberation. This request led to a furtheradjournment till the 26th of June, but asthis day turned out to be a dies feriatus or holi-day, no business could be transacted until the27th, when the advocate of the commune,Fran9ois Fay (who seems to have taken theplace of Amenet, if he be not the same person),in reply to the defendants' plea, argued that,although the animals were created before man,they were intended to be subordinate to himand subservient to his use, and that this was,indeed, the reason of their prior creation. Theyhave no raison d'etre except as they minister toman, who was made to have dominion over them,inasmuch as all things have been put under hisfeet, as the Psalmist asserts and the apostle Paulreiterates. On this point, he concludes, ouropponent has added nothing refutatory of theviews, which have been held from time im-memorial by our ancestors ; we need only refer tothe opinions formerly expressed by the honour-


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Capital Punishment of Animals 45able Hippolyte Ducol as satisfadtory. Theadvocate for the defence merely remarked thathe had not yet received the document orderedon the 19th of June, and the further con-sideration of the case was postponed till the4th of July. Antoine Filliol then made arejoinder to the plaintiffs' replication, denyingthat the subordination of the lower animals toman involves the right of excommunicating them,and insisting upon his former position, which theopposing counsel had not even attempted to dis-prove, namely, that the lower animals are subjectsolely to natural law, " a law originating in theeternal reason and resting upon a basis as im-mutable as that of the divine law of .revelation,since they are derived from the same source,namely, the will and power of God." It isevident, he adds, that the action brought by theplaintiffs is not maintainable and that judgmentshould be given accordingly.On the 1 8th of July, the same partiesappear before the official of St. Jean-de-Mauri-

enne. The procurator of the insects demandsthat the case be closed and the plaintiffs debarredfrom drawing up any additional statements orcreating any further delay by the introductionof irrelevant matter, and requests that a decisionbe rendered on the documents and declarationsalready adduced. The prosecuting attorney,whose policy seems to have been to keep the suitpending as long as possible, applies for a newterm (evlmm terminum), which was granted.


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46 The Criminal Prosecution andMeanwhile, in view of the law's long, delay,

other measures were taken for the speedieradjustment of the affair by compromise.. Onthe 29th of June, 1587, a public meeting wascalled at noon immediately after mass on thegreat square of St. Julien, known as Parloird'Amont, to which all hinds and habitants(manants et habitants) were summoned by theringing of the church bell to consider the pro-priety and necessity of providing for the saidanimals a place outside of the vineyards of St.Julien, where they might obtain suiScient sus-tenance without devouring and devastating thevines of the said commune. This meetingappears to have been held by the advice of theplaintiffs' advocate, Frangois Fay, and at thesuggestion of the official. A piece of groundin the vicinity was selected and set apart as a sortof insect enclosure, the inhabitants of St. Julien,however, reserving for themselves the right topass through the said tract of land, " withoutprejudice to the pasture of the said animals," andto make use of the springs of water containedtherein, which are also to be at the service of thesaid animals; they reserve furthermore the rightof working the mines of ochre and other mineralcolours found there, without doing detriment tothe means of subsistence of said animals, andfinally the right of taking refuge in this spotin time of war or in case of like distress. Theplace chosen is called La Grand Feisse anddescribed with the exactness of a topographical


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Capital Punishment of Animals 47survey, not only as to its location and dimen-sions, but also as to the cliaracter of its foliageand herbage. The assembled people vote tomake this appropriation of land and agree todraw up a conveyance of it "in good form andof perpetual validity," provided the procuratorand advocate of the insects may, on visitationand inspection of the ground, express themselvessatisfied with such an arrangement; in witnesswhereof the protocol is signed " L. Prunier,curial," and stamped with the seal of the com-mune.But this attempt of the inhabitants to conciliate

the insects and to settle their differences bymutual concessions did not put an end to thelitigation. On the 24th of July, an " Extractfrom the Register of the Curiality of St.Julien," containing the proceedings of thepublic meeting,, was submitted to the court byPetremand Bertrand, procurator of the plaintiffs,who called attention to the very generous offermade by the commune and prayed the official toorder the grant to be accepted on the conditionsspecified, and to cause the defendants to vacatethe vineyards and to forbid them to return to thesame on pain of excommunication. AntoineFilliol, procurator of the insects, requested acopy of the proces-verbal and time for delibera-tion. The court complied with this request andadjourned the case till " the first juridical dayafter the harvest vacation," which fell on the


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48 The Criminal Prosecution andnth of August, and again by common consenttill the 20th of the same month.At this time, Charles Emanuel I., Duke ofSavoy, was preparing to invade the Marquisateof Saluzzo, and the confusion caused by theexpedition of troops over Mt. Cenis interferedwith the progress of the trial, which was post-poned till the 27th of August, and again,since the passage of armed men was still goingon (actento transitu armigerorum), till the 3rdof September, when Antoine Filliol declarea tfeathe could not accept for his clients the offer madeby the plaintiffs, because the place was sterile andneither sufficiently nor suitably supplied withfood for the support of the said animals; hedemanded, therefore, that the proposal be rejectedand the action dismissed with costs to the com-plainants (petit agentes repelli cum expensis).The " egregious Petremand Bertrand," in behalfof the plaintiffs, denies the correctness of thisstatement and avers that the spot selected andset apart as an abode for the insects is admirablyadapted to this purpose, being full of trees andshrubs of divers kinds, as stated in the convey-ance prepared by his clients, all of which he isready to verify. He insists, therefore, upon anadjudication in his favour. The official took thepapers of both parties and reserved his decision,appointing experts, who should in the meantimeexamine the place, which the plaintiffs hadproffered as an asylum for the insects, and


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Capital Punishment of Animals 49submit a written report upon the fitness of thesame.The final decision of the case, after such care-

ful deliberation and so long delay, is rendereddoubtful by the unfortunate circumstance thatthe last page of the records has been destroyedby rats or bugs of some sort. Perhaps the prose-cuted weevils, not being satisfied with the resultsof the trial, sent a sharp-toothed delegation intothe archives to obliterate and annul the judgmentof the court. At least nothing should be thoughtincredible or impossible in the conduct ofcreatures, which were deemed worthy of beingsummoned before ecclesiastical tribunals andwhich succeeded as criminals in claiming theattention and calling forth the legal learning andacumen of the greatest jurists of their day.

In the margin of the last page are someinteresting items of expenses incurred : " pro visi-tatione III flor.," by which we are to understandthree florins to the experts, who were appointedto visit the place assigned to the insects; then" solverunt scindici Sancti Julliani incluso pro-cessu Animalium sigillo ordinationum et procopia que competat in processu dictorum Anima-lium omnibus inclusis XVI flor.," which may besummed up as sixteen florins for clerical workincluding seals; finally, " itevi pro sportulis do-viini vicarii III flor.," three florins to the vicar,who acted as the bishop's official and did notreceive a regular fee, but was not permitted to go

4


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50 The Criminal Prosecution andaway empty-handed. The date, which follows,Dec. 20, 1587, may be assumed to indicate thetime at which the trial came to an end, after apendency of more than eight months. {VideAppendix A.)

In the legal proceedings just described, twopoints are presented with great clearness andseem to be accepted as incontestable : first, theright of the insects to adequate means of sub-sistence suited to their nature. This right wasrecognized by both parties ; even the prosecutiondid not deny it, but only maintained that theymust not tr

the criminal prosecution and capital punishment of animals by e.p.evans (1906)

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