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THE CRIMINAL PROSECUTION
AND CAPITAL PUNISHMENT
OF ANIMALS
BY THE SAME AUTHOR
ANIMAL SYMBOLISM IN ECCLESI-
ASTICAL ARCHITECTURE. Fully
illustrated. In one Vol. Crown 8vo. Price pj.
EVOLUTIONAL ETHICS AND ANI-
MAL PSYCHOLOGY. In one Vol.
Crown 8vo. Price gs.
LONDON: WILLIAM HEINEMANN
^^rw(5«/v«^fc €^a. C^ptt.
5II(^^
THE CRIMINAL PROSECUTION
AND CAPITAL PUNISHMENT
OF ANIMALS
By ETpTeVANS
AUTHOR OF
•' ANIMAL SYMBOLISM IN ECCLESIASTICAL ARCHITECTURE,"
"EVOLUTIONAL ETHICS AND ANIMAL PSYCHOLOGY," ETC., ETC.
LONDON
WILLIAM HEINEMANN
MCMVI
Copyright 1906 by William Heitumann
CONTENTS
INTRODUCTION
Sources — Amira's distinction between retributive and pre-
ventive processes — Addosio's incorrect designation of the
latter as civil suits — Inconsistent attitude of the Church
in excommunicating animals — Causal relation of crime
to demoniacal possession — Squatter sovereignty of devils
—Aura corrumpens — Diabolical infestation and lack
of ventilation — " Bewitched kine "—Greek furies and
Christian demons — Homicidal bees, laying cocks and
crowing hens — Theory of the personification of animals
— Beasts in Frankish, Welsh, and old German laws —
Animal prosecutions and witchcraft — The Mosaic code
in Christian courts — Pagan deities as demons — Bom
malefactors among beasts — The theory of punishment
in modem criminology p. \
CHAPTER I
BUGS AND BEASTS BEFORE THE LAW
Criminal prosecution of rats — Chassende appointed to defend
them — Report of the trial — Chassenee employed as
counsel in other cases of this kind — His dissertation on
the subject — Nature of his argument — Authorities and
precedents — The withering of the fig-tree at Bethany
justified and explained by Dr. Trench — Eels and blood-
suckers in Lake Leman cursed by the Bishop of
Lausanne with the approval of Heidelberg theologians
— White bread turned black, and swallows, fish, and flies
vi Contents
destroyed by anathema — St. Pirminius expels reptiles
— Vermifugal efficacy of St. Magnus' crosier — Papal
execratories — Animals regarded by the law as lay
persons, and not entitled to benefit of clergy — Methods
of procedure — Jurisdiction of the courts — Records ot
judicial proceedings against insects — Important trial of
weevils at St. Jean-de-Maurienne extending over more
than eight months — Untenableness of Menebrea's theory
— Summary of the pleadings — Futile attempts at com-
promise— Final decision doubtful — St. Eldrad and the
snakes — Views of Thomas Aquinas — Distinction be-
tween excommunication and anathema — " Sweet beasts
and stenchy beasts '' — Animals as incarnations of devils
— Their diabolical character assumed in papal formula
for blessing water to kill vermin — Amusing treatise by
Pere Bougeant on this subject — All animals animated by
devils, and all pagans and unbaptized persons possessed
with them — Demons the real causes of diseases —
Father Lohbauer's prescription in such cases — Formula
of exorcism issued by Leo XIII. — Recent instances of
demoniacal possession — Hoppe's psychological explana-
tion of them — Charcot on faith-cures — Why not the duty
of the Catholic Church to inculcate kindness to animals
— Zoolatry a form of demonolatry — Gnats especially
dangerous devils — Bodelschwingh's discover)- of the
bacillus infemalis — Gaspard Bailly's disquisition with
specimens of plaints, pleas, etc. — .'Vyrault protests against
such proceedings — Hemmerlein's treatise on exorcisms
— Criminal prosecution of field-mice — Vermin excom-
mimicated by the Bishop of Lausanne — Protocol of
judicial proceedings against caterpillars — Conjurers of
cabbage-worms — Swallows proscribed by a Protestant
parson — Custom of writing letters of advice to rats —
Writs of ejectment served on them — RhjTiiing rats
in Ireland — Ancient usage mentioned by Kassianos
Bassos — Capital punishment of larger quadrupeds —
Berriat-Saint-Prix's Reports and Researches — List of
culprits — Beasts burned and buried alive and put to the
rack — Swine executed for infanticide — Baill/s bill of
expenses — An ox decapitated for its demerits — Punish-
ment of buggery — Cohabitation of a Christian with a
Jewess declared to be sodomy — Trial of a sow and six
sucklings for murder — Bull sent to the gallows for
killing a lad — A horse condemned to death for homicide
Contents vii
— A cock burned at the stake for the unnatural crime of
laying an egg- — Lapeyronie's investigation of the subject
— Racine's satire on such prosecutions in Les Plaideursj
Lex talionis — Tit for tat the law of the primitive man
and the savage — The application of this iron rule in
Hebrew legislation — Flesh of a culprit pig not to be
eaten^ — Athenian laws for punishing inanimate objects —
Recent execution of idols in China — Russian bell
sentenced to perpetual exile in Siberia for abetting in-
surrection— Pillory for dogs in Vienna — Treatment
prescribed for mad dogs in the Avesta — Cruelty of laws,
of talion and decrees of corruption of blood — Examples
in ancient and modern legislation — Cicero approves of
such penalties for political offences — Survival of this
conception of justice in theology— Constitutio Criminalis
Carolina — Lombroso opposed to trial by jury as a relic
of barbarism — Corruption of Swiss cantonal courts —
Deodand in English law — Applications of it in Mary-
land and in Scotland — Blackstone's theory of it untenable
— Penalties inflicted for suicide — Ancient legislation
on this subject — Legalization of suicide — Abolition of
deodands in England p. i8
CHAPTER II
MEDIEVAL AND MODERN PENOLOGY
Recent change in the spirit of criminal jurisprudence —
Medieval tribunals cut with the executioner's sword the
intricate knots which the modern criminalist essays to
untie — Phlebotomy a panacea in medicine and law —
Restless ghosts of criminals who died unpunished —
Execution of vampires and were-wolves — Case of a were-
wolf who devoured little children " even on Friday "
—Pope Stephen VI. brings the corpse of his predecessor
to trial — Mediaeval and modem conceptions of culpa-
bility—Problems of psycho-pathological jurisprudence —
Degrees of mental vitiation — Italians pioneers in the
scientific study of criminality — Effects of these specula-
tions upon legislation — Barbarity of mediaeval penal
justice — Gradual abolition of judicial torture — Cruel
sentence pronounced by Carlo Borromeo — " Blue Laws "
viii Contents
a great advance on contemporary English penal codes —
Moral and penal responsibility — Atavism and criminality
— Physical abnormities — Capacity and symmetry of the
skull — Circumvolutions of the brain — Tattooing not a
peculiarity of criminals, but simply an indication of low
aesthetic sense — Theories of the origin and nature of
crime — Intelligence not always to be measured by the
size of the encephalon — Remarkable exceptions in
Ganibetta, Bichat, Bischoff and Ugo Foscolo — Ad-
vanced criminalists justly dissatisfied with the penal
codes of to-day — Measures proposed by Lombroso and
his school — Their conclusions not sustained by facts —
Crime through hypnotic suggestion — Difficulty of de-
fining insanity — Coleridge's definition too inclusive —
Predestination and evolution — Criminality among the
lower animals — Punishment preventive or retributive —
Schopenhauer's doctrine of responsibility for character
— Remarkable trial of a Swiss toxicomaniac, Marie
Jeanneret — " Method in Madness " not uncommon —
Social safety the supreme law — Application of this
principle to " Cranks " — Spirit of imitation peculiarly
strong in such classes — Contagiousness of crime —
Criminology now in a period of transition ... ^.193
APPENDIX
A. De Actis Scindicorum Communitatis Sancti JuUiani
agentium contra Animalia Bruta ad formam mus-
cartun volantia coloris viridis communi voce appellata
Verpillions seu Amblevins /• 259
B. Traite des Monitoires avec un Plaidoyer contre les
Insectes par Spectable Gaspard Bailly ... p. 287
C. Allegation, Replication, and Judgment in the process
against field-mice at Stelvio in 15 19 p. 307
D. Admonition, Denunciation, and Citation of the Inger by
the Priest Bemhard Schmid in the name and by the
authority of the Bishop of Lausanne in 1478 p. 309
E. Decree of Augustus, Duke of Saxony and Elector, com-
mending the action of Parson Greysser in putting the
sparrows under ban, issued at Dresden in 1559 p. 31 1
Contents ix
F. Chronological List of Excommunications and Prose-
cutions of Animals from the ninth to the nineteenth
century p. 313
G. Receipt, dated January 9, 1386, in which the hangman
of Falaise acknowledges to have been paid by the
Viscount of Falaise ten sous and ten deniers toumois
for the execution of an infanticidal sow, and also ten
sous toumois for a new glove /• 335
H. Receipt, dated September 24, 1394, in which Jehan
Micton acknowledges that he received the sum of fifty
sous toumois from Thomas de Juvigney, Viscount of
Mortaing, for having hanged a pig, which had killed and
murdered a child in the parish of Roumaygne p. 336
I. Attestation of Symon de Baudemont, Lieutenant of the
Bailiff of Nantes and Meullant, made by order of the
said ba'iliff and the king's proctor, on March 15, 1403,
and certifying to the expenses incurred in executing a
sow that had devoured a small child p. 338
J. Receipt, dated October 16, 1408, and signed by Toustain
Pincheon, jailer of the royal prisons in the town of
Pont de Larche, acknowledging the payment of nine-
teen sous and six deniers tournois for food furnished to
sundry men and to one pig kept in the said prisons on
charge of crime ... ... ... ... ...p. 340
K. Letters Patent, by which Philip the Bold, Duke of
Burgundy, on September 12, 1379, granted the petition
of the Friar Humbert de Poutiers, Prior of the town
of Saint-Marcel-lez-Jussey, and pardoned two herds of
swine, which had been condemned to suffer the extreme
penalty of the law as accomplices in an infanticide
committed by three sows A 342
L. Sentence pronounced by the Mayor of Loens de Chartres
on the 1 2th of September, 1606, condemning Guillaume
Guyart to be hanged and burned together with a
bitch P- 'h^^
M. Sentence pronounced by the Judge of Savigny in
January, 1457, condemning to death an infanticidal
sow. Also the sentence of confiscation pronounced
nearly a month later on the six pigs of the said sow
for complicity in her crime p. 346
X Contents
N. Sentence pronounced, April i8, 1499, in a criminal
prosecution instituted before the Bailiff of the Abbey
of Josaphat, in the Commune of S^ves, near Chartres,
against a pig condemned to be hanged for having killed
an infant. In this case the owners of the pig were
fined eighteen francs for negligence, because the child
was their fosterling A 352
O. Sentence pronounced, June 14, 1494, by the Grand
Mayor of the church and monastery of St. Martin de
Laon, condemning a pig to be hanged and strangled
for infanticide committed on the fee-farm of Clermont-
lez-Montcomet p. 354
P. Sentence pronounced, March 27, 1567, by the Royal
Notary and Proctor of the Bailiwick Jind Bench of the
Court of Judicatory of Senlis, condemning a sow with
a black snout to be hanged for her cruelty and ferocity
in murdering a girl of four months, and forbidding the
inhabitants of the said seignioralty to let such beasts
run 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 furiously
killing Lucas Dupont, a young man of fourteen or
fifteen years of age p. 358
R. Scene from Racine's comedy Les Plaideurs, in which a
dog is tried and condemned to the galleys for stealing
a capon p. 360
S. Record of the decision of the Law Faculty of the
University of Leipsic condemning a cow to death for
having killed a woman at Machem near Leipsic, July
20, 1621 p. 361
Bibliography p. 362
Index /. 37^
THE CRIMINAL PROSECUTION AND
CAPITAL PUNISHMENT OF ANIMALS
INTRODUCTION
The present volume is the result of the revision
and expansion of two essays entitled " Bugs and
Beasts before the Law," and " Modern and
Mediaeval Punishment," which appeared in
The Atlantic Monthly, in August and Sep-
tember 1884. Since that date the author has
collected a vast amount of additional material
on the subject, which has also been discussed
by other writers in several publications, the
most noteworthy of which are Professor Karl
von Amira's Thierstrafen und Thierprocesse
(Innsbruck, 1891), Carlo d'Addosio's Bestie
Delinquenti (Napoli, 1892), and G. Tobler's
Thierprocesse in der Schweis (Bern, 1893),
but in none of these works, except the first-
mentioned, are there any important statements
of facts or citations of cases in addition to those
adduced in the essays already mentioned, for
which the writer was indebted chiefly to the
2 The Criminal Prosecution and
extensive and exceedingly valuable researches
of Berriat-Saint-Prix and M. L. M^nebrea, and
the Consilium Primum of Bartholomew Chas-
senee, cited in the appended bibliography.
Professor Von Amira is a very distinguished
and remarkably keen-sighted jurisprudent and
treats the matter exclusively from a jurispru-
dential point of view, his main object being to
discover some general principle on which to
explain these strange phenomena, and thus to
assign to them their proper place and true
significance in the historical evolution of the idea
of justice and the methods of attaining it by
legal 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 penalty
for homicide ; the latter were judicial proceedings
instituted by ecclesiastical courts against rats,
mice, locusts, weevils, and other vermin in order
to prevent them from devouring the crops, and to
expel them from orchards, vineyards, and culti-
vated fields by means of exorcism and excom-
munication. Animals, which were in the service
of man, could be arrested, tried, convicted and
executed, like any other members of his house-
hold ; it was, therefore, not necessary to summon
them to appear in court at a specified time to
answer for their conduct, and thus make them,
Capital Punishment of Animals 3
in the strict sense of the term, a party to the
prosecution, for the sheriff had already taken
them in charge and consigned them to the
custody of the jailer. Insects and rodents, on
the other hand, which were not subject to human
control and could not be seized and imprisoned
by the civil authorities, demanded the interven-
tion of the Church and the exercise of its super-
natural functions for the purpose of compelling
them to desist from their devastations and to
retire from all places devoted to the production
of human sustenance. The only feasible method
of staying the ravages of these swarms of noxious
creatures was to resort to " metaphysical aid "
and to expel or exterminate them by sacerdotal
conjuring and cursing. The fact that it was
customary to catch several specimens of the
culprits and bring them before the seat of
justice, and there solemnly put them to death
while the anathema was being pronounced,
proves that this summary manner of dealing
would have been applied to the whole of them,
had it been possible to do so. Indeed, the
attempt was sometimes made to get rid of them
by setting a price on their heads, as was the case
with the plague of locusts at Rome in 880, when
a reward was offered for their extermination, but
all efforts in this direction proving futile, on
account of the rapidity with which they propa-
gated, recourse was had to exorcisms and be-
sprinklings with holy water.
4 The Criminal Prosecution and
D'Addosio speaks of the actions brought
against domestic animals for homicide as penal
prosecutions, and those instituted against insects
and vermin for injury done to the fruits of the
field as civil suits (processi civili) ; but the latter
designation is not correct in any proper sense of
the term, since these actions were not suits to
recover for damages to property, but had solely
a preventive or prohibitive character. The
judicial process was preliminary to the utterance
of the malediction and essential to its efficacy.
Before fulminating an excommunication the
whole machinery of justice was put in motion
in order to establish the guilt of the accused,
who were then warned, admonished, and threat-
ened, and, in cases of obduracy, smitten with
the anathema maranatha and devoted to utter
destruction. As with all bans, charms, exorcisms,
incantations, and other magical hocus-pocus, the
omission of any formality would vitiate the
whole procedure, and, by breaking the spell,
deprive the imprecation or interdiction of its
occult virtue. Ecclesiastical thunder would thus
be robbed of its fatal bolt and reduced to mere
empty noise, the harmless explosion of a blank
cartridge.
The Church was not wholly consistent in its
explanations of these phenomena. In general
the swarms of devouring insects and other noxi-
ous vermin are assumed to have been sent at
the instigation of Satan (instigante sathana, per
Capital Punishment of Animals 5
maleficium diabolicum), and are denounced and
deprecated as snares of the devil and his satel-
lites {diaboli et ministrorum insidias) ; again
they are treated as creatures of God and agents
of the Almighty for the punishment of sinful
man ; from this latter point of view every effort
to exterminate them by natural means would be
regarded as a sort of sacrilege, an impious
attempt to war upon the Supreme Being and to
withstand His designs. In either case, whether
they were the emissaries of a wicked demon
or of a wrathful Deity, the only proper and per-
missible way of relief was through the offices
of the Church, whose bishops and other clergy
were empowered to perform the adjurations and
maledictions or to prescribe the penances and
propitiations necessary to produce this result. If
the insects were instruments of the devil, they
might be driven into the sea or banished to some
arid region, where they would all miserably
perish ; if, on the other hand, they were recog-
nized as the ministers of God, divinely delegated
to scourge mankind for the promotion of piety, it
would be suitable, after they had fulfilled their
mission, to cause them to withdraw from the
cultivated fields and to assign them a spot,
where they might live in comfort without injury
to the inhabitants. The records contain in-
stances of both kinds of treatment.
It was also as a protection against evil spirits
that the penalty of death was inflicted upon
6 The Criminal Prosecution and
domestic animals. A homicidal pig or bull was
not necessarily assumed to be the incarnation of
a demon, although it was maintained by eminent
authorities, as we have shown in the present
work, 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, was
supposed to furnish occasion for the intervention
of devils, who were thereby enabled to take pos-
session of both persons and places. This belief
was prevalent in the Middle Ages, and is still
taught by the Catholic Church. In a little
volume entitled Die Verivaltung des Exorcistats
nach Massgabe der romischen Benediktionale,
of which a revised and enlarged edition was
published at Stuttgart in 1893 for the use of
priests as a manual of instruction in performing
exorcisms, it is expressly stated by the reverend
author. Dr. Theobald Bischofberger, that a
spot, where a murder or other heinous crime has
been committed, if the said crime remains unde-
tected or unexpiated, is sure to be infested by
demons, and that the inmates of a house or
other building erected upon such a site will be
peculiarly liable to diabolical possession, how-
ever innocent they may be personally. Indeed,
the more pure and pious they are, the greater
will be the efforts of the demons to enter into
and annoy them. Not only human beings, but
also all cattle after their kind, and even the
fowls of the barnyard are subject to infernal
Capital Punishment of Animals 7
vexations of this sort. The infestation thus pro-
duced may continue for centuries, and, although
the property may pass by purchase or inheritance
into other hands and be held successively by any
number of rightful owners, the demons remain
in possession unaffected by legal conveyances.
If each proprietor imagines he has an exclusive
title to the estate, he reckons without the host
of devils, who exercise there the right of squatter
sovereignty and can be expelled only by sacer-
dotal authority. Dr. Bischofberger goes so far
as to affirm that it behoves the purchaser of a
piece 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 demoniac
lien than from a dead pledge or any other form
of obligation in law. Information concerning
the latter can be obtained at the registry of
deeds, but it is far more difficult to ascertain
whether the infernal powers have any claims
upon it, since this knowledge can be derived only
inferentially and indirectly from inquiries into
the character of the proprietors for many genera-
tions and must always rest upon presumptive
evidence rather than positive proof. Our author
does not hesitate to assert that houses which
have been the abodes of pious people from time
immemorial ought to have a higher market value
than the habitations of notoriously wicked
families. It is thus shown that " godliness is
profitable " not only " unto all things," but also,
8 The Criminal Prosecution and
as mediccval writers were wont to say, unto some
things besides, which the apostle Paul in his
admonitions to his "son Timothy" never
dreamed of. We are also told that the aura
cofTumpens resulting from diabolical infesta-
tion imparts to the dwelling a peculiar taint,
which it often retains for a long time after the
demons have been cast out, so that sensitive
persons cannot enter such a domicile without
getting nervously excited, slightly dizzy and all
in a tremble. The carnal mind, which is at
fenmity with all supernatural explanations df
natural phenomena, would seek the source of
such sensations in an aura corrumpens arising
from the lack of proper ventilation, and find
relief by simply opening the windows instead of
calling in a priest with aspergills, and censers,
and henedictiones locoruni.
We have a striking illustration of this truth
in the frequent cases of " bewitched kine."
European peasants often confine their cattle in
stalls so small and low that the beasts have not
sufficient air to breathe. The result is that a
short time after the stalls are closed for the night
the cattle get excited and begin to fret and fume
and stamp, and are found in the morning weak
and exhausted and covered with sweat. The
peasant attributes these phenomena to witchcraft,
and calls in an exorcist, who proceeds to expel
the evil spirits. Before performing the ceremony
of conjuration, he opens the doors and windows
Capital Punishment of Animals 9
and the admission of fresh air makes it quite
easy to cast out the demons. A German veter-
inarian, who reports several instances of this
kind, tried in vain to convince the peasants that
the trouble was due, not to sorcery, but to the
absence of proper sanatory conditions, and
finally, in despair of accomplishing his purpose
in any other way, told them that if the windows
were left open so that the witches could go in
and out freely, the demons would not enter into
the cattle. This advice was followed and the
malign influence ceased.
The ancient Greeks held that a murder,
whether committed by a man, a beast, or an
inanimate object, unless properly expiated,
would arouse the furies and bring pestilence
upon the land ; the mediaeval Church taught the
same doctrine, and only substituted the demons
of Christian theology for the furies of classical
mythology. As early as 864, the Council of
Worms decreed that bees, which had caused the
death of a human being by stinging him, should
be forthwith suffocated in the hive before they
could make any more honey, otherwise the entire
contents of the hive would become demoniac-
ally tainted and thus rendered unfit for use as
food; it was declared to be unclean, and this
declaration of impurity implied a liability to
diabolical possession on the part of those who,
like Achan, " transgressed in the thing ac-
cursed." It was the same horror of aiding and
lo The Criminal Prosecution and
abetting demons and enabling them to extend
their power over mankind that caused a cock,
which was suspected of having laid the so-called
" basilisk-egg," or a hen, addicted to the
ominous habit of crowing, to be summarily put
to death, since it was only by such expiation that
the evil could be averted.
A Swiss jurist, Eduard Osenbriiggen (Studien
sur deutschen und schnueizerischen Rechtsges-
chichte. Schafifhausen, 1868, p. 139-149), en-
deavours to explain these judicial proceedings
on the theory of the personification of animals.
As only a human being can commit crime and
thus render himself liable to punishment, he
concludes that it is only by an act of personifica-
tion that the brute can be placed in the same
category as man and become subject to the same
penalties. In support of this view he refers to
the fact that in ancient and mediaeval times
domestic animals were regarded as members of
the household and entitled to the same legal
protection as human vassals. ; In the Prankish
capitularies all beasts of burden or so-called
juments were included in the king's ban and
enjoyed the peace guaranteed by royal author-
ity : Ut jumenta pacem hahent similiter per
bannum regis. The weregild extended to them
as it did to women and serfs under cover of the
man as master of the house and lord of the
manor. The beste covert, to use the old legal
phraseology, was thus invested with human
Capital Punishment of Animals 1 1
rights and inferentially endowed with human
responsibiHties. According to old Welsh law
atonement was made for killing a cat or dog
belonging to another person by suspending the
animal by the tail so that its nozzle touched the
ground, and then pouring wheat over it until its
body was entirely covered. Old Germanic law
also recognized the competency of these animals
as witnesses in certain cases, as, for example,
when burglary had been committed by night, in
the absence of human testimony, the house-
holder was permitted to appear before the court
and make complaint, carrying on his arm a dog,
cat or cock, and holding in his hand three straws
taken from the roof as symbols of the house.
Symbolism and personification, as applied to
animals and inanimate objects, unquestionably
played an important part in primitive legislation,
but this principle does not account for the excom-
munication and anathematization of noxious
vermin or for the criminal prosecution and
capital punishment of homicidal beasts, nor does
it throw the faintest light upon the origin and
purpose of such proceedings. Osenbriiggen's
statement that the cock condemned to be burned
at Bale was personified as a heretic (Ketzer) and
therefore sentenced to the stake, is a far-fetched
and wholly fanciful explanation. As we have
already seen, the unfortunate fowl, suspected of
laying an egg in violation of its nature, was
feared as an abnormal, inauspicious, and there-
12 The Criminal Prosecution and
fore diabolic creature ; the fatal cockatrice, which
was supposed to issue from this egg when
hatched, and the use v-hich might be made of
its contents for promoting intercourse with evil
spirits, caused such a cock to be dreaded as a
dangerous purveyor to His Satanic Majesty, but
no member of the Kohlenberg Court ever
thought of consigning Chanticleer to the flames
as the peer of Wycliffe or of Huss in heresy.
The judicial prosecution of animals, resulting
in their excommunication by the Church or their
execution by the hangman, had its origin in the
common superstition of the age, which has left
such a tragical record of itself in the incredibly
absurd and atrocious annals of witchcraft. The
same ancient code that condemned a homicidal
ox to be stoned, declared that a witch should
not be suffered to live, and although the Jewish
lawgiver may have regarded the former enact-
ment chiefly as a police regulation designed to
protect persons against unruly cattle, it was, like
the decree of death against witches, genetically
connected with the Hebrew cult and had there-
fore an essentially religious character. It was
these two paragraphs of the Mosaic law that
Christian tribunals in the Middle Ages were
wont to adduce as their authority for prosecut-
ing and punishing both classes of delinquents,
although in the application of them they were
undoubtedly incited by motives and influenced
by fears wholly foreign to the mind of the
Capital Punishment of Animals 13
Levitical legislator. The extension of Christi-
anity beyond the boundaries of Judaism and the
conversion of Gentile nations led to its gradual
but radrcal transformation. The propagation of
the new and aggressive faith among the Greeks
and Romans, and especially among the Indo-Ger-
manic tribes of Northern Europe, necessarily
deposed, degraded and demonized the ancestral
deities of the proselytes, who were taught hence-
forth to abjure the gods of their fathers and to
denounce them as devils. Thus missionary zeal
and success, while saving human souls from
endless perdition, served also to enlarge the
realm of the Prince of Darkness and to increase
the number of his subjects and satellites. The
new convert saw them with his mind's eye
skulking about in obscure places, haunting
forest dells and mountain streams by day,
approaching human habitations by night and
waiting for opportunities to lure him back to the
old worship or to take vengeance upon him for
his recreancy. Every untoward event furnished
an occasion for their intervention, which could
be averted or repelled only by the benedictions,
exorcisms or anathemas of the Church. The
ecclesiastical authorities were therefore directly
interested in encouraging this superstitious belief
as one of the chief sources of their power, and it
was for this reason that diabolical agencies were
assumed to be at work in every maleficent force
of nature and to be incarnate in every noxious
14 The Criminal Prosecution and
creature. That this docrine is still held and this
policy still pursued by the bishops and other
clergy of the Roman CaFholic Church, no one
familiar with the literature of the subject can
deny.
Besides the manuals and rituals already cited,
consult, for example, Die deiitschen Bischofe und
der Aherglauhe : Eine Denkschrift von Dr. Fr.
Heinrich Reusch, Professor of Theology in the
University of Bonn, who vigorously protests
against the countenance given by the bishops to
the crassest superstitions. For specimens of the
literature condemned by the German professor,
but approved by the prelates and the pope, see
such periodicals as Monat-Rosen zu Ehren der
Unbefleckten Gottes-Mutter Maria and Der
Sendbote des gottlichen Herzens Jcsu, published
by Jesuits at Innsbruck in the Tyrol.
It is a curious fact that the most recent and
most radical theories of juridical punishment,
based upon anthropological, sociological and
psychiaterical investigations, would seem to
obscure and even to obliterate the line of distinc-
tion between man and beast, so far as their
capacity for committing crime and their moral
responsibility for their misdeeds are concerned.
According to Lombroso there are i delinquenti
nati fra gli animali, beasts which are born
criminals and wilfully and wantonly injure
others of their kind, violating with perversity
and premeditation the laws of the society in
Capital Punishment of Animals 15
which they live. Thus the modern criminologist
recognizes the existence of the kind of malefactor
characterized by Jocodus Damhouder, a Belgian
jurist of the sixteenth century, as bestia laedens
ex interna malitia; but although he might admit
that the beast perpetrated the deed with malice
aforethought and with the clear consciousness of
wrong-doing, he would never think of bringing
such a creature to trial or of applying to it the
principle of retributive justice. This example
illustrates the radical change which the theory of
punishment has undergone in recent times and
the far-reaching influence which it is beginning
to exert upon penal legislation. In the second
part of the present work the writer calls attention
to this important revolution in the province of
criminology, discussing as concisely as possible
its essential features and indicating its general
scope and practical tendencies, so far as they
have been determined. It must be remembered,
however, that, although the savage spirit of
revenge, that eagerly demands blood for blood
without the slightest consideration of the ana-
tomical, physiological or psychological con-
ditions upon which the commission of the specific
act depends, has ceased to be the controlling
factor in the enactment and execution of penal
codes, the new system of jurisprudence, based
upon more enlightened conceptions of human
responsibility, is still in an inchoate state and
very far from having worked out a satisfactory
1 6 The Criminal Prosecution and
solution of the intricate problem of the origin
and nature of crime and its proper penalty.
In 1386, an infanticidal sow was executed in
the old Norman city of Falaise, and the scene was
represented in fresco on the west wall of the
Church of the Holy Trinity in that city. This
curious painting no longer exists, and, so far as
can be ascertained, has never been engraved. It
has been frequently and quite fully described by
different writers, and the frontispiece of the
present volume is not a reproduction of the
original picture, but a reconstruction of it accord-
ing to these descriptions. It is taken from
Arthur Mangin's L'Homme et la Bete (Paris,
1872), of which all the illustrations are more or
less fancy sketches. A full account of the trial
and execution is given in the present volume.
The iconographic edition of Jocodus Dam-
houder's Praxis Rerum Criminalium (Antverpiae,
1562) contains at the beginning of each section
an engraving representing the perpetration of
the crimes about to be discussed. That at the
head of the chapter entitled " De Damno Pecu-
ario " is a lively picture of the injuries done by
animals and rendering them liable to criminal
process; it is reproduced facing page 161 of the
present work.
The most important documents, from which
our knowledge of these judicial proceedings is
derived, are given in the Appendix, together with
a complete list of prosecutions and excommunica-
Capital Punishment of Animals 17
tions during the past ten centuries, so far as we
have been able to discover any record of them.
The bibhography, although making no claim
to be exhaustive, comprises the principal works
on the subject. Articles and essays, which are
merely a rehash of other publications, it has not
been deemed necessary to mention. Such, for
example, are " Criminalprocesse gegen Thiere,"
in Miscellen aus der neuesten ausldndischen
Literatur (Jena, 1830, LXV. pp. 152-55), Jor-
gensen's Nogle Frugter af mit Otium (Kopen-
hagen, 1834, PP* 216-23); Cretella's " Gli Ani-
mali sotto Process©," in Fanfulla della Domenica
(Florence, 1891, No. 65), all three based upon
the archival researches of Berriat-Saint-Prix and
M^nabrea, and Soldan's " La Personification
des Animaux in Helvetia," in Monatsschrift der
Studentenverbindung Helvetia (VII. pp. 4-17),
which is a mere restatement of Osenbriiggen's
theory.
In conclusion the author desires to express his
sincere thanks to Dr. Laubmann, Director of the
Munich Hof- und Staatsbibliothek, as well as to
the other custodians of that library, for their
uniform kindness and courtesy in placing at his
disposal the printed and manuscript treasures
committed to their keeping.
1 8 The Criminal Prosecution and
CHAPTER I
BUGS AND BEASTS BEFORE THE LAW
It is said that Bartholomew Chassenee,^ a
distinguished French jurist of the sixteenth
century (born at Issy-l'Eveque in 1480), made
his 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 having
feloniously eaten up and wantonly destroyed the
barley-crop of that province. On complaint
formally presented by the magistracy, the official
or bishop's vicar, who exercised jurisdiction in
such cases, cited the culprits to appear on a
certain day and appointed Chassen^e to defend
them.
In view of the bad repute and notorious guilt
of his clients, Chassenee was forced to employ
all sorts of legal shifts and chicane, dilatory
pleas and other technical objections, hoping
thereby to find some loophole in the meshes of
the law through which the accused might escape,
* The name is also spelled Chassanee and Chasseneux.
In the Middle Ages, and even as late as the end of the
eighteenth century, the orthography of proper names was
very uncertain.
Capital Punishment of Animals 19
or at least to defer and mitigate the sentence of
the judge. He urged, in the first place, that
inasmuch as the defendants were dispersed over
a large tract of country and dwelt in numerous
villages, a single summons was insufficient to
notify them all ; he succeeded, therefore, in
obtaining a second citation, to be published from
the pulpits of all the parishes inhabited by the
said rats. At the expiration of the considerable
time which elapsed before this order could be
carried into effect and the proclamation be duly
made, he excused the default or non-appearance
of his clients on the ground of the length and
difficulty of the journey and the serious perils
which attended it, owing to the unwearied
vigilance of their mortal enemies, the cats, who
watched all their movements, and, with fell
intent, lay in wait for them at every corner and
passage. On this point Chassenee addressed the
court at some length, in order to show that if
a person be cited to appear at a place, to which
he cannot come with safety, he may exercise the
right of appeal and refuse to obey the writ, even
though such appeal be expressly precluded in the
summons. The point was argued as seriously as
though it were a question of family feud between
Capulet and Montague in Verona or Colonna
and Orsini in Rome.
At a later period of his life Chassenee was
reminded of the legal principle thus laid down
and urged to apply it in favour of clients more
20 The Criminal Prosecution and
worthy of its protection than a horde of vagrant
rodents. In 1540 he was president of the judicial
assembly known as the Parliament of Provence
on a memorable occasion when the iniquitous
measure for the extirpation of heresy by exter-
minating the Waldenses in the villages of
Cabri^res and Merindol was under discussion.
One of the members of the tribunal, a gentleman
from Aries, Renaud d'Alleins, ventured to
suggest to the presiding officer that it would be
extremely unjust to condemn these unfortunate
heretics without granting them a hearing and
permitting an advocate to speak in their defence,
so that they might be surrounded by all the safe-
guards of justice, adding that the eminent jurist
had formerly insisted upon this right before the
court of Autun and maintained that even animals
should not be adjudged and sentenced without
having a proper person appointed to plead their
cause. Chassenee thereupon obtained a decree
from the king commanding that the accused
Waldenses should be heard ; but his death,
which occurred very soon afterwards, changed
the state of affairs and prevented whatever good
effects might have been produced by this simple
act of justice. [Cf . Desnoyers : RechercheSy etc.
{•vide Bibliography), p. 18.]
In the report of the trial published in the Themis
Jurisconsulte for 1820 (Tome I. pp. 194 sqq.)
by Berriat Saint-Prix, on the authority of the
celebrated Jacques Auguste De Thou, President
Capital Punishment of Animals 21
of the Parliament of Paris, the sentence pro-
nounced by the official is not recorded. But
whatever the judicial decision may have been,
the ingenuity and acumen with which Chassen^e
conducted the defence, the legal learning which
he brought to bear upon the case, and the elo-
quence of his plea enlisted the public interest
and established his fame as a criminal lawyer and
forensic orator.
Chassen^e is said to have been employed in
several cases of this kind, but no records of
them seem to have been preserved, although it is
possible that they may lie buried in the dusty
archives of some obscure provincial town in
France, once the seat of an ecclesiastical tribunal.
The whole subject, however, has been treated
by him exhaustively in a book entitled Consilium
frimum, quod tractatus jure did potest, propter
multiplicetn et reconditam doctrinam, uhi lucu-
lenter et accurate tractatur quaestio ilia: De
excommunicatione animalium insectorum. This
treatise, which is the first of sixty-nine consilia,
embodying opinions on various legal questions
touching the holding and transmission of pro-
perty, entail, loans, contracts, dowries, wills, and
kindred topics, and which holds a peculiar place
in the history of jurisprudence, was originally
published in 1531, and reprinted in 1581, and
again in 1588. The edition referred to in the
present work is the first reprint of 1581, a copy
of which is in the Royal Court and State Library
of Munich.
22 The Criminal Prosecution and
This curious dissertation originated, as it
appears, in an application of the inhabitants of
Beaune to the ecclesiastical tribunal of Autun for
a decree of excommunication against certain
noxious insects called huberes or hurebers, pro-
bably a kind of locust or harvest-fly. The
request was granted, and the pernicious creatures
were duly accursed. Chassen^e now raises the
query whether such a thing may be rightfully
and lawfully done {sed an rede et de jure fieri
possit), and how it should be effected. " The
principal question," he says, " is whether one
can by injunction cause such insects to withdraw
from a place in which they are doing damage,
or to abstain from doing damage there, under
penalty of anathema and perpetual malediction.
And although in times past there has never been
any doubt on this point, yet I have thought that
the subject should be thoroughly examined anew,
lest I should seem to fall into the vice censured
by Cicero (De Off. I. 6), of regarding things
which we do not know as if they were well under-
stood by us, and therefore rashly giving them
our assent." He divides his treatise into five
parts, or rather discusses the subject under five
heads : " First, lest I may seem to discourse to
the populace, how are these our animals called in
the Latin language; secondly, whether these our
animals can be summoned ; thirdly, whether they
can be summoned by procurators, and, if they are
cited to appear personally, whether they can
appear by proxy, i. e. through procurators ap-
Capital Punishment of Animals 23
pointed by the judge who summons them ;
fourthly, what judge, whether layman or
ecclesiastic, is competent to try them, and how
he is to proceed against them and to pass and
execute sentence upon them ; fifthly, what con-
stitutes an anathema and how does it differ from
an excommunication." Chassenee's method of
investigation is not that of the philosophic
thinker, who marshals facts under general laws
and traces them to rational causes, but combines
that of the lawyer, who quotes precedents and
examines witnesses, with that of the theologian,
who balances authorities and serves us with texts
instead of arguments. He scrupulously avoids
all psychological speculation or metaphysical
reasoning, and simply aims to show that animals
have been tried, convicted, and sentenced by
civil and ecclesiastical courts, and that the com-
petence of these tribunals has been generally
recognized.
The documentary evidence adduced is drawn
from a great variety of sources : the scriptures
of the Old and New Testament, pagan poets
and philosophers, patristic theologians and
homilists, mediaeval hagiologists, Virgil, Ovid,
Pliny, Cicero, Cato, Aristotle, Seneca, Silius
Italicus, Boethius, Gregory the Great, Pico della
Mirandola, the laws of Moses, the prophecies of
Daniel, and the Institutes of Justinian are alike
laid under contribution and quoted as of equal
authority. All is fish that comes to his net out
24 The Criminal Prosecution and
of his erudition, be it salmon or sea-urchin. If
twelve witnesses can be produced in favour of
a statement, and only two against it, his reason
bows to the will of the majority, and accepts
the proposition as proved. It must be added,
however, to his credit, that he proceeds in this
matter with strict impartiality and perfect recti-
tude, takes whatever evidence is at hand, and
never tries to pack the witness-box.
His knowledge of obscure and now utterly for-
gotten authors, secular and ecclesiastic, is
immense. Like so many scholars of his day he
was prodigiously learned, without being remark-
able for clearness or originality of thought.
Indeed, the vastness of his erudition seems rather
to have hampered than helped the vigorous
growth of his intellectual faculties. He often
indulges in logical subtilties so shallow in their
speciousness, that they ought not to deceive the
veriest smatterer in dialectics; and the reader is
constantly tempted to answer his laboured argu-
mentations, as Tristram Shandy's Uncle Toby
did 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 strongly
conservative, precedent-mongering mind of the
jurisconsult is apt to fall an easy prey. The
habit of seeking knowledge and guidance exclu-
sively in the records and traditions of the past, in
the so-called " wisdom of ages," renders him
Capital Punishment of Animals 25
peculiarly liable to regard every act and utterance
of antiquity as necessarily wise and authoritative.
In proof of the power of anathemas, Chassen^e
refers to the cursing of the serpent in the Garden
of Eden, causing it to go upon its belly for all
time ; David's malediction of the mountains of
Gilboa, so that they had neither rain nor dew ;
God's curse upon the city of Jericho, making its
strong walls fall before the blasts of trumpets;
and in the New Testament the withered fig-tree
of Bethany. The words of Jesus, " Every tree
that bringeth not forth good fruit is hewn down
and cast into the fire," he interprets, not merely
as the best means of getting rid of a cumberer of
the orchard, but as a condemnation and punish-
ment of the tree for its delinquencies, and adds :
" If, therefore, it is permitted to destroy an
irrational thing, because it does not produce
fruit, much more is it permitted to curse it, since
the greater penalty includes the less (cum si liceat
quid est plus, debet licere quid est minus).
An English professor of divinity, Richard
Chevenix Trench, justifies the withering of the
fruitless fig-tree on the same ground or, at least,
by a similar process of reasoning: "It was
punished, not for being without fruit, but for
proclaiming by the voice of those leaves that it
had such; not for being barren, but for being
false." According to this exegesis, it was the
telling of a wilful lie that " drew on it the curse."
The guilty fig is thus endowed with a moral
26 The Criminal Prosecution and
character and made clearly conscious of the crime
for which it suffered the penalty of death :
" Almost as soon as the word of the Lord was
spoken, a shuddering fear may have run through
all the leaves of the tree, which was thus stricken
at the heart." As regards the culpability and
punishableness of the object, the modern divine
and the mediaeval jurist occupy the same stand-
point; only the latter, with a stricter judicial
sense, insists that there shall be no infliction of
punishment until the malefactor has been con-
victed by due process of law, and that he shall
enjoy all the safeguards which legal forms and
technicalities have thrown around him and under
whose covert even the vilest criminal has the
right to take refuge. The Anglican herme-
neutist, on the contrary, would justify the curse
and admit the validity of the anathema, although
it was only the angry expression of an unreason-
able impatience disappointed in not finding fruit
at the wrong season, " for the time of figs was
not yet."
A curious and characteristic specimen of the
absurd and illogical inferences, which Chassen^e
is constantly deducing from his texts, is the use
he makes of the passage in Virgil's first Georgic,
in which the poet remarks that " no religion has
forbidden us to draw off water-courses for irrigat-
ing purposes, to enclose crops with fences, or to
lay snares for birds," all these things being
essential to successful husbandry. But from the
Capital Punishment of Animals 27
right to snare birds, our jurisprudent infers the
right to excommunicate them, since " no snares
are stronger than the meshes of an anathema."
Far-fetched deductions and wretched twaddle of
this sort fill many pages of the famous lawyer's
dissertation.
Coming down to more recent times, Chassen^e
mentions several instances of the effectiveness of
anathemas, accepting as convincing testimony
the 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 an
orchard^ because its fruits tempted the children
of his parish and kept them away from mass.
The orchard remained barren until, at the solici-
tation of the Duchess of Burgundy, the ban was
removed. In like manner the Bishop of Lau-
sanne freed Lake Leman from eels, which had
become so numerous as seriously to interfere with
boating and bathing; on another occasion in the
year 145 1 the same ecclesiastic expelled from the
waters of this lake an immense number of enor-
mous blood-suckers, which threatened to destroy
all the large fish and were especially fatal to
salmon, the favourite article of food on fast-days.
This method of procedure was both cheap and
effective and, as Felix Malleolus informs us in his
Tractatus de Exorcismis (I), received the appro-
bation of all the learned doctors of the Univer-
sity of Heidelberg : omnes studii Heydelber-
28 The Criminal Prosecution and
gensis Doctores hujusmodi ritus videntes et
legentes consenserunt. By the same agency an
abbot changed the sweet white bread of a Count
of Toulouse, who abetted and protected heresy,
into black, mouldy bread, so that he, who would
fain feed souls with corrupt spiritual food, was
forced to satisfy his bodily hunger with coarse
and unsavoury provender. No sooner was the
excommunication 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 by
their chirping and chattering, and sacrilegiously
defiled his head and vestments with their drop-
pings, when he was officiating at the altar. He
forbade them to enter the sacred edifice on pain
of death ; and it is still a popular superstition at
Trier, that if a swallow flies into the cathedral,
it immediately falls to the ground and gives up
the ghost. Another holy man, known as John
the Lamb, cursed the fishes, which had incurred
his anger, with results equally fatal to the finny
tribe. It is also related of the honey-tongued St.
Bernard, that he excommunicated a countless
swarm of flies, which annoyed the worshippers
and officiating priests in the abbey church of
Foigny, and lo, on the morrow they were, like
Sennacherib's host, " all dead corpses." William,
Abbot of St. Theodore in Rheims, who records
this miraculous event, states that as soon as the
execration was uttered, the flies fell to the floor
Capital Punishment of Animals 29
in such quantities that they had to be thrown out
with shovels (palis ejicientes). This incident, he
adds, was so well known that the cursing of the
flies of Foigny became proverbial and formed the
subject of a parable. [Vita S. Bernardi, auctore
Wilhelmo abbate S. Thod. Rhem. I. 11.]
According to the usual account, the malediction
was not so drastic in its operation and did not
cause the flies to disappear until the next day.
The rationalist, whose chill and blighting breath
is ever nipping the tender buds of faith, would
doubtless suggest that a sharp and sudden frost
may have added to the force and efficacy of the
excommunication. The saint resorted to this
severe and summary measure, says the monkish
chronicler, because the case was urgent and " no
other remedy was at hand." Perhaps this lack
of other means of relief may refer to the absence
of " deacons with fly-flaps," who, according to a
contemporary writer, were appointed " to drive
away the flies when the Pope celebrateth."
The island Reichenau in Lake Constance,
which derives its name from its fertility and is
especially famous for the products of its vine-
yards and its orchards, was once so infested by
venomous reptiles as to be uninhabitable by
human 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 it
than these creatures all crawled and wriggled
into the water, so that the surface of the lake was
3© The Criminal Prosecution and
covered for three days and three nights with
serpents, scorpions and hideous worms. Pecuhar
vermifugal efficacy was ascribed to the crosier
of St. Magnus, the apostle of Algau, which was
preserved in the cloister of St. Mang at Fiissen in
Bavaria, and from 1685 to 1770 was repeatedly
borne in solemn procession to Lucerne, Zug,
Schwyz and other portions of Switzerland for
the expulsion and extermination of rats, mice,
cockchafers and other insects. Sometimes
formulas of malediction were procured directly
from the pope, which, like saints' curses, could
be applied without legal formalities. Thus
in 1660 the inhabitants of Lucerne paid four
pistoles and one Roman thaler for a document of
this kind; on Nov. 15, 1731, the municipal
council of Thonou in Savoy resolved to join with
other parishes of that province to obtain from
Rome an excommunication against insects, the
expenses for which are to be assessed pro rata; 1
in 1740 the commune of Piuro purchased from
His Holiness a similar anathema; in the
same year the common council of Chiavenna
discussed the propriety of applying to Rome
for an execratory against beetles and bears;
and in December 1752 it was proposed by
the same body to take like summary measures
' " Item : a et^ ddlibdre que la ville se joindra aux paroisses
de cette province qui voudront obtenir de Rome une excom-
munication contre les insects et que Ton contribuera aux
frais au pro rata."
Capital Punishment of Animals 31
in order to get rid of a pest of rodents. In
1729, 1730 and 1749 the municipal council of
Lucerne ordered processions to be made on St.
Magnus' Day from the Church of St. Francis to
Peter's Chapel for the purpose of expelling
weevils. This custom was observed annually
from 1749 to 1798. The pompous ceremony has
been superseded in Protestant countries by an
officially appointed day of fasting and prayer.
In his " First Counsel " Chassenee not only
treats of methods of procedure, and gives forms
of plaints to be drawn up and tendered to the
tribunal by the injured party, as well as useful
hints to the pettifogger in the exercise of his
tortuous and tricky profession, but he also dis-
cusses many legal principles touching the
jurisdiction 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, except
in cases where the penalty involves the shedding
of blood. An ecclesiastical judge is not
competent in causa sanguinis, and can impose
only canonical punishments, although he may
have jurisdiction in temporal matters and punish
crimes not involving a capital sentence. [Nam
judex ecclesiasticus in causa sanguinis non est
competens judex, licet habeat juris dictionem in
temporalihus et possit crimina poenam sanguinis
non existentia {exigentia is obviously the correct
reading) castigare. Cons. prim. IV. § 5.] For
32 The Criminal Prosecution and
this reason the Church never condemned
heretics to death, but, having decided that they
should die, gave them over to the secular power
for formal condemnation, usually under the
hollow and hypocritical pretence of recommend-
ing them to mercy. In the prosecution of
animals the summons was commonly published
from the parish pulpit and the whole judicial
process bore a distinctively ecclesiastical
character. In most cases the presiding judge or
official was the vicar of the parish acting as the
deputy of the bishop of the diocese. Occasion-
ally the curate officiated in this capacity. Some-
times the trial was conducted before a civil
magistrate under the authority of the Church,
or the matter was submitted to the adjudication
of a conjurer, who, however, appointed two
proctors to plead respectively for the plaintiff
and the defendant and who rendered his
verdict in due legal form. Indeed, the word
"conjurer" seems to have been used as a
popular designation of the person, whether
priest or layman, who exercised judicatory
functions in such trials, probably because, as a
rule, the sentence could be executed only by
conjuration or the invocation of supernatural
aid.
Another point, which strikes us very comic-
ally, but which had to be decided before the trial
could proceed, was whether the accused were to
be regarded as clergy or laity. Chassenee
Capital Punishment of Animals 33
thinks that there is no necessity of testing each
individual case, but that animals should be
looked upon as lay persons. This, he declares,
should be the general presumption ; but if any
one wishes to affirm that they have ordinem
clericatus and are entitled to benefit of clergy,
the burden of proof rests upon him and he is
bound to show it (deberet estud probare). Pro-
bably our jurist would have made an exception
in favour of the beetle, which entomologists call
clerus ; it is certain, at any rate, that if a bug
bearing this name had been brought to trial, the
learning and acuteness displayed in arguing the
point in dispute would have been astounding.
We laugh at the subtilties and quiddities of
mediaeval theologians, who seriously discussed
such silly questions as the digestibility of the
consecrated elements in the eucharist; but the
importance attached to these trivialities was not
so much the peculiarity of a single profession as
the mental habit of the age, the result of schol-
astic training and scholastic methods of investi-
gation, which tainted law no less than divinity.
Nevertheless the ancillary relations of all other
sciences and disciplines to theology render the
latter chiefly responsible for this fatal tendency.
Chassenee also makes a distinction between
punitive and preventive purposes in the prosecu-
tion of animals, between inflicting penalties
upon them for crimes committed and taking pre-
cautionary measures to keep them from doing
3
34 The Criminal Prosecution and
damage. By this means he seeks to evade the
objection, that animals are incapable of commit-
ting crimes, because they are not endowed with
rational faculties. He then proceeds to show
that " things not allowable in respect to crimes
already committed are allowable in respect to
crimes about to be committed in order to prevent
them." Thus a layman may not arrest an
ecclesiastic for a delict fully consummated, but
may seize and detain him in order to hinder the
consummation of a delict. In such cases, an
inferior may coerce and correct a superior ; even
an irrational creature may put restraint upon a
human being and hold him back from wrong-
doing. In illustration of this legal point he
cites an example from Holy Writ, where
*' Balaam, the prophet and servant of the Most
High, was rebuked by a she-ass."
Chassen^e endeavours to clinch his argument
as usual by quoting biblical texts and adducing
incidents from legendary literature. The pro-
vince of zoo-psychology, which would have
furnished him with better material for the eluci-
dation of his subject, he leaves untouched,
simply because it was unknown to him. If crime
consists in the commission of deeds hurtful to
other sentient beings, knowing such actions to
be wrong, then the lower animals are certainly
guilty of criminal offences. It is a well-estab-
lished fact, that birds, beasts and insects, living
together in communities, have certain laws,
Capital Punishment of Animals 35
which are designed to promote the general wel-
fare of the herd, the flock or the swarm, and the
violation of which by individual members they
punish corporally or capitally as the case may
require. It is likewise undeniable, that domestic
animals often commit crimes against man and
betray a consciousness of the nature of their acts
by showing fear of detection or by trying to
conceal what they have done. Man, too, recog-
nizes their moral responsibility by inflicting
chastisement upon them, and sometimes feels
justified in putting incorrigible offenders, a
vicious bull, a thievish cat or a sheep-killing
dog, summarily to death. Of course this kind
of punishment is chiefly preventive, nevertheless
it is provoked by acts already perpetrated and
is not wholly free from the element of retribu-
tive justice. Such a proceeding, however, is
arbitrary and autocratic, and if systematically
applied to human beings would be denounced
as intolerable tyranny. Chassen^e insists that
under no circumstances is a penalty to be im-
posed except by judicial decision — navi poena
nunquam imponitur, nisi lex expresse dicat —
and in support of this principle refers to the
apostle Paul, who declares that " sin is not
imputed when there is no law." He appears to
think that any technical error would vitiate the
whole procedure and reduce the ban of the
Church to mere hrutum fulmen. If he lays so
great stress upon the observance of legal forms.
36 The Criminal Prosecution and
which in the criminal prosecution of brute
beasts strike us as the caricature and farce of
justice, it is because he deems them essential to
the effectiveness of an excommunication. The
slightest mispronunciation of a word, an in-
correct accentuation or false intonation in utter-
ing a spell suffices to dissolve the charm and
nullify the occult workings of the magic. The
lack of a single link breaks the connection and
destroys the binding force of the chain ; every-
thing must be " well-thought, well-said and
well-done," not ethically, but ritually, as pre-
scribed in the old Avestan formula : humata
hukhta huvarshta. All the mutterings and
posturings, which accompany the performance
of 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 and
impairing its power. An anathema of animals
pronounced in accordance with the sentence
passed upon them by a tribunal, belongs to the
same category of conjurations and is rendered
nugatory by any formal defect or judicial irregu-
larity.
Sometimes the obnoxious vermin were
generously forewarned. Thus the grand-vicars
of Jean Rohin, Cardinal Bishop of Autun,
having been informed that slugs were devastat-
ing several estates in different parts of his
diocese, on the 17th of August, 1487, ordered
Capital Punishment of Animals 37
public processions to be made for three days
in every parish, and enjoined upon the said
slugs to quit the territory within this period
under penalty of being accursed. On the 8th
of September, 1488, a similar order was issued
at Beaujeu. The curates were charged to make
processions during the offices, and the slugs
were warned three times to cease from vexing
the people by corroding and consuming the
herbs of the fields and the vines, and to depart;
" and if they do not heed this our command, we
excommunicate them and smite them with our
anathema." In 1516, the official of Troyes pro-
nounced sentence on certain insects {adversus
hrucos seu eurucas vel alia non dissimilia ani-
vialia, Gallice urebecs, probably a species of
curculio), which laid waste the vines, and
threatened them with anathema, unless they
should disappear within six days. Here it is
expressly stated that a counsellor was assigned
to the accused, and a prosecutor heard in behalf
of the aggrieved inhabitants. As a means of
rendering the anathema more effective, the
people are also urged to be prompt and honest
in the payment of tithes. Chassenee, too,
endorses this view, and in proof of its correct-
ness refers to Malachi, where God promises to
rebuke the devourer for man's sake, provided all
the tithes are brought into the storehouse.
The archives of the old episcopal city of St.
Jean-de-Maurienne contain the original records
38 The Criminal Prosecution and
of legal proceedings instituted against some
insects, which had ravaged the vineyards of St.
Julien, a hamlet situated on the route over Mt.
Cenis and famous for the excellence of its
vintage. The defendants in this case were a
species of greenish weevil (charan9on) known to
entomologists as rychites auratus, and called by
different names, amblevin, beche, verpillion, in
different provinces of France.
Complaint was first made by the wine-growers
of St. Julien in 1545 before Francois Bonnivard,
doctor of laws. The procurator Pierre Falcon
and the advocate Claude Morel defended the
insects, and Pierre Ducol appeared for the plain-
tififs. After the presentation and discussion of the
case by both parties, the official, instead of pass-
ing sentence, issued a proclamation, dated the
8th of May, 1546, recommending public prayers
and beginning with the following characteristic
preamble: "Inasmuch as God, the supreme
author of all that exists, hath ordained that the
earth should bring forth fruits and herbs (animas
vegetativas)y not solely for the sustenance of
rational human beings, but likewise for the
preservation and support of insects, which fly
about on the surface of the soil, therefore it
would be unbecoming to proceed with rashness
and precipitance against the animals now actually
accused and indicted; on the contrary, it would
be more fitting for us to have recourse to the
mercy of heaven and to implore pardon for our
Capital Punishment of Animals 39
sins." Then follow instructions as to the manner
in which the public prayers are to be conducted
in order to propitiate the divine wrath. The
people are admonished to turn to the Lord with
pure and undivided hearts (ex toto et puro corde),
to repent of their sins with unfeigned contrition,
and to resolve to live henceforth justly and
charitably, and above all to pay tithes. High
mass is to be celebrated on three consecutive
days, namely on May 20th, 21st, and 22nd, and
the host to be borne in solemn procession with
songs and supplications round the vineyards.
The first mass is to be said in honour of the Holy
Spirit, the second in honour of the Blessed
Virgin, and the third in honour of the tutelar
saint of the parish. At least two persons of each
household are required to take part in these
religious exercises. A proces-verbal, signed by
the curate Romanet, attests that this programme
was fully carried out and that the insects soon
afterwards disappeared.
About thirty years later, however, the scourge
was renewed and the destructive insects were
actually brought to trial. The proceedings are
recorded on twenty-nine folia and entitled :
De actis scindicorum communitatis Sancti Julli-
ani agentium contra animalia bruta ad formavi
muscarum volantia coloris viridis communi voce
appellata verpillions seu amblevins . The docu-
ments, which are still preserved in the archives
of St. Julien, were communicated by M. Victor
40 The Criminal Prosecution and
Dalbane, secretary of the commune, to M. L^on
Menebrea, who printed them in the appendix to
his volume : De Vorigine de la jorme et de
respHt des jugenients rcndus au moyen-dge
contre les animaux, Chambery, 1846. This
treatise appeared originally in the twelfth tome of
the Memoir es de la Societe Roy ale Academique
de Savoie.
It may be proper to add that Menebrea's theory
of " the spirit, in which these judgments against
animals were given," is wholly untenable. He
maintains that "these procedures formed
originally only a kind of symbol intended to
revive the sentiment of justice among the masses
of the people, who knew of no right except might
and of no law except that of intimidation and
violence. In the Middle Ages, when disorder
reigned supreme, when the weak remained with-
out support and without redress against the
strong, and property was exposed to all sorts of
attacks and all forms of ravage and rapine, there
was something indescribably beautiful in the
thought of assimilating the insect of the field to
the masterpiece of creation and putting them on
an equality before the law. If man should be
taught to respect the home of the worm, how
much 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 mediaeval way of
thinking. The penal prosecution of animals,
Capital Punishment of Animals 41
which prevailed during the Middle Ages, was by
no means peculiar to that period, but has been
frequently practised by primitive peoples and
savage 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 was, as will be more fully
shown hereafter, the outcome of an extremely
crude, obtuse, and barbaric sense of justice. It
was the product of a social state, in which dense
ignorance was governed by brute force, and is
not to be considered as a reaction and protest
against club-law, which it really tended to foster
by making a travesty of the administration of
justice and thus turning it into ridicule. It was
also in the interest of ecclesiastical dignities to
keep up this parody and perversion of a sacred
and fundamental institute of civil society, since
it strengthened their influence and extended their
authority by subjecting even the caterpillar and
the 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 laid
before " his most reverend lordship, the prince-
bishop of Maurienne, or the reverend lord his
vicar-general and official " by the syndics and
procurators, Francois Amenet and Petremand
Bertrand, who, in the name of the inhabitants of
St. Julien, presented the following statement and
petition : " Formerly by virtue of divine services
42 The Criminal Prosecution and
and earnest supplications the scourge and in-
ordinate fury of the aforesaid animals did cease ;
now they have resumed their depredations and
are doing incalculable injury. If the sins of men
are the cause of this evil, it behoveth the repre-
sentatives of Christ on earth to prescribe such
measures as may be appropriate to appease the
divine wrath. Wherefore we the afore-men-
tioned syndics, Fran9ois Amenet and Petremand
Bertrand, do appear anew {ex integro) and
beseech the official, first, to appoint another
procurator and advocate for the insects in place
of the deceased Pierre Falcon and Claude
Morel, and secondly, to visit the grounds and
observe the damage, and then to proceed with
the 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 their
advocate. The parties appeared before the
official on the 30th day of May and the case
was adjourned to the 6th of June, when the
advocate, Pierre Rembaud, presented his answer
to the declaration of the plaintiffs, showing that
their action is not maintainable and that they
should be nonsuited. After approving of the
course pursued by his predecessor in office, he
affirms that his clients have kept within their
right and not rendered themselves liable to
excommunication, since, as we read in the sacred
Capital Punishment of Animals 43
book of Genesis, the lower animals were created
before man, and God said to them : Let the
earth bring forth the living creature after his
kind, cattle and creeping thing, and beast of the
earth after his kind; and he blessed them saying,
Be fruitful and multiply and fill the waters of
the seas, and let fowl multiply in the earth. Now
the Creator would not have given this command,
had he not intended that these creatures should
have suitable and sufficient means of support;
indeed, he has expressly stated that to every
thing that creepeth upon the earth every green
herb has been given for meat. It is therefore
evident that the accused, in taking up their abode
in the vines of the plaintiffs, are only exercising
a legitimate right conferred upon them at the
time of their creation. Furthermore, it is absurd
and unreasonable to invoke the power of civil
and canonical law against brute beasts, which are
subject only to natural law and the impulses of
instinct. The argument urged by the counsel
for the plaintiffs, that the lower animals are made
subject to man, he dismisses as neither true in
fact nor pertinent to the present case. He
suggests that the complainants, instead of in-
stituting judicial proceedings, would do better
to entreat the mercy of heaven and to imitate the
Ninevites, who, when they heard the warning
voice of the prophet Jonah, proclaimed a fast
and put on sackcloth. In conclusion, he de-
mands that the petition of the plaintiffs be dis-
44 The Criminal Prosecution and
missed, the monitorium revoked and annulled,
and all further proceedings stayed, to which end
the gracious office of the judge is humbly im-
plored {humiliter implorato benigno officio
j 11 die is).
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 time
for deliberation. This request led to a further
adjournment till the 26th of June, but as
this day turned out to be a dies feriatus or holi-
day, no business could be transacted until the
27th, when the advocate of the commune,
Fran9ois Fay (who seems to have taken the
place 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 him
and subservient to his use, and that this was,
indeed, the reason of their prior creation. They
have no raison d'etre except as they minister to
man, who was made to have dominion over them,
inasmuch as all things have been put under his
feet, as the Psalmist asserts and the apostle Paul
reiterates. On this point, he concludes, our
opponent has added nothing refutatory of the
views, which have been held from time im-
memorial by our ancestors ; we need only refer to
the opinions formerly expressed by the honour-
Capital Punishment of Animals 45
able Hippolyte Ducol as satisfactory. The
advocate for the defence merely remarked that
he had not yet received the document ordered
on the 19th of June, and the further con-
sideration of the case was postponed till the
4th of July. Antoine Filliol then made a
rejoinder to the plaintiffs' replication, denying
that the subordination of the lower animals to
man involves the right of excommunicating them,
and insisting upon his former position, which the
opposing counsel had not even attempted to dis-
prove, namely, that the lower animals are subject
solely to natural law, " a law originating in the
eternal 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 is
evident, he adds, that the action brought by the
plaintiffs is not maintainable and that judgment
should be given accordingly.
On the i8th of July, the same parties
appear before the official of St. Jean-de-Mauri-
enne. The procurator of the insects demands
that the case be closed and the plaintiffs debarred
from drawing up any additional statements or
creating any further delay by the introduction
of irrelevant matter, and requests that a decision
be rendered on the documents and declarations
already adduced. The prosecuting attorney,
whose policy seems to have been to keep the suit
pending as long as possible, applies for a new
term (alium terminum), which was granted.
46 The Criminal Prosecution and
Meanwhile, in view of the law's long delay,
other measures were taken for the speedier
adjustment of the affair by compromise. On
the 29th of June, 1587, a public meeting was
called at noon immediately after mass on the
great square of St. Julien, known as Parloir
d'Amont, to which all hinds and habitants
{manantz et habitantc) were summoned by the
ringing of the church bell to consider the pro-
priety and necessity of providing for the said
animals a place outside of the vineyards of St.
Julien, where they might obtain sufficient sus-
tenance without devouring and devastating the
vines of the said commune. This meeting
appears to have been held by the advice of the
plaintiffs' advocate, Francois Fay, and at the
suggestion of the official. A piece of ground
in the vicinity was selected and set apart as a sort
of insect enclosure, the inhabitants of St. Julien,
however, reserving for themselves the right to
pass through the said tract of land, " without
prejudice to the pasture of the said animals," and
to make use of the springs of water contained
therein, which are also to be at the service of the
said animals; they reserve furthermore the right
of working the mines of ochre and other mineral
colours found there, without doing detriment to
the means of subsistence of said animals, and
finally the right of taking refuge in this sp)ot
in time of war or in case of like distress. The
place chosen is called La Grand Feisse and
described with the exactness of a topographical
Capital Punishment of Animals 47
survey, not only as to its location and dimen-
sions, but also as to the character of its foliage
and herbage. The assembled people vote to
make this appropriation of land and agree to
draw up a conveyance of it " in good form and
of perpetual validity," provided the procurator
and advocate of the insects may, on visitation
and inspection of the ground, express themselves
satisfied with such an arrangement; in witness
whereof 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 by
mutual concessions did not put an end to the
litigation. On the 24th of July, an " Extract
from the Register of the Curiality of St.
Julien," containing the proceedings of the
public meeting, was submitted to the court by
Petremand Bertrand, procurator of the plaintiffs,
who called attention to the very generous offer
made by the commune and prayed the official to
order the grant to be accepted on the conditions
specified, and to cause the defendants to vacate
the vineyards and to forbid them to return to the
same on pain of excommunication. Antoine
Filliol, procurator of the insects, requested a
copy of the froces-verbal and time for delibera-
tion. The court complied with this request and
adjourned the case till " the first juridical day
after the harvest vacation," which fell on the
48 The Criminal Prosecution and
nth of August, and again by common consent
till the 20th of the same month.
At this time, Charles Emanuel I., Duke of
Savoy, was preparing to invade the Marquisate
of Saluzzo, and the confusion caused by the
expedition of troops over Mt. Cenis interfered
with the progress of the trial, which was post-
poned till the 27th of August, and again,
since the passage of armed men was still going
on {actento transitu armigerorum), till the 3rd
of September, when Antoine Filliol declared that
he could not accept for his clients the offer made
by the plaintiffs, because the place was sterile and
neither sufficiently nor suitably supplied with
food for the support of the said animals; he
demanded, therefore, that the proposal be rejected
and the action dismissed with costs to the com-
plainants (petit agentes repelli cum expensis).
The " egregious Petremand Bertrand," in behalf
of the plaintiffs, denies the correctness of this
statement and avers that the spot selected and
set apart as an abode for the insects is admirably
adapted to this purpose, being full of trees and
shrubs of divers kinds, as stated in the convey-
ance prepared by his clients, all of which he is
ready to verify. He insists, therefore, upon an
adjudication in his favour. The official took the
papers of both parties and reserved his decision,
appointing experts, who should in the meantime
examine the place, which the plaintiffs had
proffered as an asylum for the insects, and
Capital Punishment of Animals 49
submit a written report upon the fitness of the
same.
The final decision of the case, after such care-
ful deUberation and so long delay, is rendered
doubtful by the unfortunate circumstance that
the last page of the records has been destroyed
by rats or bugs of some sort. Perhaps the prose-
cuted weevils, not being satisfied with the results
of the trial, sent a sharp-toothed delegation into
the archives to obliterate and annul the judgment
of the court. At least nothing should be thought
incredible or impossible in the conduct of
creatures, which were deemed worthy of being
summoned before ecclesiastical tribunals and
which succeeded as criminals in claiming the
attention and calling forth the legal learning and
acumen of the greatest jurists of their day.
In the margin of the last page are some
interesting items of expenses incurred : " pro visi-
tatione III jlor.," by which we are to understand
three florins to the experts, who were appointed
to visit the place assigned to the insects; then
" solverunt scindici Sancti Julliani incluso pro-
cessu Animalium sigillo ordinationum et pro
copia que competat in processu dictorum Aniv^a-
lium omnibus inclusis XVI flor.," which may be
summed up as sixteen florins for clerical work
including seals; finally, ''item pro sportulis do-
mini vicarii III flor.," three florins to the vicar,
who acted as the bishop's official and did not
receive a regular fee, but was not permitted to go
4
50 The Criminal Prosecution and
away empty-handed. The date, which follows,
Dec. 20, 1587, may be assumed to indicate the
time at which the trial came to an end, after a
pendency of more than eight months. {Vide
Appendix A.)
In the legal proceedings just described, two
points are presented with great clearness and
seem to be accepted as incontestable : first, the
right of the insects to adequate means of sub-
sistence suited to their nature. This right was
recognized by both parties ; even the prosecution
did not deny it, but only maintained that they
must not trespass cultivated fields and destroy
the fruits of man's labour. The complainants
were perfectly willing to assign to the weevils an
uncultivated tract of ground, where they could
feed upon such natural products of the soil as
were not due to human toil and tillage. Secondly,
no one appears to have doubted for a moment
that the Church could, by virtue of its anathema,
compel these creatures to stop their ravages and
cause them to go from one place to another.
Indeed, a firm faith in the existence of this power
was the pivot on which the whole procedure
turned, and without it, the trial would have been
a dismal farce in the eyes of all who took part
in it.
It is related in the chronicles of an ancient
abbey (Le Pere Rochex: Gloire de I'Abbaye et
Vallee de la Novalaise), that St. Eldrad com-
manded the snakes, which infested the environs
Capital Punishment of Animals 51
of a priory in the valley of Briangon, to depart,
and, taking a staff in his hand, conducted them
to a desert place and shut them up in a cave,
where they all miserably perished. Perhaps the
serpent, which suffered Satan to take possession
of its seductive form and thus played such a
fatal part in effecting the fall of man and in intro-
ducing sin into the world, may have been re-
garded as completely out of the pale and protec-
tion of law, and as having no rights which an
ecclesiastical excommunicator or a wonder-work-
ing saint would be bound to respect. As a rule,
however, such an arbitrary abuse of miraculous
power to the injury or destruction of God's
creatures was considered illegal and unjustifiable,
although irascible anchorites and other holy men
under strong provocation often gave way to it.
Mediaeval jurists frowned upon summary mea-
sures of this sort, just as modern lawyers con-
demn the practice of lynch-law as mobbish
and essentially seditious, and only to be excused
as a sudden outburst of public indignation at
some exceptionally brutal outrage.
Properly speaking, animals cannot be excom-
municated, but only anathematized; just as
women, according to old English law, having
no legal status of their own and not being bound
in frankpledge as members of the decennary or
tithable community, could not be outlawed, but
only " waived " or abandoned. This form of
ban, while differing theoretically from actual
52 The Criminal Prosecution and
outlawry, was practically the same in its effects
upon the individual subjected to it. Excom-
munication is, as the etymology of the word
implies, the exclusion from the communion of the
Church and from whatever spiritual or temporal
advantages may accrue to a person from this
relation. It is one of the consequences of an
anathema, but is limited in its operation to
members of the ecclesiastical body, to which the
lower animals do not belong. This was the
generally accepted view, and is the opinion main-
tained by Gaspard Bailly, advocate and coun-
cillor of the Sovereign Senate of Savoy, in his
Traite des Monitoires, avec un Plaidoyer contre
les Insects, printed at Lyons in 1668, but it has
not always been held by writers on this subject,
some of whom do not recognize this distinction
between anathema and excommunication on the
authority of many passages of Holy Writ,
affirming that, as the whole creation was cor-
rupted by the fall, so the atonement extends
to all living creatures, which are represented
as longing for the day of their redemption and
regeneration.
One of the strong points made by the counsel
for the defence in prosecutions of this kind was
that these insects were sent to punish man for his
sins, and should therefore be regarded as agents
and emissaries of the Almighty, and that to
attempt to destroy them or to drive them away
would be to fight against God (s'en prendre a
Capital Punishment of Animals 53
Dieu). Under such circumstances, the proper
thing to do would be, not to seek legal redress
and to treat the noxious creatures as criminals,
but to repent and humbly to entreat an angry
Deity to remove the scourge. This is still the
standpoint of Christian orthodoxy, Protestant as
well as Catholic, and the argument applies with
equal force to the impious and atheistic substitu-
tion of Paris green and the chlorate of lime for
prayer and fasting as exterminators of potato-
bugs. The modern, like the mediaeval horti-
culturist may ward off devouring vermin from his
garden by the use of ashes, but he strews them
on his plants instead of sprinkling them on his
own head, and thus indicates to what extent
scientific have superseded theological methods in
the practical affairs of life.
Thomas Aquinas, the " angelic doctor," in
his Summa Theologies raises the query, whether
it is permissible to curse irrational creatures
(utrum liceat irrationabiles creaturas adjurare).
He states, in the first place, that curses and bless-
ings can be pronounced only upon such things as
are susceptible of receiving evil or good impres-
sions from them, or in other words, upon sentient
and rational beings, or upon irrational creatures
and insentient things in their relation to rational
beings, so that the latter are the objects ulti-
mately aimed at and favourably or unfavourably
affected. Thus God cursed the earth, because it
is essential to a man's subsistence; Jesus cursed
54 The Criminal Prosecution and
the barren fig-tree symbolizing the Jews, who
made a great show of leafage in the form of rites
and ceremonies, but bore no fruits of righteous-
ness; Job cursed the day on which he was born,
because he took from his mother's womb the
taint of original sin ; David cursed the rocks and
mountains of Gilboa, because they were stained
with the blood of " the beauty of Israel " ; in like
manner the Lord sends locusts and blight and
mildew to destroy the harvests, because these are
intimately connected with the happiness of man-
kind, whose sins he wishes to punish.
It is laid down as a legal maxim by mediaeval
jurisprudents that no animal devoid of under-
standing can commit a fault {nee enim potest
animal injuriani fecisse quod sensu caret). This
doctrine is endorsed by the great theologian and
scholastic Thomas of Aquino. If we regard the
lower animals, he says, as creatures coming from
the hand of God and employed by him as
agents for the execution of his judgments, then
to curse them would be blasphemous; if, on the
other hand, we curse them secundem se, i.e.
merely as brute beasts, then the malediction is
odious and vain and therefore unlawful {est
odiosum et vanum et per consequens illicit^im).
There is, however, another ground, on which the
right of excommunication or anathematization
may be asserted and fully vindicated, namely,
that the lower animals are satellites of Satan
" instigated by the powers of hell and therefore
Capital Punishment of Animals 55
proper to be cursed," as the Doctor angelicus
puts it. Chassenee refers to this opinion in the
treatise already cited (I. § 75), and adds " the
anathema then is not to be pronounced against
the animals as such, but should be hurled in-
ferentially (per modum conclusionis) at the devil,
who makes use of irrational creatures to our
detriment." This notion seems to have been
generally accepted in the Middle Ages, and the
fact that evil spirits are often mentioned in the
Bible metaphorically or symbolically as animals
and assumed to be incarnate in the adder, the
asp, the basilisk, the dragon, the lion, the levia-
than, the serpent, the scorpion, etc., was con-
sidered confirmatory of this view.
But not all animals were regarded as diabolical
incarnations; on the contrary, many were revered
as embodiments and emblems of divine perfec-
tions. In a work entitled Le Liure du Roy
Modus et de la Reyne Racio (The Book of King
Mode and Queen Reason), which, as the colo-
phon records, was " printed at Chambery by
Anthony Neyret in the year of grace one thou-
sand four hundred and eighty-six on the thirtieth
day of October," King Mode discourses on
falconry and venery in general. Queen Reason
brings forward, in reply to these rather con-
ventional commonplaces, " several fine moral-
ities," and dilates on the natural and mystic
qualities of animals, which she divides into two
classes, sweet beasts {bestes doulces) and stenchy
56 The Criminal Prosecution and
beasts {testes puantes). Foremost among the
sweet beasts stands that which Milton character-
izes as
" Goodliest of all the forest, hart and hind."
According to the Psalmist, the hart panting
after the water-brooks represents the soul thirst-
ing for the living God and is the type of religious
ardour and aspiration. It plays an important
part in the legends of saints, acts as their guide,
shows them where holy relics are concealed, and
causes St. Eustace and St. Hubert to abandon
the chase and to lead lives of pious devotion by
appearing to them with a luminous cross between
its antlers. The ten branches of its horns
symbolize the ten commandments of the Old
Testament and signify in the Roman ritual the
ten fingers of the outstretched hand of the priest
as he works the perpetual miracle of transub-
stantiation of the eucharist.
Chief of the stenchy beasts is the pig. In
paganism, which to the Christians was merely
devil-worship, the boar was an object of peculiar
adoration ; for this reason the farrow of the sow
is supposed to number seven shotes, correspond-
ing to the seven deadly sins. To the same class
of offensive beasts belong the wolf, typical of bad
spiritual shepherds, and the fox, which is de-
scribed as follows : " Reynard is a beast of small
size, with red hair, a long bushy tail and an evil
physiognomy, for his visage is thin and sharp.
Capital Punishment of Animals ^y
his eyes deep-set and piercing, his ears small,
straight and pointed; moreover he is deceitful
and tricky above all other beasts and exceedingly
malicious." " We are all," adds Queen Reason
in a moralizing strain, " more or less of the
brotherhood of Saint Fausset, whose influence is
now-a-days quite extended." Among birds the
raven is pre-eminently a malodorous creature and
imp of Satan, whereas the dove is a sweet beast
and the chosen vessel for the outpouring of the
Holy Spirit, the form in which the third person
of the Trinity became incarnate.
This division of beasts corresponds in prin-
ciple to that which is given in the Avesta, and
according to which all animals are regarded as
belonging either to the good creation of Ahura-
mazda or to the evil creation of Angro-mainyush.
The world is the scene of perpetual conflict
between these hostile forces summed up in the
religion and ethics of Zarathushtra as the trinity
of the good thought, the good word, and the
good deed (humata, hukhta, huvarshta), which
are to be fostered in opposition to the evil
thought, the evil word, and the evil deed (dush-
mata, duzhukhta, dushvarshta), which are to be
constantly combated and finally suppressed.
Every man is called upon by the Iranian prophet
to choose between these contraries ; and not only
the present and future state of his own soul, the
complexion of his individual character, but also
the welfare of the whole world, the ultimate
58 The Criminal Prosecution and
destiny of the universe, depend, to no inconsider-
able extent, upon his choice. His thoughts,
words, and deeds do not cease with the immediate
effect which they are intended to produce, but,
Hke force in the physical world, are persistent
and indestructible. As the very slightest impulse
given to an atom of matter communicates itself
to every other atom, and thus disturbs the
equilibrium of the globe — the footfall of achild
shaking the earth to its centre — so the influence
of every human life, however small, contributes
to the general increase and ascendency of either
good or evil, and helps to determine which of
these principles shall ultimately triumph. In the
universal strife of these " mighty opposites," the
vicious are the allies of the devil ; while the
virtuous are not merely engaged in working out
their own salvation, but have also the ennobling
consciousness of being fellow-combatants with the
Deity, who needs and appreciates their services
in overcoming the adversary. This sense of
solidarity with the Best and the Highest imparts
additional elevation and peculiar dignity to
human aims and actions, and lends to devotion a
warmth of sympathy and fervour of enthusiasm
springing from personal attachment and loyalty,
which it is difficult for the Religion of Humanity
to inspire. The fact, too, that evil exists in the
world, not by the will and design of the Good
Being, but in spite of him, and that all his
powers are put forth to eradicate it, while detract-
Capital Punishment of Animals 59
ing from his omnipotence, frees him from all
moral obliquity and exalts his character for
benevolence, thus rendering him far more worthy
of love and worship and a much better model for
human imitation than that "dreadful idealiza-
tion of wickedness " which is called God in the
Calvinistic creed. The idea that the humblest
person may, by the purity and rectitude of his
life, not only strengthen himself in virtue, but
also increase the actual aggregate of goodness in
the universe and even endue the Deity with
greater power and aggressive energy in subdu-
ing and extirpating evil, is surely a sublime
thought and a source of lofty inspiration and
encouragement in well-doing, although it has
been degraded by Parsi Dasturs — as all grand
conceptions and ideals are apt to be under
priestly influences — into a ridiculous and childish
hatred of snakes, scorpions, frogs, lizards, water-
rats, and other animals supposed to have been
produced by Angro-mainyush.
Plato held a similar theory of creation, regard-
ing it not as the manifestation of pure benevo-
lence endowed with almighty power, but rather
as the expression of perfect goodness working at
disadvantage in an intractable material, which
by its inherent stubbornness prevented the full
embodiment and realization of the original pur-
pose and desire of the Creator or Cosmourgos,
who was therefore obliged to content himself
with what was, under the circumstances, the
6o The Criminal Prosecution and
only possible, but by no means the best imagin-
able, world. The Manicheans attributed the
same unsatisfactory result to the activity of an
evil principle, which thwarted the complete
actualization of the designs of the Deity. So
conspicuous, indeed, is the defectiveness of nature
as a means of promoting the highest conceivable
human happiness, so marked and manifold are
the causes of suffering in all spheres of sentient
existence, and so often do the elements seem to
conspire for the destruction of mankind, raging
relentlessly like a wild beast
"Red in tooth and claw
With ravin,"
that every cosmogony has been compelled to
assume the persistent intervention of some
malignant spirit or perverse agency as the only
rational explanation of such a condition of
things. The orthodox Christianity of to-day
gives over the earth entirely to the sovereignty
of Satan, the successful usurper of Eden, and
instead of bidding the righteous to look forward
to the final re-enthronement and absolute
supremacy of truth and goodness in this world
as the
" One far-oflf divine event,
To which the whole creation moves,"
consoles them with the vague promise of com-
pensation in a future state of being. Even this
remote prospect of redemption is confined to a
select few; not only is the earth destined to be
Capital Punishment of Animals 6i
burned with fire on account of its utter corrup-
tion, but the great majority of its inhabitants are
doomed to eternal torments in the abode of evil
spirits.
Scientific research also leads to the same con-
clusions in respect to the incompleteness of
Nature's handiwork, which it is the function of
art and culture to amend and improve. Every-
where the correcting hand and contriving brain
of man are needed to eliminate the worthless and
noxious productions, in which Nature is so
fatally prolific, and to foster and develop those
that are useful and salutary, thus beautifying
and ennobling all forms of vegetable and
animal life. By a like process man himself has
attained his present pre-eminence. Through
long ages of strife and struggle he has emerged
from brutishness and barbarism, and rising by
a slow, spiral ascent, scarcely perceptible for
generations, has been able gradually to
"Move upward, working out the beast,
And let the ape and tiger die."
The more man increases in wisdom and intel-
lectual capacity, the more efficient he becomes as
a co-worker with the good principle. At the same
time, every advance which he makes in civiliza-
tion brings with it some new evil for him to
overcome ; or, as the Parsi would express it
mythologically, every conquest achieved by
Ahuramazda and his allies stimulates Angro-
62 The Criminal Prosecution and
mainyush and his satellites to renewed exer-
tions, who convert the most useful discoveries,
like dynamite, into instruments of diabolical
devastation. The opening of the Far West in
the United States to agriculture and commerce,
and the completion of the Pacific Railroad, not
only served to multiply and diffuse the gifts of
the beneficent and bountiful spirit (spehto main-
yush), but also facilitated the propagation and
spread of the plagues of the grasshopper and the
Colorado beetle. The power of destruction in-
sidiously concealed in the minutest insect organ-
ism often exceeds that of the tornado and the
earthquake, and baffles the most persistent
efforts of human ingenuity to resist it. The
genius and energy of Pasteur were devoted for
years to the task of detecting and destroying a
microscopic parasite, which threatened to ruin
for ever the silk industry of France; and the
Phylloxera and Doryphora still continue to
ravage with comparative impunity the vineyards
of Europe and the potato-fields of America,
defying at once all the appliances of science for
their extermination and all the attempts of
casuistic theology to reconcile such scourges
with a perfectly benevolent and omnipotent
Creator and Ruler of the Universe. It is the
observation of phenomena like these that con-
firms the modern Parsi in the faith of his fathers,
and reveals to him, in the operations of nature
and the conflicts of life, unquestionable evidences
Capital Punishment of Animals 63
of a contest between warring elements personi-
fied as Hormazd and Ahriman, the ultimate
issue of which is to be the complete triumph of
the former and the consequent purification and
redemption of the world from the curse of evil.
The Parsi, however, recognizes no Saviour, and
repudiates as absurd and immoral any scheme of
atonement whereby the burden of sin can be
shifted from the shoulders of the guilty to those
of an innocent, vicarious victim. Every person
must be redeemed by his own good thoughts,
words, and deeds, as creation must be redeemed
by the good thoughts, words, and deeds of the
race. After death, the character of each indi-
vidual thus formed appears to him, either in the
form of a beautiful and brilliant maiden, who
leads him over the Chinvad (or gatherer's)
bridge, into the realms of everlasting light, or in
the form of a foul harlot, who thrusts him down
into regions of eternal gloom.
But to return from this digression ; it is not
only in the Venidad that certain classes of
animals are declared to be creations of the arch-
fiend, and therefore embodiments of devils;
additional proofs of this doctrine were derived
by mediaeval writers from biblical and classical
sources. A favourite example was the meta-
morphosis of Nebuchadnezzar, who, when given
over to Satan, dwelt with the beasts of the field
and ate grass as oxen, while his hair grew like
eagles' feathers and his nails like birds' claws.
64 The Criminal Prosecution and
Still more numerous and striking instances of
this kind were drawn from pagan mythology,
which, being of diabolical origin, would natur-
ally be prolific of such phenomena. Thus,
besides centaurs and satyrs, "dire chimeras"
and other " delicate monsters," there were
hybrids like the semi-dragon Cecrops and trans-
formations by which lo became a heifer,
Daedalion a sparrow-hawk, Corone a crow,
Actason a stag, Lyncus a lynx, Maera a dog,
Calisto a she-bear, Antigone a stork, Arachne a
spider, Iphigenia a roe. Talus a partridge, Itys
a pheasant, Tereus Ascalaphus and Nyctimene
owls, Philomela a nightingale, Progne a
swallow, Cadmus and his spouse Harmonia
snakes, Decertis a fish, Galanthis a weasel, and
the warriors of Diomedes birds, while the com-
panions of Ulysses were changed by Circe, the
prototype of the modern witch, into swine. All
these metamorphoses are adduced as the results
of Satanic agencies and proofs of the tendency of
evil spirits to manifest themselves in bestial
forms.
Towards the end of the ninth century the
region about Rome was visited by a dire plague
of locusts. A reward was offered for their
extermination and the peasants gathered and
destroyed them by millions; but all efforts were
in vain, since they propagated faster than it was
possible to kill them. Finally Pope Stephen
VI. prepared great quantities of holy water and
Capital Punishment of Animals 65
had the whole country sprinkled with it, where-
upon the locusts immediately disappeared. The
formula used in consecrating the water and
devoting it to this purpose implies the diabolical
character of the vermin against which it was
directed : "I adjure thee, creature water, I
adjure thee by the living God, by Him, who
at the beginning separated thee from the dry
land, by the true God, who caused thee to
fertilize the garden of Eden and parted thee
into four heads, by Him, who at the marriage
of Cana changed thee into wine, I adjure thee
that thou mayst not suffer any imp or phantom
to abide in thy substance, that thou mayst be
indued with exorcising power and become a
source of salvation, so that when thou art
sprinkled on the fruits of the field, on vines, on
trees, on human habitations in the city or in
the country, on stables, or on flocks, or if any
one may touch or taste thee, thou shalt become
a remedy and a relief from the wiles of Satan,
that through thee plagues and pestilence may be
driven away, that through contact with thee
weevils and caterpillars, locusts and moles may
be dispersed and the maliciousness of all visible
and invisible powers hostile to man may be
brought to nought." In the prayers which
follow, the water is entreated to " preserve the
fruits of the earth from insects, mice, moles,
serpents and other foul spirits."
This subject was treated in a lively and enter-
5
66 The Criminal Prosecution and
taining manner by a Jesuit priest, P^re
Bougeant, in a book entitled Amusement Philo-
sophiqtie sur le Langage des Bestes, which was
written in the form of a letter addressed to a
lady and published at Paris in 1739. In the
first place, the author refers to the intelligence
shown by animals and refutes the Cartesian
theory that they are mere machines or animated
automata. This tenet, we may add, was not
original with Descartes, but was set forth at
length by a Spanish physician, Gomez Pereira,
in a bulky Latin volume bearing the queer
dedicatory title : " Antoniana Margarita opus
nempe physicis, medicis ac theologis non minus
utile quam necessarium," and printed in 1554,
nearly a century before the publication of
Descartes' Meditationes de prima philosophia
and Principia philosophiae, which began a new
epoch in the history of philosophy.
If animals are nothing but ingenious pieces
of mechanism, argues the Jesuit father, then the
feelings of a man towards his dog would not
differ from those which he entertains towards
his watch, and they would both inspire him
with the same kind of affection. But such is
not the case. Even the strictest Cartesian would
never think of petting his chronometer as he
pets his poodle, or would expect the former to
respond to his caresses as the latter does. Practic-
ally he subverts his own metaphysical system by
the distinction which he makes between them.
Capital Punishment of Animals 67
treating one as a machine and the other as a
sentient being, endowed with mental powers
and passions corresponding, in some degree, to
those which he himself possesses. We infer
from our own individual consciousness that
other persons, who act as we do, are free and
intelligent agents, as we claim to be. The
same reasoning applies to the lower animals,
whose manifestations of joy, sorrow, hope, fear,
desire, love, hatred and other emotions, akin
to those passing in our own minds, prove that
there is within them a spiritual principle, which
does not differ essentially from the human soul.
But this conclusion, he adds, is contrary to
the teachings of the Christian religion, since it
involves the immortality of animal souls and
necessitates some provision for their reward or
punishment in a future life. If they are capable
of merits and demerits and can incur praise and
blame, then they are worthy of retribution here-
after and there must be a heaven and a hell
prepared for them, so that the pre-eminence
of a man over a beast as an object of God's
mercy or wrath is lost. " Beasts, in that case,
would be a species of man or men a species
of beast, both of which propositions are incom-
patible with the teachings of religion." The
only means of reconciling these views, endowing
animals with intellectual sense and immortal
souls without running counter to Christian
dogmas, is to assume that they are incarnations
of evil spirits.
68 The Criminal Prosecution and
Origen held that the scheme of redemption
embraced also Satan and his satellites, who
would be ultimately converted and restored to
their primitive estate. Several patristic theo-
logians endorsed this notion, but the Church
rejected it as heretical. The devils are, there-
fore, from the standpoint of Catholic ortho-
doxy, irrevocably damned and the blood of
Christ has made no atonement for them. But,
although their fate is sealed their torments have
not yet begun. If a man dies in his sins^ his
soul, as soon as it departs from his body,
receives its sentence and goes straight to hell.
The highest ecclesiastical authorities have
decided that this is not true of devils, who,
although condemned to everlasting fire, do not
enter upon their punishment until after the
judgment-day. This view is supported by
many passages and incidents of Holy Writ.
Thus Christ declares that, when the Son of man
shall come in his glory, he shall say unto them
on his left hand, " Depart from me, ye cursed,
into everlasting fire prepared for the devil and
his angels." Here it is not stated that the
devils are already burning, but that the fire has
been " prepared " for them, a form of expres-
sion which leads us to infer that they were not
yet in it. Again the devils, which Christ drove
out of the two "exceeding fierce" demoniacs,
protested against such interference, saying,
*' Art thou come hither to torment us before the
time?" This question has no significance.
Capital Punishment of Animals 69
unless we suppose that they had a right to
inhabit such living beings as had been assigned
to them, until the time of their torment should
come on the last day. Pere Bougeant is
furthermore of the opinion that, when these
devils were sent miraculously and therefore
abnormally into the swine, they came into con-
flict with the devils already in possession of the
pigs, and thus caused the whole herd to run
violently down a steep place into the sea. Even
a hog, he thinks, could not stand it to harbour
more than one devil at a time, and would be
driven to suicide by having an intrinsic and
superfluous demon conjured into it. A still more
explicit and decisive declaration on this point
is found in the Epistle of Jude and the Second
Epistle of Peter, where it is stated that the angels
which kept not their first estate the Lord hath
reserved in everlasting chains under darkness
unto the judgment of the great day. These
words are to be understood figuratively as
referring to the irrevocableness of their doom
and the durance vile to which they are mean-
while subjected. That they are held in some
sort of temporary custody and are not actually
undergoing, but still awaiting the punishment,
which divine justice has imposed upon them, the
sacred scriptures and the teachings of the Church
leave no manner of doubt.
Now the question arises as to what these
legions of devils are doing in the meantime.
yo The Criminal Prosecution and
Some of them are engaged in " going to and
fro in the earth and walking up and down in it,"
in order to spy out and take advantage of
human infirmities. God himself makes use of
them to test the fealty of men and their
power of holding fast to their integrity under
severe temptations, just as the Creator made
fossils and concealed them in the different strata
of the earth, in order to see whether Christian
faith in the truth of revelation would be strong
enough to resist the seductions of " science
falsely so called." Other devils enter into living
human bodies and give themselves up to evil
enchantments as wizards and witches ; others still
reanimate corpses or assume the form and
features of the dead and wander about as ghosts
and hobgoblins. Not only were pagans re-
garded by the Christian Church as devil-wor-
shippers and exorcised before being baptized,
but it is also a logical deduction from the doc-
trine of original sin, that a devil takes posses-
sion of every child as soon as it is born and
remains there until expelled by an ecclesiastical
functionary, who combines the office of priest
with that of conjurer and is especially appointed
for this purpose. Hence arose the necessity of
abrenunciation, as it was called, which preceded
baptism in the Catholic Church and which
Luther and the Anglican reformers retained.
Before the candidate was christened he was
exorcised and adjured personally, if an adult, or
Capital Punishment of Animals 71
through a sponsor, if an infant, to " forsake the
devil and all his works." These words, which
still hold a place in the ritual, but are now
repeated in a perfunctory manner by persons,
who have no conception of the magic potency
formerly ascribed to them, are a survival of the
old formula of exorcism. In the seventeenth
century there was a keen competition between
the Roman Catholic and the Lutheran clergy in
casting out devils, the former claiming that to
them alone had been transmitted the exorcising
power conferred by Christ upon his apostles.
The Protestant churches finally gave up the
hocus-pocus and during the eighteenth century
it fell into general discredit and disuse among
them, although some of the stiffest and most
conservative Lutherans never really abandoned
it in principle and have recently endeavoured to
revive it in practice.
The Catholic Church, on the contrary, still
holds that men, women and cattle may be
possessed by devils and prescribes the means
of their expulsion. In a work entitled Rituale
ecclesiasticum ad usum clericorum S. Fransisci
by Pater Franz Xaver Lohbauer (Munich, 185 1),
there is a chapter on the mode of helping those
who are afflicted by demons (Modus juvandi
afflicios a daemone). The author maintains that
nearly all so-called nervous diseases, hysteria,
epilepsy, insanity, and milder forms of mental
alienation, are either the direct result of dia-
72 The Criminal Prosecution and
bolical agencies or attended and greatly aggra-
vated by them. A sound mind in a sound body
may make a man devil-proof, but Satan is quick
to take advantage of his infirmities in order to
get possession of his person. The adversary is
constantly lying in wait watching for and trying
to produce physical derangements as breaches in
the w'all, through which he may rush in and
capture the citadel of the soul. In all cases of
this sort the priest is to be called in with the
physician, and the medicines are to be blessed
and sprinkled with holy water before being
administered. Exorcisms and conjurations are
not only to be spoken over the patient, but also
to be written on slips of consecrated paper and
applied, like a plaster, to the parts especially
affected. The physician should keep himself
supplied wath these written exorcisms, to be used
when it is impossible for a priest to be present.
As with patent medicines, the public is warned
against counterfeits, and no exorcism is genuine
unless it is stamped with the seal and bears the
signature of the bishop of the diocese. Accord-
ing to Father Lohbauer, the demon is the efficient
cause of the malady, and there can be no cure
until the evil one is cast out. This is the office
of the priest ; the physician then heals the
physical disorder, repairing the damage done to
the body, and, as it were, stopping the gaps with
his drugs so as to prevent the demon from
getting in again. Thus science and religion are
Capital Punishment of Animals 73
reconciled and work together harmoniously for
the healing of mankind.
The Catholic Church has a general form of
Benedictio a daemone vexatorum, for the relief
of those vexed by demons; and Pope Leo XIII.,
who was justly esteemed as a man of more than
ordinary intelligence and more thoroughly im-
bued with the modern spirit than any of his pre-
decessors, composed and issued, November 19,
1890, a formula of Exorcismus in Satanam et
Angelas Apostatas worthy of a place in any medi-
aeval collection of conjurations. His Holiness
never failed to repeat this exorcism in his daily
prayers, and commended it to the bishops and
other clergy as a potent means of warding off the
assaults of Satan and of casting out devils. In
1849 the Bishop of Passau published a Manuale
Benedictionum, and as late as 1893 Dr. Theobald
Bischofberger described and defended the prac-
tice of the papal see, in this respect, in a
brochure printed in Stuttgart and entitled Die
Verwaltung des Exorcistats nach Massgabe der
rbmischen Benediktionale.
That these formulas are still deemed highly
efficacious is evident from the many recent cases
in which they have been employed. Thus in
1842 a devil named Ro-ro-ro-ro took possession
of " a maiden of angelic beauty " in Luxemburg
and was cast out by Bishop Laurentius. This
demon claimed to be one of the archangels ex-
pelled from heaven, and appears to have rivalled
Parson Stocker and Rector Ahlwardt in Anti-
74 The Criminal Prosecution and
Semitic animosity ; when the name of Jesus was
mentioned, he cried out derisively : " O, that
Jew! Didn't he have to drink gall?" When
commanded to depart, he begged that he might
go into some Jew. The bishop, however, refused
to give him leave and bade him "go to hell,"
which he forthwith did, " moaning as he went,
in melancholy tones, that seemed to issue from
the bowels of the earth, ' Burning, burning, ever-
lastingly burning in hell!' The voice was so
sad," adds the bishop, " that we should have
wept for sheer compassion, had we not known
that it was the devil."
Again, a lay brother connected with an educa-
tional institute in Rome became diabolically pos-
sessed on January 3, 1887, and was exorcised by
Father Jordan. In this instance the leading
spirit was Lucifer himself, attended by a host of
satellites, of whom Lignifex, Latibor, Monitor,
Ritu, Sefilie, Shulium, Haijunikel, Exaltor, and
Reromfex were the most important. It took
about an hour and a half to cast out these demons
the first time, but they renewed their assaults on
February loth, nth, and 17th, and were not
completely discomfited and driven back into the
infernal regions until February 23rd, and then
only by using the water of Lourdes, which, as
Father Jordan states, acted upon them like
poison, causing them to wTithe to and fro.
Lucifer was especially rude and saucy in his
remarks. Thus, for example, when Father
Jordan said, " Every knee in heaven and on the
Capital Punishment of Animals y^
earth shall bow to the name of Jesus," the fallen
" Son of the Morning " retorted, " Not Luci,
not Luci — never!"
It would be easy to multiply authentic reports
of things of this sort that have happened within
the memory of the present generation, such as
the exorcism of a woman of twenty-seven at Laas
in the Tyrol in the spring of 1892, and the expul-
sion of an evil spirit from a boy ten years of age
at Wemding in Bavaria by a capuchin, Father
Aurelian, July 13th and 14th, 1891, with the
sanction of the bishops of Augsburg and Eich-
statt. In the latter case we have a circumstantial
account of the affair by the exorcist himself, who,
in conclusion, uses the following strong lan-
guage : " Whosoever denies demoniacal posses-
sion in our days confesses thereby that he has
gone astray from the teaching of the Catholic
Church ; but he will believe in it when he himself
is in the possession of the devil in hell. As for
myself I have the authority of two bishops." In
a pamphlet on this subject printed at Munich in
1892, and entitled Die Teufelsaustreihung in
Wemding, the author, Richard Treufels, takes
the same view, declaring that diabolical posses-
sion "is an incontestable fact, confirmed by the
traditions of all nations of ancient and modern
times, by the unequivocal testimony of the Old
and New Testaments, and by the teaching and
practice of the Catholic Church." Christ, he
says, gave his disciples power and authority
"jb The Criminal Prosecution and
over all devils to cast them out, and the same
power is divinely conferred upon every priest by
his consecration, although it is never to be
exercised without the permission of his bishop.
Doubtless modern science by investigating the
laws and forces of nature is gradually diminish-
ing the realm of superstition ; but there are vast
low-lying plains of humanity that have not yet
felt its enlightening and elevating influence. It
has been estimated that nine-tenths of the rural
population of Europe and ninety-nine hundredths
of the peasantry, living in the vicinity of a
cloister and darkened by its shadow, believe
in the reality of diabolical possession and
attribute most maladies of men and murrain in
cattle to the direct agency of Satan, putting their
faith in the " metaphysical aid " of the conjurer
rather than in medical advice and veterinary
skill.
Unfortunately this belief is not confined to
Catholics and boors, but is held by Protestants,
who are considered persons of education and
superior culture. Dr. Lyman Abbott asserted
in a sermon preached in Plymouth Church, that
*' what we call the impulses of our lower nature
are the whispered suggestions of fiend-like
natures, watching for our fall and exultant if
they can accomplish it." But while affirming
that " evil spirits exercise an influence over man-
kind," and that cranks like Guiteau, the assassin
of President Garfield, are diabolically possessed.
Capital Punishment of Animals ^j
the reverend divine would hardly risk his reputa-
tion for sanity by attempting to exorcise the
supposed demon. The Catholic priest holds the
same view, but has the courage of his convictions
and goes solemnly to work with bell, book and
candle to effect the expulsion of the indwelling
fiend.
The fact that such methods of healing are
sometimes successful is adduced as conclusive
proof of their miraculous character; but this
inference is wholly incorrect. Professor Dr.
Hoppe, in an essay on Dei Teufels- und Geister-
glauhe und die psychologische Erkldrung des
Besessenseins (Allgemeine Zeitschrift fiir Psy-
chiatrie, Bd. LV. p. 290), gives a psychological
explanation of these puzzling phenomena. " The
priest," he says, " exerts a salutary influence
upon the brain through the respect and dignity
which he inspires, just as Christ in his day
wrought upon those who were sick and possessed
with devils." Indeed, it is expressly stated by
the evangelist that Jesus did not attempt to do
wonderful works among people who did not
believe. According to this theory the exorcism
effects a cure by its powerful action on the
imagination, just as there are frequent ailments,
for which a wise physician administers bread
pills and a weak solution of powdered sugar as
the safest and best medicaments. Professor
Hoppe, therefore, approves of ' ' priestly con-
jurations for the expulsion of devils as a psychi-
78 The Criminal Prosecution and
cal means of healing," and thinks that the more
ceremoniously the rite can be performed in the
presence of grave and venerable witnesses, the
more effective it will be. This opinion is
endorsed by a Catholic priest, Friedrich Jaskow-
ski, in a pamphlet entitled Der Trierer Rock und
seine Patienten vom Jahre 1891 (Saarbriicken :
Carl Schmidtke, 1894). The author belongs to
the diocese of Trier and is therefore under the
jurisdiction of the bishop, Dr. Felix Korum,
whose statements concerning the miracles
wrought and the evidences of divine mercy mani-
fested during the exhibition of the " holy coat "
in 1891 he courageously reviews and conclusively
refutes. The bishop had printed what he called
" documentary proofs," consisting of certificates
issued by obscure curates and country doctors,
that certain persons suffering chiefly from diseases
of the nervous system had been healed, and sought
to discover in these cures the working of divine
agencies. Jaskowski shows that in several in-
stances the persons said to have found relief
died shortly afterwards, and maintains that where
cures actually occurred they " were not due to a
miracle or any direct interference of God with the
established order of things, but happened in a
purely natural manner." He quotes the late
Professor Charcot, Dr. Forel, and other neuro-
pathologists to establish the fact that hetero-sug-
gestion emanating from a physician or priest, or
auto-suggestion originating in the person's own
Capital Punishment of Animals 79
mind, may often be the most effective remedy
for neurotic disorders of every liind. In auto-
suggestion the patient is possessed with the fixed
idea that the doing of a certain thing, which may
be in itself absolutely indifferent, will afford
relief. As an example of this faith-cure Jas-
kowski refers to the woman who was diseased
with an issue of blood, and approaching Jesus
said within herself: " If 1 may but touch his
garment, I shall be whole." This is precisely
the position taken by Jesus himself, who turned
to the woman and said : " Daughter, be of good
comfort; thy faith hath made thee whole."
Jaskowski also quotes the declaration of the
evangelist referred to above, that in a certain
place the people's lack of faith prevented Jesus
from doing many wondrous works, and does not
deny that on this principle, which is now recog-
nized by the most eminent physicians, some few
of the hundreds of pilgrims may have been
restored to health by touching the holy coat of
Trier; and there is no doubt that the popular
belief in Bishop Korum's assertion that it is the
same garment which Jesus wore and the woman
touched, would greatly increase its healing
efficacy through the force of auto-suggestion
(see my article on " Recent Recrudescence of
Superstition " in Appleton's Popular Science
Monthly for Oct. 1895, pp. 762-66).
The Bishop of Bamberg in Bavaria has been
stigmatized as a hypocrite because he sends the
8o The Criminal Prosecution and
infirm of his flock on a pilgrimage to Lourdes or
Laas or some other holy shrine, while he prefers
for himself the profane waters of Karlsbad or
Kissingen. But in so doing he is not guilty of
any inconsistency, since a journey to sacred
places and contact with sacred relics would not
act upon him with the same force as upon the
ignorant and superstitious masses of his diocese.
His conduct only evinces his disbelief in the
supernatural character of the remedies he
prescribes. The distinguished French physician.
Professor Charcot, as already mentioned, recog-
nized the curative power of faith under certain
circumstances, and occasionally found it emi-
nently successful in hysterical and other purely
nervous affections. In some cases he did not
hesitate to prescribe a pilgrimage to the shrine
of any saint for whom the patient may have had
a peculiar reverence; but in no instance in his
experience did faith or exorcism or hagiolatry
heal an organic disease, set a dislocated joint or
restore an amputated limb. What Falstaff says
of honour is equally true of faith, it " hath no
skill in surgery."
But to return from this digression, P^re
Bougeant's theory of the diabolical possession of
pagans and unbaptized persons would provide
for comparatively few devils, and the gradual
diffusion of Christianity would constantly
diminish the supply of human beings available
as their proper habitations. The ultimate con-
Capital Punishment of Animals 8 r
version of the whole world and the custom of
baptizing infants as soon as they are born would,
therefore, produce serious domiciliary destitu-
tion and distress among the evil spirits and set
immense numbers of them hopelessly adrift as
vagabonds, and thus create an extremely undesir-
able diabolical proletariat. This difficulty is
avoided by assuming that the vast majority of
devils are incarnate in the billions of beasts of all
kinds, which dwell upon the earth or fly in the
air or fill the waters of the rivers and the seas.
This hypothesis, he adds, " enables me to
ascribe to the lower animals thought, knowledge,
feeling, and a spiritual principle or soul without
running counter to the truths of religion. In-
deed, so far from being astonished at their mani-
festations of intelligence, foresight, memory and
reason, I am rather surprised that they do not
display these qualities in a higher degree, since
their soul is probably far more perfect than ours.
Their defects are, as I have discovered, owing to
the fact that in brute as in us, the mind works
through material organs, and inasmuch as these
organs are grosser and less perfect in the lower
animals than in man, it follows that their exhibi-
tions of intelligence, their thoughts and all their
mental operations must be less perfect; and, if
these proud spirits are conscious of their condi-
tion, how humiliating it must be for them to see
themselves thus embruted ! Whether they are
conscious of it or not, this deep degradation is
6
82 The Criminal Prosecution and
the first act of God's vengeance executed on his
foes. It is a foretaste of hell."
Only by such an assumption, as our author
proceeds to show, is it possible to justify the
ways of man to the lower animals and to recon-
cile his cruel treatment of them with the goodness
of an all-wise and all-powerful maker and ruler
of the universe. For this reason, he goes on to
explain, the Christian Church has never deemed
it a duty to take the lower animals under its pro-
tection or to inculcate ordinary natural kindness
towards them. Hence in countries, like Italy and
Spain, where the influence of Catholicism has
been supreme for centuries, not only are wild
birds and beasts of chase relentlessly slaughtered
and exterminated, but even useful domestic
animals, asses, sumpter-mules and pack-horses,
are subjected to a supererogation of suffering at
the hands of ruthless man. As the pious Parsi
conscientiously comes up to the help of Ahuram-
azda against the malevolent Angro-mainyush by
killing as many as possible of the creatures
which the latter has made, so the good Catholic
becomes an efficient co-worker with God by mal-
treating brutes and thus aiding the Almighty in
punishing the devils, of which they are the
visible and bruisable forms. Whatever pain is
inflicted is felt, not by the physical organism,
but by the animated spirit. It is the embodied
demon that really suffers, howling in the beaten
dog and squealing in the butchered pig.
Capital Punishment of Animals 83
There are doubtless many persons of tender
susceptibilities, who cannot bear to think that the
animals, whose daily companionship we enjoy,
the parrot we feed with sugar, the pretty pug we
caress and the noble horse, which ministers to
our comfort and convenience, are nothing but
devils predestined to everlasting torture. But
these purely sentimental considerations are of no
weight in the scale of reason. " What matters
it," replies the Jesuit Father, " whether it is a
devil or another kind of creature that is in our
service or contributes to our amusement? For
my part, this idea pleases rather than repels me ;
and I recognize with gratitude the beneficence of
the Creator in having provided me with so many
little devils for my use and entertainment. If it
be said that these poor creatures, which we have
learned to love and so fondly cherish, are fore-
ordained to eternal torments, I can only adore
the decrees of God, but do not hold myself
responsible for the terrible sentence ; I leave the
execution of the dread decision to the sovereign
judge and continue to live with my little devils,
as I live pleasantly with a multitude of persons,
of whom, according to the teachings of our holy
religion, the great majority will be damned."
The crafty disciple of Loyola, elusive of dis-
agreeable deductions, is content to accept the
poodle in its phenomenal form and to make the
most of it, without troubling himself about " des
Pudels Kern."
84 The Criminal Prosecution and
This doctrine, he thinks, is amply illustrated
and confirmed by an appeal to the consentient
opinion of mankind or the argument from uni-
versal belief, which has been so often and so
effectively urged in proof of the existence of
God. If the maxim universitas non delinquit
has the same validity in the province of philo-
sophy as in that of law, then we are justified in
assuming that the whole human race cannot go
wrong even in purely metaphysical speculation
and that unanimity in error is a psychological
impossibility. The criterion of truth, quod
semper, quod ubique, quod ab omnibus, by which
the Roman hierarchy is willing to have its claims
to ecclesiastical catholicity and doctrinal ortho-
doxy tested, is confined to Christendom in its
application and does not consider the views of
persons outside of the body of believers. In the
question under discussion the argument is not
subject to such limitations, but gathers testimony
from all races and religions, showing that there
is not a civilized nation or savage tribe on the
face of the earth, which does not regard or has
not regarded the lower animals as embodiments
of evil spirits and sought to propitiate them.
That " the devil is an ass " is a truth so palpable
that it has passed into a proverb. Baal-zebub
means fly-god; and the Christian Satan betrays
his presence by the cloven foot of the goat or the
solid hoof of the horse. In folk-lore, which is
the debris of exploded mythologies adrift on the
Capital Punishment of Animals 85
stream of popular tradition, cats, dogs, otters,
apes, ravens, blaclccocks', capercailzies, rabbits,
hedgehogs, wolves, were-wolves, foxes, pole-
cats, swine, serpents, toads, and countless
varieties of insects, reptiles and vermin figure as
incarnations and instruments of the devil ; and
Mephistopheles reveals himself to Faust as
" Der Herr der Ratten und der Mause,
Der Fliegen, Frosche, Wanzen, Lause."
"The Lord of rats and of the mice.
Of flies and frogs, bed-bugs and lice.''
The worship of animals originates in the belief
that they are embodiments of devils, so that
zoolatry, which holds such a prominent place in
primitive religions, is only a specific form of
demonolatry. The objection that a flea or a fly,
a mite or a mosquito is too small a creature to
furnish fit lodgment for a demon. Father Bou-
geant dismisses with an indulgent smile and
disparaging shrug as implying a gross miscon-
ception of the nature and properties of spirit,
which is without extension or dimension and
therefore capable of animating the most diminu-
tive particle of organized matter. Large and
little are purely relative terms. God, he says,
could have made man as small as the tiniest
puceron without any decrease of his spiritual
powers. " It is, therefore, no more difficult to
believe that a devil may be incorporated in the
delicate body of a gnat than in the huge bulk of
86 The Criminal Prosecution and
an elephant." The size of the physical habita-
tion, in which spirits take up their temporary
abode, is a thing of no consequence. In fact,
devils in the forms of gnats and tiny insects were
thought to be especially dangerous, since one
might swallow them unawares and thus become
diabolically possessed. The demon, liberated by
the death and dissolution of the insect, was sup-
posed to make a tenement of the unfortunate
person's stomach, producing gripes and playing
ventriloquous tricks. Thus it is recorded in the
Dies Caniculuares of Majolus (Meyer : Der
Aberglaube des Mittelalters, p. 296-7) that a
young maiden in the Erzgebirge near Joachims-
thal, in 1559, swallowed a fly, while drinking
beer. The evil spirit, incarnate in the fly, took
possession of the maiden and began to speak out
of her, thus attracting crowds of people, who put
questions to the devil and tried to drive him out
by prayers, in which the unhappy girl sometimes
joined, greatly to her discomfort, since the devil
waxed exceeding wroth and unruly and caused
her much suffering, whenever she uttered the
name of Christ. Finally the parish priest had
her brought into the church, where he succeeded
with considerable difficulty in exorcising her.
The stubborn demon resisted for two years all
efforts to cast him out; he even tried to com-
promise with the girl, promising to be content
with a finger nail or a single hair of her head,
but she declined all overtures, and he was at last
Capital Punishment of Animals 87
expelled by means of a potent conjuration, which
lasted from midnight till midday.
As the human soul is released by death, so the
extinction of life in any animal sets its devil
free, who, instead of entering upon a spiritual
state of existence, goes into the egg or embryo of
another animal and resumes his penal bondage
to the flesh. " Thus a devil, after having been a
cat or a goat, may pass, not by choice, but by
constraint, into the embryo of a bird, a fish or a
butterfly. Happy are those who make a lucky
hit and become household pets, instead of beasts
of burden or of slaughter. The lottery of destiny
bars them the right of voluntary choosing."
The doctrine of transmigration, continues our
author, " which Pythagoras taught of yore and
some Indian sages hold to-day, is untenable in
its application to men and contrary to religion,
but it fits admirably into the system already set
forth concerning the nature of beasts, and shocks
neither our faith nor our reason." Further-
more, it explains why "all species of animals
produce many more eggs or embryos than are
necessary to propagate their kind and to provide
for a normal increase." Of the millions of
germs, of which " great creating nature " is so
prolific, comparatively few ever develop into
living creatures; only those which are vivified
by a devil are evolved into complete organisms ;
the others perish. This seeming superfluity and
waste can be most easily reconciled with the care-
88 The Criminal Prosecution ana
ful economy and wise frugality of nature by
viewing it as a manifestation of the bountiful and
beneficent providence of God in preventing
" any lack of occupation or abode on the part of
the devils," which are being constantly dis-
embodied and re-embodied. " This accounts for
the prodigious clouds of locusts and countless
hosts of caterpillars, which suddenly desolate our
fields and gardens. The cause of these astonish-
ing multiplications has been sought in cold,
heat, rain and wind, but the real reason is that,
at the time of their appearance, extraordinary
quantities of animals have died or their embryos
been destroyed, so that the devils that animated
them were compelled to avail themselves at once
of whatever species they found most ready to
receive them, which would naturally be the
superabundant eggs of insects." The more pro-
foundly this subject is investigated, he con-
cludes, and the more light our observations and
researches throw upon it from all sides, the more
probable does the hypothesis here suggested in
explanation of the puzzling phenomena of
animal life and intelligence appear.
Father Bougeant calls his lucubration " a new-
system of philosophy "; but this is not strictly
true. He has only given a fuller and more
facetious exposition of a doctrine taught by
many of the greatest lights of the Catholic
Church, among others by Thomas Aquinas,
whose authority as a thinker Pope Leo XIII.
Capital Punishment of Animals 89
distinctly recognized and earnestly sought to
restore to its former prestige. Bougeant's in-
genious dissertation has a vein of irony or at
least a strain of jocundity in it, approaching at
times so perilously near the fatal brink of persi-
flage, that one cannot help surmising an inten-
tion to render the whole thing ridiculous in a
witty and underhand way eminently compatible
with Jesuitical habits of mind; but whether seri-
ous or satirical, his treatise is an excellent
example and illustration of the kind of dialectic
hair-splitting and syllogistic rubbish, which
passed for reasoning in the early and middle
ages of the Christian era, and which the greatest
scholars and acutest intellects of those days
fondly indulged in and seem to have been fully
satisfied with. Here, too, we come upon the
metaphysical and theological groundwork, upon
which was reared by a strictly logical process a
vast superstructure of ecclesiastical excommuni-
cation and criminal prosecution against bugs and
beasts. He protests with never-tiring and need-
less iteration his absolute devotion to the pre-
cepts of religion ; indeed, like the lady in the
play, he " protests too much, methinks." In all
humbleness and submission he bows to the
authority of the Church, and would not touch the
ark of the covenant even with the tip of his
finger, but his easy acquiescence has an air of
perfunctoriness, and in his assenting lips there
lurks a secret, semi-sarcastic leer, which casts
90 The Criminal Prosecution and
suspicion on his words and looks like poking fun
at the principles he professes and turning them
into raillery.
Indeed, such covert derision would have been
a suitable way of ridiculing the gross popular
superstition of his time, which saw a diabolical
incarnation in every unfamiliar form of animal
life. During the latter half of the sixteenth
century a Swiss naturalist named Thurneysser,
who held the position of physician in ordinary
to the Elector Johann Georg von Branden-
burg, kept some scorpions bottled in olive oil,
which were feared by the common people as
terrible devils endowed with magic power (fiirch-
terliche Zauberteufel). Thurneysser presented
also to Basel, his native city, a large elk, which
had been given to him by Prince Radziwil ; but
the good Baselers looked upon the strange
animal as a most dangerous demon, and a pious
old woman finally rid the town of the dreaded
beast by feeding it with an apple stuck full of
broken needles.
A distinguished Spanish theologian of the six-
teenth century, Martin Azpilcueta, commonly
known as Dr. Navarre, refers, in his work on
excommunication, to a case in which anathemas
were fulminated against certain large sea-crea-
tures called terones, which infested the waters of
Sorrento and destroyed the nets of the fisher-
men. He speaks of them as " fish or caco-
demons " {pisces seu cacodemones)^ and main-
Capital Punishment of Animals 91
tains that they are subject to anathematization,
not as fish, but only as devils. In his Five
Counsels and other tractates on this subject
(Opera, Lyons, 1589 ; reprinted at Venice, 1601-2,
and at Cologne, 1616) he often takes issue with
Chassen^e on minor points, but the French jurist
and the Spanish divine agree on the main
question.
In this connection it may be a matter of
interest to add, that a German neuropathologist
of our own day, Herr von Bodelschwingh,
ascribes epilepsy to what he calls " demonic
infection " due to the presence of the bacillus
inf emails in the blood of those who are subject
to this disease. The microbe, to which the
jocose scientist has been pleased to give this
name, differs from all other bacilli hitherto dis-
covered in having two horns and a tail, although
the most powerful lenses have not yet revealed
any traces of a cloven foot. An additional indica-
tion of its infernal qualities is the fact that it
liquefies the gelatine, with which it comes in con-
tact, and turns it black, emitting at the same
time a pestilential stench. Doubtless this dis-
covery will be hailed by theologians as a striking
confirmation of divine revelation by modern
science, proving that our forefathers were right
in attributing the falling-sickness to diabolical
agencies. We know now that it was a legion of
bacilli infernales which went out of the tomb-
haunting man into the Gadarene swine and drove
92 The Criminal Prosecution and
them tumultuously over a precipice into the sea.
In fact, who can tell what microbes really are !
P^re Bougeant would certainly have regarded
them as nothing less than microscopic devils.
The Savoyan jurist, Gaspard Bailly, in the
second part of the disquisition entitled Traite
des Monitoires, already mentioned, treats " Of
the Excellence of Monitories " and discusses the
main points touching the criminal prosecution
and punishment of insects. He begins by saying
that " one should not contemn monitories (a
general term for anathemas, bans and excom-
munications), seeing that they are matters of
great importance, inasmuch as they bear with
them the deadliest sword, wielded by our holy
mother, the Church, to wit, the power of excom-
munication, which cutteth the dry wood and the
green, sparing neither the quick nor the dead,
and smiting not only rational beings, but turn-
ing its edge also against irrational creatures;
since it hath been shown at sundry times and in
divers places, that worms and insects, which
were devouring the fruits of the earth, have been
excommunicated and, in obedience to the com-
mands of the Church, have withdrawn from the
cultivated fields to the places prescribed by the
bishop who had been appointed to adjudge and
to adjure them."
M. Bailly then cites numerous instances of this
kind, in which a w-riter on logic would find ample
illustrations of the fallacy known as post hoc,
Capital Punishment of Animals 93
ergo -propter hoc. Thus in the latter half of the
fifteenth century, during the reign of Charles the
Bold, Duke of Burgundy, a plague of locusts
threatened the province of Mantua in Northern
Italy with famine, but were dispersed by excom-
munication. He quotes some florid lines from
the poet Altiat descriptive of these devastating
swarms, which " came, after so many other woes,
under the leadership of Eurus (i. e. brought by
the east wind), more destructive than the hordes
of Attila or the camps of Corsicans, devouring
the hay, the millet and the corn, and leaving only
vain wisheSj where the hopes of August stood."
Again in 1541, a cloud of locusts fell upon
Lombardy, and by destroying the crops, caused
many persons to perish with hunger. These
insects " were as long as a man's finger, with
large heads and bellies filled with vileness; and
when dead they infected the air and gave forth
a stench, which even carrion kites and carnivor-
ous beasts could not endure." Another instance
is given, in which swarms of four-winged insects
came from Tartary, identified in the popular
mind with Tartarus, obscuring the sun in their
flight and covering the plains of Poland a cubit
deep. In the year 1338, on St. Bartholomew's
Day, these creatures began to devastate the
region round Botzen in the Tyrol, consuming
the crops and laying eggs and leaving a numer-
ous progeny, which seemed destined to continue
the work of destruction indefinitely. A prosecu-
94 The Criminal Prosecution and
tion was therefore instituted against them before
the ecclesiastical court at Kaltern, a large
market-town about ten miles south of Botzen,
then as now famous for its wines, and the parish
priest instructed to proceed against them with the
sentence of excommunication in accordance with
the verdict of the tribunal. This he did by the
solemn ceremony of '* inch of candle," and
anathematized them " in the name of the Blessed
Trinity, Father, Son and Holy Ghost." Owing to
the sins of the people and their remissness in the
matter of tithes the devouring insects resisted for
a time the power of the Church, but finally dis-
appeared. Under the reign of Lotharius II., early
in the twelfth century, enormous quantities of
locusts, " having six wings with two teeth harder
than flint " and " darkening the sky and whiten-
ing the air like a snowstorm," laid waste the
most fertile provinces of France. Many of them
perished in the rivers and the sea, and being
washed ashore sent forth a putrescent smell and
produced a fearful pestilence. Precisely the
same phenomenon, with like disastrous results, is
described by St. Augustine in the last book of
De Civitate Dei as having occurred in Africa and
caused the death of 800,000 persons.
In the majority of cases adduced there is no
evidence that the Church intervened at all with
its fulminations, and, even when the anathema
was pronounced, the insects appear to have
departed of their own free-will after having eaten
Capital Punishment of Animals 95
up every green thing and reduced the inhabitants
to the verge of starvation; and yet M. Bailly,
supposed to be a man of judicial mind, dis-
ciplined by study, accustomed to reason and to
know what sound reasoning is, goes on giving
accounts of such scourges, as though they proved
in some mysterious way the effectiveness of
ecclesiastical excommunications and formed a
cumulative argument in support of such claims.
The most important portion of M. Bailly 's
work is that in which he shows how actions
of this kind should be brought and conducted,
with specimens of plaints, pleas, replications,
rejoinders, and decisions. First in order comes
the petition of the inhabitants seeking redress
{requeste des habitans), which is followed in
regular succession by the declaration or plea of
the inhabitants {plaidoyer des habitans), the
defensive allegation or plea for the insects
(plaidoyer pour les insectes), the replication of
the inhabitants (replique des habitans), the re-
joinder of the defendant (replique du defendeur),
the conclusions of the bishop's proctor (conclu-
sions du procureur episcopal), and the sentence
of the ecclesiastical judge (sentence du juge
d'eglise), which is solemnly pronounced in
Latin. The pleadings on both sides are de-
livered in French and richly interlarded with
classical allusions and Latin quotations, being
even more heavily weighted with the spoils of
erudition than the set speech of a member of
the British Parliament.
g6 The Criminal Prosecution and
The following abridgment of the plea, in
which the prosecuting attorney sets forth the
cause of complaint, is a fair specimen of the
forensic eloquence displayed on such occasions :
*' Gentlemen, these poor people on their
knees and with tearful eyes, appeal to your sense
of justice, as the inhabitants of the islands
Majorica and Minorica formerly sent an embassy
to Augustus Caesar, praying him for a cohort of
soldiers to exterminate the rabbits, which were
burrowing in their fields and consuming their
crops. In the power of excommunication you
have a weapon more effective than any wielded
by that emperor to save these poor suppliants
from impending famine produced by the
ravages of little beasts, which spare neither the
corn nor the vines, ravages like those of the boar
that laid waste the environs of Calydon, as
related by Homer in the first book of the Iliad,
or those of the foxes sent by Themis to Thebes,
which destroyed the fruits of the earth and the
cattle and assailed even the husbandmen them-
selves. You know how great are the evils
which famine brings with it, and you have too
much kindness and compassion to permit my
clients to be involved in such distress, thus con-
straining them to perpetrate cruel and unlawful
deeds ; nee enim rationem patitur, nee ulla
aequitate mitigatur, nee prece ulla flectitur
esuriens populus: for a starving people is not
amenable to reason, nor tempered by equity, nor
moved by any prayer. Witness the mothers.
Capital Punishment of Animals 97
of whom it is recorded in the Fourth Book of
the Kings, that they ate their own children, the
one saying to the other : ' Give thy son that we
may eat him to-day, and we will eat my son to-
morrow.' " The advocate then discourses at
length of the horrors of hunger and its dis-
astrous effects upon the individual and the com-
munity, lugging in what Milton calls a " horse-
load of citations" from Arianus Marcellinus,
Ovid and other Latin prosaists and poets, intro-
duces an utterly irrelevant allusion to Joshua
and the crafty Gibeonites, and concludes as
follows : " The full reports received as the result
of an examination of the fields, made at your
command, suffice for your information concern-
ing the damage done by these animals. It
remains, therefore, after complying with the
usual forms, only to adjudicate upon the case in
accordance with the facts stated in the Petition
of the Plaintiffs, which is right and reasonable,
and, to this effect, to enjoin these animals from
continuing their devastations, ordering them to
quit the aforesaid fields and to withdraw to the
place assigned them, pronouncing the necessary
anathemas and execrations prescribed by our
Holy Mother, the Church, for which your peti-
tioners do ever pray."
It is doubtful whether any speaking for Bun-
combe in the halls of Congress or any spouting
of an ignorant bumpkin in the moot-court of an
American law-school ever produced such a
7
98 The Criminal Prosecution and
rhetorical hotchpotch of " matter and impertin-
ency mixed " as the earnest plea, of which the
above is a brief abstract.
Rather more to the point, but equally over-
burdened with legal lore and literary pedantry,
is the rejoinder of the counsel for the insects :
" Gentlemen, inasmuch as you have chosen
me to defend these little beasts (bestioles), I
shall, an it please you, endeavour to right them
and to show that the manner of proceeding
against them is invalid and void. I confess that
I am greatly astonished at the treatment they
have been subjected to and at the charges
brought against them, as though they had com-
mitted some crime. Thus information has been
procured touching the damage said to have been
done by them ; they have been summoned to
appear before this court to answer for their
conduct, and, since they are notoriously dumb,
the judge, wishing that they should not suffer
wrong on account of this defect, has appointed
an advocate to speak in their behalf and to set
forth in conformity with right and justice the
reasons, which they themselves are unable to
allege.
" Since you have permitted me to appear in
defence of these poor animals, I will state, in the
first place, that the summons served on them is
null and void, having been issued against
beasts, which cannot and ought not to be cited
before this judgment seat, inasmuch as such a
Capital Punishment of Animals 99
procedure implies that the parties summoned are
endowed with reason and volition and are there-
fore capable of committing crime. That this is
not the case with these creatures is clear from
the paragraph Si quadrupes, etc., in the first
book of the Pandects, where we find these
words : Nee enim potest animal injuriam fecisse,
quod sensu caret.
" The second ground, on which I base the
defence of my clients, is that no one can be
judicially summoned without cause, and whoever
has had such a summons served renders himself
liable to the penalty prescribed by the statute
De poen. tern, litig. As regards these animals
there is no causa justa litigandi; they are not
bound in any manner, nan tenentur ex con-
tractu, being incompetent to make contracts
or to enter into any compact or covenant what-
soever, neque ex quasi contractu, neque ex
stipulatione, neque ex pacto, and still less ex
delicto seu quasi, can there be any question of a
delict or any semblance thereof, since, as has
just been shown, the rational faculties essential
to the capability of committing criminal actions
are wanting.
" Furthermore, it is illicit to do that which is
nugatory and of non-effect {qui ne porte coup) ;
in this respect justice is like nature, which, as
the philosopher affirms, does nothing mal a
propos or in vain : Deus enim et Natura nihil
operantur frustra. Now I leave it to you to
loo The Criminal Prosecution and
decide whether anything could be more futile
than to summon these irrational creatures,
which can neither speak for themselves, nor
appoint proxies to defend their cause; still less
are they able to present memorials stating
grounds of their justification. If then, as I have
shown, the summons, which is the basis of all
judicial action, is null and void, the proceedings
dependent upon it will not be able to stand :
cum enim 'principalis causa non consistat, neque
ea quae consequuntur locum habent."
The counsel for the defence rests his argument,
of which the extract just given may suffice as a
sample, upon the irrationality and consequent
irresponsibility of his clients. For this reason
he maintains that the judge cannot appoint a
procurator to represent them, and cites legal
authorities to show that the incompetency of the
principal implies the incompetency of the proxy,
in conformity with the maxim : quod directe
fieri prohibetur, per indirectum concedi non
debet. In like manner the invalidity of the
summons bars any charge of contempt of court
and condemnation for contumacy. Further-
more, the very nature of excommunication is
such that it cannot be pronounced against them,
since it is defined as extra ecclesiam positio, vel
e qualibet communione, vel quolibet legitimo
actu separatio. But these animals cannot be
expelled from the Church, because they are not
members of it and do not fall under its jurisdic-
Capital Punishment of Animals loi
tion, as the apostle Paul says : " Ye judge them
that are within and not them also that are with-
out." Excommunicatio afjicit animam, non
corpus, nisi per quandam consequentiam, cujus
medicina est. The animal soul, not being
immortal, cannot be affected by such sentence,
which involves the loss of eternal salvation
(quae vergit in dispendimn aeternae salutis).
A still more important consideration is that
these insects are only exercising an innate right
conferred upon them at their creation, when God
expressly gave them "every green herb for
meat," a right which cannot be curtailed or
abrogated, simply because it may be offensive to
man. In support of this view he quotes pas-
sages from Cicero's treatise De Officiis, the
Epistle of Jude and the works of Thomas
Aquinas. Finally, he maintains that his clients
are agents of the Almighty sent to punish us
for our sins, and to hurl anathemas against them
would be to fight against God (s'en prendre a
Dieu), who has said : "I will send wild beasts
among you, which shall destroy you and your
cattle and make you few in number." That all
flesh has corrupted its way upon the earth, he
thinks is as true now as before the deluge, and
cites about a dozen lines from the Metamor-
phoses of Ovid in confirmation of this fact.
In conclusion he demands the acquittal of
the defendants and their exemption from all
further prosecution.
102 The Criminal Prosecution and
The prosecuting attorney in his replication
answers these objections in regular order, show-
ing, in the first place, that, while the law may
not punish an irrational creature for a crime
already committed, it may intervene, as in the
case of an insane person, to prevent the com-
mission of a crime by putting the madman in a
strait-jacket or throwing him into prison. He
elucidates this principle by a rather far-fetched
illustration from the legal enactments concerning
betrothal and breach of promise of marriage.
" It follows then inferentially that the aforesaid
animals can be properly summoned to appear
and that the summons is valid, inasmuch as this
is done in order to prevent them from causing
damage henceforth (d'ores en avant) and only
incidentally to punish them for injuries already
inflicted."
" To affirm that such animals cannot be
anathematized and excommunicated is to doubt
the authority conferred by God upon his dear
spouse, the Church, whom he has made the
sovereign of the whole world, having, in the
words of the Psalmist, put all things under her
feet, all sheep and oxen, the beasts of the field,
the fowl of the air, the fish of the sea and what-
soever passeth through the paths of the seas.
Guided by the Holy Spirit she does nothing
unwisely; and if there is anything in which she
should show forth her power it is in protecting
and preserving the most perfect work of her
Capital Punishment of Animals 103
heavenly husband, to wit, man, who was made
in the divine image and likeness." The orator
then dilates on the grandeur and glory of man
and interlards his harangue with quotations
from sacred and profane writers, Moses, Paul,
Pliny, Ovid, Silius Italicus and Pico di Miran-
dola, and declares that nothing could be more
absurd than to deprive such a being of the fruits
of the earth for the sake of " vile and paltry
vermin." In reply to the statement of Thomas
Aquinas, quoted by the counsel for the defence,
that it is futile to curse animals as such, the
plaintiffs' advocate says that they are not viewed
merely as animals, but as creatures doing harm
to man by eating and wasting the products of
the soil designed for human sustenance; in other
words he ascribes to them a certain diabolical
character. " But why dwell upon this point,
since besides the instances recorded in Holy
Writ, in which God curses inanimate things and
irrational creatures, we have an infinite number
of examples of holy men, who have excommuni-
cated noxious animals. It will suffice to mention
one familiar to us all and constantly before our
eyes in the town of Aix, where St. Hugon,
Bishop of Grenoble, excommunicated the ser-
pents, which infested the warm baths and killed
many of the inhabitants by biting them. Now
it is well known, that if the serpents in that place
or in the immediate vicinity bite any one, the
bite is no longer fatal. The venom of the reptile
was stayed and annulled by virtue of the excom-
I04 The Criminal Prosecution and
munication, so that no hurt ensues from the bite,
although the bite of the same kind of serpent
outside of the region affected by the ban, is
followed by death."
That serpents and other poisonous reptiles
could be deprived of their venom by enchantment
and thus rendered harmless is in accord with
the teachings of the Bible. Thus we read in
Ecclesiastes (x. ii): "Surely the serpent will
bite without enchantment," i.e. unless it be
enchanted and its bite disenvenomed. A curious
superstition concerning the adder is referred to
in the Psalms (Iviii. 4, 5), where the wicked are
said to be " like the deaf adder that stoppeth her
ear; which will not hearken to the voice of
charmers, charming never so wisely." The Lord
is also represented by Jeremiah (viii. 17) as
threatening to "send serpents, cockatrices,
among you, which will not be charmed, and they
shall bite you." It does not seem to have
occurred to the prosecutor that the defendants
might be locusts, which would not be excom-
municated.
The objection that God has sent these insects
as a scourge, and that to anathematize them
would be to fight against him, is met by say-
ing that to have recourse to the offices of the
Church is an act of religion, which does not
resist, but humbly recognizes the divine will and
makes use of the means appointed for avert-
ing the divine wrath and securing the divine
favour.
Capital Punishment of Animals 105
After the advocates had finished their plead-
ings, the case was summed up by the episcopal
procurator substantially as follows :
" The arguments offered by the counsel for
the defence against the proceedings institued by
the inhabitants as complainants are worthy of
careful consideration and deserve to be examined
soberly and maturely, because the bolt of excom-
munication should not be hurled recklessly and
at random (d la volee), being a weapon of such
peculiar energy and activity that, if it fails to
strike the object against which it is hurled, it
returns to smite him, who hurled it." [This
notion that an anathema is a dangerous missile
to him who hurls it unlawfully or for an
unjust purpose, retroacting like an Australian
boomerang, survives in the homely proverb :
*' Curses, like chickens, come home to roost."]
The bishop's proctor reviews the speeches of the
lawyers, but seems to have his brains somewhat
muddled by them. " It is truly a deep sea," he
says, " in which it is impossible to touch bottom.
We cannot tell why God has sent these animals
to devour the fruits of the earth ; this is for us
a sealed book (lettres closes).^^ He suggests it
may be " because the people turn a deaf ear to
the poor begging at their doors," and goes off
into a long eulogy on the beauty of charity, with
an anthology of extracts from various writers in
praise of alms-giving, among which is one from
Eusebius descriptive of hell as a cold region,
io6 The Criminal Prosecution and
where the wailing and gnashing of teeth are
attributed to the torments of eternal frost instead
of everlasting fire (liberaberis ab illo frigore, in
quo erit fletus et stridor dentium). Again, the
plague of insects may be due to irreverence
shown in the churches, which, he declares, have
been changed from the house of God into houses
of assignation. On this point he quotes from
Tertullian, Augustine, and Numa Pompilius,
and concludes by recommending that sentence of
excommunication be pronounced upon the
insects, and that the prayers and penances,
customary in such cases, be imposed upon the
inhabitants.
After this discourse, which reads more like a
homily from the pulpit than a plea at the bar
and in the mouth of the bishop's proctor is
simply an oratio pro domo, the official gave
judgment in favour of the plaintiffs. The
sentence, which was pronounced in Latin befit-
ting the dignity and solemnity of the occasion,
condemned the defendants to vacate the premises
within six days on pain of anathema.
The official begins by stating the case as that
of " The People versus Locusts," declaring that
the guilt of the accused has been clearly proved
" by the testimony of worthy witnesses and,
as it were, by public rumour," and inasmuch as
the people have humbled themselves before God
and supplicated the Church to succour them in
their distress, it is not fitting to refuse them help
Capital Punishment of Animals 107
and solace. " Walking in the footsteps of the
fathers, sitting on the judgment-seat, having
the fear of God before our eyes and confiding
in his mercy, relying on the counsel of experts,
we pronounce and publish our sentence as
follows :
" In the name and by virtue of God, the omni-
potent. Father, Son and Holy Spirit, and of
Mary, the most blessed Mother of our Lord Jesus
Christ, and by the authority of the holy apostles
Peter and Paul, as well as by that which has
made us a functionary in this case, we admonish
by these presents the aforesaid locusts and grass-
hoppers and other animals by whatsoever name
they may be called, under pain of malediction
and anathema to depart from the vineyards and
fields of this district within six days from the
publication of this sentence and to do no further
damage there or elsewhere." If, on the expira-
tion of this period, the animals have refused to
obey this injunction, then they are to be
anathematized and accursed, and the inhabit-
ants of all classes are to beseech " Almighty
God, the dispenser of all good gifts and the
dispeller of all evils," to deliver them from so
great a calamity, not forgetting to join with
devout supplications the performance of all good
works and especially " the payment of tithes
without fraud according to the approved custom
of the parish, and to abstain from blasphemies
and such other sins as are of a public and
io8 The Criminal Prosecution and
particularly offensive character." {Vide Ap-
pendix B.)
It is doubtful whether one could find in the
ponderous tomes of scholastic divinity anything
surpassing in comical non sequiturs and sheer
nonsense the forensic eloquence of eminent
lawyers as transmitted to us in the records of
legal proceedings of this kind. Although the
counsel for the defendants, as we have seen,
ventured to question the propriety and validity
of such prosecutions, his scepticism does not
seem to have been taken seriously, but was
evidently smiled at as the trick of a pettifogger
bound to use every artifice to clear his clients.
In the writings of mediaeval jurisprudents the
right and fitness of inflicting judicial punishment
upon animals appear to have been generally
admitted. Thus Guy Pape, in his Decisions of
the Parliament of Grenoble (Qu. 238), raises the
query, whether a brute beast, if it commit a
crime, as pigs sometimes do in devouring chil-
dren, ought to suffer death, and answers the
question unhesitatingly in the affirmative : si
animal brutuvi delinquat, sicut quandoque
faciunt porci qui comedunt pueros, an debeat
mori? Dico quod sic/' Jean Duret, in his
elaborate Treatise on Pains and Penalties
(Traicte des Peines et des Amendes, p. 250; cf.
Themis Jurisconsulte, VIII. p. 57), takes the
same view, declaring that " if beasts not only
wound, but kill and eat any person, as experi-
Capital Punishment of Animals 109
ence has shown to happen frequently in cases
of Httle children being eaten by pigs, they
should pay the forfeit of their lives and be con-
demned to be hanged and strangled, in order to
efface the memory of the enormity of the deed."
The distinguished Belgian jurist, Jodocus
Damhouder, discusses this question in his
Rerum Criminalium Praxis (cap. CXLIL), and
holds that the beast is punishable, if it
commits the crime through natural malice, and
not through the instigation of others, but
that the owner can redeem it by paying for
the damage done; nevertheless he is not
permitted to keep ferocious or malicious beasts
and let them run at large, so as to be a con-
stant peril to the community. Occasionally
a more enlightened jurist had the common-sense
and courage to protest against such perversions
and travesties of justice. Thus Pierre Ayrault,
lieutenant-criminel au siege presidial d' Angers,
published at Angers, in 1591, a small quarto
entitled : Des Procez faicts au Cadaver, aux
Cendres, a la Memoire, aux Bestes brutes, aux
Choses inanimees et aux Contumax, in which
he argued that corpses, the ashes and the
memory of the dead, brute beasts and inanimate
things are not legal persons (legales homines)
and therefore do not come within the jurisdiction
of a court. Curiously enough a case somewhat
analogous to those discussed by Pierre Ayrault
was adjudicated upon only a few years ago. A
no The Criminal Prosecution and
Frenchman bequeathed his property to his own
corpse, in behalf of which his entire estate was
to be administered, the income to be expended
for the preservation of his mortal remains and
the adornment of the magnificent mausoleum in
which they were sepulchred. His heirs-at-law
contested the will, which was declared null and
void by the court on the ground that " a subject
deprived of individuality or of civil personality "
could not inherit. The same principle would
apply to the infliction of penalties upon such
subjects. The only kind of legacy that will
cause a man's memory to be cherished is the
form of bequest which makes the public weal
his legatee. The Chinese still hold to the bar-
barous custom of bringing corpses to trial and
passing sentence upon them. On the 6th of
August, 1888, the cadaver of a salt-smuggler,
who was wounded in the capture and died in
prison, was brought before the criminal court
in Shanghai and condemned to be beheaded.
This sentence was carried out by the proper
officers on the place of execution outside of the
west gate of the city.
Felix Hemmerlein, better known as Malleolus,
a distinguished doctor of canon law and proto-
martyr of religious reform in Switzerland, states
in his Tractatus de Exorcismis, that in the four-
teenth century the peasants of the Electorate of
Mayence brought a complaint against some
Spanish flies, which were accordingly cited to
Capital Punishment of Animals 1 1 1
appear at a specified time and answer for their
conduct; but "in consideration of their small
size and the fact that they had not yet reached
their majority," the judge appointed for them a
curator, who " defended them with great
dignity"; and, although he was unable to pre-
vent the banishment of his wards, he obtained
for them the use of a piece of land, to which they
were permitted peaceably to retire. How they
were induced to go into this insect reservation
and to remain there we are not informed. The
Church, as already stated, claimed to possess the
power of effecting the desired migration by
means of her ban. If the insects disappeared,
she received full credit for accomplishing it; if
not, the failure was due to the sins of the people ;
in either case the prestige of the Church was
preserved and her authority left unimpaired.
In 15 19, the commune of Stelvio, in Western
Tyrol, instituted criminal proceedings against
the moles or field-mice, ^ which damaged the
^ These animals are spoken of as unvemunftige Thierlein
genannt Luttnduse. Lut might be derived from the Old
German lut {Laut, Schrei), in which case Lutmaus would
mean shrew-mouse ; but it is more probably from luium
(loam, mould), and signifies mole or field-mouse. Field-mice
are exceedingly prolific rodents, and in modern as well as in
mediaeval times have often done grievous harm to husbandry
and arboriculture by consuming roots and fruits and gnawing
the bark of young trees. The recklessness of hunters in
exterminating foxes, hedgehogs, polecats, weasels, buzzards,
crows, kites, owls and similar beasts and birds, which are
destructive of field-mice, has frequently caused the latter to
multiply so as to become a terrible plague. This was the
1 1 2 The Criminal Prosecution and
crops " by burrowing and throwing up the
earth, so that neither grass nor green thing
could grow." But " in order that the said mice
may be able to show cause for their conduct by
pleading their exigencies and distress," a pro-
curator, Hans Grinebner by name, was charged
with their defence, " to the end that they may
have nothing to complain of in these proceed-
ings." Schwarz Mining was the prosecuting
attorney, and a long list of witnesses is given,
who testified that the serious injury done by
these creatures rendered it quite impossible for
tenants to pay their rents. The counsel for the
defendants urged in favour of his clients the
many benefits which they conferred upon the
community, and especially upon the agricultural
class by destroying noxious insects and larvae
and by stirring up and enriching the soil, and
concluded by expressing the hope that, if they
should be sentenced to depart, some other
suitable place of abode might be assigned to
them. He demanded, furthermore, that they
should be provided with a safe conduct securing
them against harm or annoyance from dog, cat
or other foe. The judge recognized the reason-
ableness of the latter request, in its application
to the weaker and more defenceless of the
culprits, and mitigated the sentence of perpetual
banishment by ordering that "a free safe-con-
case in England in 1 8 13-14, and in Germany in 1822, and
again in 1856.
Capital Punishment of Animals 1 1 3
duct and an additional respite of fourteen days
be granted to all those which are with young
and to such as are yet in their infancy; but on
the expiration of this reprieve each and every
must be gone, irrespective of age or previous
condition of pregnancy." {Vide Appendix C.)
An old Swiss chronicler named Schilling
gives a full account of the prosecution and
anathematization of a species of vermin called
inger, which seems to have been a coleopterous
insect of the genus Brychus and very destruc-
tive to the crops. The case occurred in 1478
and the trial was conducted before the Bishop
of Lausanne by the authority and under the
jurisdiction of Berne. The first document re-
corded is a long and earnest declaration and
admonition delivered from the pulpit by a
Bernese parish-priest, Bernhard Schmid, who
begins by stating that his " dearly beloved " are
doubtless aware of the serious injury done by the
inger and of the suffering which they have
caused. The Leutpriester, as he is termed,
gives a brief history of the matter and of the
measures taken to procure relief. The mayor
and common council of Berne were besought in
their wisdom to devise some means of staying
the plague, and after much earnest deliberation
they held counsel with the Bishop of Lausanne,
who " with fatherly feeling took to heart so great
affliction and harm " and by an episcopal man-
date enjoined the inger from committing further
8
114 The Criminal Prosecution and
depredations. After exhorting the people to
entreat God by " a common prayer from house
to house " to remove the scourge, he proceeds to
warn and threaten the vermin in the following
manner: "Thou irrational and imperfect crea-
ture, the inger, called imperfect because there
was none of thy species in Noah's ark at the time
of the great bane and ruin of the deluge, thou
art now come in numerous bands and hast done
immense damage in the ground and above the
ground to the perceptible diminution of food for
men and animals; and to the end that such
things may cease, my gracious Lord and
Bishop of Lausanne has commanded me in his
name to admonish you to withdraw and to
abstain ; therefore by his command and in his
name and also by virtue of the high and holy
trinity and through the merits of the Redeemer
of mankind, our Saviour Jesus Christ, and in
virtue of and obedience to the Holy Church, I
do command and admonish you, each and all, to
depart within the next six days from all places
where you have secretly or openly done or might
still do damage, also to depart from all fields,
meadows, gardens, pastures, trees, herbs, and
spots, where things nutritious to men and to
beasts spring up and grow, and to betake your-
selves to the spots and places, where you and
your bands shall not be able to do any harm
secretly or openly to the fruits and aliments
nourishing to men and beasts. In case, how-
Capital Punishment of Animals 1 1 5
ever, you do not heed this admonition or obey
this command, and think you have some reason
for not complying with them, I admonish, notify
and summon you in virtue of and obedience to
the Holy Church to appear on the sixth day after
this execution at precisely one o'clock after
midday at Wifflisburg, there to justify your-
selves or to answer for your conduct through
your advocate before His Grace the Bishop
of Lausanne or his vicar and deputy. There-
upon my Lord of Lausanne or his deputy will
proceed against you according to the rules of
justice with curses and other exorcisms, as is
proper in such cases in accordance with legal
form and established practice." The priest then
exhorts his "dear children" devoutly to beg
and to pray on their knees with Paternosters and
Ave Marias to the praise and honour of the high
and holy trinity, and to invoke and crave the
divine mercy and help in order that the inger
may be driven away. (Vide Appendix D.)
There is no further record of proceedings at
this time, and it is highly probable that the
detection of some technical error rendered it
necessary to postpone the case, since this petti-
fogger's trick was almost always resorted to and
proved generally successful in procuring an
adjournment. At any rate either this or a pre-
cisely similar trial occurred in the following
year. Early in May 1479, the mayor and common
council of Berne sent copies of the monitorium
1 1 6 The Criminal Prosecution and
and citation issued by the Bishop of Lausanne
to their representative for distribution among the
priests of the afflicted parishes, in order that it
might be promulgated from their respective
pulpits and thus brought to the knowledge of
the delinquents. About a week later, on May 15,
the same authorities sent also a letter to the
Bishop of Lausanne asking for new instructions
in the matter, as they were not certain how they
should proceed, urging that immediate steps
should be taken, as the further delay would be
" utterly intolerable." This impatience would
seem to imply that the anathema had been
hanging fire for some time and that the prosecu-
tion was identical with that of the preceding
year.
The appointed term having elapsed and the
inger still persisting in their obduracy, the
mayor and common council of Berne issued the
following document conferring plenipotentiary
power of attorney on Thiiring Fricker to pro-
secute the case : ** We, the mayor, council and
commune of the city of Berne, to all those of the
bishopric of Lausanne, who see, read, or hear
this letter. We make known that after mature
deliberation we have appointed, chosen and
deputed and by virtue of the present letter do
appoint, choose and depute the excellent Thiiring
Fricker, doctor of the liberal arts and of laws,
our now chancellor, to be our legal delegate
and agent and that of our commune, as well as
Capital Punishment of Animals 117
of all the lands and places of the bishopric of
Lausanne, which are directly or indirectly sub-
ject and appurtenant to us and of which a com-
plete list is herein contained. And indeed he has
assumed this general and special attorneyship,
whereof the one shall not be prejudicial to the
other, in the case which we have undertaken and
prosecute and have determined to prosecute before
the court of the right reverend in Christ Benedict
de Montferrand, Bishop of Lausanne, Count and
our most worthy Superior, against the noxious
host of the inger (brucorum), which creeping
secretly in the earth devastate the fields,
meadows and all kinds of grain, whereby with
grievous wrong they do detriment to the ever-
living God, to whom the tithes belong, and to
men, who are nourished therewith and owe
obedience to him. In this cause he shall act
in our stead, and in the name of all of us collect-
ively and severally shall plead, demur, reply,
prove by witnesses, hear judgment or judg-
ments, appoint other defenders and in general
and specially do each and every thing which the
importance of the cause may demand and which
we ourselves in case of our presence would be
able to do. We solemnly promise in good faith
that all and the whole of what may be trans-
acted, performed, provided, pledged, and or-
dained in this cause by our aforesaid attorney
or by the proxy appointed by him shall be firmly
and gratefully observed by us, with the express
1 1 8 The Criminal Prosecution and
renunciation of each and every thing that might
either by right or actually, in any wise, either
wholly or partially impair, weaken or assail our
ordainment, conclusion and determination, also
over against any reservation of right, which per-
mits a general renunciation, even if no special
reservation has preceded, with the exclusion of
every fraud and every deceit. In corroboration
and confirmation of the aforesaid we ratify this
letter with the warranty of our seal. Given on
the twenty-second of May 1479."
The trial began a couple of days later and was
conducted with less " of the law's delay " than
usual, inasmuch as it ended on the twenty-ninth
day of the same month. The defender of the
insects was a certain Jean Perrodet of Freiburg,
who according to all accounts was a very ineffi-
cient advocate and does not appear to have con-
tested the case with the ability and energy which
the interests of his clients required. The sen-
tence of the court with the appended anathema
of the bishop was as follows: "Ye accursed
uncleanness of the inger, which shall not be
called animals nor mentioned as such, ye have
been heretofore by virtue of the appeal and
admonition of our Lord of Lausanne enjoined
to withdraw from all fields, grounds and estates
of the bishopric of Lausanne, or within the next
six days to appear at Lausanne, through your
proctor, to set forth and to hear the cause of
your procedure, and to act with just judgment
Capital Punishment of Animals 119
either for or against you, pursuant to the said
citation. Thereupon our gracious Lords of
Berne solicited by their mandate such a day in
court at Lausanne, and there before the tribunal
renewed their plaint in their name and in that of
all the provinces of the said bishopric, and your
reply thereto through your proctor has been fully
heard, and the legal terms have been justly
observed by both parties, and a lawful decision
pronounced word for word in this wise :
" We, Benedict of Montferrand, Bishop of
Lausanne, etc., having heard the entreaty of the
high and mighty lords of Berne against the
inger and the ineffectual and rejectable answer
of the latter, and having thereupon fortified our-
selves with the Holy Cross, and having before
our eyes the fear of God, from whom alone all
just judgments proceed, and being advised in
this cause by a council of men learned in the
law, do therefore acknowledge and avow in this
our writing that the appeal against the detest-
able vermin and inger, which are harmful to
herbs, vines, meadows, grain and other fruits,
is valid, and that they be exorcised in the person
of Jean Perrodet, their defender. In conformity
therewith we charge and burden them with our
curse, and command them to be obedient and
anathematize them in the name of the Father,
the Son and the Holy Ghost, that they turn
away from all fields, grounds, enclosures, seeds,
fruits and produce, and depart. By virtue of
I20 The Criminal Prosecution and
the same sentence I declare and affirm that you
are banned and exorcised, and through the
power of Almighty God shall be called accursed
and shall daily decrease whithersoever you may
go, to the end that of you nothing shall remain
save for the use and profit of man. Adiungendo
aliquid in devotionem fopuli.^^ The phrase das
si besivart iverden in die person johannis Perro-
deti irs beschirmers does not imply that the
vermin or the devils, of which they were sup-
posed to be incarnations, were to be conjured
into him, but refer to him merely as their proctor
and legal representative. The results of the
prosecution, which had been awaited with
intense and anxious interest by the people, were
received with great joy, and the Bernese govern-
ment ordered a full report of the proceedings to
be made. The ecclesiastical anathema, how-
ever, proved to be hrutum julmen; nothing more
came of it, says Schilling, " owing to our sins."
Another chronicler adds that God permitted the
inger to remain as a plague and a punishment
until the people repented of their wickedness and
gave evidence of their love and gratitude to
Him, namely, by giving to the Church tithes of
what the insects had not destroyed.
The Swiss priest in his malediction declares
that the inger were not in Noah's ark and even
denies that they are animals properly speaking,
stigmatizing them as living corruption, products
of spontaneous generation perhaps, or more
Capital Punishment of Animals 121
probably creations of the devil. This position
was assumed in order to escape the gross im-
propriety and glaring incongruity of having the
Church of God curse the creatures which God
had made and pronounced very good, and after-
wards took pains to preserve from destruction
by the deluge. This difficulty, always a serious
one, was, as we have seen, one of the chief
points urged by the counsel for the defence in
favour of his clients.
Malleolus gives the following formula for
banning serpents and expelling them from
human habitations, inculcating incidentally the
iniquity of perjury and judicial injustice: " By
virtue of this ban and conjuration I command
you to depart from this house and cause it to be
as hateful and intolerable to you, as the man,
who knowingly bears false witness or pronounces
an unjust sentence, is to God." Sometimes the
exorcism was in the form of a prayer, as, for
example, in that used for the purgation and
disinfection of springs and water-courses: "O
Lord Jesus, thou who didst bless the river
Jordan and wast baptized in it and hast purified
and cleansed it to the end that it might be a
healing element for the redemption from sin,
bless, sanctify and purify this water, so that there
may be left in it nothing noxious, nothing
pestiferous or contagious, nothing pernicious,
but that everything in it may be pure and im-
maculate, in order that we may use whatever
122 The Criminal Prosecution and
is created in it for our welfare and to thy glory,
through our Lord Jesus Christ. Amen."
In a Latin protocol of legal proceedings in
Crollolanza's Storia del Contado di Chiavenna
it is recorded that on June 26, 1659, Capt. J. B.
Pestalozzi came, in behalf of the communes of
Chiavenna, Mese, Gordona, Prada and Samolico,
before the commissioner Hartmann Planta and
brought complaint against certain caterpillars on
account of the devastations committed by them,
demanding that these hurtful creatures should
be summoned by the proper sheriff to appear in
court on June 28 at a specified hour in order
to have a curator and defender appointed, who
should answer for them to the plaintiffs. A
second document, dated June 28, 1659, ^nd
signed by the notary Battista Visconti, certifies
that the said summons had been duly issued and
five copies of the same been posted each on a
tree in the five forests in the territory of the
aforesaid five communes. A third document of
the same date required the advocate of the
accused, Cesare de Peverello, to appear before
the court on the following Tuesday, July i, in
behalf of his recusant clients, who were charged
with trespassing upon the fields, gardens and
orchards and doing great damage therein, instead
of remaining in their habitat, the forest. The
prosecutors required that they should seek their
food in wild and wooded places and cease from
ravaging cultivated grounds. A fourth docu-
Capital Punishment of Animals 123
ment contains an account of the trial; the plead-
ings of the respective parties, so far as they are
preserved, do not differ essentially from those
already quoted. In the fifth and final document
the court recognizes the right of the caterpillars
to life, liberty, and the pursuit ot happiness, pro-
vided the exercise of this right " does not destroy
or impair the happiness of man, to whom all
lower animals are subject." Accordingly a
definite place of abode is to be assigned to them
and various places are proposed. The protocol
is incomplete, so that we are left in ignorance
of the ultimate decision. The whole is written
in execrable Latin quite worthy of the subject.
More than half-a-century later the Franciscan
friars of the cloister of St. Anthony in the
province of Piedade no Maranhao, Brazil, were
greatly annoyed by termites, which devoured
their food, destroyed their furniture, and even
threatened to undermine the walls of the
monastery. Application was made to the bishop
for an act of interdiction and excommunication,
and the accused were summoned to appear before
an ecclesiastical tribunal to give account of their
conduct. The lawyer appointed to defend them
urged the usual plea about their being God's
creatures and therefore entitled to sustenance,
and made a good point in the form of an argu-
mentum ad monachum by praising the industry
of his clients, the white ants, and declaring them
to be in this respect far superior to their pro-
124 'The Criminal Prosecution and
secutors, the Gray Friars. He also maintained
that the termites were not guilty of criminal
aggression, but were justified in appropriating
the fruits of the fields by the right derived from
priority of possession, inasmuch as they had
occupied the land long before the monks came
and encroached upon their domain. The trial
lasted for some time and called forth remarkable
displays of legal learning and forensic elo-
quence, with numerous citations of sacred and
profane authorities on both sides, and ended in a
compromise, by the terms of which the plaintiffs
were obliged to provide a suitable reservation
for the defendants, who were commanded to go
thither and to remain henceforth within the
prescribed limits. In the chronicles of the
cloister it is recorded, under date of Jan. 1713,
that no sooner was the order of the prelatic judge
promulgated by being read officially before the
hills of the termites than they all came out and
marched in columns to the place assigned. The
monkish annalist regards this prompt obedience
as conclusive proof that the Almighty endorsed
the decision of the court. [Cited by Emile Angel
on the authority of Manoel Bernardes' Nova Flo-
resta, ou Sylva de varios apophthegvias c ditos
sentencios espirituaes e moraes, etc. Vol. V.,
Lisbod, 1747.]
About the middle of the sixteenth century the
inhabitants of several villages in Aargau were
greatly annoyed by swarms of gadflies and
Capital Punishment of Animals 125
petitioned the Bishop of Constance for relief. In
the episcopal rescript, written and signed by the
vidame Georg Winterstetter, the people are
enjoined to abstain from dancing on Sundays
and feast days, from all forms of libidinousness,
gambling with cards or dice and other frivolities.
These injunctions are followed by prayer and the
usual formulas of conjuration and exorcism.
The original document was written in Latin and
preserved in the archives of Baden in Switzer-
land, but is now lost. In 1566 the Landamman
of Unterwalden, Johannes Wirz, took a German
translation of it home with him to be used in
case of need against the " vergifteten Wiirmer,"
and deposited it in the archives of Obwalden,
where it still remains. It was published in 1898
by Dr. Merz.
In Protestant communities, the priest as exor-
cist has been superseded, to a considerable
extent, by the professional conjurer, who in
some portions of Europe is still employed to save
crops from devouring insects and similar
plagues. A curious instance of this kind is
recorded in Gorres' Historisch-Politische Blatter
for 1845 (Heft VII. p. 516). A Protestant gentle-
man in Westphalia, whose garden was devastated
by worms, after having tried divers vermicidal
remedies in vain, resolved to have recourse to a
conjurer. The wizard came and walked about
among the vegetables, touching them with a
wand and muttering enchantments. Some work-
126 The Criminal Prosecution and
men, who were repairing the roof of a stable
near by, made fun of this hocus-pocus and began
to throw bits of lime at the conjurer. He re-
quested them to desist, and finally said : " If you
don't leave me in peace, I shall send all the
worms up on the roof." This threat only excited
the hilarity of the scoffers, who continued to ridi-
cule and disturb him in his incantations. There-
upon he went to the nearest hedge, cut a
number of twigs, each about a finger in length,
and placed them against the wall of the stable.
Soon the vermin began to abandon the plants
and, crawling in countless numbers over the
twigs and up the wall, took complete possession
of the roof. In less than an hour the men were
obliged to stop working and stood in the court
below covered with confusion and cabbage-
worms.
The writer, who relates this strange incident,
fully believes that it actually occurred, and
ascribes it to " the force of human faith and the
magnetic power of a firm will over nature."
This, too, is the theory held by Paracelsus, who
maintained that the effectiveness of a curse lay
in the energy of the will, by which the wish, so
to speak, concretes into a deed, just as anger
directs the arm and actualizes itself in a blow.
By " fervent desire " merely, without any
physical effort or aggressive act, he deemed it
possible to wound a man's body or to pierce it
through as with a sword. He also held that
Capital Punishment of Animals 127
brutes are more easily exorcised or accursed than
men, " for the spirit of man resists more than
that of the brute." Similar notions were enter-
tained nearly a century later by Jacob Boehme,
who defines magic as " doing in the spirit of the
will," an idea which finds more recent and more
scientific expression in Schopenhauer's doctrine
of " the objectivation of the will." Indeed,
Schopenhauer's postulate of the will as the sole
energy and actuality in the universe is only the
philosophic statement of an assumption, upon
which magicians and medicine-men, enchanters,
exorcists and anathematizers have acted more or
less in all ages. We have a striking illustration
of the workings of some such mysterious, quasi-
hyperphysical force in hypnotism, the reality of
which it is no longer possible to deny, however
wonderful and incomprehensible its manifesta-
tions may appear.
It is natural that a religion of individual initi-
ative and personal responsibilty, like Protestant-
ism, should put less confidence in theurgic
machinery and formularies of ex-cathedral
execration than a religion like Catholicism, in
which man's spiritual concerns are entrusted to
a hierarchical corporation to be managed accord-
ing to traditional and infallible methods. This
tendency crops out in a decree published at
Dresden, in 1559, by " Augustus Duke and
Elector," wherein he commends the "Christian
zeal of the worthy and pious parson, Daniel
128 The Criminal Prosecution and
Greysser," for having " put under ban the spar-
rows, on account of their unceasing and ex-
tremely vexatious chatterings and scandalous
unchastity during the sermon, to the hindrance
of God's word and of Christian devotion." But
the Saxon parson, unlike the Bishop of Trier,
did not expect that his ban would cause the
offending birds to avoid the church or to fall
dead on entering it. He relied less on the
directly coercive or withering action of the curse
than on the human agencies, which he might
thereby set at work for the accomplishment of his
purpose. By his proscription he put the culprits
out of the pale of public sympathy and protec-
tion and gave them over as a prey to the spoiler,
who was persuaded that he was doing a pious
work by exterminating them. It was solemnly
enjoined upon the hunter and the fowler to lie in
wait for the anathematized sparrows with guns
and with snares {dutch mancherlei visirliche
und listige Wege) ; and the Elector issued his
decree in order to enforce this duty on all good
Christians. (See Appendix E.)
A faded and somewhat droll survival of
ecclesiastical excommunication and exorcism is
the custom, still prevailing in European
countries and some portions of the United States,
of serving a writ of ejectment on rats or simply
sending them a friendly letter of advice in order
to induce them to quit any house, in which their
presence is deemed undesirable. Lest the rats
Capital Punishment of Animals 129
should overlook and thus fail to read the epistle,
it is rubbed with grease, so as to attract their
attention, rolled up and thrust into their holes.
Mr. William Wells Newell, in a paper on
" Conjuring Rats," printed in The Journal of
American Folk-Lore (Jan.-March, 1892), gives a
specimen of such a letter, dated, " Maine,
Oct. 31, 1888," and addressed in business style
to " Messrs. Rats and Co." The writer begins
by expressing his deep interest in the welfare of
said rats as well as his fears lest they should find
their winter quarters in No. i, Seaview Street,
uncomfortable and poorly supplied with suitable
food, since it is only a summer residence and is
also about to undergo repairs. He then suggests
that they migrate to No. 6, Incubator Street,
where they "can live snug and happy" in a
splendid cellar well stored with vegetables of all
kinds and can pass easily through a shed lead-
ing to a barn containing much grain. He con-
cludes by stating that he will do them no harm if
they heed his advice, otherwise he shall be forced
to use " Rough on Rats." This threat of resort-
ing to rat poison in case of the refusal to accept
his kind counsel is all that remains of the once
formidable anathema of the Church.
In Scotland, when these domestic rodents
became too troublesome, people of the lower
classes are wont to post the following notice on
the walls of their houses :
" Ratton and mouse,
Lea' the puir woman's house,
130 The Criminal Prosecution and
Gang awa' owre by to 'e mill,
And there ane and a' ye'll get your fill.''
In order to make the conjuration effective some
particular abode must be assigned to them ; it is
not sufficient to bid them begone, but they are
to be told to go to a definite place. The fact that
they are usually sent across a river or brook may
indicate a lingering tradition of their demoniacal
character, since, according to a widespread
popular superstition, a water-course is a barrier
to hobgoblins and evil spirits :
"A running stream they dare na cross."
In this case the rats, as imps of Satan, having
reached their destination, would find it impos-
sible to return.
It was in Ireland, the native realm of bulls and
like incongruities, that conjuring or " rhyming "
rats seems to have been most common, if we may
judge from the manner in which it is alluded to
by the Elizabethan poets. Thus in As you
Like It Rosalind says in reference to Orlando's
verses: "I was never so be-rhymed since
Pythagoras' time, that I was an Irish rat, which
I can hardly remember." Randolph declares:
"My poets
Shall with a satire, steep'd in gall and vinegar,
Rhime *em to death, as they do rats in Ireland."
Ben Jensen is still mere specific :
" Rhime 'em to death, as they do Irish rats,
In drumming tunes."
Capital Punishment of Animals 131
From this reference to the mode of conjuring it
appears that the repeating of the rhymes was
accompanied with the beating of a drum, as is
still the usage in France. From the very earliest
times a peculiar magical potency has been
ascribed to words woven into rhythmic form.
The fascination which metrical expression, even
as a mere jingle and jargon, still retains for the
youth of the individual was yet far more strongly
felt in the youth of the race. The simple song
was intoned as a spell and the rude chant
mumbled as a charm.
In France the conjuration of field-mice bears a
more distinctly religious stamp. On the first
Sunday in Lent, the so-called Feast of the
Torches (la Fete des Brandons ou des Bures),
the peasants wander in all directions through the
fields and orchards with lighted torches of
twisted straw, uttering the following incantation,
which not only threatens to burn the whiskers of
obdurate mice, but also hints at the wine-
bibbing propensities of the curate :
" Sortez, sortez d'ici, mulcts !
Ou je vais vous bruler les crocs !
Quittez, quittez ces bles !
Allez, vous trouverez
Dans la cave du cur^
Plus k boire qu'k manger."
The form of imprecation varies in different
provinces, but usually includes some threat of
breaking the bones or burning the beards of the
132 The Criminal Prosecution and
refractory rodents, in case they refuse to quit the
close, as in the following summons :
"Taupes et mulcts,
Sors de mon clos,
Ou je te casse les os ;
Barbassione ! Si tu viens dans non clos,
Je te brule la barbe jusqu'aux os."
The utterance of these words is emphasized by
loud and discordant noises of cat-calls, tin horns,
and similar instruments of " Callithumpian "
music.
Gregory, who was Bishop of Tours in the
latter half of the sixth century, states in his
History of the Franks (VIII. 35) that bronze
talismans representing dormice and serpents were
used in Paris to protect the city against the rav-
ages of these creatures ; and when the town of Le
Mans was rebuilt after its destruction by fire in
1 145, a toad with a gold chain round its neck,
was enclosed in a block of stone as a preservative
against venomous reptiles. (Le Corvasier :
Hist, des Eveques du Mans, 1648, p. 441. Cf.
Desnoyers : Recherches, etc., p. 7.)
The use of the above-mentioned means of con-
juration is unquestionably of very ancient date.
Thus in a treatise on agriculture entitled to.
yeMTToviKd and consisting of twenty books, written
in the tenth century by the Bithynian Byzantine,
Kassianos Bassos, the following prescription is
given for getting rid of field-mice :
" Take a slip of paper and write on it these
Capital Punishment of Animals 133
words : I adjure you, O mice, who dwell here
not to injure me yourselves nor to permit any
other mouse to do so; and I make over to you
this field (describing it). But should I find you
staying here after having been warned, with the
help of the mother of the gods I will cut you in
seven pieces." The author quotes this recipe,
in order, as he says, that nothing may remain
unrecorded, but expressly declares that he has no
confidence in its efficiency and advises the hus-
bandman to put his trust in good rat-bane.
Bassos derived the materials for his popular
encyclopaedia chiefly from the " Geoponics "
composed by Anatolios and Didymos some six
centuries earlier, and even most of his citations
of classical writers are taken from the same
sources. That the above-mentioned exorcism is
pagan in its origin is evident from the invocation
of the aid of Cybele for the destruction of dis-
obedient vermin. In a Christian conjuration the
Mother of God would have been substituted for
the mother of the gods, whom the Greeks revered
as the personification of all-creating and all-sus-
taining nature. The resemblance of this formula,
which the Greeks may have borrowed with the
worship of Cybele from the Phrygians, to the
Yankee's letter of advice is peculiarly interesting.
In the ancient conjuration the harmful or
undesirable animals were commanded to go to a
certain locality, set apart for them, and this
injunction was accompanied with dire threats in
134 The Criminal Prosecution and
case of disobedience; the milder epistolary form
of the present day is more advisory and persua-
sive and offers them inducements to migrate and
to take up their abode elsewhere. Sometimes
this kind counsel is given verbally, as, for
example, in Thuringia, where it is customary to
get rid of cabbage-worms by going into the
garden, requesting them to depart, and call-
ing out: "In yonder village is church-ale
(Kirmesy ; thus implying that they will find
better entertainment at this festival. (Witzschel :
Sagen, Sitten nnd Gehrduche aus ThUringen.
Wien, 1878, p. 217.) The willingness of peasant
communities to ward off evil from themselves at
the expense of their neighbours is a survival of
the primitive ethics, which recognizes only the
rights of the family or tribe and treats all aliens
as foes. It is the same feeling that causes the
inhabitants of the Alps to erect so-called weather-
crosses (Wetterkreuse) for the purpose of avert-
ing thunder-storms and hailstones from them-
selves by diverting them into an adjacent valley.
This method of protection is based upon the
theory that tempests, hurricanes, and all violent
commotions of nature are the work of demons or
witches, who avoid the symbol of Christ's death
and the world's redemption and direct their fury
elsewhere. A like egotism is expressed in the
inscription on many houses of peasants entreat-
ing St. Florian to preserve their habitation from
flames and to set fire to others, as though the
Capital Punishment of Animals 135
holy man must indulge his incendiary passion by
pouring out upon some human abode the blazing
vessel, which he is represented as bearing in his
hand. The inscription is the same as that with
which Reynard the Fox adorned his castle Male-
partus, and which might be translated :
" Saint Florian, thou martyr blessed,
Protect this house and bum the rest."
Not only were insects, reptiles and small
mammals, such as rats and mice, legally pro-
secuted and formally excommunicated, but
judicial penalties, including capital punishment,
were also inflicted upon larger quadrupeds. In
the Report and Researches on this subject, pub-
lished by Berriat-Saint-Prix in the Memoirs of
the Royal Society of Antiquaries of France
(Paris, 1829, Tome VIII. pp. 403-50), numerous
extracts from the original records of such pro-
ceedings are given, and also a list of the kinds
of animals thus tried and condemned, extending
from the beginning of the twelfth to the middle
of the eighteenth century, and comprising in all
ninety-three cases. This list has been enlarged
by D'Addosio so as to cover the period from
824 to 1845, and to include one hundred and
forty-four prosecutions resulting in the execu-
tion or excommunication of the accused, but
even this record is by no means complete. (Vide
Appendix F for a still fuller list.)
The culprits are a miscellaneous crew, consist-
ing chiefly of caterpillars, flies, locusts, leeches,
136 The Criminal Prosecution and
snails, slugs, worms, weevils, rats, mice, moles,
turtle-doves, pigs, bulls, cows, cocks, dogs,
asses, mules, mares and goats. Only those cases
are reported in which the accused were found
guilty; of these prosecutions, according to the
above-mentioned registers, two belong to the
ninth century, one to the eleventh, three to the
twelfth, two to the thirteenth, six to the four-
teenth, thirty-four to the fifteenth, forty-five to
the sixteenth, forty-three to the seventeenth,
seven to the eighteenth and one to the nineteenth
century. To this list might be added other cases,
such as the prosecution and malediction of
noxious insects at Glurns in the Tyrol in 15 19, at
Als in Jutland in 171 1, at Bouranton in 1733, at
Lyo in Denmark in 1805-6, and at Pozega in
Slavonia in 1866. In the latter case one of the
largest of the locusts was seized and tried and
then put to death by being thrown into the water
with anathemas on the whole species. A few
years ago swarms of locusts devastated the
region near Kallipolis in Turkey, and a petition
was sent by the Christian population to the monks
of Mount Athos begging them to bear in solemn
procession through the fields the girdle of St.
Basilius, in order to expel the insects. This
request was granted, and as the locusts gradually
disappeared, because there was little or nothing
left for them to eat, the orthodox of the Greek
Church from the bishop to the humblest laymen
firmly believed or at least maintained that a
Capital Punishment of Animals 137
miracle had been wrought. Pious Moham-
medans exorcise and ostracize locusts and other
harmful insects by reading the Koran aloud in
the ravaged fields, as was recently done at
Denislue in Asia Minor with satisfactory results.
Also as late as 1864 at Pleternica in Slavonia, a
pig was tried and executed for having malici-
ously bitten off the ears of a female infant aged
one year. The flesh of the condemned animal
was cut in pieces and thrown to the dogs, and
the head of the family, in which the pig lived, as
is the custom of pigs among the peasants of that
country, was put under bonds to provide a dowry
for the mutilated child, so that the loss of her
ears might not prove to be an insuperable
obstacle to her marriage. (Awzra, p. 578.) It
would be incorrect to infer from the tables just
referred to that no judicial punishment of animals
occurred in the tenth century or that the fifteenth,
sixteenth, and seventeenth centuries were peculi-
arly addicted to such practices. It is well known
that during some of the darkest periods of the
Middle Ages and even in later times the regis-
ters of the courts were very imperfectly kept, and
in many instances the archives have been entirely
destroyed. It is highly probable, therefore, that
the cases of capital prosecution and conviction of
animals, which have been collected and printed
by Berriat-Saint-Prix and others, however
thorough their investigations may have been,
constitute only a very small percentage of those
which actually took place.
138 The Criminal Prosecution and
Beasts were often condemned to be burned
alive; and strangely enough, it was in the latter
half of the seventeenth century, an age of com-
parative enlightenment, that this cruel penalty
seems to have been most frequently inflicted.
Occasionally a merciful judge adhered to the
letter of the law and curbed its barbarous spirit
by sentencing the culprit to be slightly singed
and then to be strangled before being committed
to the flames. Sometimes brutes were doomed
to be buried alive. Thus we have the receipt
of " Phelippart, sergeant of high justice of the
city of Amiens," for the sum of sixteen soldi,
in payment for services rendered in March 1463,
in " having buried in the earth two pigs, which
had torn and eaten with their teeth a little child
in the faubourg of Amiens, who for this cause
passed from life to death (etoit alle de vie a
trepas).^' In 1557, on the 6th of December, a
pig in the Commune of Saint-Quentin was con-
demned to be " buried all alive " (enfoui tout
vij)y " for having devoured a little child in
I'hostel de la Couronne." Again, a century
earlier, in 1456, two pigs were subjected to this
punishment, " on the vigil of the Holy Virgin,"
at Oppenheim on the Rhine, for having killed a
child. More than three centuries later the same
means were employed for curing murrain, which
in the summer of 1796 had broken out at Beut-
elsbach in Wiirtemberg and carried off many
head of cattle. By the advice of a French
veterinary doctor, who was quartered there with
Capital Punishment of Animals 139
the army of General Moreau, the town bull was
buried alive at the crossroads in the presence of
several hundred persons. We are not informed
whether this sacrifice proved to be a sufficiently
" powerful medicine " to stay the epizootic
plague; the noteworthy fact is that the super-
stitious rite was prescribed and performed, not
by an Indian magician or an African sorcerer,
but by an official of the French republic.
Animals are said to have been even put to the
rack in order to extort confession. It is not to
be supposed that, in such cases, the judge had
the slightest expectation that any confession
would be made; he wished merely to observe
all forms prescribed by the law, and to set in
motion the whole machinery of justice before
pronouncing judgment. The statement of a
French writer, Arthur Mangin (L'Homme et la
Bete. Paris, 1872, p. 344), that " the cries which
they uttered under torture were received as con-
fessions of guilt," is absurd. No such notion was
ever entertained by their tormentor. " The ques-
tion," which under the circumstances would seem
to be only a wanton and superfluous act of
cruelty, was nevertheless an important element in
determining the final decision, since the sentence
of death could be commuted into banishment,
whipping, incarceration or some milder form of
punishment, provided the criminal had not con-
fessed his guilt under torture. The use of the
rack might be, therefore, a merciful means of
escaping the gallows. Appeals were sometimes
140 The Criminal Prosecution and
made to higher tribunals and the judgments of
the lower courts annulled or modified. In one
instance a sow and a she-ass were condemned to
be hanged ; on appeal, and after a new trial,
they were sentenced to be simply knocked on
the head. Occasionally an appeal led to the
acquittal of the accused.
In 1266, at Fontenay-aux-Roses, near Paris,
a pig convicted of having eaten a child was
publicly burned by order of the monks of Sainte
Genevieve. In 1386, the tribunal of Falaise
sentenced a sow to be mangled and maimed in
the head and forelegs, and then to be hanged,
for having torn the face and arms of a child and
thus caused its death. Here we have a strict
application of the lex talionis, the primitive re-
tributive principle of taking an eye for an eye
and a tooth for a tooth. As if to make the
travesty of justice complete, the sow was dressed
in man's clothes and executed on the public
square near the city-hall at an expense to the
state of ten sous and ten deniers, besides a pair
of gloves to the hangman. The executioner was
provided with new gloves in order that he might
come from the discharge of his duty, meta-
phorically at least, with clean hands, thus indi-
cating that, as a minister of justice, he incurred
no guilt in shedding blood. He was no common
pig-killer, but a public functionary, a " master
of high works " (maitre des hautes oeuvres), as
he was officially styled. {Vide Appendix G.)
We may add that the west wall of the south
Capital Punishment of Animals 141
branch of the transept in the Church of the
Holy Trinity {Sainte-T finite) at Falaise in
Normandy was formerly adorned with a fresco-
painting of this execution, which is mentioned
in Statistique de Falaise (1827, t. I. 83), and
more fully described by I'Abbe Pierre-Gilles
Langevin, in his Recherches Historiques sur
Falaise (1814, p. 146). In a Supplement (p. 12)
to this work, published several years later, the
Abbe states that, about the year 1820, the entire
church, including the fresco, was whitewashed,
so that the picture has since then been invisible,
and, so far as can be ascertained, no engraving
or other copy of it has ever been made. Un-
fortunately, too, as the same writer informs us,
la chdsse de la banniere (banner-holder) was
fastened to the wall of the church on this very
spot, thus covering and permanently destroying
at least a portion of the painting.
In 1394, a pig was found guilty of " having
killed and murdered a child in the parish of
Roumaygne, in the county of Mortaing, for
which deed the said pig was condemned to be
haled and hanged by Jehan Petit, lieutenant of
the bailiff." The work was really done by the
hangman (pendart), Jehan Micton, who received
for his services the sum of " fifty souls tournois."
(Vide Appendix H.) In another case the deputy
bailiff of Mantes and Meullant presented a bill,
dated March 15, 1403, which contained the
following items of expense incurred for the in-
142 The Criminal Prosecution and
carceration and execution of an infanticide
sow :
" Cost of keeping her in jail, six sols parisis.
" Item, to the master of high works, who came
from Paris to Meullant to perform the said
execution by comand and authority of the
said bailiff, our master, and of the procur-
ator of the king, fifty-four sols parisis.
" Item, for a carriage to take her to justice, six
sols parisis.
" Item, for cords to bind and hale her, two
sols eight deniers parisis.
" Item, for gloves, two deniers parisis."
This account, which amounted in all to sixty-
nine sols eight deniers parisis, was examined
and approved by the auditor of the court, De
Baudemont, who affixed to it his own seal with
signature and paraph and " in further confirm-
ation and approbation thereof caused it to be
sealed with the seal of the Chatellany of Meul-
lant, on the 15th day of March in the year
1403." (See Appendix I.) In the following
year a pig was executed at Rouvres for the same
offence.
Brutes and human criminals were confined in
the same prison and subjected to the same treat-
ment. Thus " Toustain Pincheon, keeper of
the prisons of our lord the king in the town of
Pont de Larche," acknowledges the receipt,
" through the hand of the honourable and wise
man, Jehan Monnet, sheriff (vicomte) of the said
Capital Punishment of Animals 143
town, of nineteen sous six deniers tournois for
having found the king's bread for the prisoners
detained, by reason of crime, in the said prison."
The jailer gives the names of the persons in
custody, and concludes the list with " Item, one
pig, conducted into the said prison and kept
there from the 24th of June, 1408, inclusive, till
the 17th of the folowing July," when it was
hanged " for the crime of having murdered
and killed a little child " (pource que icellui
poTc avoit muldry ei tue ung pettit enfant). For
the pig's board the jailer charged two deniers
tournois a day, the same as for boarding
a man, thus placing the porker, even in respect
to its maintenance, on a footing of perfect
equality with the human prisoners. He also
puts into the account " ten deniers tournois for
a rope, found and furnished for the purpose of
tying the said pig that it might not escape."
The correctness of the charges is certified to by
** Jean Gaulvant, sworn tabellion of our lord
the king in the viscounty of Pont de Larche."
(Vide Appendix J.) Again in 1474, the official
of the Bishop of Lausanne sentenced a pig to
be hanged "until death ensueth," for having
devoured an infant in its cradle in the vicinity
of Oron, and to remain suspended from the gal-
lows for a certain length of time as a warning to
wrong-doers. It is also expressly stated that,
in 1585, the body of a pig, which had been
executed for the murder of a child at Saint-
144 The Criminal Prosecution and
Omer, at the hostelry of Mortier d'Or, was left
hanging " for a long space " on a gibbet in a
field near the highway. (Derheims : Histoire
de Saint-Omer, p. 327.) A little later a similar
spectacle met the eyes of Guy Pape, as he was
going to Chalons-sur-Marne in Champagne, to
pay homage to King Henry IV. In his own
words : dum ibam ad civitatem Cathalani in
Campania ad Re gem tunc ibi existentem, vidi
quemdam porcum, in furcis suspensum, qui dice-
batur occidisse quemdam puerum. (Ouaestio
CCXXXVIII : De poena bruti delinquentis.
Lugduni, MDCX.)
On the 5th of September, 1379, as two herds
of swine, one belonging to the commune and the
other to the priory of Saint-Marcel-le-Jeussey,
were feeding together near that town, three sows
of the communal herd, excited and enraged by
the squealing of one of the porklings, rushed
upon Perrinot Muet, the son of the swine-
keeper, and before his father could come to his
rescue, threw him to the ground and so severely
injured him that he died soon afterwards. The
three sows, after due process of law, were con-
demned to death ; and as both the herds had
hastened to the scene of the murder and by their
cries and aggressive actions showed that they
approved of the assault, and were ready and even
eager to become participes criminis, they were
arrested as accomplices and sentenced by the
court to suffer the same penalty. But the prior,
Capital Punishment of Animals 145
Friar Humbert de Poutiers, not willing to en-
dure the loss of his swine, sent an humble
petition to Philip the Bold, then Duke of Bur-
gundy, praying that both the herds, with the
exception of the three sows actually guilty of
the murder, might receive a full and free pardon.
The duke lent a gracious ear to this supplication
and ordered that the punishment should be re-
mitted and the swine released. (Vide Appendix
K.)
A peculiar custom is referred to in the proces
verbal of the prosecution of a porker for infanti-
cide, dated May 20, 1572. The murder was
committed within the jurisdiction of the monas-
tery of Moyen-Montier, where the case was
tried and the accused sentenced to be " hanged
and strangled on a gibbet." The prisoner was
then bound with a cord and conducted to a
cross near the cemetery, where it was formally
given over to an executioner from Nancy.
" From time immemorial," we are told, " the
justiciary of the Lord Abbot of Moyen-Montier
has been accustomed to consign to the provost
of Saint-Diez, near this cross, condemned crim-
inals, wholly naked, that they may be executed ;
but inasmuch as this pig is a brute beast, he
has delivered the same bound with a cord, with-
out prejudicing or in any wise impairing the
right of the Lord Abbot to deliver condemned
criminals wholly naked." The pig must not
wear a rope unless the right to do without it be
10
146 The Criminal Prosecution and
expressly reserved, lest some human culprit,
under similar circumstances, should claim to
be entitled to raiment.
" 'Twill be recorded for a precedent ;
And many an error, by the same example
Will rush into the state : it cannot be."
In the case of a mule condemned to be burned
alive together with a man guilty of buggery, at
Montpellier, in 1565, as the quadruped was
vicious and inclined to kick (vitiosus et calcitro-
sus), the executioner cut off its feet before con-
signing it to the flames. This mutilation was
an arbitrary and extra-judicial act, dictated solely
by considerations of personal convenience.
Hangmen often indulged in capricious and
supererogatory cruelty in the exercise of their
patibulary functions, and mediaeval as well as
later writers on criminal jurisprudence repeatedly
complain of this evil and call for reform. Thus
Damhouder, in his Rerum Criminaliiim Praxis
{cap. de carnifice, p. 234), urges magistrates to
be more careful in selecting persons for this im-
portant office, and not to choose evil-doers,
"assiduous gamblers, public whoremongers,
malicious back-biters, impious blasphemers, as-
sassins, thieves, murderers, robbers, and other
violators of the law as vindicators of justice.
Indeed, these hardened wretches sometimes took
the law into their own hands. For example, on
the 9th of June, 1576, at Schweinfurt in Fran-
conia, a sow, which had bitten ofif the ear and
Capital Punishment of Animals 147
torn the hand of a carpenter's child, was given
into custody, whereupon the hangman, without
legal authority, took it to the gallows-green
(vSchindrasen) and there " hanged it publicly
to the disgrace and detriment of the city." For
this impudent usurpation of judiciary powers
Jack Ketch was forced to flee and never dared
return. Hence arose the proverbial phrase
Schweinfurter Sauhenker (Schweinfurt sow-
hangman), used to characterize a low and lawless
ruffian and vile fellow of the baser sort. It was
not the mere killing of the sow, but the execu-
tion without a judicial decision, the insult and
contempt of the magistracy and the judicatory
by arrogating their functions, that excited the
public wrath and official indignation.
Buggery (offensa cujus nominatio crimen est,
as it is euphemistically designated in legal docu-
ments) was uniformly punished by putting to
death both parties implicated, and usually by
burning them alive. The beast, too, is punished
and both are burned (punitur etiam pecus et
umbo comhuruntur)y says Guillielmus Benedic-
tinus, a writer on law, who lived about the end
of the fourteenth century. Thus, in 1546, a
man and a cow were hanged and then burned
by order of the parliament of Paris, the supreme
court of France. In 1466, the same tribunal
condemned a man and a sow to be burned at
Corbeil. Occasionally interment was substituted
for incremation. Thus in 1609, at Niederrad,
148 The Criminal Prosecution and
a man and a mare were executed and their bodies
buried in the same carrion-pit. On the 12th
of September, 1606, the mayor of Loens de
Chartres, on complaint of the dean, canons, and
chapter of the cathedral of Chartres, condemned
a man named Guillaume Guyart to be " hanged
and strangled on a gibbet in reparation and
punishment of sodomy, whereof the said Guyart
is declared accused, attainted and convicted."
A bitch, his accomplice, was sentenced to be
knocked on the head (assommee) by the execu-
tioner of high justice and " the dead bodies of
both to be burned and reduced to ashes." It
is furthermore added that if the said Guyart,
who seems to have contumaciously given leg-
bail, cannot be seized and apprehended in
person, the sentence shall, in his case, be
executed in effigy by attaching his likeness in
painting to the gibbet. It was also decreed that
all the property of the absconder should be con-
fiscated and the sum of one hundred and fifty
livres be adjudged to the plaintiffs, out of which
the costs of the trial v^ere to be defrayed. {Vide
Appendix L.) This disgusting crime appears
to have been very common ; at least Ayrault in
his Ordre Judiciaire, published in 1606, states
that he has many times (multoties) seen brute
beasts put to death for this cause. In his Mag-
nalia Christi Americana (Book VI, (III),
London, 1702) Cotton Mather records that "on
June 6, 1662, at New Haven, there was a most
Capital Punishment of Animals 149
unparalleled wretch, one Potter by name, about
sixty years of age, executed for damnable Besti-
alities." He had been a member of the Church
for twenty years and was noted for his piety,
" devout in worship, gifted in prayer, forward
in edifying discourse among the religious, and
zealous in reforming the sins of other people."
Yet this monster, who is described as possessed
by an unclean devil, " lived in most infandous
Buggeries for no less than fifty years together,
and now at the gallows there were killed before
his eyes a cow, two heifers, three sheep and two
sows, with all of which he had committed his
brutalities. His wife had seen him confound-
ing himself with a bitch ten years before; and
he then excused himself as well as he could,
but conjured her to keep it secret." He after-
wards hanged the bitch, probably as a sort of
vicarious atonement. According to this account
he must have begun to practice sodomy when
he was ten years of age, a vicious precocity
which the author would doubtless explain on
the theory of diabolical possession. In 1681, a
habitual sodomite, who had been wont to defile
himself with greyhounds, cows, swine, sheep
and all manner of beasts, was brought to trial
together with a mare, at Wiinschelburg in
Silesia, where both were burned alive. In 1684,
on the 3rd of May, a bugger was beheaded at
Ottendorf, and the mare, his partner in crime,
knocked on the head ; it was expressly enjoined
1 50 The Criminal Prosecution and
that in burning the bodies the man's should lie
underneath that of the beast. In the following
year, fourteen days before Christmas, a journey-
man tailor, " who had committed the unnatural
deed of carnal lewdness with a mare," was
burned at Striga together with the mare.
For the same offence Benjamin Deschauffour
was condemned, May 25, 1726, to be tied to a
stake and there burned alive " together with the
minutes of the trial;" his ashes were strewed to
the wind and his estates seized and, after the
deduction of a fine of three thousand livres, con-
fiscated to the benefit of his Majesty. In the
case of Jacques Ferron, who was taken in the
act of coition with a she-ass at Vanvres in 1750,
and after due process of law, sentenced to death,
the animal was acquitted on the ground that she
was the victim of violence and had not partici-
pated in her master's crime of her own free-will.
The prior of the convent, who also performed the
duties of parish priest, and the principal in-
habitants of the commune of Vanvres signed a
certificate stating that they had known the said
she-ass for four years, and that she had always
shown herself to be virtuous and well-behaved
both at home and abroad and had never given
occasion of scandal to any one, and that there-
fore ** they were willing to bear witness that she
is in word and deed and in all her habits of life
a most honest creature." This document, given
at Vanvres on Sept, ig, 1750, and signed by
Capital Punishment of Animals 151
" Pintuel Prieur Cure " and the other attestors,
was produced during the trial and exerted a
decisive influence upon the judgment of the
court. As a piece of exculpatory evidence it
may be regarded as unique in the annals of
criminal prosecutions.
The Carolina or criminal code of the emperor
Charles V., promulgated at the diet of Ratisbon
in 1532, ordained that sodomy in all its forms
and degrees should be punished with death by
fire "according to common custom" (" ^o ein
Mensch mit einem Viehe, Mann mit Mann,
Weib mit Weib, Unkeuschheit treibet, die haben
auch das Leben verwircket, und man soil sie der
gemeinen Gewohnheit nach mit dem Feuer vom
Leben zum Tode richten." Art. 116.), but stipu-
lated that, if for any reason the punishment of
the sodomite should be mitigated, the same
measure of mercy should be shown to the beast.
This principle is reaffirmed by Benedict Carpzov
in his Pratica Nova Rerum Criminaliwn (Wit-
tenberg, 1635), in which he states that " if for
any cause the sodomite shall be punished only
with the sword, then the beast participant of
his crime shall not be burned, but shall be struck
dead and buried by the knacker or field-master
(Caviller oder Feldmeister).^' The bugger was
also bound to compensate the owner for the loss
of the animal, or, if he left no property, the
value must be paid out of the public treasury.
" If the criminal act was not fully consummated.
152 The Criminal Prosecution and
then the human offender was publicly scourged
and banished, and the animal, instead of being
killed, was put away out of sight in order that
no one might be scandalized thereby " [Jacobi
Dopleri, Theatrum Poenarum Suppliciorum et
Executionum Cnminalium., oder Schau-Platz
derer Leibes-und Leh ens-Straff en, etc. Sonders-
hausen, 1693, II. p. 151.]
All Christian legislation on this subject is
simply an application and amplification of the
Mosaic law as recorded in Exodus xxii. 19 and
Leviticus xx. 13-16, just as the cruel persecu-
tions and prosecutions for witchcraft in mediaeval
and modern times derive their authority and jus-
tification from the succinct and peremptory com-
mand : " Thou shalt not suffer a witch to live."
In the older criminal codes two kinds or degrees
of sodomy are mentioned, gravius and gravis-
simum; the former being condemned in the
thirteenth verse and the latter in the fifteenth
and sixteenth verses of Leviticus. Dopier tells
some strange stories of the results of the pecca-
turn gravissimum ; and the fact that a sober
writer on jurisprudence could believe and seri-
ously narrate such absurdities, furnishes a
curious contribution to the history of human
credulity.
It is rather odd that Christian law-givers
should have adopted a Jewish code against
sexual intercourse with beasts and then enlarged
it so as to include the Jews themselves. The
Capital Punishment of Animals 153
question was gravely discussed by jurists,
whether cohabitation of a Christian with a
Jewess or vice versa constitutes sodomy. Dam-
houder (Prax. Rer. Critn. c, 96, n. 48) is of the
opinion that it does, and Nicolaus Boer (Decis.,
136, n. 5) cites the case of a certain Johannes
Alardus or Jean Alard, who kept a Jewess in
his house in Paris and had several children by
her ; he was convicted of sodomy on account of
this relation and burned, together with his para-
mour, " since coition with a Jewess is precisely
the same as if a man should copulate with a
dog " (DopL, Theat., II. p. 157). Damhouder,
in the work just cited, includes Turks and
Saracens in the same category, " inasmuch as
such persons in the eye of the law and our holy
faith differ in no wise from beasts."
But to resume the subject of the perpetration
of felonious homicide by animals, on the loth
of January, 1457, a sow was convicted of
" murder flagrantly committed on the person of
Jehan Martin, aged five years, the son of Jehan
Martin of Savigny," and sentenced to be
" hanged by the hind feet to a gallows-tree (a
ung arbre esprone).'" Her six sucklings, being
found stained with blood, were included in the
indictment as accomplices; but " in lack of any
positive proof that they had assisted in mangling
the deceased, they were restored to their owner,
on condition that he should give bail for their
appearance, should further evidence be forth-
154 The Criminal Prosecution and
coming to prove their complicity in their mother's
crime." Above three weeks later, on the 2nd
of February, to wit " on the Friday after the
feast of Our Lady the Virgin," the sucklings
were again brought before the court ; and, as
their owner, Jehan Bailly, openly repudiated
them and refused to be answerable in any wise
for their future good conduct, they were de-
clared, as vacant property, forfeited to the noble
damsel Katherine de Barnault, Lady of Savigny.
This case is particularly interesting on account
of the completeness with which the proves verbal
has been preserved. (See Appendix M.)
Sometimes a fine was imposed upon the owner
of the offending animal, as was the case with
Jehan Delalande and his wife, who were con-
demned, on the i8th of April, 1499, by
the bailiff of the Abbey of Josaphat near Char-
tres, to pay a fine of eighteen francs and to be
confined in prison until this sum should be paid,
" on account of the murder of a child named
Gilon, aged five and a half years or thereabouts,
perpetrated by a porker, aged three months or
thereabouts." The pig was condemned to be
" hanged and executed by justice." The owners
were punished because they were supposed to
have been culpably negligent of the child, who
had been confided to their care and keeping, and
not because they had, in the eye of the law, any
proprietary responsibility for the infanticidal
animal. The mulct implied remissness on their
Capital Punishment of Animals 155
part as guardians or foster-parents of the infant.
In general, as we have seen, the owner of the
blood-guilty beast was considered wholly blame-
less and sometimes even remunerated for his
loss. (Vide Appendix N.)
According to the laws of the Bogos, a pastoral
and nominally Christian tribe of Northern Abys-
sinia, a bull, cow or any other animal which
kills a man is put to death; the owner of the
homicidal beast is not held in any wise respons-
ible for its crime, nevertheless he practically in-
curs a somewhat heavy penalty by not receiving
any compensation for the loss of his property.
This exercise of justice is quite common among
the tribes of Central Africa. In Montenegro,
horses, oxen and pigs have been recently tried
for homicide and put to death, unless the owner
redeemed them by paying a ransom.
On the 14th of June, 1494, a young pig
was arrested for having " strangled and defaced
a young child in its cradle, the son of Jehan
Lenfant, a cowherd on the fee-farm of Clermont,
and of Gillon his wife," and proceeded against
" as justice and reason would desire and re-
quire." Several witnesses were examined, who
testified " on their oath and conscience " that
" on the morning of Easter Day, as the father
was guarding cattle and his wife Gillon was
absent in the village of Dizy, the infant being
left alone in its cradle, the said pig entered
during the said time the said house and dis-
156 The Criminal Prosecution and
figured and ate the face and neck of the said
child, which, in consequence of the bites and
defacements inflicted by the said pig, departed
this Hfe (de ce Steele trepassa).'' The sentence
pronounced by the judge was as follows, " We,
in detestation and horror of the said crime, and
to the end that an example may be made and
justice maintained, have said, judged, sentenced,
pronounced and appointed, that the said porker,
now detained as a prisoner and confined in the
said abbey, shall be by the master of high works
hanged and strangled on a gibbet of wood near
and adjoinant to the gallows and high place of
execution belonging to the said monks, being
contiguous to their fee-farm of Avin." The
crime was committed " on the fee-farm of Cler-
mont-lez-]\Iontcornet, appertaining in all matters
of high, mean and base justice to the monks of
the order of Premonstrants," and the prosecu-
tion was conducted by " Jehan Levoisier, licen-
ciate in law, the grand mayor of the church
and monastery of St. Martin de Laon of the
order of Premonstrants and the aldermen of the
same place." The plaintiffs were the friars, who
preferred charges against the pig and procured
the evidence necessary to its conviction. {Vide
Appendix O.)
In 1394, a pig was hanged at Mortaign for
having sacrilegiously eaten a consecrated wafer;
and in a case of infanticide, it is expressly stated
in the plaintiff's declaration that the pig killed
Capital Punishment of Animals 157
the child and ate of its flesh, " although it was
Friday," and this violation of the jejunium
sextae, prescribed by the Church, was urged by
the prosecuting attorney and accepted by the
court as a serious aggravation of the porker's
offence.
Nothing would be easier than to multiply ex-
amples of this kind. Infanticidal swine were
hanged in 1419 at Labergement-le-Duc, in 1420
at Brochon, in 1435 at Troch^res, and in 1490
at Abbeville; the last-mentioned execution took
place " under the auspices of the aldermanity
and with the tolling of the bells." It was evi-
dently regarded as a very solemn affair. The
records of mediaeval courts, the chronicles of
mediasval cloisters, and the archives of mediaeval
cities, especially such as were under episcopal
sovereignty and governed by ecclesiastical law,
are full of such cases. The capital punishment
of a dumb animal for its crimes seems to us so
irrational and absurd, that we can hardly believe
that sane and sober men were ever guilty of such
folly ; yet the idea was quite familiar to our
ancestors even in Shakespeare's day, in the
brilliant Elizabethan age of English literature,
as is evident from a passage in Gratiano's invec-
tive against Shylock :
"thy currish spirit
Govern'd a wolf, who, hang'd for human slaughter,
Even from the gallows did his fell soul fleet,
And, whilst thou lay'st in thy unhallow'd dam,
Infus'd itself in thee ; for thy desires
Are wolfish,' bloody, starv'd, and ravenous."
158 The Criminal Prosecution and
That such cases usually came under the juris-
diction of monasteries and so-called spiritualities
and were tried by their peculiarly organized
tribunals, will not seem strange, when we re-
member that these religious establishments were
great landed proprietors and at one time owned
nearly one-third of all real estate in France.
The frequency with which pigs were brought to
trial and adjudged to death, was owing, in a
great measure, to the freedom with which they
were permitted to run about the streets and to
their immense number. The fact that they were
under the special protection of St. Anthony of
Padua conferred upon them a certain immunity,
so that they became a serious nuisance, not only
endangering the lives of children, but also
generating and disseminating diseases. It is
recorded that in 1131, as the Crown Prince
Philippe, son of Louis the Gross, was riding
through one of the principal streets of Paris,
a boar, belonging to an abbot, ran violently
between the legs of his horse, so that the prince
fell to the ground and was killed. In some cities,
like Grenoble in the sixteenth century, the
authorities treated them very much as we do
mad dogs, empowering the carnifex to seize and
slay them whenever found at large. On Nov.
20, 1664, the municipality of Naples passed an
ordinance that the pigs, which frequented the
streets and piazzas to the detriment and danger
of the inhabitants, should be removed from the
city to a wood or other uninhabited place or be
Capital Punishment of Animals 159
slaughtered within twelve days on pain of the
penalties already prescribed and threatened,
probably in the order issued on Nov. 3, of the
same year. It would seem, however, that these
ordinances did not produce the desired effect, or
soon fell into abeyance, since another was pro-
mulgated four years later, on Nov. 29, 1668,
expelling the pigs from the city and calling at-
tention to the fact that they corrupted the atmo-
sphere and thus imperiled the public health.
Sanitary considerations and salutary measures
of this kind were by no means common in the
Middle Ages, but were a gradual outgrowth of
the spirit of the Renaissance. It was with the
revival of letters that men began to love clean-
liness and to appreciate its hygienic value as
well as its aesthetic beauty. Little heed was
paid to such things in the " good old times " of
earlier date, when the test of holiness was the
number of years a person went unwashed, and
the growth of the soul in sanctity was estimated
by the thickness of the layers of filth on the
body, as the age of the earth is determined by
the strata which compose its crust.
The freedom of the city almost universally
enjoyed by mediaeval swine is still maintained
by their descendants in many towns of Southern
Italy and Sicily, where they ramble at will
through the streets or assemble in council before
the palace of the prefect (cf. D'Addosio, Bestie
Delinquenti, pp. 23-5).
i6o The Criminal Prosecution and
In the latter half of the sixteenth century the
tribunals began to take preventive measures
against the public nuisance by holding the in-
habitants responsible for the injuries done to
individuals by swine running at large and by
threatening with corporal as well as pecuniary
punishment all persons who left " such beasts
without a good and sure guard." Thus it is
recorded that on the 27th of March, 1567, " a
sow with a black snout," " for the cruelty and
ferocity " shown in murdering a little child
four months old, having " eaten and devoured
the head, the left hand and the part above
the right breast of the said infant," was con-
demned to be " exterminated to death, and to
this end to be hanged by the executioner of high
justice on a tree within the metes and bounds
of the said judicature on the highway from Saint-
Firmin to Senlis." The court of the judicatory
of Senlis, which pronounced this sentence on
complaint of the procurator of the seigniory of
Saint-Nicolas, also forbade all the inhabitants
and subjects of the said seignioralty to permit the
like beasts to go unguarded on pain of an arbi-
trary fine and of corporal chastisement in default
of payment. (Vide Appendix P.)
But although pigs appear to have been the
principal culprits, especially as regard infanti-
cide, other quadrupeds were frequently called
to answer for similar crimes. Thus, in 13 14, a
bull belonging to a farmer in the village of
Capital Punishment of Animals i6i
Moisy, escaped into the highway, where it at-
tacked a man and injured him so severely that
he died a few hours afterwards. The ferocious
animal was seized and imprisoned by the officers
of Charles, Count of Valois, and after being tried
and convicted was sentenced to be hanged. This
judgment of the court was confirmed by the
Parliament of Paris and the execution took place
at Moisy-le-Temple on the common gallows.
An appeal based upon the incompetency of the
court was then made by the Procurator of the
Order of the Hospital of the Ville de Moisy to
the Parliament of La Chandeleur, which decided
that the bull had met with its deserts and been
justly put to death, but that the Count of Valois
had no jurisdiction on the territory of Moisy,
and his officials no power to institute proceed-
ings in this case. The sentence was right in
equity, but judicially and technically wrong, and
could not therefore serve as a precedent.
There is also extant an order issued by the
magistracy of Gisors in 1405, commanding pay-
ment to be made to the carpenter who had
erected the scaffold on which an ox had been
executed '* for its demerits." Again on the
i6th of May, 1499, the judicial authorities of
the Cistercian Abbey of Beaupre near Beauvais
condemned a red bull to be "executed until
death inclusively," for having " killed with
furiosity a lad of fourteen or fifteen years of age,
named Lucas Dupont," who was employed in
tending the horned cattle of the farmer Jean
II
1 62 The Criminal Prosecution and
Boullet. (Vide Appendix Q.) In 1389, the
Carthusians of Dijon caused a horse to be con-
demned to death for homicide; and as late as
1697 a mare was burned by the decision and
decree of the Parliament of Aix, which, it must
be remembered, was not a legislative body, but
a supreme court of judicature, thus differing in
its functions from the States General, the only
law-making and representative assembly in
France, that may be said to have corresponded
in the slightest degree to the modern conception
of a parliament.
In 1474, the magistrates of Bale sentenced a
cock to be burned at the stake " for the heinous
and unnatural crime of laying an egg.'' The
auto da fe was held on a height near the city
called the Kohlenberg, with as great solemnity
as would have been observed in consigning a
heretic to the flames, and was witnessed by an
immense crowd of townsmen and peasants.
The statement made by Gross in his Kurse
Busier Chronik, that the executioner on cutting
open the cock found three more eggs in him, is
of course absurd ; we have to do in this case
not with a freak of nature, but with the freak of
an excited imagination tainted with superstition.
Other instances of this kind have been recorded,
one in the Swiss Prattigau as late as 1730, al-
though in many cases the execution of the galli-
naceous malefactor was more summary and less
ceremonious than at Bale.
The oeuf coquatri was supposed to be the pro-
Capital Punishment of Animals 163
duct of a very old cock and to furnish the most
active ingredient of witch ointment. When
hatched by a serpent or a toad, or by the heat
of the sun it brought forth a cockatrice or basiHsk,
which would hide in the roof of the house and
with its baneful breath and " death-darting eye "
destroy all the inmates. Many naturalists be-
lieved this fable as late as the eighteenth century,
and in 17 10 the French savant Lapeyronie
deemed this absurd notion worthy of serious
refutation, and read a paper, entitled " Obser-
vation sur les petits oeufs de poule sans jaune,
que Ton appelle vulgairement oeufs de Coq,"
before the Academy of Sciences in order to prove
that cocks never lay and that the small and yolk-
less eggs attributed to them owe their peculiar
shape and condition to a disease of the hen re-
sulting in a hydropic malformation of the ovi-
duct. A farmer brought him several specimens
of this sort, somewhat larger than a pigeon's
egg, and assured him that they had been laid
by a cock in his own barnyard. On opening
one of them, M. Lapeyronie was surprised to
find only a very slight trace of the yolk resem-
bling " a small serpent coiled." He now began
to suspect that the cock might be an hermaphro-
dite, but on killing and dissecting it discovered
nothing in support of this theory, the internal
organs being all perfectly healthy and normal.
But although the unfortunate chanticleer had
fallen a victim to the scientific investigation of
164 The Criminal Prosecution and
a popular delusion, the eggs in question con-
tinued to be produced, until the farmer by care-
fully watching the fowls detected the hen that
laid them. The dissection showed that the
pressure of a bladder of serous fluid against the
oviduct had so contracted it, that the egg in
passing had the yolk squeezed out of it, leaving
merely a yellowish discoloration that looked like
a worm. Another peculiarity of this hen was
that she crowed like " a hoarse cock " (un coq
enroue), only more violently; a phenomenon
also a source of terror to the superstitious, but
ascribed by M. Lapeyronie to the same morbid
state of the oviduct and the consequent pain
caused by the passage of the egg (Memoires de
I'Academie de Sciences. Paris, 17 10, pp. 553-
60.)
A Greek physiologus of the twelfth century,
written in verse, calls the animal hatched from
the egg of an old cock eirreirdpta, a name which
would imply some sort of winged creature. It
was "sighted like the basilisk," and endowed
also in other respects with the same fatal qualities.
In the case of a valuable animal, such as an
ox or a horse, the severity of retaliatory justice
was often tempered by economical considera-
tions and the culprit confiscated, but not capi-
tally punished. Thus as early as the twelfth
century it is expressly stated that "it is the law
and custom in Burgundy that if an ox or a
horse commit one or several homicides, it shall
Capital Punishment of Animals 165
not be condemned to death, but shall be taken
by the Seignior within whose jurisdiction the
deed was perpetrated or by his servitors and be
confiscated to him and shall be sold and appro-
priated to the profit of the said Seignior; but
if other beasts or Jews do it, they shall be
hanged by the hind feet " (Coustumes et Stilles
de Bourgoigne, § 197 in Giraud : Essai sur
I'Histoire du Droit Francais, II. p. 302; quoted
by Amira). It was a cruel irony of the law
that conferred upon pigs and Jews a perfect
equality of rights by sending them both to the
scaffold.
Animals were put on a par with old crones in
bearing their full share of persecution during
the witchcraft delusion. Pigs suffered most in
this respect, since they were assumed to be
peculiarly attractive to devils, and therefore par-
ticularly liable to diabolical possession, as is
evident from the legion that went out of the
lunatic and were permitted, at their own request,
to enter into the Gadarene herd of swine. But
Beelzebub did not disdain to become incarnate
in all sorts of creatures, such as cats, dogs of
high and low degree, wolves, night-birds and
indeed in any beast, especially if it chanced to
be black. Goats, it is well known, were not a
too stinking habitation for him, and even to
dwell in skunks he did not despise. The per-
petual smell of burning sulphur in his subter-
ranean abode may render him proof against any
1 66 The Criminal Prosecution and
less suffocating form of stench. The Bible
represents Satan as going about as a roaring
lion ; and according to the highest ecclesiastical
authorities he has appeared visibly as a raven,
a porcupine, a toad and a gnat. Indeed, there
is hardly a living creature in which he has not
deigned to disport himself from a blue-bottle
to a bishop, to say nothing of his " appearing
invisibly at times " (aliquando invisibiliter ap-
parens), if we may believe what the learned
polyhistor Tritheim tells of his apparitions. As
all animals were considered embodiments of
devils, it was perfectly logical and consistent
that the Prince of Darkness should reveal him-
self to mortal ken as a mongrel epitome of many
beasts — snake, cat, dog, pig, ape, buck and
horse each contributing some characteristic part
to his incarnation.
It was during the latter half of the seventeenth
century, when, as we have seen, criminal pro-
secutions of animals were still quite frequent
and the penalties inflicted extremely cruel, that
Racine caricatured them in Les Plaideurs, w-here
a dog is tried for stealing and eating a capon.
Dandin solemnly takes his seat as judge, and
declares his determination to " close his eyes
to bribes and his ears to brigue." Petit Jean
prosecutes and L'Intime appears for the defence.
Both address the court in florid and high-flown
rhetoric and display rare erudition in quoting
Aristotle, Pausanias and other ancient as well
Capital Punishment of Animals 167
as modern authorities. The accused is con-
demned to the galleys. Thereupon the counsel
for the defendant brings in a litter of puppies,
pauvres enfants qu'on veut rendre orphelins,
and appeals to the compassion and implores the
clemency of the judge. Dandin's feelings are
touched, for he, too, is a father; as a public
officer, also, he is moved by the economical con-
sideration of the expense to the state of keeping
the offspring of the culprit in a foundling hos-
pital, in case they should be deprived of paternal
support. To the contemporaries of Racine the
representation of a scene like this had a signifi-
cance, which we fail to appreciate. It strikes us
as simply farcical and not very funny ; to them
it was a mirror reflecting a characteristic feature
of the time and ridiculing a grave judicial abuse,
as Cervantes, a century earlier, burlesqued the
institution of chivalry in the adventures of Don
Quixote. (See Appendix R.)
Lex talionis is the oldest kind of law and the
most deeply rooted in human nature. To the
primitive man and the savage, tit for tat is an
ethical axiom, which it would be thought im-
moral as well as cowardly not to put into prac-
tice. No principle is held more firmly or acted
upon more universally than that of literal and
exact retributions in man's dealings with his
fellows — the iron rule of doing unto others the
wrongs which others have done unto you.
Hebrew legislation demanded " life for life, eye
for eye, tooth for tooth, hand for hand, foot for
1 68 The Criminal Prosecution and
foot, burning for burning, wound for wound,
stripe for stripe." An old Anglo-Saxon law
made this retaliatory principle of memhrum 'pro
membro the penalty of all crimes of personal
violence, including rape; even a lascivious eye
was to be plucked out, in accordance with the
doctrine that " whosoever looketh on a woman
to lust after her hath committed adultery with
her already in his heart." [" Corruptor puniatur
in eo in quo deliquat : oculos igitur amittat,
propter aspectum decoris, quo virginem con-
cupivit; amittat et testiculos, qui calorem stupri
induxerunt." Cf. Bracton, 147&; Reeves,
I. 481.] This was believed to be God's method
of punishment, smiting with disease or miracul-
ously destroying the bodily organs, which were
the instruments of sin. Thus Stengelius {De
Judiciis Divinis, II. 26, 27) records how a
thunderbolt was hurled by the divine hand in
such a manner as to castrate a lascivious priest :
iynpurus et saltator sacerdos fulmine castratus.
The same sort of retributive justice was recog-
nized by the Institutes of Manu, which punished
a thief by the amputation or mutilation of his
fingers.
In the covenant with Noah it was declared
that human blood should be required not only
"at the hand of man," but also "at the hand
of every beast;" and it was subsequently
enacted, in accordance with this fundamental
principle, that " if an ox gore a man or a
woman that they die, then the ox shall be surely
Capital Punishment of Animals 169
stoned, and his flesh shall not be eaten." To
eat a creature which had become the peer of
man in blood-guiltiness and in judicial punish-
ment, would savour of anthropophagy. This
decision of Jewish law-givers as to the use of
the flesh of otherwise edible animals condemned
to death for crime has nearly always been
followed. Thus when, in 1553, several swine
were executed for child-murder at Frankfort on
the Main, their carcasses, although doubtless as
good pork as could be found in the shambles,
were thrown into the river. Usually, however,
they were buried under the gallows or in what-
ever spot was set apart for interring the dead
bodies of human criminals. At Ghent, how-
ever, in 1578, after judicial sentence of death
had been pronounced on a cow, she was
slaughtered and her flesh sold as butcher's meat,
half of the proceeds of the sale being given as
compensation to the injured party and the other
half to the city treasury for distribution among
the poor ; but her head was struck off and stuck
on a stake near the gallows, to indicate that she
had been capitally punished. The thrifty Flem-
ings did not permit the moral depravity to taint
the material substance of the bovine culprit and
impair the excellence of the beef.
On the other hand, the Law Faculty of the
University of Leipsic decided that a cow, which
had pushed a woman and thereby caused her
death at Machern in Saxony, July 20, 162 1,
lyo The Criminal Prosecution and
should be taken to a secluded and barren place
and there killed and buried " unflayed." In
this case the flesh of the homicidal animal was
not to be eaten nor the hide converted into
leather. (Vide Appendix S.)
In this connection it may be interesting to
mention a decision of the Ecclesiastical Court
{geistlicher Convent) of Berne, given in 1666
and recorded in Tiirler's Strafrechtliche Gut-
achten des geistlichen Konvents der Stadi Bern
(Zeitschrift fiir schweiz. Strafrecht, Bd. III.,
Heft 5. Quoted by Tobler). An insane man
was tried for murder and the prosecutor seems
to have urged that the lack of moral responsi-
bility did not suffice to relieve the accused of
legal responsibility and to free him from punish-
ment, citing as pertinent to the case the Mosaic
law, which inflicted the death penalty on an ox
for the like offence. On this point the court
replied : "In the first place, that specifically
Jewish law is not binding upon other govern-
ments, and is not observed by them either as
regards oxen or horses. Again, even if the
Jewish law should be really applicable to all men,
it could not be appealed to in the present case,
since it is not permissible to draw an inference
a hove ad hominem. Inasmuch as no law is
given to the ox, it cannot violate any, in other
words, cannot sin and therefore cannot be
punished. On the other hand, death is a severe
penalty for man. Nevertheless if God com-
Capital Punishment of Animals 171
manded that the ' goring ox ' should be killed,
this was done in order to excite aversion to the
deed, to prevent the animal from injuring others,
and in this manner to punish the owner of the
beast. This fact, however, proves nothing
touching the case now before us; for, although
God enacted a law for the ox, he did not enact
any for the insane man, and the distinction be-
tween the goring ox and the maniac must be
observed. An ox is created for man's sake, and
can therefore be killed for his sake; and in doing
this there is no question of right or wrong as
regards the ox; on the other hand, it is not
permissible to kill a man, unless he has deserved
death as a punishment." The remarkable points
in this decision are, first, the abrogation of a
biblical enactment by an ecclesiastical court of
the seventeenth century, and, secondly, the dis-
cussion of a criminal act from a psychiatrical
point of view and the admission of extenuating
and exculpating circumstances derived from this
source.
The Koran holds every beast and fowl ac-
countable for injuries done to each other, but
reserves their punishment for the life to come.
Among the Kukis, if a man falls from a tree and
is killed, it is the sacred duty of the next of kin
to fell the tree, and cut it up and scatter the
chips abroad. The spirit of the tree was sup-
posed to have caused the mishap, and the blood
of the slain was not thought to be thoroughly
avenged until the offending object had been
172 The Criminal Prosecution and
effaced from the earth. A survival of this notion
was the custom of burning heretics and flinging
their ashes to the four winds or casting them
upon rivers running into the sea. The laws of
Drakon and Erechtheus required weapons and
all other objects, by which a person had lost
his life, to be publicly condemned and thrown
beyond the Athenian boundaries. This sentence
of banishment, then regarded as one of the
severest that could be inflicted, was pronounced
upon a sword, which had killed a priest, the
wielder of the same being unknown ; and also
upon a bust of the elegiac poet Theognis, which
had fallen on a man and caused his death. Even
in cases which, one would think, might be re-
garded as justifiable homicide in self-defence, no
such ground of exculpation seems to have been
admitted. Thus the statue erected by the Athen-
ians in honour of the famous athlete, Nikon of
Thasos, was assailed by his envious foes and
pushed from its pedestal. In falling it crushed
one of its assailants, and was therefore brought
before the proper tribunal and sentenced to be
cast into the sea. Judicial proceedings of this
kind were called aylfvxov bUai (prosecutions of
lifeless things) and were conducted before the
Athenian law-court known as the Prytaneion ;
they are alluded to by -^schines, Pausanias,
Demosthenes, and other writers, and briefly de-
scribed in the Onomasticon of Julius Pollux and
the Lexicon Decern Oratorum Graecorum of
Valerius Harpokration.
Capital Punishment of Animals 173
Strictly speaking, the term ayj/vxov should be
applied only to an inanimate object and not to
the brute, which was more correctly called acfxavov
(dumb) ; but this distinction was not always ob-
served either in common parlance or in legal
phraseology. The law on this point as formu-
lated and expounded by Plato (De Leg., IX. 12)
was as follows: " If a draught animal or any
other beast kill a person, unless it be in a com-
bat authorized and instituted by the state, the
kinsmen of the slain shall prosecute the said
homicide for murder, and the overseers of the
public lands (aypovofjLoi.), as many as may be com-
missioned by the said kinsmen, shall adjudicate
upon the case and send the offender beyond the
boundaries of the country (e^opiCei'V, exterminate
in the literal and original sense of the term).
If a lifeless thing shall deprive a person of life,
provided it may not be a thunderbolt (Kepawos)
or other missile (/3eAos) hurled by a god, but an
object which the said person may have run
against or by which he may have been struck
and slain, then the kinsman immediate to the
deceased shall appoint the nearest neighbour
as judge in order to purify himself as well as
his next of kin from blood-guiltiness, but the
culprit (to o(j)Xov) shall be put beyond the
boundaries, in the same manner as if it were
an animal." In the same section it is enacted
that if a person be found dead and the mur-
derer be unknown, then proclamation shall be
made by a herald on the market-place forbid-
1/4 The Criminal Prosecution and
ding the murderer to enter any sanctuary or the
land of the slain, and declaring that, if dis-
covered, he shall be put to death and his body
be thrown unburied beyond the boundaries of the
country of the person killed. The object of these
measures was to appease the Erinnys or avenging
spirit of the deceased, and to avert the calamities
which would otherwise be brought upon the land,
in accordance with the strict law of retribution
demanding blood for blood, no matter whether
it may have been shed wilfully or accidentally.
[Cf. -^schylus, Cho., 395, where this law (I'ufxos)
is clearly and strongly affirmed.] The same
superstitious feeling leads the hunters of many
savage tribes to beg pardon of bears and other
wild animals for killing them and to purify
themselves by religious rites from the taint in-
curred by such an act, the fxCaa-fxa of murder,
as the Greeks called it.
Quite recently in China fifteen wooden idols
were tried and condemned to decapitation for
having caused the death of a man of high
military rank. On complaint of the family of
the deceased the viceroy residing at Fouchow
ordered the culprits to be taken out of the temple
and brought before the criminal court of that
city, which after due process of law sentenced
them to have their heads severed from their
bodies and then to be thrown into a' pond. The
execution is reported to have taken place in the
presence of a large concourse of approving spec-
tators and " amid the loud execrations of the
Capital Punishment of Animals 175
masses," who seem in their excitement to have
" lost their heads " as well as the hapless deities.
i When the Russian prince Dimitri, the son of
Ivan II., was assassinated on May 15, 1591, at
Uglich, his place of exile, the great bell of that
town rang the signal of insurrection. For this
serious political offence the bell was sentenced
to perpetual banishment in Siberia, and con-
veyed with other exiles to Tobolsk. After a
long period of solitary confinement it was par-
tially purged of its iniquity by conjuration and
re-consecration and suspended in the tower of a
church in the Siberian capital; but not until 1892
was it fully pardoned and restored to its original
place in Uglich. 'A like sentence was imposed
by a Russian tribunal on a butting ram in the
latter half of the seventeenth century.
Mathias Abele von Lilienberg, in his Meta-
morphosis Telae Judiciariae, of which the eighth
edition was published at Nuremberg in 17 12,
states that a drummer's dog in an Austrian
garrison town bit a member of the municipal
council in the right leg. The drummer was sued
for damages, but refused to be responsible for the
snappish cur and delivered it over to the arm of
justice. Thereupon he was released, and the
dog sentenced to one year's incarceration in the
Narrenkotterlein, a sort of pillory or iron cage
standing on the market-place, in which blas-
phemers, evil-livers, rowdies and other peace-
breakers were commonly confined. [The Nar-
renkotterlein, Narrenkoderl or Kotter formerly
176 The Criminal Prosecution and
on the chief public squares in Vienna are de-
scribed as " Menschenkafige mit Cittern von
Eisen und Holz, bestimmt das darin versperrte
Individuum dem Spotte des Pobels preiszu-
geben (zu narren)." Schlager : Wiener Skissen
aus dem Mittelalter, II. 245.] Mornacius also
relates that several mad dogs, which attacked
and tore in pieces a Franciscan novice in 1610,
were " by sentence and decree of the court put
to death." It is surely reasonable enough that
mad dogs should be killed ; the remarkable
feature of the case is that they should be form-
ally tried and convicted as murderers by a legal
tribunal, and that no account should have been
taken of their rabies as an extenuating circum-
stance or ground of acquittal. In such a case
the plea of insanity would certainly seem to
be naturally suggested and perfectly valid.
On the other hand, it is expressly declared in
the Avesta that a mad dog shall not be per-
mitted to plead insanity in exculpation of itself,
but shall be " punished with the punishment of
a conscious and premeditated offence (baodho-
varsta)^ i. e. by progressive mutilation, corre-
sponding to the number of persons or beasts it
has bitten, beginning with the loss of its ears,
extending to the crippling of its feet and ending
with the amputation of its tail. This cruel and
absurd enactment is wholly inconsistent with the
kindly spirit shown in the Avesta towards all
animals recognized as the creatures of Ahura-
mazda, and especially with the many measures
Capital Punishment of Animals 177
taken by the Indo-Aryans as a pastoral people
for the protection of the dog. Indeed, a para-
graph immediately following in the same chapter
commands the Mazdayasnians to treat such a
rabid dog humanely, and to " wait upon him
with medicaments and to try to heal him, just
as they would care for a righteous man." On
this important point Avestan legislation is so
inconsistent and self-contradictory that one may
justly suspect the harsh enactments to be later
interpolations.
A curious example of imputed crime and its
penal consequences is seen in the Roman custom
of celebrating the anniversary of the preserva-
tion of the Capitol from the night-attack of the
Gauls, not only by paying honour to the de-
scendants of the sacred geese, whose cries gave
warning of the enemy's approach, adorning them
with jewels and carrying them about in litters,
but also by crucifying a dog, as a punishment for
the want of vigilance shown by its progenitors on
that occasion. This imputation of merit and de-
merit was really no more absurd than to visit the
sins of the fathers on the children, as prescribed
by Jewish and other ancient lawgivers, or to
decree corruption of blood in persons attainted of
treason, as is still the practice of modern states,
or any other theory of inherited guilt or scheme
of vicarious atonement, th^t sets the sin of the
federal head of the race to the account of his
remotest posterity and relieves them from its
penalties only through the suffering and death
12
178 The Criminal Prosecution and
of a- wholly innocent person. They are all appli-
cations of the barbarous principle, which, in
primitive society, with its gross conceptions of
justice, made the entire tribe responsible for the
conduct of each of its members. The vendetta,
which continues to be the unwritten but inviol-
able code of many semi-civilized communities,
is based upon the same conception of consan-
guineous solidarity for the perpetration and
avenging of crime.
According to an old Anglo-Saxon law,
abolished by King Canute, in case stolen pro-
perty was found in the house of a thief, his wife
and family, even to the infant in the cradle,
though it had never taken food {pedh hit najre
metes ne dbite), were punished as partakers of
his guilt. The Schwabenspiegel, the oldest
digest of South German law, treated as acces-
saries all the domestic animals found in a house,
in which a crime of violence had been com-
mitted, and punished them with death. ['* Man
soil allez daz totden daz in den huze ist ge-
vonden : leuten und vie, ros und rinder, hunde
und katzen, ganzen und hundre." § 290.]
Cicero approved of such penalties for political
crimes as " severe but wise enactments, since
the father is thereby bound to the interests of
.the state by the strongest of ties, namely, love
\ioT his children." Roman law under the empire
Ipunished treason with death and then added :
j" As to the sons of traitors, they ought to suffer
the same penalty as their parents, since it is
Capital Punishment of Animals 179
highly probable that they will sometime be
guilty of the same crime themselves; never-
theless, as a special act of clemency, we grant
them their lives, but, at the same time, declare
them to be incapable of inheriting anything from
father or mother or of receiving any gift or
bequest in consequence of any devise or testa-
ment of kinsmen or friends. Branded with
hereditary infamy and excluded from all hope of
honour or of property, may they suffer the
torture of disgrace and poverty until they shall
look upon life as a curse and long for death as
a kind release." This atrocious edict of the
emperors Arcadius and Honorius has its counter-
part in the still more radical code of Pachacutez,
the Justinian of the ancient Peruvians, which
punished adultery with the wife of an Inca by
putting to death not only the adulteress and her
seducer, but also the children, slaves and kindred
of the culprits, as well as all the inhabitants of
the city in which the crime was committed,
while the city itself was to be razed and the site
covered with stones.
The principle enunciated by Cicero has also
been accepted by modern legislators as applic-
able to high treason. Thus, when Tschech, the
burgomaster of Storkow, attempted to take the
life of Frederic William of Prussia, July 26,
1844, he was tried and executed Dec. 14 of
the same year. On the day after his execution
his only daughter, Elizabeth, was arrested, and
to her inquiry by what right she had been
i8o The Criminal Prosecution and
deprived of her freedom, the authorities replied
that, "according to Prussian law the children
of a person convicted of high treason and all the
members of his family, especially if they seemed
to be dangerous and to share the opinions of
their father, can be imprisoned for life or
banished from the country." The young lady
was then exiled to Westphalia, and there placed
in the custody of an extremely austere parson,
until she finally escaped to France, and after-
wards to Switzerland, where she spent the rest
of her days.
When the prefects Tatian and Proculus fell
into disgrace, Lycia, their native land, was
deprived of the autonomy it had hitherto enjoyed
as a Roman province, and its inhabitants were
disfranchised and declared incapable of holding
any office under the empire. So, too, when
Joshua discovered some of the spoils of Jericho
hidden in the tent of Achan, not only the thief
himself, but also " his sons, and his daughters,
and his oxen, and his asses, and his sheep, and
his tent, and all that he had," were brought into
the valley of Achor, and there stoned with stones
and burned with fire. About this time, how-
ever, such holocausts of justice were suppressed
among the Jews, and a law enacted that hence-
forth " the fathers shall not be put to death for
the children, neither shall the children be put
to death for the fathers, every man shall be put
to death for his own sin;" -or, as Jeremiah ex-
presses it figuratively, the children's teeth were
Capital Punishment of Animals i8i
to be no longer set on edge by the sour grapes
which their fathers had eaten. Yet the per-
sistency of time-honoured custom and its power
of overriding new statutes are seen in the fact
that, several centuries later, at the request of the
Gibeonites, whom it had become desirable to
conciliate, David did not scruple to deliver up
to them seven of Saul's sons to be hanged for
the evil which their father had wrought in slay-
ing these foes of Israel. It would have been a
parallel case if Bismarck had sought to win the
friendship and favour of the French by giving
into their hands the descendants of Bliicher to
be guillotined on the Place de la Concorde, or,
after having made a political pilgrimage to
Canossa, should surrender the children of Dr.
Falk to be racked and burned at the stake by the
ultramontanes.
According to the current orthodox theology,
treason against God, committed by our common
progenitor, worked "corruption of blood" in
the whole human race, all the children of men
being attainted with guilt in consequence of the
act of their first parent. This crude and brutal
conception of justice is the survival of a primi-
tive and barbarous state of society, and it is
curious to observe how the most highly civilized
peoples, who have outgrown this notion and set
it aside in the secular relations of man to man,
still cling to it as something sacred and sublime
in the spiritual relations of man to the deity.
Only the all-wise and all-powerful sovereign of
182 The Criminal Prosecution and
the universe is supposed to continue to
administer law and justice on principles which
common-sense and the enlightened opinion
of mankind have long since abrogated and
banished from earthly legislation. Thus the
divine government, instead of keeping pace with
the progress of human institutions, still cor-
responds to the ideals of right and retribution
entertained by savage tribes and the lowest types
of mankind.
The horrible mutilations to which criminals
were formerly subjected, originated in an en-
deavour to administer strictly even-handed
justice. What could be fairer or more fit than
to punish perjury by cutting off the two fingers
which the perjurer had held up in taking the
violated oath ? It was a popular belief that the
fingers of an undetected perjurer would grow
out of the grave after death, seeking retributive
amputation, as a plant seeks the light, and that
his ghost would never rest until this penalty had
been inflicted. (See Heinrich Roch : Schles.
Chron., p. 267, where a case of this kind is
recorded.) The Carolina {constitutio criminalis
Carolina), although in many respects an advance
on mediaeval penal legislation, doomed incendi-
aries to be burned alive; and an old law, cited
by Dopier (Theat. Poen., II. 271), condemned a
man who had dug up and removed a boundary
stone to be buried in the earth up to his neck
and to have his head plowed off with a new plow,
thus symbolizing in his own person the grave
Capital Punishment of Animals 183
offence which he had committed. Ivan Basilo-
vitch, a Muscovite prince, ordered that an ambas-
sador, who did not uncover in his presence,
should have his hat nailed to his head; and it is
a feeble survival of the same idea of proper
punishment that makes the American farmer
nail the dead hawk to his barn-door, just as in
former times it was customary to crucify high-
way robbers at cross-roads.
According to an old Roman law ascribed to
Numa Pompilius, the oxen which plowed up
a boundary stone, as well as their driver, were
sacrificed to Jupiter Terminus. In the early
development of agriculture, and the transition
from communal to personal property in land, this
severe enactment was deemed necessary to the
protection of the " sacra saxa," by which the
boundary lines of the fields were defined. Only
by making the violation of enclosed ground a
sacrilege was it possible to prevent encroach-
ments upon it, so strong was the lingering preju-
dice against individual possessions of this kind
running in the blood of a people descended from
nomadic tribes of herdsmen, who regarded
sedentary communities engaged in tilling the
soil as their direst foes. The lawgiver knew
very well that the oxen were involuntary agents,
and that the plowman alone was culpable; but
when a religious atonement is to be made and an
angry god appeased, moral distinctions deter-
mining degrees of responsibility are uniformly
ignored, and the innocent are doomed to suffer
184 The Criminal Prosecution and
with the guilty. The oxen were tainted by the
performance of an act, in which the exercise of
their will was not involved, and must there-
fore be consigned to the offended deity. The
same is true of the plowman, who did not escape
immolation even when the lyiotio termini or
displacement of the boundary stone occurred
unintentionally.
That the feeling, which found expression in
such enactments and usages and survives in
schemes of expiation and vicarious sacrifice, lies
scarcely skin-deep under the polished surface of
our civilization, is evident from the force and
suddenness with which it breaks out under
strong excitement, as when Cincinnati rioters
burn the court-house because they suspect the
judges of venality and are dissatisfied with the
verdicts of the juries. The primitive man and
the savage, like the low and ignorant masses of
civilized communities, do not take into con-
sideration whether the objects from which they
suffer injury are intelligent agents or not, but
wreak their vengeance on stocks and stones and
brutes, obeying only the rude instinct of
revenge. The power of restraining these abo-
riginal propensities, and of nicely analyzing
actions and studying mental conditions in order
to ascertain degrees of moral responsibility,
presupposes a high degree of mental develop-
ment and refinement and great acuteness of
psychological perception, and is, in fact, only a
recent acquisition of a small minority of the
Capital Punishment of Animals 185
human race. The vast bulk of mankind will
have to pass through a long process of intel-
lectual evolution, and rise far above their present
place in the ascending scale of culture before
they attain it.
For this reason Lombroso would abolish trial
by jury, which seems to him not a sign of pro-
gress towards better judicatory methods, but a
clumsy survival of primitive justice as adminis-
tered by barbarous tribes and even gregarious
animals. It makes the administration of justice
dependent upon popular prejudice and passion,
and finds its most violent expression or explo-
sion in lynch law, which is only trial by a jury
of the whole community gone mad. It would
certainly be a dismal farce to apply to the
criminal classes the principle that every man
must be judged by his peers. In the cantonal
courts of Switzerland the verdict of the jury is
uniformly in favour of the native against the
foreigner, no matter what the merits of the case
may be ; and this outrageous perversion of right
and equity is called patriotism, a term which
conveniently sums up and euphemizes the
general sentiment of Helvetian innkeepers and
tradesmen that "the stranger within their
gates " is their legitimate spoil, and has no other
raison d'etre. In Italy, especially in Naples
and Sicily, a thief may be sometimes con-
demned, but a murderer is almost invariably
acquitted by the jury, whose decision expresses
the corrupted moral sense of a people accus-
1 86 The Criminal Prosecution and
tomed to admire the bandit as a hero and
to consider brigandage a highly honourable
profession.
The childish disposition to punish irrational
creatures and inanimate objects, which is common
to the infancy of individuals and of races, has
left a distinct trace of itself in that peculiar in-
stitution of English law known as deodand, and
derived partly from Jewish and partly from old
German usages and traditions. " If a horse,"
says Blackstone, " or any other animal, of its
own motion kill as well an infant as an adult,
or if a cart run over him, they shall in either
case be forfeited as deodand." If a man, in
driving a cart, tumble to the ground and lose his
life by the wheel passing over him, if a tree fall
on a man and cause his death, or if a horse kick
his keeper and kill him, then the wheel, the tree
and the horse are deodands pro rege, and are to
be sold for the benefit of the poor.
Omnia quae movent ad mortem sunt Deo
danda is the principle laid down by Bracton.
If therefore a cart-wheel run over a man and kill
him, not only is the wheel, but also the whole
cart to be declared deodand, because the mo-
mentum of the cart in motion contributed to the
man's death; but if the shaft fall upon a man
and kill him, then only the shaft is deodand,
since the cart did not participate in the crime.
It is also stated, curiously enough, that if an
infant fall from a cart not in motion and be
killed, neither the horse nor the cart shall be
Capital Punishment of Animals 187
declared deodand; not so, however, if an adult
come to his death in this manner. The ground
of this distinction is not quite clear; although
it may arise from the assumption that the child
had no business there, or that such an accident
could not have happened to an adult, unless
there was something irregular and perverse in
the conduct of the animal or the vehicle. In
the archives of Maryland, edited by Dr. William
Hand Browne and Miss Harrison in 1887, men-
tion is made of an inquest held January 31, 1637,
on the body of a planter, who " by the fall of
a tree had his bloud bulke broken." " And
furthermore the Jurors aforesaid upon their oath
aforesaid say that the said tree moved to the death
of the said John Bryant; and therefore find the
said tree forfeited to the Lord Proprietor."
According to an old Anglo-Saxon law a sword
or other object by which a man had been slain,
was not regarded as pure (gesund) until the
crime had been expiated, and therefore could not
be used, but must be set apart as a sacrifice. A
sword-cutler would not take such a weapon to
polish or repair without a certificate that it was
gesund or free from homicidal taint, so as not
to render himself liable for any harm it might
inflict, since it was supposed to exert a certain
magical and malicious influence. Also an
ancient municipal law of the city of Schleswig
stipulated that the builder of a house should be
held responsible in case any one should be killed
by a beam, block, rafter or other piece of timber,
1 88 The Criminal Prosecution and
and pay a fine of nine marks, or give the object
that had committed the manslaughter to the
family or kinsmen of the slain. If he failed to
do so and built the contaminated timber into
the edifice, then the owner had to atone for the
homicide with the whole house. (Cf. Heinrich
Brunner : Deutsche Rechtsgeschichte, II. p.
557, Anm. 31.) A modern survival of this legal
principle is the notion, current especially among
criminals, that any part of the body of a deceased
person, or better still of an executed murderer,
exerts a magical and protective power or brings
good luck. It is by no means uncommon among
the peasants and lower classes of Europe to put
the finger of a dead thief under the threshold
in order to protect the house homoepathically
against theft. The persistency of this supersti-
tion is shown by the fact that a farmer's hired
man named Sier and belonging to the hamlet
of Heumaden, was tried at Weiden in Bavaria,
May 23, 1894, ^nd convicted of having exhumed
the body of a newly buried child in the church-
yard of Moosbach and taken out one of its eyes,
which he supposed would render him invisible
to mortal sight like the famous tarnkappc of old
German mythology, and thus enable him to
indulge with impunity his propensity to steal.
For this sacrilege he was sentenced to one year
and two months' imprisonment and to the loss
of civil rights for three years.
In some of the Scottish islands it is the custom
to beach a boat, from which a fisherman had
Capital Punishment of Animals 189
been drowned, cursing it for its misdeed and
letting it dry and fall to pieces in the sun. The
boat is guilty of manslaughter and must no
longer be permitted to sail the sea with innocent
craft. Scotch law does not seem to have recog-
nized deodand in the strictly etymological sense
of the term, but only escheat, in other words,
the confiscated objects were not necessarily ap-
pled to pious purposes — pro anima regis et
omnium fidelium defunctoriim- — but were simply
forfeited to the king or to the state. This form
of confiscation never prevailed so generally in
Central and Eastern, as in Western Europe.
Some German communities and territorial sove-
reigns introduced it from France, but so modified
the practical application of the principle as to
award to the injured party the greater portion,
in Liineburg, for example, two-thirds of the
value of the confiscated animal or object. (Vide
Kraut's Stadtrecht von Liineburg, No. XCVII.
Cited by Von Amira, p. 594.)
Blackstone's theories of the origin of deodands
are exceedingly vague and unsatisfactory. Evi-
dently the ^earned author of the Commentaries
could give no consistent explanation of these
vestiges of ancient criminal legislation. His
statement that they were intended to punish the
owner of the forfeited property for his negli-
gence, and his further assertion that they were
" designed, in the blind days of popery, as an
expiation for the souls of such as were snatched
away by sudden death," are equally incorrect.
190 The Criminal Prosecution and
In most cases the owner was perfectly innocent
and very frequently was himself the victim of
the accident. He suffered only incidentally
from a penalty imposed for a wholly different
purpose, just as a slaveholder incurs loss when
his human chattel commits murder and is hanged
for it. The primal object was to atone for the
taking of life in accordance with certain crude
conceptions of retribution. Under hierarchical
governments the prominent idea was to appease
the wrath of God, who otherwise might visit
mankind with famine and pestilence and divers
retaliatory scourges. For the same reason the
property of a suicide was deodand. Thus the
wife and children of the deceased, who may be
supposed to have already suffered most from
the fatal act, were subjected to additional punish-
ment for it by being robbed of their rightful
inheritance. Yet this was by no means the in-
tention of the lawmakers, who simply wished
to prescribe an adequate atonement for a griev-
ous offence, and in seeking to accomplish this
main purpose, ignored the effect of their action
upon the fortunes of the heirs or deemed it a
matter of minor consideration.
Ancient legislators uniformly regarded a felo
de se as a criminal against society and treated
him as a kind of traitor. The man had enjoyed
the support and protection of the body-politic
during his infancy and youth, and, by taking
his own life, he shook off the responsibilities and
shirked the duties devolving upon him as an
Capital Punishment of Animals 191
adult member of the commonwealth. This is
why self-murder was called felony and as such
involved forfeiture of goods. Calchas would not
permit the body of " the mad Ajax," who died
by his own hand, to be burned ; and the Chris-
tian Church of to-day refuses to bury in conse-
crated ground with religious rites any person
who deliberately cuts short the thread of his
existence and thus commits treason against the
Most High. The Athenians ignominiously
lopped off the hand of a suicide and buried the
guilty instrument of his death, as an accursed
thing, apart from the rest of the interred or
incremated body. In some communities all
persons over sixty years of age have been left
free to kill themselves, if they wished to do so.
They had performed the duties of citizenship and
of procreation and were permitted to retire in
this way, if they saw fit. In very ancient times,
the magistrates of Massalia (Marseilles, then a
Greek colony) are said to have kept on hand a
supply of poison to be given to any citizen, who,
on due examination, was found to have good
and sufficient reason for taking his own life.
Suicide was thus legalized and facilitated, and
thereby rendered honourable, and was perhaps
found more convenient and economical than to
grant pensions or to support paupers. It was a
summary method of getting rid of those who had
finished the struggle for existence or failed in
it, and in either case might be a burden to them-
selves or to the state. On the other hand, when
192 The Criminal Prosecution and
a suicidal mania seized upon the maidens of
Miletos, an Ionian city in Caria, and threatened
to produce a dearth of wives and mothers, the
municipal authorities decreed that the bodies of
all such persons should be exposed naked in the
market-place, in order that virgin modesty and
shame might overcome the desire of death, and
check a self-destructive passion extremely detri-
mental to the Milesian commonwealth.
It is true, as Blackstone asserts, that the
Church claimed deodands as her due and put
the price of them into her own coffers; but this
fact does not explain their origin. They were
an expression of the same feeling that led the
public authorities to fill up a well, in which a
person had been drowned, not as a precautionary
measure, but as a solemn act of expiation ; or
that condemned and confiscated a ship, which,
by lurching, had thrown a man overboard and
caused his death.
Deodands were not abolished in England until
the reign of Queen Victoria. With the excep-
tion of some vestiges of primitive legislation
still lingering in maritime law, they are, in
modern codes, one of the latest applications of a
penal principle, which, in Athens, expatriated
stocks and stones, and in other countries of
Europe excommunicated bugs and sent beasts to
the stake and to the gallows.
Capital Punishment of Animals 193
CHAPTER II
MEDIEVAL AND MODERN PENOLOGY
A STRIKING and significant indication of the
remarkable change that has come over the spirit
of legislation, and more especially of criminal
jurisprudence, in comparatively recent times, is
the fact that whereas, a few generations ago, law-
givers and courts of justice still continued to
treat brutes as men responsible for their mis-
deeds, and to punish them capitally as male-
factors, the tendency now-a-days is to regard men
as brutes, acting automatically or under an in-
sane and irresistible impulse to evil, and to plead
this innate and constitutional proclivity, in pro-
secution for murder, as an extenuating or even
wholly exculpating circumstance. Some persons
even maintain, as we have already seen, that
such criminals are diabolically possessed and
thus account for their inveterate and otherwise
incredible perversity on the theory held by the
highest authorities in the Middle Ages concern-
ing the nature of noxious animals.
Mediaeval jurists and judges did not stop to
solve intricate problems of psycho-pathology nor
13
194 The Criminal Prosecution and
to sift the expert evidence of the psychiater.
The legal maxim : Si duo faciunt idem non est
idem (if two do the same thing, it is not the
same) was too fine a distinction for them, even
when one of the doers was a brute beast. The
puzzling knots, which we seek painfully to untie
and often succeed only in hopelessly tangling,
they boldly cut with executioner's sword. They
dealt directly with overt acts and administered
justice with a rude and retaliative hand, more
accustomed and better adapted to clinch a fist
and strike a blow than to weigh motives nicely
in a balance, to measure gradations of culpa-
bility, or to detect delicate differences in the
psychical texture and spiritual qualities of deeds.
They put implicit faith in Jack Cade's prescrip-
tion of " hempen caudle " and " pap of hatchet "
as radical remedies for all forms and degrees of
criminal alienation and murderous aberration of
mind. Phlebotomy was the catholicon of the
physician and the craze of the jurist; blood-
letting was regarded as the only infallible cure
for all the ills that afflict the human and the
social body. Doctors of physic and doctors of
law vied with each other in applying this
panacea. The red-streaked pole of the barber-
surgeon and the reeking scaffold, symbols of
venesection as a means of promoting the physical
and moral health of the community, were the
appropriate signs of medicine and jurisprudence.
Hygeia and Justicia, instead of being repre-
Capital Punishment of Animals 195
sented by graceful females feeding the emblem-
atic serpent of recuperation or holding with
firm and even hand the well-poised scales of
equity, would have been more fitly typified by
two enormous leeches gorged with blood.
Even the dead, who should have been hanged,
but escaped their due punishment, could not rest
in their graves until the corpse had suffered the
proper legal penalty at the hands of the public
executioner. Their restless ghosts wandered
about as vampires or other malicious spooks
until their crimes had been expiated by digging
up their bodies and suspending them from the
gallows. Culprits, who died on the rack or in
prison, were brought to the scaffold as though
they were still alive. In 1685, a were-wolf, sup-
posed to be the incarnation of a deceased burgo-
master of Ansbach, did much harm in the neigh-
bourhood of that city, preying upon the herds
and even devouring women and children. With
great difficulty the ravenous beast was finally
killed; its carcass was then clad in a tight suit
of flesh-coloured cere-cloth, resembling in tint
the human skin, and adorned with a chestnut
brown wig and a long whitish beard ; the snout
of the beast was cut off and a mask of the burgo-
master's features substituted for it, and the
counterfeit presentment thus produced was
hanged by order of the court. The pelt of the
strangely transmogrified wolf was stuffed and
preserved in the margrave's cabinet of curiosities
196 The Criminal Prosecution and
as a memorial of the marvellous event and as
ocular proof of the existence of were-wolves.
In Hungary and the Slavic countries of Eastern
Europe the public execution of vampires was
formerly of frequent occurrence, and the super-
stition, which gave rise to such proceedings, still
prevails among the rural population of those
semi-civilized lands. In 1337, a herdsman near
the town of Cadan came forth from his grave
every night, visiting the villages, terrifying the
inhabitants, conversing affably with some and
murdering others. Every person, with whom
he associated, was doomed to die within eight
days and to wander as a vampire after death.
In order to keep him in his grave a stake was
driven through his body, but he only laughed
at this clumsy attempt to impale a ghost, saying :
" You have really rendered me a great service
by providing me with a staff, with which to ward
off the dogs when I go out to walk." At length
it was decided to give him over to two public
executioners to be burned. We are informed
that when the fire began to take effect, " he drew
up his feet, bellowed for a while like a bull and
hee-hawed like an ass, until one of the execu-
tioners stabbed him in the side, so that the blood
oozed out and the evil finally ceased."
Again in 1345, in the town of Lewin, a potter's
wife, who was reputed to be a witch, died and,
owing to suspicions of her pact with Satan, was
refused burial in consecrated ground and dumped
Capital Punishment of Animals 197
into a ditch like a dog. The event proved that
she was not a good Christian, for instead of
remaining quietly in her grave, such as it was,
she roamed about in the form of divers unclean
beasts, causing much terror and slaying sundry
persons. Thereupon she was exhumed and it
was found that she had chewed and swallowed
one half of her face-cloth, which, on being pulled
out of her throat, showed stains of blood. A
stake was driven through her breast, but this
precautionary measure only made matters worse.
She now walked abroad with the stake in her
hand and killed quite a number of people with
this formidable weapon. She was then taken
up a second time and burned, whereupon she
ceased from troubling. The efficacy of this post-
mortem auto da fe was accepted as conclusive
proof that her neighbours had neglected to per-
form their whole religious duty in not having
burned her when she was alive, and were thus
punished for their remissness.
Dopier cites also the case of Stephen Hiibner
of Trautenau, who wandered about after death
as a vampire, frightening and strangling several
individuals. By order of the court his body was
disinterred and decapitated under the gallows-
tree. When his head was struck off, a stream of
blood spurted forth, although he had been already
five months buried. His remains were reduced
to ashes and nothing more was heard of him.
In I573i the parliament of Dole published a
198 The Criminal Prosecution and
decree permitting the inhabitants of the Franche
Comt^ to pursue and kill a were-wolf or loup-
garou, which infested that province; "not-
withstanding the existing laws concerning the
chase," the people were empowered to " assemble
with javelins, halberds, pikes, arquebuses and
clubs to hunt and pursue the said were-wolf in
all places, where they could find it, and to take,
bind and kill it, without incurring any fine or
other penalty." The hunt seems to have been
successful, if we may judge from the fact that
the same tribunal in the following year (1574)
condemned to be burned a man named Gilles
Garnier, who ran on all fours in the forest and
fields and devoured little children "even on
Friday." The poor lycanthrope, it appears,
had as slight respect for ecclesiastical fasts as the
French pig already mentioned, which was not
restrained by any feeling of piety from eating
infants on a jour maigre.
Henry VIII. of England summoned Thomas
k Becket to appear before the Star Chamber to
answer for his crimes and then had him con-
demned as a traitor, and his bones, that had
been nearly four centuries in the tomb and wor-
shipped as holy relics by countless pilgrims,
burned and scattered to the winds.
When Stephen VI. succeeded to the tiara in
896, one of his first acts was to cause the body of
his predecessor, Formosus, to be exhumed and
brought to trial on the charge of having un-
Capital Punishment of Animals 199
lawfully and sacrilegiously usurped the papal
dignity. A writ of summons was issued in due
form and the corpse of the octogenarian pope,
which had Iain already eight months in the
grave, was dug up, re-arrayed in full pontificals
and seated on a throne in the council-hall of St.
Peter's, where a synod had been convened to
adjudicate upon the case. No legal formality
was omitted in this strange procedure and a
deacon was appointed to defend the accused,
although the synodical jury was known to be
packed and the verdict predetermined. Formosus
was found guilty and condemned to deposition.
No sooner was the sentence pronounced than the
executioners thrust him from the throne, stripped
him of his pontifical robes and other ensigns of
office, cut off the three benedictory fingers of his
right hand, dragged him by the feet out of the
judgment-hall and threw his body " as a pesti-
lential thing" (uti quoddam mephiticum) into
the Tiber. Not until several months later, after
Stephen himself had been strangled in prison,
were the mutilated and putrefied remains of For-
mosus taken out of the water and restored to
the tomb. The Athenian Prytaneum, as we
have already seen, was guilty of the childish-
ness of prosecuting inanimate objects, but it
never violated the sepulchre for the purpose of
inflicting post-humous punishment on corpses.
The perpetration of this brutality was reserved
for the Papal See.
200 The Criminal Prosecution and
From the standpoint of ancient and mediaeval
jurisprudents the overt act alone was assumed
to constitute the crime ; the mental condition of
the criminal was never or a least very seldom
taken into consideration. It is remarkable how
long this crude and superficial conception of
justice prevailed, and how very recently even the
first attempts have been made to establish penal
codes on a philosophic basis. The punishable-
ness of an offence is now generally recognized
as depending solely upon the sanity and ration-
ality of the offender. Crime, morally and legally
considered, presupposes, not perfect, for such a
thing does not exist, but normal freedom of the
will on the part of the agent. Where this ele-
ment is wanting, there is no culpabilty, whatever
may have been the consequences of the act.
Modern criminal law looks primarily to the
psychical origin of the deed, and only secondarily
to its physical effects; mediaeval criminal law
ignored the origin altogether, and regarded ex-
clusively the effects, which it dealt with on the
homoeopenal principle of similia similibiis ■puni-
antur, for the most part blindly and brutally
applied.
Mancini, Lombroso, Garofalo, Albrecht, Bene-
dikt, Biichner, Moleschott, Despine, Fouillee,
Letourneau, Maudsley, Bruce Thompson, Nichol-
son, Minzloff, Notovich and other European
criminal lawyers, physiologists and anthro-
pologists have devoted themselves with peculiar
Capital Punishment of Animals 201
zeal and rare acuteness to the study and solution
of obscure and perplexing problems of psycho-
pathological jurisprudence, and have drawn nice
and often overnice distinctions in determining
degrees of personal responsibility. Judicial pro-
cedure no longer stops with testimony establish-
ing the bald facts in the case, but admits also the
evidence of the expert alienist in order to as-
certain to what extent the will of the accused
was free or functionally normal in its operation.
Here it is not a question of raving madness or
of drivelling idiocy, perceptible to the coarsest
understanding and the crassest ignorance; but
the slightest morbid disturbance, impairing the
full and healthy exercise of the mental faculties,
must be examined and estimated. If '* privation
of mind " and " irresistible force," says Zupetta,
are exculpatory, then " partial vitiation of mind "
and " semi-irresistible force " are entitled to the
same or at least to proportional consideration.
There are states of being which are mutually
contradictory and exclusive and cannot co-exist,
such as life and death. A partial state of life
or death is impossible ; such expressions as half-
alive and half-dead are hyperbolical figures of
speech used for purely rhetorical purposes ; taken
literally, they are simply absurd. It is not so,
however, with states of mind. The intellect,
whose soundness is the first condition of account-
ability, may be perfectly clear, manifesting itself
in all its fulness and power, or it may be parti-
202 The Criminal Prosecution and
ally obscured. So, too, the will, whose self-
determination is the second condition of account-
ability, may assert itself with complete freedom
and untrammelled force, or it may act under stress
and with imperfect volition. Moral coercion,
whether arising from external influences, abnormi-
ties of the physical organism or defects of the
mental constitution, is not less real because it is
not easy to detect and may not be wholly irre-
sistible. For this reason, it involves no contra-
diction in terms and is not absurd to call an
action half-conscious, half-voluntary, or half-
constrained. *' Partial vitiation of mind " is a
state distinctly recognized in psychiatrical
science. In like manner, there is no essential
incongruity in affirming that an impulse may be
the result of a " semi-irresistible force." But
these mental conditions and forces do not mani-
fest themselves with equal obviousness and in-
tensity in all cases; sometimes they are scarcely
appreciable; again they verge upon "absolute
privation of mind " and " wholly irresistible
force;" and it is the duty of the judge to adjust
the penalty to the gradations of guilt as deter-
mined by the greater or less freedom of the
agent.
The same process of reasoning would lead to
the admission of quasi-vitiations of mind and
quasi-irresistible forces as grounds of exculpa-
tion. Thus one might go on analyzing and refin-
ing away human responsibility, and reducing all
Capital Punishment of Animals 203
crime to resultants of mental derangement, until
every malefactor would come to be looked upon,
not as a culprit to be delivered over to the sharp
stroke of the headsman or the safe custody of the
jailer, but as an unfortunate victim of morbid
states and uncontrollable impulses, to be con-
signed to the sympathetic care of the psychiater.
Italian anthropologists and jurisprudents have
been foremost and gone farthest, both theo-
retically and practically, in this reaction from
mediaeval conceptions of crime and its proper
punishment. This violent recoil from extreme
cruelty to excessive commiseration is due, in a
great measure, to the Italian temperament, to a
peculiar gentleness and impressionableness of
character, which, combined with an instinctive
aversion to whatever shocks the senses and mars
the pleasure of the moment, are apt to degenerate
into shallow sentimentality and sickly sensi-
bility, thereby enfeebling and perverting the
moral sense and distorting all ideas of right and
justice. To minds thus constituted the cool and
deliberate condemnation of a human being to
the gallows is an atrocity, in comparison with
which a fatal stab in the heat of passion or under
strong provocation seems a light and venial
transgression. This maudlin sympathy with the
guilty living man, who is in danger of suffering
for his crime, to the entire forgetfulness of the
innocent dead man, the victim of his anger or
cupidity, pervades all classes of society, and has
204 T'he Criminal Prosecution and
stimulated the ingenuity of lawyers and legisla-
tors to discover mitigating moments and exten-
uating circumstances and other means of loosen-
ing and enlarging the intricate meshes of the
penal code so as to permit the culprit to escape.
To this end they eagerly seized upon the doctrine
of evolution and endeavoured to seek the origin
of crime in hereditary propensities, atavistic recur-
rences, physical degeneracies and other organic
fatalities, for which no one can be held personally
responsible, and constructed upon the basis of
the most recent scientific researches a penological
system giving free scope and full gratification
to this pitying and palliating disposition.
But, although the Italians have been pioneers
in this movement, it has not been confined to
them ; it extends to all civilized nations, and
expresses a general tendency of the age. Even
the Germans, those leaders in theory and lag-
gards in practice, whose studies and speculations
have illustrated all forms and phases of judicial
procedure, but who adhere so conservatively to
ancient methods and resist so stubbornly the
tides of reform in their own courts have yielded
on this point. They no longer regard insanity
and idiocy as the only grounds of exemption
from punishment, but include in the same
category " all morbid disturbances of mental
activity," and "all states of mind in which the
free determination of the will is not indeed wholly
destroyed, but only partially impaired." In
Capital Punishment of Animals 205
order to realize the radical changes that have
taken place in this direction within a relatively
recent period, it will suffice merely to compare
the present criminal code of the German Empire
with the Austrian code of 1803, the Bavarian
code of 1813, and the Prussian code of 185 1.
It must l?e remembered, too, that these changes
have been effected under the drift of public
opinion in spite of the political preponderance of
Prussia and her strong bureaucratic influence,
which has always been exerted in favour of severe
penalties, and shown slight consideration for
individual frailties and criminal idiosyncrasies
in inflicting punishment. As the stronghold of
a stolid and supercilious squirearchy (Junker-
thum) in Germany, Prussia has stubbornly re-
sisted to the last every reformatory movement
in civil and social, and especially in criminal
legislation.
A recent decision of the supreme court of the
German Empire (pronounced in the summer of
1894) seems to put a check upon this tendency
by rejecting the plea of " moral insanity " in the
extenuation of crime. As a matter of fact, how-
ever, the question whether such a state of mind
as " moral insanity " exists or can exist has not
yet been settled; and so long as psychiaters do
not agree as to the actuality or possibility of this
anomalous mental condition, courts of justice
may very properly refuse to take it into con-
sideration or to allow it to exert the slightest in-
fluence upon their judgment in the infliction of
2o6 The Criminal Prosecution and
judicial punishment. Moral insanity, as usually
defined, involves a disturbance of the moral per-
ceptions and a derangement of the emotional
nature, without impairing the distinctively in-
tellectual faculties. The supposed victim of this
hypothetical form of madness is capable of
thinking logically and often shows remarkable
astuteness in forming his plans and executing
his criminal purposes, but seems utterly desti-
tute of the moral sense and of all the finer feel-
ings of humanity, performing the most atro-
cious deeds without hesitation and remembering
them without the slightest compunction. In
moral stolidity and the lack of susceptibility he
is on a level with the lowest savage. German
psychiaters, on the whole, are inclined to regard
such persons, not as morally insane, but as
morally degenerate and depraved ; and German
jurists and judges are not disposed to admit such
vitiation of character as an extenuating cir-
cumstance, especially at a time when criminals
of this class are on the increase and are banded
together to overthrow civilized society and to
introduce an era of anarchy and barbarism. The
decision of the German judicatory is therefore
not reactionary, but merely precautionary, and
simply indicates a wise determination to keep
the administration of criminal law unencumbered
by theories, which science has not yet fully
established and which at present can only serve
to paralyze the arm of retributive justice.
Mediaeval penal justice sought to inflict the
Capital Punishment of Animals 207
greatest possible amount of suffering on the
offender and showed a diaboHcal fertility of in-
vention in devising new methods of torture even
for the pettiest trespasses. The monuments of
this barbarity may now be seen in European
museums in the form of racks, thumbkins, inter-
larded hares, Pomeranian bonnets, Spanish
boots, scavenger's daughters, iron virgins and
similar engines of cruelty. Until quite recently
an iron virgin, with its interior full of long and
sharp spikes, was exhibited in a subterranean
passage at Nuremberg, on the very spot where it
is supposed to have once performed its horrible
functions; and in Munich this inhuman instru-
ment of punishment was in actual use as late as
the beginning of the nineteenth century. The
criminal code of Maria Theresa, published in
1769, contained forty-five large copperplate
engravings, illustrating the various modes of
torture prescribed in the text for the purpose of
extorting confession and evidently designed to
serve as object lessons for the instruction of the
tormentor and the intimidation of the accused.
That Prussia was the first country in Germany to
abolish judicial torture was due, not to the pro-
gressive spirit of the nation or of its tribunals,
but solely to the superior enlightenment and
energy of Frederic the Great, who effected this
reform arbitrarily and against the will of jurists
and judges by cabinet-orders issued in 1740 and
1745. Crimes which women are under peculiar
2o8 The Criminal Prosecution and
temptation to commit, were punished with extra-
ordinary severity. Thus the infanticide was
buried alive, a small tube communicating with
the outer air being placed in her mouth in order
to prolong her life and her agony. A case of
this kind is recorded in the proceedings of the
" Malefiz-Gericht " or criminal court of Ensis-
heim in Alsatia under the date of February 3,
1570. In 1 40 1, an apprentice, who stole from
his master five pfennigs (then as now the
smallest coin of Germany and worth about the
fifth of a cent), was condemned to have both his
ears cut off. Incredible barbarities of this kind
were practised by some of the best and noblest
men of that age. Thus Cardinal Carlo Borro-
meo, who was pre-eminent among his con-
temporaries for the purity of his life and the
benevolence of his character, did not hesitate to
condemn Fra Tommaso di Mileto, a Franciscan
monk, to be walled up alive, because he enter-
tained heretical notions concerning the sinful-
ness of eating meat on Friday, and expressed
doubts touching the worship of images, indulg-
ences, the supreme and infallible authority of
the pope, and the real presence in the eucharist.
This cruel sentence, a striking illustration of the
words of Lucretius,
"Tantum religio potuit suadere malorum,"
was pronounced December 16, 1564, as follows :
" I condemn you to be walled up in a place
Capital Punishment of Animals 209
enclosed by four walls, where, with anguish of
heart and abundance of tears, you shall bewail
your sins and grievous offences committed
against the majesty of God, and the holy mother
Church and the religion of St. Francis, the
founder of your order." A bishop, who should
impose such a punishment now-a-days, would be
very properly declared insane and divested of his
office.
Much ridicule has been cast upon the so-called
" Blue Laws " of Connecticut on account of the
narrowness and pettiness of their prevailing
spirit. From our present point of view they are
absurd and in many respects atrocious, but com-
pared with the penal codes of that time they
mark a great advance in human legislation.
They reduced the number of crimes, then
punishable in England by death, from two
hundred and twenty-three to fourteen. In the
mother-country, as late as the seventeenth
century, counterfeiters and issuers of false coin
were condemned to be boiled to death in oil by
slow degrees. The culprit was suspended over
the cauldron and gradually let down into it, first
boiling the feet, then the legs and so on, until all
the flesh was separated from the bones and the
body reduced to a skeleton. The Puritans of New
England, relentless as they were in their dealings
with sectaries, were never so ruthless as this ;
nor is it probable that they would have inflicted
capital punishment upon their own " stubborn
14
2IO The Criminal Prosecution and
and rebellious sons," or upon persons who
" worship any other God but the Lord God,"
had it not been for precedents recorded in laws
enacted by a semi-civilized people thousands of
years ago and supposed to have been dictated by
divine wisdom. They failed to perceive the in-
congruity of attempting to rear a democratic
commonwealth on theocratic foundations and
made the fatal mistake of planning their struc-
ture after what they regarded as the perfect
model of the Jewish Zion.
If we compare these barbarities with the law
recently enacted by the legislature of the state of
New York, whereby capital punishment is to be
inflicted as quickly and painlessly as possible by
means of electricity, we shall be able to appre-
ciate the immense difference between the medi-
aeval and the modern spirit in the conception and
execution of penal justice.
A point of practical importance, which the
criminal anthropologist has to consider is the
relation of moral to penal responsibility. If
there is no freedom of the will and the commis-
sion of crime is the necessary result of physio-
logical idiosyncrasies, hereditary predisposi-
tions, brachycephalous, dolichoccphalous or
microcephalous peculiarities, anomalies of cere-
bral convolution, or other anatomical asym-
metries, over which the individual has no control
and by which his destiny is determined, then he
is certainly not morally responsible for his con-
Capital Punishment of Animals 211
duct. But is he on this account to be exempt
from punishment? The vast majority of crimin-
alists answer this question unhesitatingly in the
negative, declaring that penal legislation is
independent of metaphysical opinion, and that
punishment is proper and imperative so far as it
is essential to the protection and preservation
of society. If the infliction of the penalties
depriving a man of his freedom or his life is
found to secure these ends, it is the duty of the
tribunals established for the administration of
justice to impose them without troubling them-
selves about the mental condition of the culprit or
stopping to discuss problems which belong to
the province of the psychiater. Legal tribunals
are not offices in which candidates for the
insane asylum are examined or certificates of
admission to reformatories issued, but are organ-
ized as a terror to evil-doers in the general
interests of society, and all their decisions should
have this object in view\ If a madman is not
hanged for murder, it is solely because such a
procedure would exert no deterring influence
upon other madmen ; society protects itself, in
cases of this kind, by depriving the dangerous
individual of his liberty and thus preventing him
from doing harm ; but it has no right to inflict
upon him wanton and superfluous suffering.
Even if it should be deemed desirable to kill him,
the method of his removal should be such as to
cause the least possible pain and publicity.
212 The Criminal Prosecution and
Here, too, the welfare of society is the determina-
tive factor.
This doctrine reduces confirmed criminals to
the condition of ferocious beasts and venomous
reptiles, and logically demands that they should
be eliminated for precisely the same reason that
noxious animals are exterminated, although
neither the human nor the animal creatures are
to blame for the perniciousness of their inborn
proclivities and natural instincts. In the eyes of
Courcelle-Seneuil a prison is a " kind of
menagerie"; Naquet, the French chemist and
senator, goes still farther, declaring that men
are no more culpable for being criminal than
vitriol is for being corrosive, and adding that it
is our own fault if we put this stuff into our tea
and are poisoned by it. The same writer main-
tains that " there is no more demerit in being
perverse than in being cross-eyed or hump-
backed." In a recent lecture on criminal juris-
prudence and biology Professor Benedikt cites
the case of a iMoravian robber and murderer,
whose brain was found on dissection to resemble
that of a beast of prey and who was therefore, in
the opinion of the eminent Viennese authority,
no more responsible for his bloody deeds than is
a lion or a tiger for its ravages. The corollary
to this anatomical demonstration is that one
should treat such a man as a lion or a tiger and
shoot him on the spot. Atavistic relapses, defect-
ive cerebral development and other abnormities
Capital Punishment of Animals 213
undoubtedly occur in criminals, whose acts may
be traced, in some degree, to these physical im-
perfections and therefore be pathologically
stimulated and partially necessitated by them.
On the other hand, there are thousands of
persons with equally small and unsymmetrical
craniums, who do not commit crime, but remain
respectable, safe, and useful members of society.
Lombroso discovers in habitual malefactors a
tendency to tattoo their bodies; but this kind of
cuticular ornamentation indicates merely a low
development of the esthetic sense, a barbarous
conception of the beautiful or what would be
called bad taste, and has not the slightest genetic
or symptomatic connection with crime and the
proclivity to perpetrate it. As a means of em-
bellishing the exterior man it may be rude and
unrefined, but after all it is only skin-deep, and
does not extend to the moral character. Honest
people of the lower classes take pleasure in dis-
figuring themselves in this way, and soldiers and
sailors, who are very far from furnishing the
largest percentage of criminals, are especially
addicted to it, simply because they find ample
leisure in the barracks and the forecastle to
undergo this slow and painful process of what
they deem adornment. According to Lombroso
criminals have as a rule thick heads of hair and
thin beards; but as the majority of them are com-
paratively young, these phenomena are by no
means remarkable. He has also found that the
214 The Criminal Prosecution and
hair of such persons is usually black or dark
chestnut; had his investigations been carried on
in Norway and Sweden instead of in Italy, he
would have certainly come to the conclusion that
flaxen hair is an index of a criminal character.
It would be difficult to deny the existence of a
constitutionally criminal class, a persistently
perverse element, which is the born foe of all law
and order, at war with every form of social and
political organization and whose permanent
attitude of mind is that of the Irishman, who, on
landing in New York, inquired : " Have ye a
government here?" and, on receiving an affirma-
tive answer, replied, " Then I'm agin' it."
Criminal anthropologists have been especially
earnest in their endeavours to define this per-
nicious type and to determine the physiological
and physiognomical features, which characterize
and constitute it. This line of research is
unquestionably in the right direction, but as a
reaction against barren scholastic speculations
and brutal penal codes has been carried to excess
by enthusiastic specialists and led to broad
generalizations and hasty deductions from in-
sufficient data. Taine's definition of man as
" an animal of a higher species, that produces
poems and systems of philosophy, as silk-worms
spin cocoons and bees secrete honeycomb,"
applies with equal force to the vicious side of
human nature. Criminal propensities, as well
as creative powers, are the resultants of race,
Capital Punishment of Animals 215
temperament, climate, food, organism, environ-
ment and other pre-natal and post-natal in-
fluences and agencies, to which the individual
did not voluntarily subject himself and from
which he cannot escape. The acts, therefore,
which he performs, whether good or evil, are as
independent of his will as the colour of his hair
or the shape of his nose ; for while they are
apparently volitional impulses, the will itself,
from which they seem to proceed, is determined
by forces as fixed and free from his control as
are those which render him blue-eyed or snub-
nosed.
The penological application of this philo-
sophical principle has given rise to numerous
theories concerning the nature and origin of
crime. Lombroso and his disciples, as we have
already intimated, attribute it to atavism or the
survival in the individual of the animal instincts
and low morals of the aboriginal barbarian.
The criminal is simply a savage let loose in a
civilized community and ignoring the ethical
conceptions developed by ages of culture and
performing actions that would have seemed
perfectly proper and praiseworthy in the eyes of
our pre-historic ancestors. The hero of the
Palaeolithic age is the brigand and cut-throat of
to-day. The criminal type is nothing but a
reversion to the primitive type of the race, and
the representatives of this school of anthropolo-
gists have been untiring in their efforts to dis-
2i6 The Criminal Prosecution and
cover physical and moral characteristics common
to both : long arms like chimpanzees, four cir-
cumvolutions of the frontal lobes of the brain
like the large carnivora, small cranial capacity
like the cave-men, canine teeth like anthropoid
apes and a simian nose. This analogy extends
to the eyes, the ears, the hair, and even to the
internal organs, the liver, the heart and the
stomach, and the diseases by which they are
affected. It has also been observed that assas-
sins are brachycephalous and thieves dolicho-
cephalous. Marro maintains that in many cases
metaphors express real facts and embody the
common conclusions of mankind based upon
centuries of observation : swindlers have a foxy
look, long-fingered persons are naturally thiev-
ish, whereas a club-fisted fellow is pretty sure to
have a pugnacious disposition, and to be a born
rough. Nevertheless social surroundings, edu-
cational influences and other outward circum-
stances are important factors, not so much in
changing the character as in giving it direction ;
the same cerebral constitution and consequent
innate predisposition may make a man a hero or
a bravo, a dashing soldier like Phil Sheridan, or
a daring robber like Fra Diavolo, according to
the place of his birth and the nature of his
environment.
In common discourse we speak of atrabiliary,
spleeny, choleric, or even stomachous persons,
but such expressions are, in most cases, survivals
Capital Punishment of Animals 217
of antiquated beliefs concerning the functions of
certain physical organs. Hypochondria has no
more originary connection with the cartilage of
the breastbone than with the cartilage of the
ear. In the literal sense of the terms a large-
brained man is not necessarily of superior intel-
lectual power any more than a large-hearted man
is naturally generous or a large-handed man
instinctively grasping. So, too, the theory that
intelligence and morality are in direct proportion
to the size and symmetry of the encephalon is
not sustained by facts; at least the exceptions to
the rule are so many and so remarkable as to
render it extremely misleading and therefore of
little practical value as a scientific principle.
Gambetta's brain, for example, weighed only
1294 grammes, being fifty-eight grammes less in
weight than that of the average Parisian, and
was so abnormally irregular in its configuration
as to seem actually deformed. Any physiolo-
gist, says Dr. Manouvrier, who should come
across such a skull in a museum, would unhesi-
tatingly pronounce it to be that of a savage. The
third frontal circumvolution of the left lobe of
his brain had in the posterior part a supple-
mentary fold said by some to be the organ of
speech and by others to be the organ of theft;
perhaps both combined in the ability of the
orator to steal away men's hearts, as Antony
says of the seductive eloquence of Brutus. The
distinguished physiologist Bichat was an ardent
2i8 The Criminal Prosecution and
advocate of this doctrine of the causal connec-
tion between cranial capacity and symmetry
and vigorous and well-balanced mental faculties,
but after his death his own cranium was found to
be conspicuously lacking in the very character-
istics which he deemed so essential to man as a
moral and intellectual being. The late German
professor Bischoflf based his argument against
the higher education of woman on the fact that
the average female brain weighs only 1272
grammes, and asserted that a person with such
a light encephalon must be organically incom-
petent to master the various branches of study
taught in our universities. A post-mortem
examination proved his own brain to be consider-
ably inferior in weight to that of the average
woman.
Careful investigations would doubtless furnish
additional examples of this comical application
of the argumentum ad hominem in refutation of
the notion that intellectual capacity is determined
by the bulk of the brain or the shape of the skull.
Ugo Foscolo, one of the most celebrated of
modern Italian poets, had a cranium, which,
according to this standard of appreciation, ought
to have belonged to an idiot. On the other
hand, the brain of the " Hottentot Venus,"
examined by Gratiolet, far surpassed in the
symmetry of both hemispheres and the perfection
of its circumvolutions the normal brains of the
Caucasian race. The same phenomenon has
Capital Punishment of Animals 219
been observed, although in a less striking
manner, occasionally in cretins and quite often
in criminals. Character is the resultant of a
multitude of combined forces, the great majority
of which are still unknown and perhaps unknow-
able quantities. The impulse given by each
must be exactly estimated in order to predeter-
mine the joint effect. No factor which con-
tributes to its formation must be overlooked, and
the acceptance of any one of them, however im-
portant it may seem to be, as the basis on which
to reform and reconstruct our penal legislation,
would be premature and pernicious. This
hobby-horsical tendency, which is the vice of
every specialist, is now the besetting sin of
criminal anthropologists, each of whom is firmly
convinced that he can reach the goal only on his
own garran.
" The more advanced criminalists," says Pro-
fessor Von Kirchenheim, "are becoming
thoroughly convinced that the penal codes of
to-day do not correspond to the criminal world
of to-day. No science has remained so deeply
rooted and grounded in scholasticism as juris-
prudence; and this evil is most clearly per-
ceptible in the province of criminal law. The
necessity of a change in our penal legislation
has already made itself widely felt. The contest
with crime must now be carried on in a differ-
ent manner from what it was when men waged
war with bows and arrows; modern criminality
220 The Criminal Prosecution and
must be fought, as it were, with repeating
rifles." In other words, we can never suppress
crime by meeting it with bludgeons and boomer-
angs and other rude implements of barbarous
warfare, but must encounter it with the finest
and most effective weapons of precision, which
the armoury of modern science can put into our
hands. Society has outgrown the crude concep-
tion of punishment as mere retaliation or retri-
bution incited by revenge. There is no doubt
that even in the most enlightened countries,
penology as a science is still in its infancy, and
is only just beginning to feel the uncomfortable
girding of its scanty swaddling-bands and
blindly kicking itself free from them. That this
first emancipatory effort should be somewhat
clumsy, and occasionally attended by comical
casualties and even serious disasters, lies in the
very nature of the case. It is evident, too, that
the antiquated and utterly irrational methods now
employed for the suppression of crime tend
directly to increase it. It is the aim of the posi-
tive, in distinction from the classical school of
criminalists to discover the real causes of criminal
actions, and thus to endeavour to eradicate or
neutralize them. A casual criminal, for example,
whom external conditions, accidental circum-
stances, sudden temptations or bad influences
have led astray, should not be treated in the
same manner, although guilty of the same overt
act, as the habitual or constitutional criminal,
Capital Punishment of Animals 221
whose wrong-doing arises from a diseased, ill-
balanced or undeveloped mental or physical
organization, and is therefore an inborn and per-
haps irresistible proclivity. The latter is hardly
responsible for his conduct, and the possibility
of reforming him is slight. The only proper
thing to do with such a culprit is to render him
personally harmless to society either by death
or perpetual incarceration, and to prevent him
from propagating his kind. The law of the sur-
vival of the fittest through selection suggests
as its necessary sequence the suppression of the
unfittest through sterilization. Nature has her
own effective and relentless method of attaining
this desirable result; but man is constantly
thwarting her beneficent purposes by all sorts of
pernicious schemes originating in factitious
sentimentalism and maudlin sympathy, which
under the plea of philanthropy tend to foster and
perpetuate moral monstrosities to the discom-
fort and detriment of civilized society and the
permanent deterioration of the race. To sen-
tence persons of this class to eight or ten years'
imprisonment and then to turn them loose again
as a constant source of peril to mankind, is the
greatest folly that any tribunal can possibly com-
mit. It is a wrong done both to the criminal
and to the community of which he is a member.
The penalties imposed by the law should be de-
termined not solely by the enormity of the crime,
but chiefly by the character of the criminal.
222 The Criminal Prosecution and
Paradoxical as such a conclusion may be, it is
nevertheless a strictly logical deduction from the
premises, that the more corrupt he is by his
physical constitution and therefore the less cul-
pable he is from a moral point of view, the more
severe should be the sentence pronounced upon
him. Where the vicious propensity is in the
blood and beyond the reach of moral or penal
purgations, the only safety is in the elimination
of the individual, just as the only remedy for a
gangrened limb is amputation. We ridicule
ancient and mediaeval courts of justice for prose-
cuting bugs and beasts, but future generations
will condemn as equally absurd and outrageous
our judicial treatment of human beings, who can
no more help perpetrating deeds of violence,
under given conditions, than locusts and cater-
pillars can help consuming crops to the injury
of the husbandman, or wild beasts can help
rending and devouring their prey. It is also
interesting to know that in former times the
animal was not punished capitally because it
was supposed to have incurred guilt, but as a
memorial of the occurrence, or in the language
of canonical law : Non 'propter culpam sed
propter memoriam facti pecus occiditur. It was
put to death not because it was culpable, but
because it was harmful ; and this is the ground
on which the radical wing of criminal anthro-
pologists would repress and eliminate a vicious
person without regard to his mental soundness
Capital Punishment of Animals 223
or moral responsibility; to use Garofalo's meta-
phor he is a microbe injurious to the social
organism and must be destroyed.
Lombroso carries his theory of the innateness,
hereditability and ineradicableness of criminal
propensities so far as to affirm that " education
cannot change those who are born with perverse
instincts," and to despair of correcting an ob-
stinate bias of this sort even in a child. In
accordance with this idea his disciple, Le Bon,
proposes to " deport to distant countries all pro-
fessional criminals or persistent relapsers into
vice (recidwistes) together with their posterity,"
and would thus practically revive the barbarous
principle of visiting the sins of the fathers upon
the children, although he does not regard their
conduct as sinful in the sense of being a volun-
tary transgression of the moral law, but as the
result of a transmitted taint and organic defici-
ency, for which the individual is in no wise
responsible. It is hardly necessary to add that
this doctrine is not sustained by the statistics of
reformatories, houses of refuge and similar in-
stitutions, which have now taken the place of the
prison and the scaffold in the case of juvenile
offenders.
Those who look upon crime as a pathological
phenomenon find a striking illustration and
strong confirmation of their views in violations
of the law committed under the impulse of
hypnotic suggestion. Some maintain that all
224 'The Criminal Prosecution and
acts originating in this manner are purely auto-
matic, and acquit the person performing them of
all moral and legal responsibility, since they
express the will and purpose of the hypnotizer,
who alone should be held accountable. Others
hold that the man, who consents to be hypno-
tized and thus voluntarily surrenders his will-
power and permits himself to be used as an
instrument for the perpetration of crime, should
be punished for his offences and not allowed to
go scot-free by pleading the force majeure of
hypnotic suggestion. The liability to punish-
ment, it is justly argued, would be a safeguard
to society by putting a wholesome and effective
check on hypnotic experimentations. There is
at least no reason why the hypnotized subject
should not be called to account for accomplicity.
Any passion may become automatic and irre-
sistible by long indulgence and assiduous culti-
vation, so that the man is overmastered by it
and cannot help yielding to it under strong tempt-
ation ; but the victim of a vicious habit has no
right to urge the force of an evil propensity in
exculpation of himself. The inborn or inveterate
badness of a man's character may explain, but
cannot excuse his bad conduct in the impartial
and inexorable eye of justice. So, too, he who
sins against his own worthiness and dignity as
a rational being by choosing to annul his power
of self-determination as a voluntary agent and
become a helpless tool in the hands of another,
Capital Punishment of Animals 225
ought not wholly to escape the consequences of
his folly. That the hypnotizer should be made
fully responsible for the realization of his sug-
gestions, no representative of either the positive
or classical school of criminalists would probably
deny. To take a man's life by means of hypnotic
suggestion is as truly subornation to murder as
to hire an assassin to plunge a dagger into his
heart.
As regards hypnotism itself, it would be
strange enough if we should discover in it the
real scientific basis of witchcraft, and modern
legislation should prosecute and punish hypno-
tizers as mediaeval legislation prosecuted and
punished sorcerers. The sympathetic influence
of a morbidly imaginative mind upon the body
in directing the currents of nervous energy and
increasing the flow of blood towards particular
points of the physical organism, so as to produce
stigmata and similar abnormal phenomena, has
long been recognized as an adequate explanation
of much mediaeval and modern miracle-monger-
ing. It would now seem as if hypnotism, or
the magnetic influence of one man's will upon
another man's mind and body were destined
to furnish the key to still greater marvels and
reveal the true nature and origin of what has
hitherto passed for divine inspiration or diabolical
possession. Charcot, Renaut, Fowler and other
eminent neuropathologists have conclusively
shown that certain forms of hysteria sometimes
15
226 The Criminal Prosecution and
produce tumors, ulcers, muscular atrophy, para-
lysis of the limbs and like affections apparently
organic, but really nervous. In such cases any
kind of faith-cure, in which the patient has con-
fidence, prayer, the laying on of hands, the water
of Lourdes or of St. Ignatius, medals of St.
Benedict, scapularies of the Virgin, seraphic
girdles, a pilgrimage to the shrine of a saint or
contact with a holy relic may prove far more
efficacious than drugs and are therefore recom-
mended by priests and occasionally even pre-
scribed by physicians, who are far too en-
lightened to regard such healings as miraculous
or supernatural. The success of scientific re-
search in disclosing the physical basis of intel-
lectual life is gradually undermining the founda-
tions of so-called spiritualism, and rendering it
more and more impossible to mistake symptoms
of chlorosis and hysterical weakness for spiritual
gifts and signs of God's special favour. Sickly
women are no longer treated as seeresses and
their vague and incoherent sayings treasured as
oracular utterances.
One of the chief difficulties encountered by
those who seek to frame and administer penal
laws on psycho-pathological principles arises
from the fact that no one has ever yet been able
to give an exact and adequate definition of in-
sanity. However easy it may be to recognize
the grosser varieties of mental disorder, it is
often impossible even for an expert to detect it
Capital Punishment ot Animals 227
in its subtler forms, or to draw a hard and fast
line between sanity and insanity. An eminent
alienist affirms that very few persons we meet
in the counting-room, on the street or in society,
or with whom we enjoy pleasant intercourse at
their firesides, are of perfectly sound mind.
Nearly every one is a little touched ; some mole-
cule of the Brain has turned into a maggot ; there
is some topic that cannot be introduced without
making the portals of the mind grate on their
golden hinges, — some point at which we are
forced to say, —
" O, that way madness lies ; let me shun that."
It is possible, however, that this very opinion
may be a fixed idea or symptomatic eccentricity
of the alienist himself. The theory that all men
are monomaniacs may be merely his peculiar
monomania. Still there is unquestionably this
much truth in it, that nearly every person has
developed some faculty at the expense of the
others and thus destroyed his mental equilibrium.
Every tendency of this kind, which is not checked
or balanced and in some way rounded off in the
growth of the character, becomes morbidly strong
and leads to a sort of insanity. The specialist
is always exposed to this danger of growing into
a man of one idea; his monomania may be in
the direction of valuable research or in the pur-
suit of a foolish whim, resulting in useful in-
ventions or dissipating itself in chimerical pro-
228 The Criminal Prosecution and
jects ; it may be a harmless crotchet or a vicious
proclivity, philanthropic or misanthropic; it is,
nevertheless, a bent or bias and so far a deviation
from the norm of perfect intellectual rectitude.
A madman, says Coleridge, is one who " mis-
takes his thoughts for person and things."
But here the frenzies of the lunatic intrench on
the functions of the poet, who " of imagination
all compact," takes his fancies for realities,
" Turns them to shapes, and gives to airy nothing
A local habitation and a name."
Coleridge's definition includes also the mytho-
poeic faculty, the power of projecting creations
of the mind and endowing them with objective
actuality and independent existence, which in
the infancy of the race peopled heaven and earth
with phantasms, and still croons over cradles
and babbles of brownie and fairy in nurseries
and chimney-corners. No progress of science
can wholly eradicate this tendency to mytholo-
gize. In the absence of better material, it seizes
upon the most prosaic and practical improve-
ments in modern household life and clothes
them with poetry and legend. The imaginative
child of New York or Boston, after feeding the
mind on fairy tales, converts the ordinary gas-
pipe into the den of a dragon, which puts forth
its fiery tongue when the knob is turned. The
sleeping figure of a virgin carved in marble and
copied from an ancient Greek sculpture of
Ariadne, which reposes on an arch in the park
Capital Punishment of Animals 229
of Sans-souci at Potsdam, has been transformed
by the popular imagination into an enchanted
princess, who will awake as soon as a horseman
succeeds in springing over it three times with his
steed. So vivid is the belief in this story that
many good Christians never pass through the
archway without making the sign of the cross
as a prophylactic against possible demonic in-
fluences. The Suabian peasant still believes
that the railroad is a device of the devil, who is
entitled by contract to a tollage of one passenger
on every train ; he is in a constant state of anxiety
lest his turn may come on the next trip and
always wears a crucifix as the best means, so
far as his own person is concerned, of cheating
the devil of his due. As the Church has uni-
formly consigned great inventors to the infernal
regions, his Satanic Majesty could have never
had any lack of ingenious wits among his sub-
jects capable of advising him in such matters.
An important consideration, which did not
disturb the minds of mediseval jurists, nor stay
the hand of strictly retributive justice, is the
fact, now generally admitted, that crimes, like
all other human actions, are subject to certain
fixed laws, which seem to some extent to remove
them from the province of free will and the
power of individual determination. Professor
Morselli has shown statistically that suicide,
which we are wont to consider a wholly volun-
tary act, is really dependent upon a great variety
230 The Criminal Prosecution and
of circumstances, over which man has no control :
climate, seasons, months, days, state of crops,
domestic, social, political, financial, economical,
geographical and meteorological conditions, sun,
moon, and stars all work together, impelling
him to self-destruction or keeping him from it.
Suicide increases when the earth is in aphelion,
and decreases when it is in perihelion. Race
and religion are also important factors in ag-
gravating or mitigating the suicidal tendency,
Germans and Protestants being most, and
Semitic nations and Mohammedans, including
those of Aryan and African blood, being least
addicted to it. Suicide is, in fact, the resultant
of a vast number of complicated and far-reaching
forces, which we can neither trace nor measure,
and of which the victims themselves are for the
most part unconscious. To a very considerable
degree, it is a question of environment in the
broadest sense of the term; "an effect," says
Morselli, "of the struggle for existence and of
human selection, working according to the laws
of evolution among civilized peoples." What
is proved to be true of self-slaughter is equally
so of murder and every other crime.
An additional reflection, that " must give us
pause" in the presence of crime, is that some
of the chief causes operating to produce the
manifold evils afflicting society and threatening
to subvert it, are due in a great measure to the
present egoistic organization of our social and
Capital Punishment of Animals 231
industrial system, the selfish and unscrupulous
power of wealth directed and stimulated by
superior intelligence and energy, on the one
hand, and the brute forces of ignorance driven
to despair by the disheartening and debasing
pressure of poverty, on the other hand, arrayed
against each other in fierce and bitter conflict.
Much of the individual viciousness, which
society is required to punish, springs directly
from the unjust and injurious conditions of life,
which society itself has created. It is the per-
ception of this fact that disturbs the conscience,
puzzles the will, and palsies the arm of the
modern law-giver and executor of justice.
Mediaeval legislators were not restrained by
any scruples of this sort; they regarded the
criminal, both human and animal, as the sole
author of the crime, ascribing it simply to his
own wickedness and never looking beyond the
mere actual deed to the social influences, psychi-
cal and physical characteristics and inherited
qualities, that impelled him with irresistible force
to do iniquitous things. This was doubtless a
very narrow, superficial and utterly unphiloso-
phical view of human action and responsibility ;
the danger now-a-days lies in the opposite ex-
treme, in the tendency to pity the vicious indi-
vidual as the passive product and commiserable
victim of unfortunate conditions, and while en-
gaged in the laudable attempt to improve these
conditions by working out broad and benevolent
232 The Criminal Prosecution and
plans of permanent relief and reformation for
the future amelioration of society, to relax penal-
ties and to fail in providing by sufficiently
stringent measures for its present security.
Tribunals have only to do with individual
criminals as their conduct affects the general
welfare. In what manner their characters have
been formed by ancestral agencies and other
predispositions may be an interesting study to
the psychologist and the sociologist, but does
not concern the judge or the jurist in the dis-
charge of their official functions. The problem
of crime is therefore a very simple one, so far
as the criminal lawyer has to deal with the con-
crete case, but very complex, when we look
beyond the overt act to its genesis in the life of
the race. The proper administration of penal
justice is weakened and defeated by mixing itself
up with psycho-pathological inquiries wholly
foreign to it.
It is a curious coincidence that the theory of
evolution, in its application to man's free agency,
should arrive at essentially the same conclusion
as the theology of Augustine and Calvin. Pre-
destination, which the suffragan of Hippo and
the Genevan divine attributed to the arbitrary
decrees of God, evolution traces to the influences
of heredity upon individuals, predetermining
their bodily and mental constitutions. There is,
however, a wide difference between these two
doctrines in their workings. From the clutch
Capital Punishment of Animals 233
of a deity " willing to show his wrath and to
make his power known," no man can by any
efifort of his own effect his escape. Against this
imperious and general sentence of damnation no
process of development, no upward striving, no
individual initiative can be of any avail. Evolu-
tion, on the contrary, promises a gradual release
from low ancestral conditions — the original sin
of the theologians — and opens up to the race a
way of redemption, not only through natural
selection and spontaneous variations resulting in
higher and nobler types of mankind, but also
through the modification of inherited traits by
careful breeding, thorough discipline and the
conscious and constant endeavour of every human
being to improve and perfect himself. Salva-
tion through the " election of grace " is by no
means identical with salvation through the " sur-
vival of the fittest." The righteousness of those
whom God has chosen as " the vessels of mercy
whom he had afore prepared unto glory," may
be and probably is "as filthy rags " ; evolution-
ary science, on the contrary, recognizes and
appreciates redeemable qualities by select-
ing, strengthening and propagating them and
by this means aims ultimately to redeem the
world. It imposes upon each man the duty and
necessity of working out his own salvation, not
with fear and trembling at the prospect of meet-
ing an angry deity, but with hope and cheerful-
ness, knowing that the beneficent forces of nature
2 34 The Criminal Prosecution and
are working in him, as in all forms of organic
life, in obedience to the laws of development,
towards the goal of his highest possible perfec-
tion by gradually eliminating the heirloom of
the beast and the savage, and letting the instincts
of the tiger and the ape slowly die within him.
" The best man," said Socrates, "is he who
seeks most earnestly to perfect himself, and the
happiest man is he who has the fullest conscious-
ness that he is perfecting himself." This utter-
ance of the Athenian sage expresses the funda-
mental principle of the ethics of evolution,
according to which there can be no greater sin
than the neglect of self-culture, holding, as it
does, in the province of science a place corre-
sponding in importance to that which the un-
pardonable sin against the Holy Ghost holds in
the province of theology. No one is blamable
for inheriting bad tendencies; but every one is
blamable for not striving to eradicate them. If
evil impulses prove to be irresistible, then society
must step in and render them harmless by de-
priving of life or liberty the unfortunate victims
of such propensities.
Again, if the mental and moral qualities of
the lower animals differ from those of man, not
in kind, but only in degree, and the human
mammal is descended from a stock of primates,
to which apes and bats belong, and dogs and
cats and pigs are more remotely akin, it is dif-
ficult to determine the point at which moral and
Capital Punishment of Animals 235
penal responsibility ceases in the descending,
or begins in the ascending scale of being. That
beasts and birds and even insects commit acts
of violence, which in human agents would be
called crimes, and which spring from the same
psychical causes and, as we have shown in
another work (Evolutionary Ethics and Animal
Psychology. New York : D. Appleton and
Co.; London: William Heinemann, 1898), are
punished by the herd, the flock or the swarm
in a more or less judicial manner, is undeniable.
The zoopsychologist Lacassagne divides the
criminal offences of animals into six classes or
categories, the ground of the classification being
the motives which underlie and originate them.
The lowest or most rudimentary motive to crime
in both man and beast is hunger, the operation
of which is seen in the spectacle of one savage
killing another in order to get sole possession
of a wild beast slain by them in common, and
in the ferocity of two dogs fighting over a bone.
Perhaps the great majority of crimes afflicting
society at the present time have their origin in
this source. Next to the desire of the individual
to preserve himself comes the desire to preserve
his kind; this motive is commonly considered
a more generous impulse and is praised as par-
ental affection. This earliest and most primitive
of altruistic emotions is exceedingly strong in
the lower animals, especially in those whose off-
spring are comparatively helpless in infancy, as
236 The Criminal Prosecution and
is the case with all species of monkeys, and
manifests itself not only in tender care of the
young, but also in theft, robbery, and other acts
of violence committed for their sake. The wanton
love of destruction characterizes both beasts and
men ; there are roughs and vandals among the
former as well as among the latter, who take
a malicious delight in doing injury to persons
and property. Vanity and the desire of '* show-
ing off " play no small part in the wrongdoings
of apes and apish men and women. Other in-
centives to crime are ambition, sexual passion,
gregariousness, the concentrated egoism and
merciless brutality of a crowd even in the most
civilized communities, the outrages so recklessly
perpetrated by what a French jurist, M. Tarde,
calls " that impulsive and maniac beast, the
mob." It may be remarked, too, that the kinds
of criminal actions, which civilization tends to
diminish among men, domestication tends to
diminish among the lower animals.
If these statements be correct, why should not
animals be held penally responsible for their
conduct as well as human beings? There are
men apparently less intelligent than apes. Why
then should the man be capitally punished and
the ape not brought to trial ? And if the ape
be made responsible and punishable, why not the
dog, the horse, the pig, and the cat ? In other
words, does evolutionary criminology justify the
judicial proceedings instituted by mediaeval courts
Capital Punishment of Animals 237
against animals or regard the typical human
criminal as having in this respect no supremacy
over the beast ? Does modern science take us
back to the barbarities of the Middle Ages in
matters of penal legislation, and in abolishing
judicial procedure against quadrupedal beasts is
it thereby logically forced to stay the hand of
justice uplifted against bipedal brutes? The
answer to these questions is unhesitatingly
negative. Zoopsychology is the key to an-
thropopsychology and enables us to get a clearer
conception of the genesis of human crime by
studying its manifestations in the lower creation ;
we thus see it in the process of becoming, acquire
a more correct appreciation of its nature and
origin and learn how to deal with it more ration-
ally and effectively in bestial man.
Another point discussed by Plato and still
seriously debated by writers on criminal juris-
prudence is whether punishment is to be inflicted
quia peccatum est or ne peccetur; in other
words, whether the object of it should be retri-
butive or preventive. The truth is, however,
that both of these motives are operative and as
determining causes are so closely intermixed
that it is impossible to separate them. As the
distinguished criminalist, Professor Von Liszt,
has remarked one might as well ask whether a
sick man takes medicine because he is ill or in
order to get well. The penalty is imposed in
consequence of the commission of a crime and
238 The Criminal Prosecution and
also for the purpose of preventing a recurrence
of it, and is therefore both retributory and re-
formatory. Punishment is defined by Laas as
" ethicized and nationalized revenge, exercised
by the state or body politic, which is alone im-
partial enough to pronounce just judgments and
powerful enough to execute them." Civiliza-
tion takes vengeance out of the hands of the
injured individual and delegates it to the com-
munity or commonwealth, which has been out-
raged in his person. The underlying principle,
however, is, in both cases, the same, and the idea
of justice, as administered by the community,
does not rise above that entertained by the aggre-
gate or average of individuals composing it.
The recent growth of sociology and especially
the scientific study of the laws of heredity thus
tend, by exciting an intelligent interest in the
psychological solution of such questions, to
render men less positive and peremptory in their
judicial decisions. The intellectual horizon is
so greatly enlarged and so many possibilities
are suggested, that it is difficult for conscien-
tious persons, strongly affected by these specula-
tions and honestly endeavouring to make an
ethical or penal application of them, to come to
a prompt and practical conclusion in any given
case. The voice of decision loses its magis-
terial sternness and
" the native hue of resolution
Is sicklied o'er with the pale cast of thought."
Capital Punishment of Animals 239
If it be true, as Mr. Galton affirms, that legal
ability is transmitted from father to son, criminal
proclivity may be equally hereditary, and the
judge and the culprit may have reached their
relative positions through a line of ancestral
influences, working according to immutable and
inevasible laws of descent.
Schopenhauer maintained the theory of
" responsibility for character," and not for
actions, which are simply the outgrowth and
expression of character. The same act may be
good or bad according to the motives from which
it springs. This distinction is constantly made
both in ethics and in jurisprudence, and deter-
mines our moral judgments and judicial deci-
sions. Yet the chief elements, which enter into
a person's character and contribute to its forma-
tion, lie beyond his control or even his conscious-
ness, and in many cases have done their work
before his birth. Responsibility for character
is equivalent to responsibility for all the in-
herited tendencies and prenatal influences, of
which character is the resultant, and leads at last
to the theological dogma of the imputation of
sin all the way back to Adam as the federal head
of the race, a doctrine which Schopenhauer
would be the first to repudiate. Besides, evil
propensities and criminal designs are recogniz-
able and punishable only when embodied in
overt acts. The law cannot deprive a man of
life or liberty because he is known to be vicious
240 The Criminal Prosecution and
and depraved, although the police in the exer-
cise of its protective and preventive functions
and as a means of providing for the general
security, may feel in duty bound to keep a watch-
ful eye on him and to make an occasional raid
on the dens and " dives " haunted by him and
his kind. There are also instances on record,
in which it is impossible to trace the culpable act
to any marked corruption of character.
A rather remarkable illustration of this fact is
furnished by the trial of Marie Jeanneret, which
took place at Geneva in Switzerland in 1868 and
which deservedly ranks high among the causes
celebres of the present century, both as a legal
question and a problem of psycho-pathology.
[At the time when this trial occurred, the writer
directed attention to the peculiar and perplex-
ing features of the case in The Nation for
January 7, i86g, p. 11.] Dumas in his novel
Le Comte de Monte Christo, describes the char-
acter and career of a young, refined and beauti-
ful woman, moving in the best circles of Parisian
society, and yet poisoning successively six or
seven members of her own family ; but even the
most imaginative and audacious of French
romancers did not dare to delineate such crimin-
ality without ascribing it to some apparently
adequate motive. Madame de Villefort ad-
ministered deadly potions to her relatives under
the impulse of a morbidly intense maternal love,
which centred all her moral and intellectual
Capital Punishment of Animals 241
faculties on the idea of making her son the sole
heir to a large estate. Affection and social
ambition for her offspring incited her to the
murder of her kin. But the invention, which
created such a monster of sentimental depravity,
has been far surpassed in real life by the exploits
of Marie Jeanneret, a Swiss nurse, who took
advantage of her professional position to give
doses of poison to the sick persons confided to
her care, from the effects of which seven of them
died.
In the commission of this monotonous series
of diabolical crimes, the culprit does not seem to
have been animated either by animosity or
cupidity. On the contrary, she always showed
the warmest affection for her victims, and nursed
them with the tenderest care and the most
untiring devotion, as she w^atched the distressful
workings of the fatal draught ; nor did she derive
the slightest material benefit from her course of
conduct, but rather suffered considerable
pecuniary loss by the death of her patients. The
testimony of physicians and alienists furnished
no evidence of insanity, nor did she show any
signs of atavistic reversion, physiological
abnormity or hereditary homicidal bent. Mono-
maniacs usually act fitfully and impulsively;
but Marie Jeanneret always manifested the
coolest premeditation and self-possession, never
exhibiting the least hesitation or confusion, or
the faintest trace of hallucination, but answered
16
242 The Criminal Prosecution and
with the greatest clearness and calmness every
question put by the president of the court. Even
M. Turrettini, the prosecuting attorney, in
presenting the case to the jury, was unable to
discover any rational principle on which to
explain the conduct and urge the conviction of
the accused; and after exhausting the common
category of hypotheses and showing the inade-
quacy of each, he was driven by sheer stress of
inexplicability to seek a motive in " I'espece de
volupte qu'elle eproiiverait a commettre tin
crime," or what, in less elegant, but more
vigorous Western vernacular, would be called
" pure cussedness." Not only was such an
explanation merely a circumlocutory confession
of ignorance, but it was wholly inconsistent with
the general character of the indictee.
Indeed, the persistent and pitiless perpetration
of this one sort of crime by this woman, under
circumstances which should have excited com-
passion in the hardest human heart, seems more
like the working of some baneful and irrepres-
sible force in nature, or the relentless operation
of a destructive machine, than like the voluntary
action of a free and responsible moral agent.
M. Zurlinden, the counsel for the defendant,
dwelt with emphasis upon this mysterious phase
of the case and thus saved his client from the
scaffold. The jury, after five hours' delibera-
tion, rendered a verdict of " Guilty, with ex-
tenuating circumstances," as the result of which
Capital Punishment of Animals 243
the accused was sentenced to twenty years' hard
labour. As a matter of fact, there were no cir-
cumstances of an extenuating character except
the utter inability of the jurors to discover any
motive for the commission of such a succession
of cold-blooded atrocities.
After fifteen years' imprisonment the convict
died. During this whole period of incarceration
she not only showed great intelligence and strict
integrity, but was also remarkably kind and
helpful to all with whom she came in contact.
She instructed her fellow-convicts in needle-work
and fine embroidery, loved to attend them in
sickness, and by her general influence raised
very perceptibly the tone of morals in the work-
house. If it be true, as asserted by Mynheer
Heymanns, one of the latest expounders of
Schopenhauer's ethics, that " a man is respons-
ible for his actions only so far as his character
finds expression in them, and is to be judged solely
by his character," what shall be done in cases
like the afore-mentioned, in which the criminal
conduct is exceptional, and so far from being
symptomatic of the general character stands out
as an isolated and ugly excrescence and appall-
ing abnormity ? According to this theory crime
is to be punished only when it is the natural
outgrowth and legitimate fruit of the criminal's
individuality and society is to be left unpro-
tected against all maleficence not traceable to
such an origin.
244 The Criminal Prosecution and
There can be hardly any doubt that the Swiss
nurse was a toxicomaniac, and that she had
become infatuated with poisons, partly by watch-
ing their effects on her own system, and partly
by reading about their properties in medical and
botanical works, to the study of which she was
passionately devoted. Did not Mithridates, if
we may believe the statements of Galen, experi-
ment with poisons on living persons? Why
should she not follow such an illustrious ex-
ample, especially as she never hesitated to take
herself the potions she administered to others ;
the only difference being that habit had made
her, like the famous King of Pontus, proof
against their venom. She often attempted
analyses of these substances, and in one instance
was severely burned by the bursting of a crucible,
in which she was endeavouring to obtain atro-
pine from atropa belladonna or deadly night-
shade. It was this terrible poison, which is
endowed with exceedingly energetic qualities and
is therefore used by physicians with extreme
precaution, that seems to have had an irresistible
fascination for her, growing into an insane desire
to discover and test its occult virtues. She had
read and heard of zealous scientists and illus-
trious physicians, who had experimented on
themselves and on their disciples, and become
the benefactors of mankind; why then should
she not adopt the same method in the pursuit of
truth and use for this pur|X)se the physiological
Capital Punishment of Animals 245
material which her profession placed in her
hands ?
However preposterous such reasoning on her
part may appear to us and however vaguely and
subconsciously the mental process may have
been carried on, it offers the only theory
adequate to explain all the facts and to account
for the almost incredible union of contradictory
traits in her character. The enthusiasm of the
experimenter overbore in her the native sym-
pathy of the woman. She observed the writh-
ings of her poisoned victims with as " much
delight " as Professor Mantegazza confesses he
felt in studying the physiology of pain in the
dumb animals " shrieking and groaning " on
his tormentatore. " The physiologist," says
Claude Bernard, "is no ordinary man. He is
a savant, seized and possessed by a scientific
idea*' He does not hear the cries of suffering
wrung from racked and lacerated creatures, nor
see the blood which flows. He has nothing
before his eyes but his idea and the organisms,
which are hiding the secrets he means to dis-
cover." Marie Jeanneret was a fanatic of this
kind. She, too, was a woman possessed with
ideas as witches were once supposed to be pos-
sessed with devils. Had she prudently confined
her experiments to the torture of helpless ani-
mals, she might perhaps have taken rank in the
scientific world with Brachet, Magendie and
other celebrated vivisectors, and been admitted
246 The Criminal Prosecution and
with honour to the Academy, instead of being
thrust ignominiously into a penitentiary.
The assertion as regards any supposed case of
madness, that " there's method in it," is
popularly assumed to be equivalent to a denial of
the existence of the madness altogether. But
psycho-pathology affords no warrant for such an
assumption. An individual, who commits
murder under the impulse of morbid jealousy,
pecuniary distress, social rancour, political or
scientific fanaticism, or any other form of mono-
mania, is not the less the victim of a mind
diseased because he shows rational forethought
in planning and executing the deed. His mental
faculties may be perfectly healthy and normal in
their operation up to the point of derangement,
from which the fatal act proceeds. No chain is
stronger than its weakest link ; and this is equally
true of physical and psychical concatenations.
Under such circumstances the sane powers of
the mind are all at the mercy of the one fault
and are made to minister to this single infirmity.
According to English law a man is irre-
sponsibly insane, when he has " such defect of
reason from disease of the mind as not to know
the nature and quality of the act he was doing,
or, if he did know it, that he did not know he was
doing what was wrong." This definition is very
incomplete and covers only the most obvious
forms of insanity; perhaps in the great majority
of cases there is no "defect of reason" nor
Capital Punishment of Animals 247
" disease of mind " in the proper sense of these
terms, but only a disturbance of the emotions or
perversion of the will originating in physical
disorder. Besides, it is undeniable that animal
intelligence is capable of distinguishing between
right and wrong and of comprehending what
is punishable and what is not punishable. In
general when a dog does wrong, he knows that
he is doing wrong; and a monkey often takes
delight in doing what is wrong simply because
he knows it is wrong. If a monkey gets angry
and kills a child, he obeys the same vicious pro-
pensity that impels a brutal man to commit
murder. There is no greater " defect of reason "
in one case than in the other. Why then should
the monkey be summarily shot or knocked on the
head, and the man arrested, tried, convicted and
hanged by the constituted authorities? Simply
because such a public prosecution and execution
would not exert any influence whatever in pre-
venting infanticide on the part of other monkeys ;
if it could be shown that a formal trial of the
monkey would produce this salutary effect, then
it certainly ought not to be omitted. The recent
attempt to modify the English law so as to render
all " certifiably insane " persons irresponsible for
their actions, would result in the abolition of all
punishment for crime, since many physicians
regard every criminal as insane and would not
hesitate to certify their opinion to the proper
tribunal.
248 The Criminal Prosecution and
It is no easy task now-a-days for penal legisla-
tion to keep pace with psychiatral investigation
and to adjust itself to the wide range and nice
distinctions of modern psycho-pathology ; nor is
it necessary to do so. Solus socialis suprema lex
esto. Society is bound to protect itself against
every criminal assault, no matter what its source
or character may be. This is the ultimate object
not only of the prison and the scaffold, but also
of all reformatories for juvenile offenders and
vagabonds, who by judicious correction and
instruction may perhaps be brought to amend
their ways and thus be prevented from becoming
a social danger by swelling the disorderly ranks
of the permanently criminal classes. If a person
proves to be unamenable to moral or penitential
measures and remains an incorrigible trans-
gressor, it is the duty of the community to set
him aside by death or by life-long durance.
Penal legislation does not aim primarily at the
betterment of the individual ; laws are enacted
not for the purpose of making men good and
noble, but solely for the purpose of rendering
them safe members of society. This is effected
by depriving the irremediably vicious of their
liberty and, if necessary, also of their life.
The pardoning power, too, must be exercised
with the utmost reserve and circumspection. The
state does not look upon public offences as sins
but as crimes. The introduction of the theo-
logical conception of delinquencies into the pro-
Capital Punishment of Animals 249
vince of civil government has always been the
vice of hierarchies and has never failed to work
immense mischief by leading inevitably to im-
pertinent intermeddling with matters of con-
science and private opinion, putting a premium
on pretended repentance and like hypocrisies,
and converting the witness-box into a confes-
sional and the court of justice into a court of
inquisition. This has been uniformly the result
wherever a body of priests has become a body
of rulers, endowed with sovereignty in the
administration of secular affairs.
If it could be conclusively proved or even
rendered highly probable, that the capital
punishment of an ox, which had gored a man
to death, deterred other oxen from pushing with
their horns, it would be the unquestionable
right and imperative duty of our legislatures
and tribunals to re-enact and execute the old
Mosaic law on this subject. In like manner,
if it can be satisfactorily shown that the hang-
ing of an admittedly insane person, who has
committed murder, prevents other insane per-
sons from perpetrating the same crime, or tends
to diminish the number of those who go insane
in the same direction, it is clearly the duty of
society to hang such persons, whatever may be
the opinion of the alienist concerning their
moral responsibility. Nor is this merely a
hypothetical case or purely academical ques-
tion. It is a well-established fact, that the
250 The Criminal Prosecution and
partially insane, especially those affected with
" moral insanity " or so-called " cranks," have
their intelligence intact, and are capable of
exercising their reasoning powers freely and
fully in laying their plans and in carrying out
their designs. Indeed, criminals of this class
are sometimes known to have entertained the
thought that they would be acquitted on the
ground of insanity, and have thereby been em-
boldened to do the deed ; and it is by no means
impossible, but highly probable, that a belief
in the certainty of punishment would have acted
as an effective deterrent. A case of this kind
occurred in 1894 in England, where an inmate
of a lunatic asylum deliberately murdered a
lawyer, who was visiting the institution. The
murderer declared that he had no grudge against
his victim, but believed himself to be perse-
cuted in general and wished to call attention to
his wrongs by assassinating some official or
prominent person. His method of redress was
that of the ordinary anarchist ; and his confes-
sion that he would not have dared to commit
the act unless he had believed that as a certifi-
cated lunatic under confinement he ran no risk
of being hanged, illustrates the point in ques-
tion. There can be no doubt, for example,
that the execution of Guiteau for the assassina-
tion of Garfield has greatly lessened the dangers
of this kind to which the President of the
United States is exposed ; just as the swift and
Capital Punishment of Animals 251
severe punishment of the Chicago anarchists has
dampened the zeal and restrained the activity
of the fanatics, who labour under the delusion
that, in a free country, dynamite bombs are the
fittest means of disseminating reformatory
ideas and bringing about the social and political
regeneration of the world.
From this point of view it is hardly neces-
sary to remark upon the absurdity of Lom-
broso's assertion that the jurists, who formerly
condemned and punished animals, were more
logical and consistent than those who now pass
sentence of death on cretins like Grandi or
cranks (grafomani matteschi) like Passannante
and Guiteau (Archivio di Psichiatria. Torino,
1881, Vol. II. Fasc. IV.), since he utterly
ignores the preventive character and purpose of
judicial punishment and its practical utility in
checking the homicidal propensities of such
persons, whereas the criminal prosecution and
capital punishment of a pig for infanticide will
not have the slightest effect in preventing
other pigs from mangling and devouring little
children.
That animals might be deterred from doing
violence to men by putting one of their kind to
death and suspending its body as a scarecrow is
maintained by a distinguished writer in the first
half of the sixteenth century, Hierolymus
Rosarius, the nuntius of Pope Clement VII. to
the court of Ferdinand I., then King of Hun-
252 The Criminal Prosecution and
gary, who states that in Africa crucified lions are
placed near towns, and that other lions, however
hungry they may be, are kept away through fear
of the same punishment : cujus pcencB metu,
licet urgent fames, desinunt. He records also
that in riding from Cologne towards Diiren, he
and his companions saw in the vast forest two
wolves in brogans hanging on a gallows, just
like two thieves, as a warning to the rest of the
pack: " Et nos ab Agrippina Colonia Duram
versus equitantes in ilia vasta silva, vidimus
duos caligatos lupos non secus quam duos
latrones, furcae suspenses; quo similis poencc
formidine a maleficio reliqui deterreantur.'^ In
like manner the American farmer sets up a dead
hawk as a deterrent for the protection of his
hens. We may add that Rosarius entertained
a high opinion of the intelligence and moral
character of animals and wrote a book to prove
their frequent superiority to men in the use of
their rational faculties. This very clever and
original work entitled : Quod animalia hruta
scBpe ratione utantur melius homine, was first
published by Gabriel Naude at Paris in 1648;
an enlarged edition was issued by Ribow at
Helmstedt in 1728, with a dissertation on the
soul in animals.
In the class of ill-poised minds, yclept cranks,
just mentioned, the spirit of imitation is peculi-
arly strong and morbidly contagious. The
celebrated psychiater, Baron Von Feuchters-
Capital Punishment of Animals 253
leben, in his treatise On the Diatetics of the
Soul, cites the case of a French soldier, who
shot himself in a sentry-box; soon afterwards,
several other soldiers took their lives in the
same manner and in the same place. Napoleon
I. ordered the sentry-box to be burned and thus
put an end to the suicides. A similar instance
is recorded by Max Simon in his Hygiene de
r esprit, in which he states that a workman
hanged himself in the embrasure of a gate, and
his example was followed directly by a dozen
of his fellows, so that it was found necessary
to wall up the gate in order to stop this strange
epidemic. The same effect is produced by
popular romances, in which the hero or heroine
or both together dispose of themselves in this
way ; sometimes whole communities are thus
infected by a single work of fiction ; perhaps
the most notable case of this kind in modern
literature is the era of sentimentalism and
suicidism which followed the publication of
Goethe's Werther. It is well known, too, that
another class of sensational novels, the plots
of which consist in the development of criminal
intrigues, tend to promote crime by rendering it
fascinating and indicating an attractive and ex-
citing method of perpetrating it. We have a
recent and very striking instance of this kind
in the origin and evolution of the notorious
Dreyfus affair. In June 1893, a year and a half
before the arrest of Dreyfus, a novel entitled
254 The Criminal Prosecution and
Les Deux Freres, by Louis Letang, appeared
in the Paris Petit Journal, tlie plot of which
may be concisely described as follows. A
young and capable officer, Captain Philippe
Dormelles, who holds a position of confidence
in the French department of war, is envied and
hated by two colleagues named Aurelien and
Daniel. Their enmity and jealousy finally be-
come so intense that they conspire to effect his
ruin by accusing him of selling to a foreign
power the secrets of the national defence. It is
arranged that a compromising letter imitating
the handwriting of Dormelles and addressed to
a foreign military attache shall be placed in the
secret archives, where it will fall into the hands
of the head of the department Lieutenant-
Colonel Alleward. Dormelles is arrested and
thrown into the prison Cherche-Midi, and at the
same time Daniel causes a violent article to be
inserted in a newspaper Le Vigilant, charg-
ing him with high treason, and seeking to excite
public opinion against him. This article con-
cludes with the false statement that a search in
Dormelles' department had led to the discovery
of important documents referring to the fabrica-
tion of smokeless powder, and that thereupon
Dormelles had confessed his guilt. He is then
sentenced to the galleys, but his betrothed is
convinced of his innocence and finally succeeds
in detecting and exposing the forgeries. Lieu-
tenant-Colonel Alleward is arrested and com-
Capital Punishment of Animals 255
mits suicide in prison, not with a razor like
Henry, but with a revolver. One scene in the
novel describes the appearance of a veiled lady
on the very spot near the Champs Elysees,
where the mysterious veiled lady is said to have
appeared to Esterhazy three years later and for
much the same purpose. The French minister of
war, Mercier, was forced to proceed against
Dreyfus by the Libre Patrole, which published
lies about his confession, as Le Vigilant did
about Dormelles. The only rational explana-
tion of this remarkable concurrence of events,
as they are narrated in the fiction and after-
wards occurred in fact, is that the method of con-
ducting the conspiracy against Dreyfus and the
possibility of accomplishing it were suggested
by Letang's story, although the conspirators
doubtless did not anticipate that the logic of
events would render the results of their false-
hoods and forgeries as fatal to them as they were
to their prototypes in the novel. Every
scoundrel is firmly convinced that he can pattern
after his precursors in villainy, avoid their mis-
takes and commit the same crime without in-
curring the same penalty.
That paroxysms of epilepsy, hysterics and
various forms of frenzy are contagious and may
be easily communicated to nervous persons, who
witness them, has been clearly proved. Vicious
passions obey the same law of imitation even in
a still higher degree than tender emotions and
256 The Criminal Prosecution and
nervous diseases, and more than two centuries
ago the illustrious jurisconsult, Samuel Pufen-
dorf, laid down the general principle that he
who for the first time commits a crime liable to
spread by contagion and to become virulent,
should be punished with extreme severity, in
order that it may not infect others and create
a moral pestilence.
The hemp cure is always a harsh cure, especi-
ally where there is any doubt as to the offender's
mental soundness; but in view of the increasing
frequency with which atrocious and wilful
crime shelters itself under the plea of insanity
and becomes an object of misdirected sympathy
to maudlin sentimentalists, the adoption of
radical and rigorous measures in the infliction
of punishment were perhaps an experiment weH
worth trying. Meanwhile, let the psychiater
continue his researches, and after we have
passed through the present confused and peril-
ous period of transition from gross and brutal
mediaeval conceptions of justice to refined and
humanitarian modern conceptions of justice, we
may, in due time, succeed in establishing our
penal code and criminal procedure upon founda-
tions that shall be both philosophically sound
and practically safe.
APPENDIX
CONTAINING ORIGINAL DOCUMENTS
17
A
TESTIMONIALES ET REASSUMPTUM
Anno domini millesimo quingentesimo octuagesimo
septimo et die decima tertia mensis aprilis comparuit
in bancho actorum judicialium episcopatus Maurianne
honestus vir Franciscus Ameneti scindicus et procurator
procuratorioque nomine totius communitatis et parrochie
Sancti Julliani qui in causa quam pretendunt reassumere
prosequi aut de novo intentare coram reverendissimo
domino Maurianne episcopo et principe seu reverendo
domino generali ejus Vicario et Officiali contra Animalia
ad formam muscarum volantia coloris viridis communi
voce appellata Verpillions seu Amblevins facit constituit
elegit et creavit certum ac legitimum procuratorem totius
dicte communitatis et substituit vigore sui scindicatus de
quo fidem faciet egregium Petremandum Bertrandi causi-
dicum in curiis civitatis Maurianne presentem et accep-
tantem ad fines coram eodem reverendissimo Episcopo
et ejus Vicario generali comparendi et faciendi quicquid
circa negotiis ejusdem cause spectat et pertinet et prout
ipse scindicus facere posset si presens et personaliter
interesset cum electione domicillii et ceteris clausulis
259
26o Appendix
relevationis ratihabitionis et aliis opportunis suo jura-
mento firmatis subque obligatione et hypotheca bonorum
suorum et dicte communitatis que conceduntur in bancho
die et anno premissis.
ORDINATIO
Anno domini millesimo quinquagesimo octuagesimo
septimo et die sabatti decima sexta maii comparuerunt
judicialiter coram nobis Vicario generali Maurianne
prefato Franciscus Ameneti conscindicus Sancti JuUiani
cum egregio Petremando Bertrandi ejus procuratore pro-
ducens testimoniales constitutionis facte eidem egregio
Bertrandi die tertia decima aprilis proxime fluxi petit sibi
provideri juxta supplicationem nobis porrectam parte
scindicorum et communitatis Sancti Julliani exordiente
Divino primitus imploratoauxilwsigcidXnxn Franciscus Faeti
contra Animalia bruta ad formam muscarum volantia
nuncupata Verpillions producens etiam acta et agitata
superioribus annis coram predecessoribus nostris maxime
de anno 1545 et die vicesima secunda mensis aprilis
unacum ordinatione nostra lata octava maii millesimo
quingentesimo octuagesimo sexto et ne contra Animalia
ipsis inauditis procedi videatur petunt sibi provideri de
advocato et procuratore pro defensione si quam habeant
aut habere possent dictorum Animalium se offerentes
ad solutionem salarii illis per nos assignandi. Inde et
nos Vicarius generalis Maurianne ne Animalia contra que
agitur indeffensa remaneant deputamus eisdem pro pro-
curatore egregium Anthonium Fillioli licet absentem cui
injungimus ut salario moderate attenta oblatione conquer-
entium qui se offerunt satisfacere teneatur et debeat ipsa
Appendix 261
Animalia protegere et defendere eorumque jura et ne de
consilio alicujus periti sint exempta ipsis providemus de
spectabili domino Petro Rembaudi advocatum {sic) cui
similiter injungimus ut debeat eorum jura defendere
salario moderato ut supra. Quamquidem deputationem
mandamus eis notifficari et ipsis auditis prout juris fuerit
ad ulteriora providebitur. Quo interim visa per nos
quadam ordinatione fuit fieri certas processiones et alias
devotiones in dicta ordinatione declaratas quas factas
fuisse non edocetur ideo ne irritetur Deus propter non
adempletionem devotionum in ipsa ordinatione narratarum
dicimus ipsas devotiones imprimis esse fiendas per
instantes et habitatores loci pro quo partes agunt quibus
factis postea ad ulteriora procedemus prout juris fuerit
decernentes literas in talibus necessarias per quas
comittimus curato seu vicario loci quathenus contenta
in dicta ordinatione in prono ecclesie publice declarare
habeat populumque monere et exortari ut illas adimpleant
infra terminum tam breve quam fieri poterit et de ipsis
attestationem nobis transmittere. Datum in civitate
Sancti Johannis Maurianne die anno permissis.
MEMORIALE
Anno premisso et die trigesima mensis maii com-
paruerunt judicialiter coram nobis Vicario generali
Maurianne prefato honestus Franciscus Ameneti con-
scindicus jurat venisse cum egregio Petremando Bertrandi
ejus procuratore producit et reproducit supplicationem
nobis porrectam retroacta et agitata contra eadem Ani-
malia maxima designata in memoriali coram nobis tento
262 Appendix
decima sexta maii literas eodem die curato Sancti JuUiani
directas unacum attestatione signata J^omane ft qua. consta.t
clerum et incolas dicti loci proposse satisfecisse contentis
in eisdem Uteris ad formam ordinis in ipsis designate
petit sibi juxta et in actis antea requisita provideri et alia
uberius juxta cause merita et inthimari egregio Fillioli
procuratori ex adverse. Hinc egregius Fillioli procurator
dictorum Animalium brutorum petit communicationem
omnium et singularum productionum ex adverse cum
termino deliberandi defendendi et participandi cum
domino advocate premisso. Indi et nos Vicarius
generalis Maurianne prefatus communicatione superius
petita concessa partibus premissis diem assignamus
sabatti proximi sexta instantis mensis junii ad ibidem
judicialiter coram nobis comparandum et tunc per
dictum egregium Fillioli nomine que supra quid voluerit
deliberare et defendere deliberandum et defendendum.
Datum in civitate Maurianne die et anno premissis.
R. D. GENERALI VICARIO ET OFFICIALI
EPISCOPATUS MAURIANNE
Divine primitus implorato auxilio humiliter exponunt
syndici totius cemmunitatis seu parrochie Sancti Julliani
caeterique homines ac sua interesse putantes et infra-
scriptis adherere cupientes quod cum alias ob forte
peccata et caetera commissa tanta multitude bruti
animalis generis convoluntium vulge tamen vocabule
Amblevini seu Verpillion dicti per vineas et vinetum
ipsius parrochie accessisset damna quamplurima ibi per-
petrantis folia et pampinos rodendo et vastande ut ex
eis nulli saltern pauci fructus percipi poterant qui juri
Appendix 263
cultorum satisffacere possint et quod magis et gravius
erat ilia macula ad futura tempora trahendo vestigia nulli
palmites fructus afferentes produci poterant illi autem
flagitio antecessores amputare viam credentes prout divina
prudentia erat credendum porrectis precibus adversus
eadem Animalia et in eorum defensoris constituti per-
sonam debitis sumptis informationibus ac aliis formali-
tatibus necessariis prestitis sententia seu ordinatio pro-
lata comperitur cujus et divinse potentise virtu te praecibus
tamen et officiis divinis mediantibus illud flagitium et
inordinatus furor prefatorum brutorum Animalium cessa-
runt usque ad duos vel circa citra annos quod veluti
priscis temporibus rediere in eisdem vineis et vineto et
damna inextimabilia et incomprehensibilia afferre cep-
erunt ita ut pluribus partibus nulli fructus sperantur
percipi possetque in dies deterius evenire culpa forte
hominum minus orationibus et cultui divino vacantium
seu vota et debita non vere et integre reddentium que
tamen omnia divinse cognitioni consistit et remittenda
veniunt eo quod Dei arcana cor hominis comprehendere
nequit.
Nihilominus cum certum sit gratiarum dona diversis
diversimode fore coUata hominibus et potissimum
ecclesiastic© ordini ut in nomine Jesu et virtute ejus
sanctissime passionis possit in terris ligare solvere et
flectere iterum ad R. V. recurrentes prius agitata reas-
sumendo et quatenus opus fuerit de novo procedendo
petunt in primis procuratorem aut defensorem ipsis
Animalibus constitui ob defectum praecedentis vita functi
quo facto et ut de expositis legitime constet debeatis
inquisitiones et visitationes locorum fieri per nos aut alium
idoneum commissarium cseterasque formalitates ad hsec
opportunas et requisitas exerceri ipso defensore legitime
264 Appendix
vocato et audito nee non aliter prout magis equum visum
et compertum de jure extiterit procedere dignetur ad
expulsionem dictorum Animalium via interdicti sive
excommunicationis et alia debita censura ecclesiastica et
justa ipsius sanctas constitutiones ad quas et divinae
clementiae et mandatis suorum ministronim se parituros
offerunt et submittunt omni superstitione semota quod si
stricta excommunicatione processum fuerit sunt parati
dare et prestare locum ad pabulum et escam recipiendos
ipsis Animalibus quemquidem locum exnunc relaxant et
declarant prout infra et alias jus et justitiam ministrari
omni meliori modo implorato benigno officio.
Fran. Faeti
Ego subsignatus curatus Sancti Julliani attestor quo-
modo sacro die Penthecostes decima septima mensis
maij anno domini millesimo quingentesimo octuagesimo
septimo ego accepi de manibus sindicorum mandatum
exortativum sive ordinationem R^' generalis Vicarii et
Officialis curie diocesis Maurianne datum in civitate
Sancti Johaiuiis decima sexta mensis may anno quo
supra quod cum honore et reverentia juxta tenorem illius
die lune Penthecostes decima octava may in offertorio
magne misse parochialis populo ad divina audienda con-
gregato publicavi idem populum michi commissum ad
contritionem suorum peccaminum et ad devotionem juxta
meum posse et serie monui processiones missas obsecra-
tiones et orationes in predicto mandate contentas per tres
dies continues videlicet vicesima vicesima prima vicesima
secunda predicti mensis cum ceteris presbiteris feci in
quibus processionibus scindici cum parrochianis utriusque
sexus per majorem partem circuitus vinearum interfuerunt
Appendix 265
deprecantes Dei omnipotentis dementia pro extirpatione
brutorum Animalium predictas vineas atque alios fructus
terre devastantium vulgariter nuncupatas {sic) Verpilions
seu Amblavins in predict© mandato mentionata sive
nominata in quorum fidem ad requisitionem dictorum
scindicorum qui banc attestationem petierunt quam illis
in exonus mei tradidi hac die vicesima quarta may anno
quo supra.
ROMANET
Franciscus de Crosa Canonicus et Cantor ecclesie
cathedralis Sancti Johannis Maurianne in et tem-
poralibus episcopatus Maurianne generalis Vicarius et
Ofificialis dilecto sive vicario Sancti JuUiani s in
domino. Insequendo ordinationem per nos hodie date
presentium latam in causa scindicorum Sancti JuUiani
agentium contra Animalia bruta ad formam muscarum
volantia coloris viridis nuncupata Verpillions supplicata
per quam inter cetera contenta in eadem dictum et
ordinatum extitit devotiones et processiones fieri ordi-
natas per ordinationem latam ab antecessore nostro die
octava maii anni millesimi quingentesimi quadragesimi
sexti in eadem causa in primis et ante omnia esse fiendas
per instantes et habitatores dicti loci Sancti JuUiani.
Igitur vobis mandamus et injungimus quathenus die
dominico Penthecostes in prono vestra ecclesie par-
rochialis contenta in dicta ordinatione declarare habeatis
populumque monere et extortari ut ilia adimpleant infra
terminum tarn breve quod fieri poterit et de ipsis attesta-
tionem nobis transmittere. Tenor vero dicte ordinationis
continentis devotiones sequitur et est talis.
Quia licet per testes de nostri mandato et commis-
sarium per nos deputatum examinatos apparet Animalia
266 Appendix
bnita contra que in hujusmodi causa parte prefatorum
supplicantium fuit supplicatum intulisse plura dampna
insupportabilia ipsis supplicantibus que tamen dampna
potius possunt attribuenda peccatis supplicantium deci-
mis Deo omnipotenti de jure primitive et ejus ministris
non servientium et ipsum summum Deum diversimode
eorum peccatis non (sic) offendentium quibus causis
causantibus dampna fieri supplicantibus predictis non ut
fame et egestate moriantur sed magis ut convertantur
et eorum peccata deffluant ut tandem abundantiam
bonorum temporalium consequantur pro substentatione
eorum vite vivere et post banc vitam humanam salutem
etemam habeant. Cum a principio ipse summus Deus
qui cuncta creavit fructus terre et anime vegetative
produci permiserit tam substentatione vite hominum
rationabilium et volatilium super terram viventium
quamobrem non sic repente procedendum est contra
prefata Animalia sic ut supra damnificantia ad fulmina-
tionem censurarum ecclesiasticarum Sancta Sede Apos-
tolica inconsulta sive ab eadem ad id potestatem haben-
tibus superioribus nostris sed potius recurrendum ad
misericordiam Dei nostri qui in quacumque bora in-
genuerit peccata propitius est ad misericordiam. Ipsi
quamobrem causis premissis et alliis a jure resultantibus
pronunciamus et declaramus inprimis fore et esse mo-
nendos et quos tenore presentium monemus et moneri
mandamus ut ad ipsum Dominum nostrum ex toto et
puro corde convertantur cum debita contrictione de pec-
catis commissis et proposito confitendi temporibus et
loco opportunis et ab eisdem de future abstinendi et de
cetero debite persolvendum Deo decimas de jure debitas
et ejus ministris quibus de jure sunt persolvende eidem
Domino Deo nostro per meritata sue sacratissime passio-
Appendix 267
nis et intercessione Beate Marie Virginis et omnium
Sanctorum ejus humiliter exposcendo veniam et quibus-
cumque peccatis delictis et offensis contra ejus majes-
tatem divinam factis ut tandem ab afflictionibus pre-
fatorum Animalium liberate dignetur et ipsa Animalia
loca non it . . . ipsis supplicantibus ceterisque christianis
transferre et al . , . secundem ejus voluntatem et aliter
exting
eisdem supplicantibus uno die dominico
in offertorio ut ipso
die dominico supplicantibus
per circuitum
vinearum ejusdem parrochie et per
loca cum aspersione aque benedicte pro effugandis prefatis
Animalibus tribus diebus immediate sequentibus signifi-
cationem et notificationem sic ut supra fiendas quibus pro-
cessionibus durantibus decantari et celebrari mandamus
tres missas altas ante sive post quamlibet earum proces-
sionum ad devot, . . cleri et populi quarum prima primo
die decantabitur de Sancto Spiritu cum orationibus de
Beata Maria Deus Deus qui contritorum et A
cunctis nos quesunius Domine mentis et corporis etc. et
una pro defunctis secundo die decantatis de Beata Maria
Virgine cum orationibus Sancti Spiritus Beate Marie
Virginis illis Qui contritorum et pro deffunctis. In
eisdem processionibus supra fiendis jubemus in eadem
ecclesia genibus flexis dici et decantari integriter Veni
Creator Spiritus quo hymno sic finito et dicto verceleto
Emitte Spiritum tutim et creabuntur etc. cum orationibus
Deus qui corda fidelium singulis diebus sic prout supra
fiat proces . . . decantando septem psalmos penitentiales
cum letaniis suffragii et orationibus inde sequentibus
mandamus moneri supplicantes prout supra ut in eisdem
268 Appendix
missis processionibus et devotionibus sic ut supra fiendis
ad minus d. . de qualibet domo devote intersint dicendo
eorum Fidem catholicam et alias devotiones et orationes
cum fuerit humiliter et devote preces
et effundendo Domino Deo nostro ut per merita sue
sanctissime passionis et intercessionem Beatissime
Virginis Marie et omnium Sanctorum dignetur expellere
ipsa Animalia predicta a prefatis vineis ut de fructus
earumdem non corrodant nee et
ibidem supplicantes a cunctis alliis adversitatibus liberare
ut tandem de eisdem fructibus debite vivere possint et
eorum necessitatibus subvenire et semper in omnibusque
glorificare laudare eumdem Dominum et Redemptorem
nostrum et in eodem fidem et spem nostram totaliter
cohibenda a devastatione prefatarum vinearum et nos
liberare a cunctis alliis adversitatibus dummodo sic ut
supra ejus mandata servaverimus et hoc absque allia
fulminatione censurarum ecclesiasticarum quas distu-
limus fulminare donee premissis debite adimpletis et
alliud a prefatis superioribus nostris habuerimus in
mandatis literas quatenus expediat in exequutionem
omnium et singulorum premissorum decernentes
Post insertionem dicte ordina-
tionis dicti scindici Sancti Julliani petierunt sibi concedi
literas quas concedimus datas in civitate Sancti Johannis
Maurianne die decima sexta mensis maii millesimo
quingentesimo octuagesimo septimo.
Franciscus de Crosa Vic/ et Off.^ gen.*^ Maurianne.
Faure
Per eumdem R. D, Maurianne generalem Vicarium et
Officialem.
{locus sigilH.)
Appendix 269
MEMORIALE
Anno premisso et die quinta mensis junii comparu-
erunt judicialiter coram nobis Vicario generali Mauri-
anne Franciscus Ameneti consindicus Sancti Julliani
asserens venisse a loco sancti Julliani ad fines re-
mittendi in manibus egregii Anthonii Fillioli pro-
curatoris Animalium brutorum cedulam signatam
Rembaud producendam pro deffensione dictorum Ani-
malium quiquidem egregius Fillioli produxit realiter
eandem cedulam incohantem Approbando etc. signatam
Rembaud dicens concludens et fieri requirens pro ut in
eadem cedula continetur. Hinc et egregius Petre-
mandus Bertrandi procurator dictorum sindicorum
Sancti Julliani agentium petiit copiam dicte cedule. Inde
et nos Vicarius generalis Maurianne prefatus partibus
premissis diem assignamus veneris proximam duo-
decimam presentis mensis junii nisi etc. ad ibidem
coram nobis comparendum et tunc per dictum egregium
Bertrandi nomine quo supra quid voluerit deliberare
deliberandum eidem concedendo copiam dicte cedule per
eum requisitam. Datum in civitate Sancti Johannis
Maurianne die et anno premissis.
COPIA CEDULE
Approbando et in quantum de facta in medium ad-
ducendo ea que hoc in processu antea facto fuerunt et
potissimum scedulam productam ex parte egregii Baud-
rici procuratoris Animalium signatam Claudius Morellus
egregius Anthonius Fillioli procurator et eo nomine a
270 Appendix
reverendo domino Vicario constitutus occasione tuen-
dorum ac deffendendorum Animalium de quibus hoc
in process© agitur ut in actis ad quae impugn
super relatio habeatur et brevibus agendo ac realiter
deffendendo excipit et opponit ac multum miratur de
hujusmodi processu tam contra personas agentium quam
contra insolitum et inusitatum modum et formam pro-
cedendi de eo saltem modo quo hactenus processum fuit
maxime cum agitur de excommunicatione Animalium
quod fieri non potest quia omnis excommunicatio aut
fertur ratione contumaciae cap. prima et ibi Gr. De
sententiis excomniunicaiionis lib. 6. at cum certum est
dicta animalia in contumacia constitui non posse quia
legitime citari non possunt per consequens via excom-
municationis Agentes uti non possunt nee debent eo
maxime quod Deus ante hominis creationem ipsa
Animalia creavit ut habetur Genesi ib. Producat terra
animam viventem in genere suo junienta et reptilia et
bestias terre secondum species suas benedixitque eis dicens
crescite et multiplicanmii et replete aquas maris avesque mul-
tiplicentur super terram quod non fecisset nisi sub spe
quod dicta Animalia vita fruerentur turn quod ipse Deus
optimus maximus creator omnium Animalium tam
rationabilium quam irrationabilium cunctis Animalibus
suum dedit esse et vesci super terram unicuique secon-
dum suam propriam naturam certum est et potissimum
plantas ad hoc creavit ut animalibus deservirent est
enim ordo naturalis quod plante sunt in nutrimentum
Animalium et quedam in nutrimentum aliorum
et omnia in hominis. Genes: 9: ibi Quasi
olera virentia tradidi vobis omnia a Deo quod dicta
Animalia de quibus Adversantes conqueruntur modum
vivendi a legi ordinatum non videtur egredi turn quia
Appendix 271
bruta sensu et usu rationis carentia que non secondum
legem divinam gentium canonicam vel civilem sed
secondum legem naturae primordialis qua Animalia
cuncta docuit vivere solo instinctu naturae vivunt et
ut ait Philosophus actus activorum non operantur in
patienti. tum quia jura naturalia sunt im-
mutabilia § Sed naturalia Ins tit. : de jur natur. gent, et
civili. ergo cum dicta Animalia solo instinctu naturse
dicantur per consequens excommunicanda non veniunt.
Et quamvis dicta Animalia hominibus subjecta esse
dicantur ut habetur Ecclesiast: 17. ibi Posuit timorem
illius super omnem carnem et bestiarum ac volatilium non
idcirco adversus talia Animalia licet subjecta uti non de-
bent excommunicatione nee ullo modo veniunt petita
executioni mandanda saltern modo petito presertim cum
ratio et aequitas dicta Animalia non regat. Et licet juribus
divino antiquo civili et canonico promulgatum legitur
Qui seminat metet ut habetur Esai 37 ibi. In annoautem
tertio seminate et mettete et plantate vineas et covimedite
fructum earuin non tamen cequitur(wV) quin dicta Animalia
plantis non utantur quia sunt irrationabilia et carentia
sensu neque ea posse dicemere quae sunt usui hominum
destinata vel non certissimum est quia solo instinctu
nature ut supra dictum est vivunt non idcirco necesse
habent Agentes adversus dicta Animalia uti excommuni-
catione sed peccata eorum universus populus
presertim quern hujusmodi flagella affligunt et prose-
quuntur et poenitentiam agat exemplo Ninivitarum qui
ad solam vocem Jone prophete austeriter poenitentiam
egerunt ad mittigandam et placandam iram Dei. Jon. 3.
veniat populus et imploret misericordiam Dei optimi et sic
maximi ut sua sancta gratia et per merita sanctissimae
passionis excessum dictorum Animalium compessere et
272 Appendix
refrenare dignetur et hoc modo dicta Animalia e vineis
ejicient et non eo modo quo procedunt. Quibus universis
consideratis evidentissime patet dicta Animalia e vitibus
seu e vineis ejicienda non esse attento quod solo instinctu
naturae vivunt et ita per egregium Anthonium Fillioli
eorumdem Brutorum legittimi actoris fieri instatur et ab
ipso petitur ipsum monitorium requisitum in quantum
concernit dicta Animalia revocari et annullari nee aliquo
modo consentiendo quod dictum monitorium eis con-
cedatur nee etiam aliqui visitationi vinearum ut est con-
clusum per Agentes in eorum supplicatione protestando
de omni nuUitate et hoc omni meliori modo via jure ac
forma salvis aliis quibuscumque juribus ac deffentioni-
bus competentibus aut competituris humiliter implorato
benigno officio judicis.
Petrus Rembaudus
MEMORIALE
Anno premisso et die duodecima mensis junii com-
paruerunt judicialiter coram nobis Vicario generali
Maurianne prefato egregius Petremandus Bertrandi
procurator dictorum Agentium petens alium terminum.
Hinc et egregius Anthonius Fillioli procurator dictorum
Animalium petiit viam precludi parti quidquiam ulterius
deliberandi et producendi. Inde et nos Vicarius generalis
Maurianne prefatus partibus premissis diem assignamus
veneris proximam decimam nonam presentis mensis nisi
etc. ad ibidem judicialiter coram nobis comparendum et
tunc per dictum Bertrandi nomine quo suppra quid
voluerit precise deliberare deliberandum. Datum Mau-
rianne die et anno premissis.
Appendix 273
MEMORIALE
Anno premisso et die veneris decima nona mensis
junii preassignata comparuerunt judicialiter coram nobis
Vicarium generalem Maurianne prefato egregius Petre-
mandus Bertrandi procurator Sindicorum Sancti Julliani
Agentium producens cedulam incohantem Etiam si
cuncia et signatam Franciscus Fay dicens concludens et
fieri requirens pro ut et quemadmodum in eadem cedula
continetur.
Hinc et egregius Anthonius Fillioli procurator dictorum
Animalium conventorum petiit copiam dicte cedulas cum
termino deliberandi et respondendi.
Inde et nos Vicarius generalis Maurianne prefatus
copia prepetita concessa partibus premissis diem assign-
amus veneris proximam vigessimam sextam hujus mensis
junii nisi etc. ad ibidem judicialiter coram nobis compar-
endum et tunc per dictum Fillioli nomine quo supra
quid voluerit deliberare deliberandum. Datum Maurianne
die et anno premissis.
MEMORIALE
Anno premisso et die sabatti vigesima septima mensis
junii subrogata ob diem feriatum intervenientem com-
paruerunt judicialiter coram nobis Vicario generali prefato
Catherinus Ameneti consindicus Sancti Julliani jurat
venisse cum egregio Petreraando Bertrandi ejus procura-
tore producens realiter cedulam signatam Fay dicens
concludens prout in eadem cedula continetur. Hinc
et egregius Fillioli procurator Animalium petens copiam
cedule cum termino deliberandi. Inde et nos Vicarius
274 Appendix
prefatus copia prepetita concessa partibus premissis diem
assignamus sabbati proximi quartam instantis mensi jullii
nisi etc. ad ibidem judicialiter coram nobis comprehen-
dum est tunc per dictum egregium Fillioli quid voluerit
deliberare deliberandum. Datum Maurianne die et anno
premissis.
COPIA CEDUL^
Etiamsi cuncta ante hominem sint creata ex Genesi
non sequitur laxas habenas concessas fore immo contra ut
ibidem coUigitur et apud D in i. par. q. 26. ar. i.
et psal. 8. Corin. 5. hominem fore creatum ac constitutum
ut cceteris creaturis dominaretur ac orbem terrarum in
aequitate et justitia disponeret. Non enim homo contem-
platione aliarum creaturarum habet esse sed contra. Nee
reperitur illam dominationem circa bruta animantia ac
eorum respectu suscipere limitationem verum in divinis
cavetur omne genuflecti in nomine Jesu.
Sed cum circa materiam majores nostri satis scripserint
in actis reassumptis et nihil novi adductum ex adverse
inveniatur frustra resumerentur. Unde inherendo re-
sponsis spectabilis domini Yppolyti de Collo et postquam
constat fore satisffactum ordinationi nihil est quod
impediri possit fines supplicatos adversus Animalia de
quorum conqueritur ad quod concluditur ac justitiam
ministrari omni meliori modo iraplorato benigno officio.
Franc Faeti
MEMORIALE
Anno premisso et die quarta mensis jullii comparuerunt
judicialiter coram nobis Vicario generali Maurianne
Appendix 2j^
prefato egregius Anthonius Fillioli procurator dictorum
Animalium producens cedulam incohantem Licet niultis
signatam Remhaudi dicens et concludens prout in eadem
cedula continetur hinc et egregius Petremandus Bertrandi
procurator dictorum Agentium petit copiam cedule cum
termino deliberandi. Inde et nos Vicarius generalis
Maurianne prefatus copia prepetita concessa partibus
premissis diem assignamus sabbati proximam undecimam
presentis mensis jullii nisi etc. ad ibidem judicialiter
coram nobis comparendum et tunc per dictum egregium
Bertrandi nomine quo supra quid voluerit deliberare
deliberandum. Datum Maurianne die et anno premissis.
MEMORIALE
Anno premisso at die quarta jullii comparuerunt coram
nobis Vicario prefato egregius Petremandus Bertrandi
procurator Agentium petit alium terminum. Hinc et
egregius Anthonius Fillioli procurator Conventorum in-
heret cedulatis suis et fieri petitis super quibus petit
justitiam sibi ministrari. Inde et nos Vicarius generalis
Maurianne prefatus partibus premissis diem assignamus
sabbati proximam decimam octavam presentis mensis
jullii nisi etc. ad ibidem judicialiter coram nobis com-
parendum et tunc per dictum Bertrandi nomine quo
supra quid voluerit deliberare deliberandum. Datum
Maurianne die et anno premissis.
COPIA CEDULA
Licet multis in locis reperiatur hominem creatum fuisse
ut casteris Animalibus et creaturis dominaretur non
276 Appendix
idcirco opus est ut Agentes adversus dicta Animalia
excommunicatione utantur sed via usitata et ordinaria
et praesertim ut dictum est quod dicta Animalia jus naturae
sequantur quod quidem jus nusquam iramitatum (su) re-
peritur nam jus divinum et naturale pro eodem sumuntur.
Can. I. dist. i. at jus divinum mutari non potest quod
est in preceptis moralibus et naturalibus per consequens
nee jus naturale mutari potest nam jus naturale manat ab
honesto nempe ac ratione immortali et perpetua, at ratio
jubet ut dicta Animalia vivant potissimum hiis nempe
plantis que ad usum dictorum Animalium videntur creata
ut supra dictum est ergo Agentes nulla ratione debent
uti via excommunicationis. Igitur ne in causa ulterius
progrediatur potissimum cum cedula pro parte Sindi-
corum totius communitatis Sancti Julliani producta
signata Fran: Faeti. nuUam penitus mereatur respon-
sionem obstante quod nihil novi in dicta cedula pro-
positum comperitur etiam quod contentis cedulse parte
gregii (egregii) Anthonii Fillioli procuratorio nomine
dictorum Animalium producte mimime sit responsum
idcirco cum omnia que videbantur adducenda ex parte
dictorum Animalium adducta et proposita fuerunt ut
ample patet in dicta cedula superius producta signata : P.
Rembaudus. ad quam impugnatus semper relatio habeatur
non igitur alia ex parte dictorum Animalium adducenda
nee proponenda videntur presertim ut dictum est quod
ratio et equitas dicta Animalia non regat quapropter
egregius Anthonius Fillioli nemine dictorum Animalium
suppra relatorum suoe cedule et fieri recuisitis inhoerendo
concludit super eis jus dici et deffiniri et justiciam sibi
in hujusmodi causa adversam fieri et promulgari implorans
benignum officium omni melliori modo.
P. Rembaudus
Appendix 277
MEMORIALE
Anno premisso et die decima octava mensis jullii com-
paruerunt i judicialiter coram nobis Vicario prefato
egregius Petremandus Bertrandi procurator Agentium
petens alium terminum. Hinc et egregius Fillioli pro-
curator dictorum Animalium petit viam precludi parti
quidquam ulterius articuUandi et deducendi et inherendo
suis cedulatis petit sibi justitiam ministrari. Inde et
nos vicarius genera] is Maurianne prefatus de consensu
procuratorum dictarum partium ipsis partibus diem assign-
amus primam juridicam post messes ad ibidem coram
nobis comparendum et tunc per dictum egregium
Bertrandi nomine quo suppra quid voluerit precise
deliberare deliberandum.
MEMORIALE
Anno premisso et die veneris vigesima quarta men-
sis juli comparuerunt judicialiter coram nobis Vicario
generali Maurianne prefato egregius Petremandus Ber-
trandi procurator Sindicorum Agentium produxit testi-
moniales sumptas per communitatem Sancti Julliani
congregatam coram visecastellano Maurianne contin-
entes declarationem loci quem offerunt relaxare et
assignare eisdem Animalibus pro eorum pabulo quathe-
nus indigent ad formam earumdem testimonialium
signatarum Prunier adversus quas petit adverso viam
precludi quicquam opponendi et exipiendi et deffendendi
quominus dicta Animalia devastantia non debeant arceri
ambigi cogi et in virtute sancte Dei obedientire vineta
loci predicti Sancti Julliani relinquere et in locum
278 Appendix
assignatum accedere et divertire ne deimpceps (deinceps)
officiant eisdem vineis que sunt usui humano pemeces-
sariae et alias ulterius super cause exigentia provideri
benignum officium R. D. V. implorando et ita intimari
egregio Fillioli procuratori ex adverse.
Quiquidem egregius Fillioli procurator dictorum
Animalium petiit copiam et communicationem dictarum
testimonialium cum termino deliberandi et deffendendi.
Inde et nos Vicarius generalis Maurianne prefatus
copia et communicatione prepetitis concessis partibus
premissis diem assignamus primam juridicam post ferias
messium proxime venturam ad ibidem judicialiter coram
nobis comparendum et hinc per dictum egregium Fillioli
nomine quo suppra quid voluerit deliberare deliberandum.
Datum Maurianne die et anno premissis.
EXTRAICT DU REGESTRE DE LA CURIALLITE
DE SAINCT JULLIEN
Du penultiesme jour du moys de juing mil cinq cent
huictante sept.
Ont comparu pardevant Nous Jehan Jullien Depupet
notaire ducal et Vichastellain pour son Altesse au lieu de
Sainct Jullien et Montdenix honnestes Francoys et
Catherin Aimenetz conscindicz dudict lieu maistres
Jehan Modere Andre Guyons Pierre Depupet notaires
ducaulx maistre Reymond Thabuys honnestes Claude
Charvin Jehan Prunier Claude Fay Frangys Humbert et
Vuilland Duc.conseilliers dudict lieu avec des manantz
et habitantz dudit lieu les deux partyes les troys faisantz
le tout tous assembles au son de la cloche au Parloir
damon place publicque dudit lieu de Sainct Jullien au
Appendix 279
conseil general suyvant la publication d'icelluy faicte
cejoudhuy mattin a lyssue de la parocchielie dudit lieu
et au lieu ce fere accoustume par Guilliaume Morard
metral dudict lieu ce a Nous rapportant disantz les
susnommez scindicz comme au proces pas eulx au nom
de ladicte communaulte intenre et poursuyvy centre les
Animaulx brutes vulgairement appelez Amblevins par-
devant le Seigneur Reverendissime Evesque et Prince de
Maurianne ou son Official est requis et necessayre syvant
le conseil a eulx donne par le sieur Fay leur advocat de
ballier ausdictz Animaulx place et lieu de souffizante
pasture hors les vigniables dudict lifeu de Sainct JuUien
et de celle qu'il y en puissent vivre pour eviter de manger
ny gaster lesdictes vignes. A ceste cause ont tous les
susnommes et aultres y assembles delibere leur offrir la
place et lieu appelle la Grand Feisse ou elle se treuvera
souffizante pour les pasturer et que le sieur advocat et
procureur diceulx Animaux se veuillent contempter
laquelle place est assize sur les fins dudict Sainct JuUien
audessus du village de Claret jouxte la Combe descend-
ant de Roche noyre passant par le Crosset du levant la
Combe de Mugnier du couchant ladicte Roche noyre
dessus la Roche commencant a la Gieclaz du dessoubz
laquelle place sus coufinee centient de quarent a cin-
quante sesteries ou environ peuplee et garnye de plusieurs
espresses de boes plantes et feuillages comme foulx
allagniers cyrisiers chesnes planes et aultres arbres et
buissons oultre lerbe et pasture qui y est en asses bonne
quantity a laquelle les susnommes au nom de ladicte
communaulte Ion offre ny prendre chose que ce soyt moing
permettre a leur sceu y es tre prins et emporte chose que
soyt dans lesdictz confins soyt par gens ou bestes saufz
toutteffoys que ou le passaige des personnes y seroyt neces-
280 Appendix
sayre a quelque lieu ou endroit ou Ion ne puisse passer
par ledict lieu sans fere aulcung prejudice a la pasture
desdicts Animaulx comme aussi dy pouvoir tirer mynes
de coUeurs et aultres si alcune en y a dequoy lesdictz
Animaulx ne se peuvent servir pour vivre et par ce que
le lieu est une seure retraicte en temps de guerre ou
aultres troubles par ce quelle est garnye des fontaynes
qui aussi servira ausdictz Animaulx se reservent sy
pouvoir retirer au temps susdict et de necessite et de
leur passer contract de ladicte piece aux conditions sus-
dictes tel que sera requis et en bonne forme et vallable a
perpetuyte a tel sy que ou le Sieur Advocat et Procureur
desdicts Animaulx ne ce contenteroyent de ladite place
pour la substentation et vivre diceulx animaux visitation
prealablement faicte si elle y exchoict de leur en baillier
davantage allieurs. Et de laquelle deliberation les
susnommes Scindics conselliers et aultres Nous ont
requis acte leur octroyer que leur avons concede audict
lieu du Parloir damont place publique dudict Sainct
JuUien en presence de Pierre Reymond de Montriond
Urban Geymen de Sainct Martin de la Porte et de
Janoct Poinct de la paroisse de Montdenix tesmoingtz
a ce requis et a ce dessus assistantz les an et jour que
dessus.
L. Prumier
atrial
MEMORIALE CONTINUATIONIS
Anno premisso et die undecima mensis augusti com-
paruerunt im banco actorum judicialium episcopatus
Maurianne procuratores ambarum partium qui citra
prejudicium jurium ipsarum partium prorogaverunt et
Appendix 281
continuaverunt assignationem datam ipsis partibus usque
ad vigesimam presentis mensis augusti. Datum die et
anno premissis.
ALIA CONTINUATIO
Anno premisso et die vigesima mensis augusti com-
paruerunt in eodem bancho egregius Petremandus
Bertrandi et Anthonius Fillioli procuratores partium
lictigantium quiquidem de consensu eorumdem et citra
prejudicium jurium partium et actento transitu armiger-
orum prorogaverunt assignationem ad hodie cadentem
usque ad diem jovis proximam vigesimam septimam
hujus mensis Augusti. Datum Maurianne die et anno
premissis.
MEMORIALE REASSOMPTIONIS
Anno premisso et die jovis vigesimam septimam
augusti comparuerunt judicialiter coram nobis Vicario
prefato procuratores ambarum partium quiquidem citra
derogationem jurium ipsarum partium prorogaverunt et
continuationem ad hodie cadentem usque ad diem jovis
proximam tertiam instantis mensis septembris. Datum
die et anno premissis.
MEMORIALE AD JUS
Anno premisso et die tertia mensis septembris com-
paruerunt judicialiter coram nobis Vicario generali
Maurianne prefato egregius Anthonius FillioU procurator
Animalium brutorum qui visis testimonialibus productis
parte dictorum Agentium continentibus assignationem
282 Appendix
loci quern obtulerunt relaxare et assignare dictis Animal-
ibus pro eorum pabulo dicit eumdem locum non esse
sufficientem nee idoneuni pro pabulo dictorum Animal-
ium cum sit locus sterilis et nuUius redditus. Et ampliando
omnia et quecumque agitata in presenti processu parte
dictorum Animalium petit Agentes repelli cum expensis
et jus sibi ministrari. Hinc et egregius Petremandus
Bertrandi procurator Scindicorum Sancti JuUiani Agent-
ium dicit locum destinatum et oblatum esse idoneum
plenum virgultis et parvis arboribus prout ex testimo-
nialibus oblationis constat et latius constare quathenus
opus sit oflfert inherens suis conclusionibus petit jus dici
et ordinari ac pronunciari. Inde et nos Vicarius generalis
Maurianne prefatus mandamus nobis remitti acta ad fines
providendi prout juris assignando partes ad ordinandum.
Datum in civitate Sancti Johannis Maurianne die et anno
premissis.
ORDINATIO IN CAUSA SCINDICORUM SANCTI
JULLIANI SUPPLICANTIUM EX UNA
contra Animalia bruta ad formam muscarum volantia
colons viridis Supplicata
Visis actis dictorum Agentium signanter primo me-
moriali tento in eadem causa sub die vigesima secunda
mensis aprilis anni 1545 coram spectabili domino Francisco
Bonivardi jurium doctori — cedula producta parte egregii
Petri Falconis procuratoris dictorum Animalium in-
cipiente Ut appareat etc. signata Claudius Morellus —
tenore supplicationis porrecte parte dictorum Agen-
tium— tenore monitorii abjecti desuper ipsa supplicatione
Appendix 283
sub die 25 aprilis anni predict! millesimi quingentesimi
quadragesimi quinti signati Daprilis — ordinatione lata in
eadem causa sub die duodecima mensis junii ejusdem
anni — testimonialibus visitationis facte per egregium
Matheum Daprili signa.tis Dapri/i — cedula producta nom-
ine ipsorum Animalium incipiente Visttalio et signata
Claudius Morellus — allia cedula producta parte dictorum
Agentium incipiente Etsi rationes etc. signata Petrus de
CoUo — tenore ordinationis late in eadem causa sub die
sabatti octava mensis maii anni 1546 signate Michaelis —
memoriali reassumptionis tento sub die tresdecima mensis
aprilis anni presentis 1587 — ordinatione lata in eadem
causa per reverendum dominum Franciscum de Crosa
antecessorem nostrum sub die decima sexta mensis maii
anni presentis — supplicatione porrecta parte dictorum
Agentium signata Franciscus Faeti — litteris obtentis
virtute dicte ordinationis sub die decima sexta dicti
mensis — attestatione signata Romanet sub die 24 ejusdem
mensis maii — cedula producta pro parte dictorum
Animalium incipiente Approbando etc. signata Petrus
Pembaudus — allia cedula producta parte Agentium
signata Franciscus Faeti incipiente Etiam siaincta etc. —
allia cedula producta pro parte Animalium incipiente
Licet Jtiultis etc. signata Petrus Rembaudus — memoriali
tento sub die vicesima quarta mensis jullii proxime fluxi
— testimonialibus signatis Prunier sumptis coram Vice-
castellano Maurianne sub die penultima mensis junii
anni presentis continentibus declarationem loci quem
dicti Agentes obtulerunt relaxare pro pabulo dictorum
Animalium — memoriale ad jus tento coram eodem
domino Vicario antecessore nostro sub die tertia mensis
septembris proxime fluxi — ceterisque videndis diligenter
consideratis.
284 Appendix
Nos-Vicarius generalis Maurianne subsignatus ante-
quam ad diffinitivam procedamus dicimus et ordinamus
in primis et ante omnia esse inquirendum super statu
loci oblati p
quem locum
visitandum
mensem ut f. . . . .
et nobis rem
fuerit provid
Mermetus vis
generalis
in civitate S
die decima
anno domini
octuagesimo sep
Petremandi Bertr
dictorum Scind
et egregii
dictorum Animal.
ordinationem
acceptandum
facit die et
(pro visitatione III flor)
loais sigilli.
Solverunt Scindici Sancti JuUiani incluso processu
Animalium sigillo ordinationum et pro copia que com-
petat in processu dictorum Animalium omnibus inclusis
XVI flor.
Item pro sportulis domini Vicarii III flor — 20 decem-
bre 1587.
Appendix 285
Published by Leon Menebrea in the appendix to his
treatise : De FOrigine, de la forme et de V esprit des
jugements rendus au Moyen-cLge centre les Animaux^
Chambery, 1846. Cf. Alemoires de la Soci'ete Royale
Acadhnique de Savoie, Tome xii. pp. 524-57, where it
first appeared.
According to M. J. Desnoyers {Recherches sur la
coutume d' exerciser et d excommunier les insectes et autres
animaux nuisibles a F agriculture, p. 15), it is still the
custom, in Provence, Languedoc, le Bordelais, and other
provinces of France, for the peasants to ask the country
curates for prayers, sprinklings with holy water, con-
secrated boughs, and extraordinary processions, for the
purpose of expelling noxious insects from the vineyards
and warding off disease from the grapes and the silk-
worms. These ceremonies are accompanied with ad-
jurations and maledictions. In Protestant lands official
days of fasting and prayer are supposed to produce the
same results.
The form of exorcism given by an Antwerp canon,
Maximilian d'Eynatten, in his Manuale Exorcismorum, is
as follows : — " Exorcizo et adjuro vos, pestiferi vermes,
per Deum patrem omnipotentem ►{<, et per Jesum
Christum >^ filium ejus Dominum nostrum, et Spiritum
Sanctum ^ ab utroque procedentem, ut confestim re-
cedatis ab his campis, pratis, hortis, vineis, aquis, si Dei
providentia adhuc vitam vobis indulgeat, nee amplius
in eis habitetis, sed ad ilia ac talia loca transeatis, ubi
nullis Dei servis nocere poteritis. Vobis, si per male-
ficium diabolicum hie estis, pro parte divinae majestatis,
totius curiae coelestis, necnon ecclesiae hie adhuc
militantis, impero, ut deficiatis in vobisipsis, ac de-
286 Appendix
crescatis, quatenus reliquiae de vobis nuUae reperiantur,
nisi ad gloriam Dei et ad usum et salutem humanum
conducibiles. Quod praestare dignetur qui venturus est
judicare viros et mortuos et saeculum per ignem, Resp. —
Amen." Thesaurus Exorcismorutn, Coloniae, 1626, p.
1204.
Appendix 287
B
IP
DE L'EXCELLENCE DES MONITOIRES
PAR GASPARD BAILLY
II ne favt pas mepriser les Monitoires, veu que c'est
vne chose grandement importante, portant auec soy le
glaiue, le plus dangereux dont nostre Mere sainte I'Eglise
se sert, qui est I'Excommunication, qui taille aussi bien
le bois sec que le verd, n'epargnant ny les viuans, ni les
morts ; et ne frappe pas seulement les Creatures raison-
nables, mais s'attache aux irraisonnables, tels que sont
les animaux. Les exemples en sont fre'quens, pour
preuue de cette verite. Car on a veu en plusieurs en-
droits qu'on a excommunie les bestioles et insectes, qui
apportoient du dommage aux fruits de la terre, et
obeissans aux commandemens de I'Eglise se retiroient
dans le lieu ordonne par la sentence de I'Euesque qui
leur formoit leur proces. Au Siecle passe, il y auoit telle
quantite d'Anguilles dans le Lac de Geneue, qu'elles
gastoient tout le Lac : De sort que les Habitans de la
Ville et enuirons, recoururent h I'Euesque pour les Ex-
^ The first part of this treatise, consisting of seventeen chapters,
discusses the different kinds of " monitoires " and their apphcations.
Only the second part, describing the legal procedure, is here
printed.
288 Appendix
communier, ce qu'ayant estd fait, le Lac fut deliurd de
ces animaux.
Du temps de Charles Due de Bourgogne fils de
Philippe le Bon, il y eut telle quantite de Sauterelles en
Bresse, en Italie qu'elles mirent presque la famine dans
tout le Mantoiian, si on n'y eut apportd du secours par
TExcommunication, et de ce nous parle Altiat dans ses
Embldmes, sous I'intitulation nihil reliqui.
Scilicet hoc deerat post tot mala denique nostris,
Locustce vt raperent, quidquid inesset agris.
Vidimus innuineras Euro Duce tendere turmas ;
Qualia non Athilm, Castrave Cersis erant.
H(B fanum milium farra omnia constimpserunt ;
Spes in Augusta est, stant nisi vota super.
On raconte en la vie de S. Bernard, qu'il se leua vne
si grande quantite de Mouches, d'vne Eglise qu'on auoit
basti k Loudun, que par le myen du bruit qu'elles
faisoient, elles empechoient a ceux qui entroient de prier
DiEV, ce que voyant le S. Personage il les Excommunia,
de sorte qu'elles tomberent toutes mortes ayant couuert
le paud de I'Eglise.
Nous lisons qu'en I'ann^e 1541, il y eut vne telle
quantite de Sauterelles en Lombardie, qui tomberent
d'vne nuee ; qu'ayant mange les fruits de la terre, elles
causerent la famine en ces lieux-la. Elles estoient longues
d'vne doigt, grosse teste, le ventre remply de vilenie et
ordure ; lesquelles estant mortes infecterent I'Air de si
raauuaises odeurs, que les Courbeaux et autres animaux
camassiers ne les pouuoient supporter.
On dit aussi qu'en Pologne il y eut aussi telle quantite
de ces animaux au commencement sans aisles, et apres
ils en eurent quatre, qu'ils couuroient deux mille, et
d'vne coud^e d'auteur, et tellement epaisses qu'en volant
elles leuoient la vetie de la clarte du Soleil, ces animaux
Appendix 289
firent un degat non-pareil aux biens de la terre, et ne
purent estre chasses par autre force ny Industrie, que par
la malediction Ecclesiastique.
Saint Augustin raconte au Liure de la Cit6 de Dieu,
Chap, dernier, qu'en Afrique il y eut telle quantity de
Sauterelles, et si prodigieuses, qu'ayans mangd tous les
fruits, feiiiles, et ecorces des arbres iusques k la racine,
elles s'dleuerent comme vne nuee ; et tombees en la Mer,
causerent vne peste si forte, qu'en vn seul Royaume il y
niorut huit cens mille Habitans.
Du temps de Lotaire troisieme Empereur apres Charle-
magne, il y eut dans la France des Sauterelles en nombre
prodigieux, ayans six aisles auec deux dents plus dures
que de pierre, qui couurirent toute la terre, comme de la
neige, et gasterent tous les fruits, arbres, bl^, et foins, et
tels animaux ayans estd jettes k la Mer ; il s'ensuiuit
vne telle corruption en I'Air, que la peste rauageat
grande quantite de monde en ce pays Ik. Voilk quantity
d'exemples quo nous font voir le dommage que nous
apportent ces bestioles et insectes. Maintenant voyons
comme on leur forme leur procds afin de s'en garantir
par le moyen de la malediction que leur donne I'Eglise.
Premierement, sur la Requeste presentee par les
Habitans du lieu qui soufifrent le dommage, on fait in-
former sur le ddgat que tels animaux ont fait, et estoient
en danger de faire, laquelle information rapportee, le Juge
Ecclesiastique donne vn Curateur a ses bestioles pour se
presenter en jugement, par Procureur, et la deduire
toutes leurs raisons, et se defendre contre les Habitans
qui veulent leur faire quitter le lieu, ou elles estoient, et
les raisons veues et considerdes, d'vne part et d'autre il
rend sa Sentence. Ce que vous verrez clairement par le
moyen du plaidoyer suiuant.
19
290 Appendix
Requeste des Habitans
Svpplie hvmblement N. Exposans comme riere le
liieu de N. il y a quantity de Souris, Taupes, Sauterelles
et autres animaux insectes, qui mangent les bids, vignes
et autres fruits de la terre, et font vn tel ddgat aux bids,
et raisins qu'ils n'y laissent rien, d'ou les pauures
supplians soufTrent notable prejudice, la prise pendante
par racine estant consommde par ces animaux, ce qui
causera vne famine insupportable.
Qui les fait recourir a la Bontd, Clemence et Miseri-
corde de Dieu, h. ce qu'il vous plaise faire en sorte que
ces animaux ne gastent, et mangent les fruits de la terre
qu'il a pleu a Dieu d'enuoyer pour I'entretient des
hommes, afin que les supplians puissent vacquer, auec
plus de deuotions au seruice Diuin, et sur ce il vous
plaira pouruoir.
Plaidoyer des Habitans
Messievrs, ces pauures Habitans qui sont a genouy les
larmes h. I'oeil, recourent a votre Justice, comme firent
autre-fois ceux des Isles Maiorque et Minorque, qui
enuoyerent vers Aug. Cesar pour demander des Soldats,
afin de les defendre, et exempter du rauage que les Lapins
leur faisoient : vous auds des armes plus fortes que les
Soldats de cette Empereur pour garantir les pauures
supplians de la faim et necessity de laquelle ils sont
menaces, par le rauage que font ces bestioles, qui
n'dpargnent ny bid, ny vignes ; rauage semblable a celuy
que faisoit vn Sanglier, qui gasta toutes les Terres,
Vignes, et Oliuiers du Royaume de Calidon, dont parle
Homere dans le premier Liure de son Hiliade, ou de ce
Renard qui fut enuoyd par Themis a Thebes, qui
Appendix 291
n'dpargnoit ny les fruits de la terre, ny le bestail attaquant
les Paysans mesmes. Vous sQauez assez les maux que
raporte la faim, vous aues trop de douceur, et de Justice
pour les laisser engager dans cette misere qui contraint
a s'abandonner a des choses illicites, et cruelles, nee enim
rationem patitur, nee vlla ceequitate mitigatur : nee prece
vUa flectitur esuriens populus : Temoins les Meres dont il
est parle au quatrieme des Roys, qui pendant la famine
de Samarie, mangerent les enfans, I'une de 1' autre. Da
filium tuum, vt eomedamus hodie, et filium meum
comedimus eras : Coximus ergo filium meum, et eomedimus.
Quid turpe non eogit fames, sed nihil turpe, nihilve, vetitum
esuriens eredit, sola enim eura est, vt qualieumque sorte
iuuetur. La mort qui vient par la famine est la plus cruelle
entant qu'elle est pleine de langueurs, ddbilitds et foib-
lesses de coeur, qui sont autant de nouuelles, et diuerses
especes de mort.
Dura qtiidem miseris, mors est, mortalibus omnis.
At perijsse fame. Res vna miserrima longi est.
Et Auian Marcellin dit, Mortis grauissimum genus, et
vltimum malorum fame perire. le crois que vous aurds
compassion, de ce pauuve Peuple, si on vous le repre-
sente, par aduance en I'estat qu'il serait reduit si la faim
I'accabloit.
Hirtus erat crinis, cana lumina, pallor in ore,
Labia iticana siti, scabri rubigine denies.
Dura ait is, per quam spectari viscera possunt.
Ossa sub incuruis extabant arida lumbis ;
Ventus erat, pro ventre locus.
Les Gabaonistes, reuestus d'habits dechir^s, et des
visages affames, auec de contenances toutes tristes, firent
pitie et compassion au grand Capitaine louse, et en cdt
estar obtiendrent grace et misericorde.
292 Appendix
Les Informations et visites qui ont estd faites par vos
commandements, vous instruisent suffisamment du degat
que ces animaux ont fait. Ensuite dequoy on a fait les
formalites requises et necessaires, ne restant plus main-
tenant que d'adjuger les fins et conclusions prises par la
Requeste des demandeurs, qui sont ciuiles et raison-
nables, sur lesquelles il vois plaira de faird reflection, et
k c6t effet leur enioindre de quitter le lieu et se retirer
dans la place qui leur sera ordonnees en faisant les
execrations requises et necessaires, ordonnees par nostrc
Mere Sainte I'Eglise, h. quoy les pauures demandeurs
concluent.
Plaidoyer pour les Insectes
Messievrs, ddpuis que vous m'auds choisi pour la
defense ces pauures bestioles, il vois plaira que je
remontre leur droit, et fasse voir que les formalites, qu'on
a faites contre elles, sont nuUes : m'etonnant fort de la
fa^on qu'on en vse, on donne des plaintes contre elles,
comma si elles auoient commis quelque crime, on fait
informer du degat qu'on pretend qu'elles ayent fait, on les
fait assigner par-deuant le Juge pour respondre, et comme
on s^ait qu'elles sont muettes, le Juge voulant suppleer a
ce defaut, leur donne vn Aduocat, pour representer en
Justice les raisons qu'elles ne peuuent deduire ; et
parceq; Messieurs, il vous a pleu de me donner la
liberte de parler pour les pauures animaux, je diray pour
leur defence en premier lieu.
Qve I'adiovmement laxe contr'elles est nul comme laxe
contre des bestes, qui ne peuuent, ny doiuent se presenter
en jugement ; la raison est, que celuy qu'on appelle, doit
estre capable de raison, et doit agir librement, pour pouuoir
connoitre vn delict. Or est-il que les animaux estans
Appendix 293
priu^s de cette lumiere qui a est^ donnde au seul homme,
il faut conclurre par necessaire consequence, que telle
procedure est nulla ; cecy est tire de la Loi premieree, ff.
si quadrupes, pauper feciss. dicat ; et voyci les mots. Nee
enim potest animal, iniuriam fecisse, quod sensu caret.
La seconde raison est, que Ton ne peut appeller per-
sonne en jugement sans cause ; car autrement celuy qui
fait adjourner quelqu'vn sans raison, il doit subir la peine
portde sous le tiltre des instituts de poen. tern, litig. Mais
ces animaux ne sont obliges par aucune cause, ny en
aucune fagon, non tenentur enim ex contractu, estans in-
capables de contracter, neque ex quasi contractu, neque ex
stipulatione, neque ex pacto, moins ex delicto, seu quasi ;
parce que comme il a este dit cy-deuant, pour commettre
vn crime, il faut estre capable de raison, qui ne se rencon-
tre pas aux animaux, qui sont priues de son vsage.
De plus dans la Justice, on ne doit rien faire qui ne
porte coup, la Justice en cela imitant la Nature ; laquelle,
comme dit le Philosophe, ne fait rien mal k propos, Deus
enim, et Natura nihil operantur frustra. Je laisse a pen-
ser quest-ce qu'on pretend de faire ayant adjourne ces
bestioles, elles ne viendront pas respondre ; car elles sont
muettes, elles ne constitueront pas des Procureurs, pour
defendre leur cause, moins leur donneront des memoires,
pour deduire en jugement, leur raison : Car elles sont
priuees de raisonnement, en sorte que tel adjournement
ne pouuant auoir aucun effect, est nul. Si done I'adjourne-
ment qui est la base de tous les actes judiciels est nul, le
reste comme en dependant, ne pourra subsister cum enim
principalis causa non consistat, neque ea quoe consequuntur
locum habent.
On dira peut-estre que si bien tels animaux, ne peuuent
constituer vn Procureur, pour la defense de leur droict,
294 Appendix
et instruction de leur cause que le Juge de son office le
peut faire, et partant que le fait du Juge, est le fait de la
partie. A cela on respond qu'il est vray lors qu'il le fait
salon la disposition du droict, In administratione sua iuris-
dictionts, mais non pas en ce cas, ou la partie n'en pouuait
constituer, le Juge aussi, ne le peut faire, cecy est decide
par la glose de la Loy 2 ff. de adtninistrat. res ad Civit.
pertinefit, et pour preuue de cette proposition faite h. propos
L'axiaume qui dit quod directe fieri prohibetur, per indirec-
tum co7icedi non debet, cap. tuae de procuratoribus, gloss, c.
I . de consanguinibus, et affinibus. Mais ce que je treuue plus
estrange, on pretend faire prononcer contre ces pauures
animaux vne Sentence d'Excommunication, d'Anathema
et malediction, et a quel sujet vser contre des bestioles
qui sont sans defense, du plus rigoureux glaiue que
I'Eglise aye en sa main, qui ne punit et ne chatie que les
Criminels ; ces animaux estans incapables de faire faute,
ni peche, parce que pour pecher il faut auoir la lumiere
de la raison laquelle dicemant le bien d'auec le mal, nous
monstre ce qu'il faut suiure, et ce qu'il faut fuir, et de plus
il faut auoir la liberty de prendre I'vn et laisser I'autre.
On vovdra peut-estre dire qu'elles ont manque en ce
qu'elles ne se sont presentees ayant est^ adjurndes, et
partant que la Contumace et defaut estant vn crime, on
peut faire rendre contre elles Sentence Contumaciale, k
cause de leur desobeissance : Mais a cela on respond
qu'il ny a point de Contumace, ou il n'y a point d'ad-
journement, ou du moins qui soit valable quia paria sunt
non esse citatum, vel non esse legitime citatum, ita dd. com-
muniter BartoL, in I. ea quae C. quomodo, etc.
De plus, si on prend garde \ la definition de I'Excommu-
nication, on verra qu'on ne peut prononcer telle Sentence
contre ces animaux : car 1' Excommunication est dite extra
Appendix 295
Ecclesiam positio, vel h qualibei communione, vel h quolibet
legitinio actu separatio. Tellement que tels animaux ne
peuuent estre dechasses de I'Eglise, n'y ayans jamais
estd, d'autant qu'elle est pour les hommes qui ont Tame
raisonnable, non pas pour les brutes, qui ne sont doilies
d'aucune raison, et I'Apostre S. Paul ad Coritith. 5 dit
quhd de its quae f oris sunt nihil ad nos quoad Excommu-
ntcattonem, quia Excommunicare non possumus, I'Excom-
munication afficit animam non corpus, nisi per quandam
consequent iam, cuius Medicina est, cap. i, de sentent. Ex-
comm. in 6. Cast pourquoy Tame de ces animaux, n'es-
tant immortelle, elle ne peut estre touchde par telle Sen-
tence, quae vergit in dispendiwn aeternae salutis.
L'autre raison est, quod facienti actum permissum non
imputatur, id quod sequitur ex illo, licet consecutiuum sit
repugnans statui suo cap. de occidendis 23 q. 5 cap. sicut
dignum extra de homicid. Ces animaux font vn acte per-
mis mesme par le droit Diuin. Car il est dit dans la
Genese fecit Deus bestias terrae iuxta species suas, iu-
menta, et otnne reptile terrae in genere suo dixitque
Deus, ecce dedi vobis, omnein herbam afferentem semen
super terram, et vniuersa ligna, quae habent in semetipsis
sementem generis sui, vt sint vobis in escam ; et cunctis
animalibus terrae, omnique volucri coeli, vniversis quae
mouenturin terris, et in quibus est anima viuens ; vt habeat
ad vescendum. Que si les fruits de la terre ont estd faits
pour les animaux et pour less hommes, il leur est permis
d'en manger et prendre leur nourriture, aussi Ciceron dit
au premier des O^ces principio generi omnium animantium
est d natura attributum, vt se vitam, corpusque tueantur,
quaeque ad vescendum necessaria stmt inquirant. Par ces
raison on voit qu'ils n'ont commis aucun delict, ayant fait
ce qui leur est permis par le droit Diuin et de Nature, et
296 Appendix
par ainsi ils ne peuuent estre punis, ny maudis, cum etiam
creaturae intdlettuali, et rationali delinquenti seu damnum
afferenti, eo quod secundum solitum facit ; non est Angela
licitum makdicere, multo minus erit licitum homini, veu
qu'on lit dans I'Epistre de S. lude, cum altercaretur
Michael aim Diabolo de corpore Moysis non fuit ausus
maledicere Cap. Si igitur Michael, 23. q. 3. S. Thomas 2.
2. q. 76. dit que de donner des maledictions aux choses
irraisonnables, estans Creatures de Dieu s'est peche de
blasphemer et de les maudire, les considerans en eux
mesmes, est otiosum, et vanum, et per consequens illiciium.
Que si toutes ces raisons ne vous touchent, peut-estre
cette-cy vous fdra donner les mains, et persuadera k vostre
Esprit, qu'on ne peut donner aucune sentence d'Excom-
munication contre elles ny jetter aucun Anatheme. Car
pronongant telle Sentence s'est s'en pendre k Dieu, qui
par sa justice le enuoye pour punir les hommes et chastier
leurs peches, immitamque in vos bestias agri quae consu-
mant vos, et pecora vestra, et ad paucitatem cuncta redigant,
pouuant dire maintenant ce que Dieu a dit auant le De-
luge omnis Caro corrupit viam suam. Et Guide en ses
Metamorphoses voyant que le vice auoit pris le haut bout,
Triomphant, et faisant des conquestes par tout, au con-
traire la vertu estoit abaissde, exilee, et reduite en tel estat
qu'elle ne treuuoit aucune demeure parmy les Hommes.
Protinus irrupit vena: prioris in ceiiutn,
Omne nrfas, fugere pudor, verumque fidisqut.
In quorum subiere locum, fraud^sque, doliisque.
Instduzqiu, et ars, et amor sceleratus habendi,
Uiuitur ex rapto, non hospes ab hospiie tutus,
Non socer a genero, fratrum quoqui gratia rara est,
Imminet exitio vir, conjugis, ilia mariti
Liuida terribiUs miscent aconita nouercae
Filius ante diem, patrios inquirit in annos,
Uita iacet pietas, et virgo ccede niadentes.
Ultima Cilestum, Terras Astrea reliquit.
Appendix 297
Par les quelles raisons on voit, que ces animaux sont
en nous absolutoires, et doiuent estre mis hors de Cour
et de Proces, h quoy on conclud.
Replique des Habitans
Le principal motif qu'on a rapporte pour la defFense de
ces animaux, est qu'estans priues de I'vsage de la raison,
ils ne sont sommis k aucunes Loix, ainsi que dit le Chapi-
tre cum mulier i. 5. q, 1. la /. congruit in fin. et la Loix
suiuante. ff. de off. Praesid. sensu enim carens non subjicitur
rigori Juris Ciuilis. Toutesfois, on fera voir que telles
Loys ne peuuet militer au fait qui se prdsente maintenant
k juger, car on ne dispute pas de la punition d'vn delict
commis; Mais on tasche d'empescher qu'ils n'en com-
mettent par cy-apres, et partant ce qui ne seroit loisible k
vn crime commis, et permis afin d'empescher ne crimen
committatur. Cecy ce preuue par la Ley congruit sus
citd, oil il est dit qu'on ne peut pas punir vn furieux et
insensd du crime qu'il a commis pendant sa fureur, parce
qu'il ne scait ce qu'il fait, toutesfois on le pourra renfermer
et mettre dans des prisons, afin qu'il n'offence personne
et pour faire voir combien cdt Axiome est vray, ie me sers
de I'authorite du Chapitre omnis vtriusque sexus de poeni-
tent. et remiss, ou il est dit qu'on peut deceller ce qu'on
a pris si on ne la pas execute, afin d'y rapporter du remede,
cette proposition est confirmee par la glose in cap. tua nos
ext. de sponsal. qui dit qui si quelqu'vn s'accuse d'auoir
Fiance une fiUe, par parolles de present ; on pourra de-
celler ce qui a este dit, afin que le Mariage se consume.
La raison est, qu'ayant espouse telle fiUe, si on nie de
I'auoir fait, et on refuse d'accomplir le Mariage, Videtur
esse delictum successiuum, et durare vsque illam acceperit, vt
ergo tali delicto obuietur. II este loisible de publier ce
298 Appendix
qu'on a pris secretement Estant vray pax les raisons de-
duites qu'on a peu adjoumer, tels animaux, et que I'ad-
joumement est valable, d'autant qu'il est fait afin qu'ils
ne rapportent du dommage d'ores en auant, non pas pour
les chastier de celuy qu'ils ont fait II reste maintenant
de respondre k ce qu'on a aduanc^ a sgauoir que tels
animaux ne peuuent estre Excommunids, Anathematises,
maudis ny execres ; h. cela il semble que se serait doubter
de la puissance que Dieu a donne a I'Eglise, I'ayant fait
Maitresse de tout I'Vnivers, comme sa chere Espouse,
de qui on peut dire, auec le Psalmiste, omnia subiecisti sub
pedibus ejus, ones, et boues et omnia qua mouentur in aquis,
et estant conduite par le S. Esprit, ne fait rien que sage-
ment, et s'il y a chose ou elle doiue monstrer son pouuoir,
c'est k la Conservation du plus parfait ouurage de son
Espoux ; a sgauoir de I'Homme, qu'il a fait a son Image
et sQxnhXance, faciamus hominem, ad imaginem, et simili-
tudinem nostram et luy a donne le Gouuemement de
toutes les choses crees crescite et multiplicatnini et domina-
mini piscibus maris, volatilibus cceli, et omtiibus animatttibus
Coeli ; Aussi Pline en son Liure premier de I'Histoire
naturelle dit quod causa hominis, videtur cuncta alia
genuisse natura. Les Jurisconsultes sont d'accord, quod
hominis gratia, omnes fructus a natura comparati sunt, I.
pecudum. ff. de vsur. et §. partus ancillarum. instit. de rer.
diuis. et Guide descriuant I'excellence de I'Homme parle
de la sorte,
Pronaque, cum spictent animalia cccetera terras
Os homini sublime dedit, ccelumque tueri
lussit, et erectos ad sidera tollere vultus.
et vn autre Poete,
Nonne vides hominem, vt Celsos ad sidera vultus
Sustulerit Deus, ac sublimia finxerit ora.
Cum pecudes, volucrunique genus, formasqiu ferarum,
Segnem, atque obsccenam, passuri strauisset in aluum.
Appendix 299
Picus Mirandulanus, en vne de ses Oraison parlant de
la grandeur de THomme dit hominem tantce excellenitae,
ac sublimitatis esse, vt in se omnia continere dicatur, vti
£)eus, sed diuersimodh, Deus enim omnia in se continet, vti
omnium medium principium, homo verb, in se omnia con-
tinet, vti omnium medium, quo fit, vt in Deo sint omnia
meliore nota, qudm in seipsis, in homine inferiora nobiliort
sint conditione, superiora autem degenerent sicut aer, ignis,
aqua et terra per verissimatn proprietatem naturoe sues, in
crasso hoc, et terreno, hominis corpore, quo nos videmus, hinc
etenim nulla creata substantia seruire dedignatur, hinc
Terra, et Elementa, huic bruta praesto sunt, famulantur,
hinc militat ccelum, hinc salutem bonumque procurant
Angelicas mentes.
Et se seroit vne chose, si j'ose dire hors de raison, que
celuy pour qui la terre produit tous ces fruits, en fut
priud, et que de chetifs animaux, prissent leur norriturCj
k I'exclusion de rHomme pour qui ils sont destines
de Dieu. C'est sur ce sujet qu'il dit Increpabo pro ie
locustas dummodo posueris de fructibus tuis in horrea
mea.
Et pour responce \ ce qu'escrit S. Thomas qu'il n'est
loisible de maudire tels animaux, si on les considere en
eux mesmes, on dit qu'en I'espece qu'on traitte, on ne
les considere pas, comme animaux simplement : mais
comme apportans du mal aux Hommes, mangeans et
ddtruisans les fruits qui seruent k son soutient, et
nourriture.
Mais a quoy, nous arrestons-nous depuis qu'on voit
par des exemples infinis que quantite de saints Person-
nages, ont Excommunie des animaux apportans du
dommage aux Hommes. II suffira d'en rapporter vn pour
tout, qui nous est cogneu, et familier, que nous voyons
300 Appendix
continuellement, k s9auoir dans la ville d'Aix, ou S.
Hugon Euesque de Grenoble Excommuniat les serpens,
qui y estaient en quantitd a cause des bains chauds de
souffre, et d'Alun, qui faisaient vn grand dommage aux
Habitans de ce lieu par leur piqueures. De sorte que
maintenant si bien les Serpens piquent, quelqu'vn dans
le lieu, et confins : Telle piqueure ne fait aucun mal, le
venin de ces bestes estant arrest^, par le moyen de telle
Excommunication, que si quelqu'vn est pique hors de ce
lieu par les mesmes Serpens, la piqueure sera venimeuse
et mortelle ainsi qu'on a veu par plusieurs fois. le
laisse a part quantite de passages de I'Escripture par
lesquels on voit que Dieu a donn^ des maledictions aux
choses inanimees, et Creatures sans raison, ainsi qu'on
pourra voir au Leuitic. Ch. 26. et Deut/ieronome 27.
Genes. 2. il maudit le Serpent Maledictus es, inter omnia
animantia, et bestias Terrce.
De dire, qu'excommuniant, Anathematisant tels
animaux, s'est s'en prendre a Dieu, qui les a enuoye
pour le chastiment des hommes. A cela on respond
que ce n'est pas s'ens prendre a Dieu que de recourir a
I'Eglise, et la prier de diuertir, et chasser le mal, qu'il a
pleu a sa Diuine Majestd de nous enuoyer, a cause de
nos fautes et peches ; au contraire c'est vn acte de
Religion que de recourir k elle, lors q'on voit que Dieu
leue sa main pour nous frapper.
Conclusion du Procureur Episcopal
Les defenses rapportdes par I'Aduocat de ces animaux,
centre les Conclusions prises par les Habitans sont
considerables qui meritent qu'on les examine meure-
ment; car il ne faut pas ietter le carreau d'Excommuni-
cation a la volde, et sans sujet, estant vn foudre qui est si
Appendix 301
agissant, que s'il ne frappe celuy contre lequel on le
jette, il embrase celuy qui le lance. Le discours de c6t
Aduocat est appuye sur la regie de Droict, qui dit, gui
tussu tudicts aliguid facit, p(znam non meretur^ et vraye-
ment c'est le luge des luges, qui ne laisse rien d'impuny,
et qui distribue les peines a I'egal des offences, sans
auoir dgard a personne, de qui les jugemens nous sont
incognus, quam abscondita indicia Dei, inuestigabiles vice
ejus. C'est vne Mer profonde d'ont on ne peut ddcouurir
le fonds. De dire pourquoy il n enuoyd ces animaux, qui
mangent les fruits de la terre : Ce nous sont lettres
closes ; peut estre veut-il punir ce Peuple, pour auoir fait
la sourde oreille aux pauures qui demandoient a leurs
portes, estant vn Arrest infaillible, que qui fait aux
pauures la sourde oreille, attende de Dieu la pareille.
Ceux qui donnent I'aumosne sont totljours sous la
protection Diuine, aussi S. Gierosme dit non memini me
legisse mala 7norte mortuum, qui libenter opera charitatis
exercuit, habet enim multos intercessores, et impossibile est,
multorum preces non exaudiri, et S. Ambrojse parlant de
ceux qui donnent I'aumone aux pauures, si non pauisti
necasti, pascendb seruare poteras, de mesmes la Loy de lib.
agnoscend. repute pour homicide celuy qui denie, et
refuse les alimens a ceux qui en ont besoin, et le
Prophete Ezechiel, c. 18. parlant de la recompense, que
Dieu a destinee a ceux qui font du bien aux pauures, qui
panem suum esurienti dederit et nudum operuerit vestimento,
Justus est, et vitct viuet ; Lesquelles paroles Eusebe
expliche de la sorte, fregisti esurienti panem tuum, in
Coelo vitae pane qui Christus est satiaberis, hie peregrinis
domus tua patuit, in domo Angelorum, Ciuis efficieris tu
hie trementia membra destijsti, illic liberaberis ab illo
frigore, in quo eritfletus, et stridor dentium.
302 Appendix
C'est vn acte de Charitd, que d'assister le pauures,
f range esurienti panem tuum et egenos, vagosque indue in
domum tuam, cum videris Jiudum, operi eum, et carnem
tuam ne despexeri, dit losue c. 38. aussi la recompense
est asseuree, ainsi qu'escrit S. Mathieu cap. 25. venite
Benedicii patris mei, possidete paratum vobis regnum a
constitutione mundi ; esuriui enim, et dedistis mihi man-
ducare ; sitiui, et dedistis mihi bibere ; hospes eram et
Collegistis me ; nudus eram, et operuistis me, amen dico
vobis quod vni fecistis ex fratribus meis minimis, mihi
fecistis. C'est vne oeuure de Misericorde d'auuoir
compassion de son prochain, ainsi que dit S. Ambroise
lib. 2. off. cap. 28. hoc maximum Misericordice, vt
compatiamur alienis calamitatibus necessitates aliorum,
quantum possu?nus iuvemus, et plus interdutn quam possu-
mus I'Hospitalitd est recommandee par S. Paul hospitali-
tatem nolite obliuisci, per hanc enim placuerunt quidam,
Angelis hospitio receptis, et S. Augustin disce Christiane
sine discretione exhibere hospitalitatem, ne forte cui domum
clauseris, cui humanitatem negaueris ipse sit Christus.
L'ordinaire recompence qui suit I'aumosne est le centuple,
honora Dominutn de tua substantia, et deprimitiis omnium
fj^ctuorum tuorum de pauperibus, et implebiinticr horrea
tua saturitate et vino torcularia tua redundabunt. Les
abismes de la Diuinite ne s'dpuisent jamais, pour donner,
et le sage Salomon, faneraiur Domino qui miseretur
pauperi, et vicissitudinem suam reddet. S. Paul aux Cor-
inthiens Chap. 2. parle de la sorte, qui admifiistrat
semen seminanti, et panem ad manducandum prcestabit,
et multiplicabit semen suum.
Seroit-ce point a cause des irreuerences qu'on commet
aux Eglises pendant le service Diuin, ou sans aucun
^gard k la presence de Dieu, conduntur stupra, tractantur
Appendix 303
lenocinia, adulteria meditantur, frequentiiis deniqui ; in
(zdituoruni cellulis qiibd in ipsis lupanaribus flagrans libido
defungitur, pour parler auec TertuUien ; car c'est la bien
souuent oil se donne le mot, ou se prennent les assigna-
tions, oil se lancent les meschantes oeilliades, Impudicus
oculus, impudici cordis est nuncius, dit S. Augustin, Sur
tous les arbres et plantes, qui estaient en ^gypte, le
peche ^tait consacre a Harpocrates qui prenait soin du
langage qu'on deuait tenir aux Dieux, parce que le fruit
du peche ressemble au coeur, et la feuille a la langue,
inferant de la que ceux qui allaient aux Temples,
deuoient penser saintement honestement, et sombrement
parler.
Numa Pompilius ne volut pas qu'on assistat au culte
Diuin par maniere d'aquit : Mais qu'en quittant toutes
choses, on y employat entierement sa pensde, comme au
principal acte de la Religion, et d'actions enuers les
Dieux, ne voulant pas mesme pendant le Seruice, qu'on
entendit parmy les Rues aucun bruit, et lors que les
Prestres faisoient le Sacrifices et ceremonies, il y auoit
des Sergens qui crioent au Peuple que Ton se tue, lais-
sant toute autre ceuvre pour estre attentif au Culte.
Que si les Payens ont este si exats en leur fausse
Religion au Culte de leurs Idoles, et imaginaires Diuin-
itds, nous qui sommes Chrestiens, et auons la conoissance
du vray Dieu ; quel respect ne luy deuons-nous pas porter
dans les Eglises, pendant le S. Sacrifice de la Messe et
autres Offices Diuins.
Mais si bien Dieu est luste iusticier, qui ne laisse rien
impuni toutesfois la Justice ne tient pas si fort le haut
bout, que la misericorde, n'y treuue place. II est autant
Misericordieux que luste, et s'il enuoit quelques aduer-
sites aux pecheurs et les visite par quelque coup de fouet :
304 Appendix
C'est pour les aduertir de faire penitence, par le moyen
de laquelle ils puissent ddtoumer son courroux, et iuste
vengeance, et par ce moyen, ils se puissent reconcilier
auec luy, et obtenir ses graces, et pardon de leurs fautes
et pechds.
Nous voyons ces habitans la larme a I'oeil, qui
demandent pardon d'vn cceur contrit de leurs fautes,
ayans horreur des crimes commis par le pass^, et
employent I'assistance de I'Eglise pour les soulager en
leurs ndcessitds, et de'tourner le Carreau qui leur pend
sur la teste, estans menaces d'vne famine insuportable si
vous ne prends leur droit, et cause en protection, et faire
ddoger ces animaux, qui les menagent d'vne ruine totale,
k quoy nous n'empeschons.
Concluans a c6t effect, qu'il plaise de rendre vostre
Sentence d'execution contre ces animaux, afin que d'ores
en auant ils n'apportent du dommage aux fruits de
la terre enjoignans aux Habitans, les Penitences, et
Oraisons, a ce conuenables et accoustumees.
Za Sentence du luge cPEgltse
In nomine Domini amen, visa supplicatione pro parte
habitantium loci, nobis officiali in iudicio facta, aduersus
Bronchos, seu Erucas, vel alia non dissimilia animalia
fructus vinearum eiusdem loci k certis annis, et adhuc
hoc praesenti anno, vt fide dignorum Testimonio, et quasi
publico Rumore asseritur, cum maximo incolarum loci,
et vicinorum locorum incommodo depopulantia, vt prae-
dicta animalia per nos moneantur, et remediis Ecclesi-
asticis mediantibus compellantur, a territorio dicti loci
abire, visisque diligenter, inspectis causis praedictae
supplicationis, necnon pro parte, dictarum Erucarum, seu
animalium, per certos Conciliari s eosdem, per nos
Appendix 305
deputatos, propositis et allegatis, audito etiam super
praemissis promotore, ac visa certa informatione, et
ordinatione nostra, per certum dictae Curiae, Notarium,
de danmo in vineis, iam dicti loci, per animalia illato.
Quoniam, nisi eiusmodi damno, nisi diuina ope succurri
posse existimatur attenta praedictorum habitantium,
humili, ac frequenti, et importuna requisitione praesertim
magnae pristinae vitae errata emendandi per eosdem
habitantes, edicto spectaculo, solemniter supplicationum
nuper ex nostra ordinatione, factarum prompta ex-
hibitione, et sicut Misericordia Dei, peccatores ad se cum
humilitate reuertentes non respuit, ita ipsius Ecclesia
eisdem recurrentibus, auxilium seu etiam solatium quale-
cunque denegare non debet.
Non praedictus, in re quamquam noua, tarn fortiter
tamen efflagitata Maiorum vestigiis inhaerendo, pro
tribunali, sedentes, ac Deum prae oculis habentes, in eius
Misericordia, ac pietate confidentes, de peritorum consilio,
nostram sententiam modo quae sequitur, in his scriptis
ferimus.
In nomine, et virtute Dei, Omnipotentis, Patris, et
Filij, et Spiritus sancti, Beatissimae Domini nostri Jesu
Christi Genetricis Mariae, Authoritateque Beatorum
Apostolorum, Petri et Pauli, necnon ea qua fungimur in
hac parte, praedictos Bronchos, et Erucas, et animalia
praedicta quocunque nomine censeantur, monemus in
his scriptis, sub poenis Maledictionis, ac Anathemati-
sationis, vt infra sex dies, a Monitione in vim sententiae
huius, a vineis, et territoriis huius loci discedant, nullum
vlterius ibidem, nee alibi documentum, praestitura, quod
si infra praedictos dies, iam dicta animalia, huic nostrae
admonitioni non paruerint, cum effectu. Ipsis sex diebus
elapsis, virtute et auctoritate praefatis, ilia in his scriptis
20
3o6 Appendix
Anathematizamus, et maledicimus, Ordinantes tamen, et
districte praecipientes, praedictis habitantibus, cuius-
cumque grades, ordinis, aut conditionis existant, vt
facilius ab Omnipotente Deo, omnium bonorum largitore,
et malorum depulsore, tanti incommodi liberationem,
valeant promereri, quatenus bonis operibus, ac deuotis
supplicationibus, iugiter attendentes, de caetero suas
decimas, sine fraude secundum loci approbatam con-
suetudinem persoluant, blasphemiis, et aliis peccatis,
praesertim publicis sedul6 abstineant.
Appendix 307
Allegation, replication, and judgment in the process
against field-mice at Stelvio in 15 19.
KLAG
Schwarz Mining hat seinKlaggesetzt wider die Lutmause
in der Gestalt, dass diese schadliche Tiere ihnen grossen
merklichen Schaden tun, so wurde auch erfolgen, wenn
diese schadliche Tiere nit weggeschaft werden, dass sie
ire Jarszinse der Grundherrschaft nit nur geben konnten
und verursacht wurden hinweg zu ziehen, weil sie solcher
Gestalten sich nit wussten zu ernehren.
ANTWORT
Darauf Grienebner eingedingt, und diese Antwort geben
und sein Procurey ins Recht gelegt : er hab diese wider
die Tierlein verstanden ; es sey aber manniglich bewusst,
dass sie allda in gewisser Gewohr und Nutzen sitzen,
darum aufzulegen sei : Derentwegen er in Hoffnung
stehe, man werde ihnen auf heutigen Tage die Nutz und
Gewohr mit keinem Urtel nehmen oder aberkennen. Im
Fall aber ein Urtel erging, dass sie darum weichen miissten,
so sey er doch in Hoffnung, dass ihnen ein anders Ort
und Statt geben soil werden, uf dass sie sich erhalten
mogen : es soil ihnen auch bei solchem Abzug ein frei
sicher Geleit vor iren Feinden erteilt, es seyn Hund
3o8 Appendix
Katzen oder andre ihre Feind : er sey auch in Hoffnung,
wenn aine schwanger ware, dass derselben Ziel und Tag
geben werde, dass ir Frucht fiirbringen und alsdann auch
damit abziehen moge.
URTEL
Auf Klag und Antwort, Red und Widerred, und uf
eingelegte Kundschaften und AUes was fiir Recht kommen,
ist mit Urtel und Recht erkennt, dass die schadlichen
Tierlein, so man nennt die Lutmause, denen von Stilfs
in Acker und Wiesmader nach Laut der Klag in vierzehn
Tagen raumen soUen, da hinweg ziehen und zu ewigen
Zeiten dahin nimmer mehr kommen sollen ; wo aber ains
oder mehr der Tierlein schwanger war, oder jugendhalber
nit hinkommen mochte, dieselben sollen der Zeit von
jedermann ain frey sicheres Geleit haben 14 Tage lang;
aber die so ziehen mogen, sollen in 14 Tagen wandern.
Vide Hormayr's Taschenbuch fur die vaterldndische
Geschichte. Berlin, 1845, pp. 239-40.
Appendix 309
D
Admonition, denunciation, and citation of the inger
by the priest Bemhard Schmid in the name and by the
authority of the Bishop of Lausanne in 1478.
Du vnverniinfftige/ vnvollkommne Creatur/ mit nam-
men Inger/ vnd nenne dich darumb vnvollkommen/ dann
deines geschlechts ist nit geseyn in der Arch Noe/ in der
Zeit der vergifftung vnd plag des Wassergusses. Nun
hast du mit deinem anhang grossen schaden gethan im
Erdtrich vnd auif dem Erdtrich ein mercklichen abbruch
zeitlicher nahrung der Menschen vnd vnvemiifftigen
thiere. Vnd von des nun/ somlicher und dergleichen/
durch euch vnd euweren anhang nit mehr beshach/ so
hat mir mein gnadiger Herr vnd Bischoff zu Losann
gebotten in seinem nammen/euch zeermannen/ zeweichen
vnd abzestahn, Vnd also von seiner Gnaden gebotts
wegen vnd auch in seinem nammen als obstaht/ vnd bey
krafft der heiligen hochgelobten Dreyfaltigkeit/ vnd durch
krafft vnd verdienen des Menschen-geschlechts Erlosers/
vnsers behalters Jesu Christi/ vnd bey krafft vnd gehor-
samkeit der heiligen Kirchen gebieten vnd ermannen ich
euch in 6. nachsten tagen zeweichen/ all vnd jegliche
besonders/ auss alien Matten/ Ackeren/ Garten/ Feldern/
Weiden/ Baumen/ Kriiteren/ vnd von alien orteren/ an
denen wachsend vnd entspringend nahrungen der Men-
schen vnd der Thieren/vndan dieort vnd statteuch fiigend/
dass ihr mit ewerem anhang nimmer kein schaden voUbrin-
gen mogen an den fruchten vnd nahrungen der Menschen
31(3 Appendix
vnd Thieren/ heimlich noch offentlich. Were aber sach/
dass ihr dieser ermannungen vnd gebott nit nachgiengend/
Oder nachfolgeten/ vnd meinten vrsach haben/ das nit
zeerfiillen/ so ermannen ich euch alsvor/ vnd laden vnd
citieren euch bey krafft vnd gehorsamkeit der heiligen
Kirchen am 6. tag nach diser execution/ so es eins
schlecht/ nach mitten tag/ gen Wifflispurg/ euch zu
verantworten/ oder durch eweren Fiirsprechen antwort zu
geben/ vor meinem gnadigen Herren von Losann/ oder
seinem Vicario vnd statthaltern/ vnd wird drauflF mein
gnadiger Herr von Losann oder sein statthalter fiirer/
nach ordnungen des rechten/ wider euch/ mit verfliichen
vnd beschweerungen/ handeln/ alss sich dann in solchem
gebiirt/ nach form vnd gestalt des rechten. Lieben
Kind/ ich begaren von ewerem jeglichen zu batten mit
andacht aufiF ewerem knyen 3 Paternoster vnd Ave Maria,
der hochen heiligen Dreyfaltigkeit zu lob vnd ehr anze-
riiffen/ vnd zebitten ihr gnad vnd hilif zesenden/ damit die
Inger vertriben werdind.
Job. Heinrich Hottinger: Historia ecclesiastica novi
testamenti iv. pp. 317 — 321, on the authority of Schilling's
Chronica, the manuscript of which is in the Zurich
library.
Appendix 3 1 1
Decree of Augustus, Duke of Saxony and Elector,
commending the action of Parson Greysser in putting
the sparrows under ban, issued at Dresden in 1559.
Von Gottes Gnaden Augustus, Herzog zu Sachsen und
Kurfiirst. — Lieber Getsener, welchergestalt und aus was
Ursachen und christlichem Eifer, der wiirdige, Unser
lieber andachtiger Hr. Daniel Greysser, Pfarrherr allhier
in seiner nachst getanen Predigt, iiber die Sperlinge etwas
heftig bewegt gewesen und dieselbe wegen ihres unauf-
horlichen verdriesslichen grossen Geschreis und arger-
lichen Unkeuschheit, so sie unter der Predigt, zu Verhin-
terung Gottes Worts und christlicher Andact, zu tun und
behegen pflegen, in den Bann getan, und manniglich
preis gegeben, dessen wirst du dich als der damals
ohne Zweifel aus Anregung des heiligen Geistes im
Tempel zur Predigt gewesen, guter massen zu erinnern
wissen.
Wiewohl Wir uns nun vorsehen, du werdest, auf
gedachten Herrn Daniels Vermahnen und Bitten, so
er an alle Zuhorer insgemein getan, ohne das allbereit
auf Wege gedacht haben ; sintemal Wir diesen Bericht
erlangt, dass du dem kleinen Gevogel vor andem
durch mancherlei visirliche und listige Wege und
Griffe nachzustellen, auch deine Nahrung unter andern
damit zu suchen und dasselbe zu fahen pflegest, — dass
ihnen ihrem Verdienst nach gelohnt werden moge nach
weiland des Herrn Martini seligen Urtheil — ist demnach
312 Appendix'
unser gnadiges Begehren — zu eroffnen, wie und welcher-
gestalt auch durch was Behandigkeit und Wege, du fiir
gut ansehest, dass die Sperlinge eher dann, wann sie
jungen, und sich durch ihre tagliche und unaufhorliche
Unkeuschheit unzahlich vermehren, ohne sonderliche
Kosten aus der Kirche zum heiligen Kreuz gebracht, und
solche argerliche Voglerei und hinterlicher Getzschirpe
und Geschrei im Hause Gottes, verkiimmert werden
moge. . . . Das gereicht zur Beforderung guter Kirchen-
zucht und geschieht daran unsere gnadige Meinung.
Datum Dresden, den. i8. Februar 1559. — Unserm
Secretario und lieben getreuen Thomas Nebeln.
K/^5 Hormayr's Taschenbuch^etc, 1845, pp. 227-8.
Appendi)^
313
Chronological List of Excommunications and Prose-
cutions of Animals from the Ninth to the Nineteenth
Century.^
Sources of Information
Dates
Animals
Places
Annales Ecclesias-
tici Francorum
824
Moles
Valley of
Aosta
Muratori : Rer. Ital.
Saiptores, iii
886
Locusts
Roman
Campagna
Gaspard Bailly :
Traitd des Monitoires
9th
cent.
Serpents
Aix-les-Bains
Sainte-Foix : Oeu-
vres, iv, p. 97, Me-
moxes de la Soci^te
Rojale des Antiqua-
ires de France, viii,
1120
Field-mice
and
Caterpillars
Laon
p. 427
Theophile Rayn-
aui : De Monitoriis
1121
Flies
Foigny near
Laon
in Opusc. niissc. ejus,
xiN\p.482. Mdmoires,
cit, viii, p. 415. Note,
Viti S. Bernhardi, i,
Nd 58. Acta., SS.
Au{. iv, p. 272
1121
Horseflies
Mayence
^ !\. few early instances of excommunication and malediction, our
knoTledge of which is derived chiefly from hagiologies and other
legeidary sources, are not included in the present list, such, for
exaiiple, as the cursing and burning of storks at Avignon by St.
Agriola in 666, and the expulsion of venomous reptiles from the
islam Reichenau in 728 by Saint Perminius.
314
Appe
adix
Sources of Information
Dates
Animals
Places
Malleolus : De Ex-
1225
Eels
Lausanne
orcismis
L'Abbd Leboeuf:
Hist, de Paris, ix, p.
400. Mdmoires, cit.,
1266
Pig
Fontenay-aux-
Roses near
Paris
viii, p. 427
Sainte-Foix : Oeu-
vres Themis, viii
1314
Bull
Moiey-le-
Temple
» >i >i
1320
Cockchafers
Avignon
Carpentier to Du
Cange, vide Homicida
1322
Not specified
»» »> »
1323
Abbeville
Both cited by Von
Amira, p. 552
Zeitschrift fiir
deutsche Kultur-
geschichte, ii, p. 544 ;
also Germania, iv, p.
383. Von Amira, p.
S61
1338
Kaltern
Delisle : Etudes sur
la condition de la
classe agricole, p. 107.
Von Amira, p. 552
1356
Pig
Caen
Appendix
%H
Sources of Information
Dates
Animals
Places
Carpentier to Du
Cange. Vide homi-
cida. Von Amira, p.
1378
Abbeville
552
Gamier : Revue des
Societes Savantes,
Dec. 1866, pp. 476,
sqq. From the arch-
ives of Cote-d'Or
1379
Three sows
and a pig.
Rest of the
two herds
pardoned
Saint-Marcel
les-Jussey
Charange: Diet, des
Titles Originaux, ii,
p. 72. Also statis-
tique de Falaise, i, p.
63. Mdmoires, cit.,
1386
Sow
Falaise
viii, p. 427
Auranton : Annu-
aire de la C6te-d'0r
1389
Horse
Dijon
Berriat - Saint- Prix
in Menoires, cit., viii,
p. 427. From MSS.
in la Bfcliotheque du
Roi
1394
Pig
Mortaing
Malleolus : De Ex-
orcismis. Tract, ii,
Mdmoires, cit., viii, p.
14th
cent.
Spanish
flies
Mayence
411
3i6
Appendix
Sources of Information
Dates
Animals
Places
MS. of Judge Her-
isson, published by
Lejeune in Memoires,
cit., viii, p. 433 ; also
Loriol : La France
Eure et Loire, p. io8
Auranton : Annu-
aire de la C6te-d'0r
MS. Bibliotheque
du Roi Memoires, cit,
viii, p. 427
MS. Bibliotheque
du Roi Memoires, cit.,
viii, p. 428
Louandre : Histoire
d'Abbeville
Auranton : Annu-
aire de la Cote-d'Or
1403
Malleolus : De Ex-
orcismis, Mdmoires,
cit., viii, p. 423
1404
1405
1408
1414
1418
1419
1420
1435
1451
Sow
Pig
Ox
Pig
Rats and
Blood-
suckers
Meulan
Rouvre
Gisors
Pont-de-
I'Arche
Abbeville
Labergement-
le-Duc
Brochon
Trocheres
Berne
Appendix
317
Sources of Information
Dates
Animals
Places
Garnier: Revue des
Societes Savantes, iv,
p. 476 sqq. Dec. 1866
1452
Sixteen
cows and
one goat
Rouvre
Gui-Pape : Decisiones
The' mis, i, p. 196
1456
Pig
Bourgogne
Mdmoires, cit., viii,
pp. 441-445. From
Archives of Monjeu
and Dependencies
1457
Sow
Savigny-sur-
Etang, Bour-
gogne
Desnoyers : Re-
cherches, etc.
1460-I
Weevils
Dijon
A. Duboys : Justice
et Bourreau a Amiens
1463
Two pigs
Amiens
Sauval: Histoire de
Paris, iii, p. 387. Me-
moires, cit., viii, p. 428
1466
Sow
Corbeil
A Duboys : His-
toire de Paris
1470
Mare
Amiens
Promenades pittor-
esques dans I'Evech^
de Bale. Journal du
Department du Nord,
Nov. I, 181 3. Me-
1474
Cock
Bale
moires, cit., viii, p.
428. Johann Gross :
Kleine Baseler Chro-
nik.
3'8
Appendix
Sources of Information
Dates
Animals
Places
Schilling : Chronica
(Zurich MS.), Hott-
inger: Hist. Eccles.
Pars iv, pp. 317-321
1478
Inger (sort
of weevil)
Berne
Ruchat : Hist. Ec-
cles. du Pays de Vaud
1479 1
Inger
>»
Hist, de Nismes.
Mdmoires, cit, viii, p.
428.
1479
Rats and
Moles
Nimes
Louandre : Hist.
d'Abbeville
1479
Pig
Abbeville
Chasseneus : Con-
silia von Amira, p. 56 1
1481
Caterpillars
Macon
Victor Hugo: Notre
Dame de Paris
1482
Goat
Paris
Chasseneus : Con-
silia. M^moires, cit,
1487
Snails
Macon
viii, p. 416
» >i »
1488
»
Autun
i> » jt
1488
Weevils
Beaujeu
Louandre : Hist.
d'Abbeville
1490
Pig
Abbeville
' This case is probably identical with and an adjournment of
that of 1478.
A-ppendix
319
Sources of Information
Dates
Animals
Places
Annuaire de I'Aisne
i8i2,p. 88. Memoi-
res, cit., viii, p. 428,
446
1494
Pig
Clermont-les-
Moncornet
near Laon
Saint-Edme : Diet,
de la Penality, sub
verb. Animaux
1497
Sow
Charonne
Voyage Littdraire
de deux B^nddictins
(Durand et Martenne),
17 1 7, ii, p. 166-7
1499
Bull
Beauvais
Archives de I'Ab-
baye de Josaphat.
Memoires, cit., viii, p.
1499
Pig
Seves near
Chartres
434-5
Mdmoires, cit., viii,
P- 434
ISth
cent.
Sow
Dunois
Malleolus : De Ex-
orcismis
)>
Caterpillars
Coire
>> 5> »
>>
Worms
Constance
>> >> >>
»»
Beetles
Coire
Louandre : L'^po-
p^e des Animaux
1500
Flies
Mayence
Chasseneus : Con-
silia.
1500
Snails
Lyon
320
Appendix
Sources of Information
Dates
Animals
Places
Chasseneus : Con-
1500-
Vermin
Autun
silia
1530
(Rats, etc.)
Mdmoires et Docu-
1509
Vermin
Lausaime
ments, publ. par la
Soc. de la Suisse
Romande, vii, No.
97, PP- 675-677
Annuaire de la
1510
Pig
Dijon
Cote-d'Or
Annuaire de la
1512
»
Arcenaux
Cote-d'Or. Mdmoires,
cit, viii, p. 447
^ Mathieu : Hist, des
1512-
Rats and
Langres
Eveques de Langres,
13
Insects
p, 188
Grosl^e: Ephdrnd-
1516
Weevils
Troyes in
rides, 1811, ii, p. 153,
(1506
Champagne
168. Cf. Theophile
accord-
Raynaud: Opusc,
ing to
1665, p. 482. Md-
some
moires, cit., viii, p.
author-
413, 418, 424
ities)
Habasque : Not
1516
Locusts
Treguier
hist sur le Litoral des
C6tes-du-Nord, p. 89
Scheible : Das Klos-
1ST9
Field-mice
Glums
ter, xii, pp. 946-48
(Stelvio)
Appendix
321
Sources of Information
Dates
Animals
Places
Saint-Edme : Diet,
de la Penalite. Cf.
Chasseneus
1522I
Rats
Autun
Vernet in Themis
ou Bibliotheque des
Jurisconsulte, viii
1525
Dog
Parliament of
Toulouse
Papon and Boesius:
Decisiones. Cf. Thd-
1528
Not
specified
Parliament of
Bordeaux
mis, viii
J) 11 J)
1528
>)
»» >j
Menebrea : Juge-
ments rendus centre
les Animaux, p, 505.
From Grenier : Docu-
ments relatifs a I'hist.
du pays de Vaud.
1536
W
eevils
Lutry (on
Lake Leman)
Lerouge : Registre
secret manuscrit
1540
E
.itch
Meaux
Annuaire de la
Cote-d'Or
1540
Pig
Dijon
Lerouge : Registre
secret manuscrit
1541
She-Ass
Loudun
Bailly : Traite des
Monitoires, ii
1541
G
ho
rass-
ppers
Lombardy
^ Identical with the sentences covering the period of 1 500-1530.
21
322
Appendix
Sources of Information
Dates
Animals
Places
Malleolus : De Ex-
1541
Vermin
Lausanne
orcismis
(worms,
rats, blood-
suckers)
Berriat-Saint-Prix in
Themis, i, p. 196
^543
Snails and
Locusts
Grenoble
M^nebr^a : Juge-
ments rendus contre
les Animaux, pp. 544,
545, 556. De Actis
Scindicorum com. St.
Jul., etc.
1545
and
1546
Weevils
St. Jean de
Maurienne
Dulaure : Hist, de
Paris, iii, p. 28, Regis-
tres manuscrits de la
Tournelle. Cf. Me'-
1546
Cow
Parliament of
Paris
moires, cit., viii, p. 429
Lerouge : Registre
secret manuscrit
1550
>>
>j j>
>> >i »
1551
Goat
He de Rhd
j> >j »
1554
Sheep (ewe)
Beaug^
Aldrovande : De
Insectis, 1602, lib.
vii, 724. Memoires,
1554
Blood-
suckers
Lausanne
cit. viii, p. 429
Appendix
323
Sources of Infonnation
Dates
Animals
Places
Desnoyer, cited in
Revue des questions
historiques, v, p. 278.
Von Armira, p. 567
1554
Insects
Langres
Lerouge : Registre
secret manuscrit
1556
She- Ass
Sens
Lecoq : Hist, de la
Ville de Saint-Quin-
tin, p. 143. Sorel :
Proces contre des
1557
Pig
Saint-Quintin
animaux, etc., p. 9
Lerouge : Registre
secret manuscrit
1560
She- Ass
Loigny near
Chateaudun
>j jj >>
1561
Cow
Augoudessus
in Picardy
Lessona : I Nemici
del Vino. Regist. Epir.
Par. for May 8
1562
Weevils
Argenteuil
Ranchin on Gui.
Pape Quaest., 74.
Themis, i, p. 196.
Mdmoires, cit., viii,
1565
Mule
Montpellier
p. 429
Papon : Decisiones.
Thdmis, viii
1565
Not
specified
Parliament of
Toulouse
Louandre: L'Epo-
pde des Animaux
1566
She- Ass
Parliament of
Paris
324
Appendix
Sources of Information
Dates
Animals
Places
MSS. of Biblio-
theque Nationale of
Paris
Lionnois : Hist, de
Nancy, 1811, ii, p.
374
Lersner : Chronica,
1706, p. 552
Brillon : Decisiones
Thdmis, viii
Haus-Chronik von
Schweinfurt, in Zeit-
schrift fiir deutsche
Kulturgeschichte, i,
156
Cannaert : Bydra-
gen tot de Kennis
van het oude straf-
recht in Vlandern,
183s, p. vii
Derheims : Hist, de
Saint-Omer, p. 327
Chorier: Hist, du
Dauphind. Cf. Thd-
mis, i, p. 196
1567
1572
1574
1575
1576
1578
1585
Sow
Pig
She- Ass
Pig
Pig(?)
Pig
Locusts
Senlis
Moyen-
Montier, near
Nancy
Frankfort-on-
the-Main
Parliament of
Paris
Schweinfurt
Ghent
Saint-Omer
Valence
Appendix
325
Sources of Information
Dates
Animals
Places
Menebr^a : Juge-
1587
1
Weevils
St. Jean-de-
ments rendus contre
Maurienne
les animaux, etc., pp.
546, 549
Fornery and Lain-
cel
1596
Dolphins
Marseilles
Th^ophile Ray-
naud: De Monitoriis,
1 6th
cent.
Weevils and
Grass-
Cotentin
p. 482. Mdmoires, cit,
viii, p. 429
(first
half)
hoppers
Chasseneus : Con-
>>
Snails
Lyons
silia. Memoires, cit.,
viii, p. 415
» >> »
>>
Weevils
Mdcon
>> >> 5>
j>
Pig
Dijon
I-ouandre : L'Epo-
p6e des Animaux
j>
Dog
Scotland
Duboys : Hist, du
Droit Crim. de la
1 6th
cent.
Weevils
Angers
France
second
half
Azpilcueta Martin-
us Doctor Navarrus :
jj
Rats
Spain
Consilia seu Responsa,
1602, ii, p. 812. M.6-
moires, cit., viii, p.
419. Th^oph. Ray-
naud, cit., p. 482
326
A-ppendix
Sources of Information
Dates
Animals
Places
Francesco Vivio :
Decisiones, No. 68.
Cited by D'Addosio :
Bestie Delinq., p. 125
i6th
cent
second
half
Divers ani-
mals
Aquila in Italy
Archives of Ob-
walden
"
Gadflies
Aargau
Leonardo Vairo :
De Fascino. Cf. D'Ad-
dosio, cit., p. 115.
»
Locusts
Naples
Sardagna : L'uomo
e le Bestie. Cited by
D'Addosio
>»
Horse
Portugal
Mornacius to Du
Cange, s.v. Homicida
1600
Beauvais
Lerouge : Registre
secret manuscrit
>)
Cow
Thouars
)i >> »
»
>i
Abbeville
Lessona : I Nemici
del Vino, 1890, p. 141
jj
Weevils
Vercelli
Papon : Decisiones.
Thdmisjviii. Lerouge:
Reg. secret manuscrit
1601
Dog
Brie
Lerouge : Registre
secret manuscrit
»
Mare
Provins
Appendix
Z'2'7
Sources of Information
Dates
Animals
Places
Papon: Recueil
d'Arrets
1601
Not
specified
i
1 Parliament of
i Paris
Charma : Legons de
Philosophie
1604
Ass
1
Parliament 01
Paris
Guerra: Diumali
j>
»
Naples
Lerouge : Registre
secret manuscrit
>j
Mare
Joinville
>j i> j>
1606
Sheep
Riom
)> It >)
5>
Cow
Chateau-
renaud
j» >> j>
> J
Mare
CoifTy near
Langres
Lejeune: Mdmoires,
cit, viii, p. 418
5>
Bitch
Chartres
Lerouge : Registre
secret manuscrit
1607
Mare
Boursant near
d'Epernay
)j )) >)
1609
J)
Montmorency
>> j> )>
51
>>
Niederrad
Voltaire : Siecle de
Louis XIV, ch. i.
Louandre : Rev. des
deux Mondes, 1854,
JJ
Cow
Parliament of
Paris
i. P- 334
328
Appendix
Sources of Information
Dates
Animals
Places
Lerouge : Registre
secret manuscrit
1610
Horse
Paris
>j » j>
1611
Goat
Laval
» j> »
»
Cow
St. Fergeux
near Rethel
» >i >j
1613
Sow
Montoiron
near
Chatelleraut
» » »
1614
She-Ass
Le Mans
Desnoyers : Re-
cherches, etc., p. 13
1616
Rats and
insects
Langres
Anzeige fur Kunde
der deutschen Vorzeit,
1880, col. 102
1621
Cow
Machem near
Leipsic
Lerouge : Registre
secret manuscrit
1621
Mare
La Rochelle
>> » j>
1622
>j
Montpensier
it it i>
1623
She- Ass
Bessay near
Moulins
» »> »
1624
Mule
Chefboutonne
(Poitou)
Dopier: Theat.
pen., ii, p. 574
1631
Mares and
Cows
Greifenberg
Appendix
329
Sources of Information
Dates
Animals
Places
Marchisio Michele :
Gatte ed. insetti noc-
ivi, 1834, p. 63 sqq.
1633
Weevils
Strambino
(Ivrea)
Lerouge : Registre
secret manuscrit
>}
Mare
Bellac
Carpentier to Du
Cange, s. v. Homicida
1641
Pig
Viroflay
Lerouge : Registre
secret manuscrit
1647
Mare
Parliament of
Paris
>l >J 5>
1650
»
Fresnay near
Chartres
Crollolanza: Storia
del Contado di Chia-
1659
Caterpillars
Chiavenna
venna, p. 455 sqq.
Perrero : Gazzetta
Litteraria di Torino,
Feb. 24, 1883
1661
Weevils
Turin
Cotton Mather:
Magnalia Christi
Americana, Book vi.
London, 1702
1662
Cow,
two Heifers,
three Sheep,
and two
Sows
New Haven,
Conn.
Lerouge : Registre
secret manuscrit
1666
Mare
Tours
f> >j ij
>)
11
St. P. Lemon-
tiers
330
Appendix
Sources of Information
Dates
Animals
Places
Lerouge : Registre
secret manuscrit
1667
She-Ass
Vaudes near
Bar-sur-Seine
j> >> >j
1668
Mare
Angers
Annales scientifi-
ques de I'Auvergne,
Vol. vii, p. 391
1670
Locusts
Clermont
Dopier : Theatrum
pen., ii, p. 5
1676
Mare and
Cow
Silesia
Lerouge : Registre
secret manuscrit
1678
it
Beaugd
Perrero : Gaz. Lit-
ter, di Torius, Feb.
24, 1883
j>
Weevils
Turin
Brillon : Decisi-
ones, i, p. 914. Me-
1679
Mare
Parliament
d'Aix
moires, cit., viii, p.
431. Boniface : Traite
des matieres crimin-
elles, 1785, p. 31
Chorier : Hist, du
Dauphind Themis,
viii
Before
1680
Worms
Constance and
Coire
Lerouge : Registre
secret manuscrit
1680
Mare
Fourches nea
Provins
Appendix
331
Sources of Information
Dates
Animals
Places
Heinrich Roch :
Schlesische Chronik,
1681
Mare
Wiinschelburg
in Silesia
p. 342. Dopier:
Theat. pen., ii, p. 573
sqq.
j> )> >>
1684
Mare
Ottendorf
» )> )>
1685
>f
Striga
Dulaure : Descrip-
tion des principaux
lieux de la France,
1789, V, p. A^zm-
Mdmoires, cit., viii,
1690
Locusts
Pont-de-
Chateau in
Auvergne
p. 412
Lerouge : Registre
secret manuscrit
1692
Mare
Moulins
La Hontan : Voy-
ages, Let. xi, p. 79.
Memoires, cit., viii.
End of
17th
cent.
Turtle-
doves
Canada
P- 431
Meiners: Vergleich-
ung des iiltern u,
neuern Russlands, p.
291. Cf. Amira, p.
573
>j
He-Goat,
banished to
Siberia
Russia
Registres de la
Paroise de Grignon
1710
Rats
Grignon
332
Appei
ndix
Sources of Information
Dates
Animals
Places
Sorel: Proces con-
1710
Vermin
Autun
tre des animaux, etc.,
P- 23
Rinds Herreds
1711
»
Als in Jutland
Kronike and other
sources given by
Amira, p. 565
Agnel : Curiosity
1713
Termites
Piedade no
judiciaires et histori-
Maranhao in
ques du moyen-age,
Brazil
p. 46. Cf. Manoel
Bemardes : Nova
Floresta ou Sylva de
varios apophthegmas,
etc. 5 torn. Lisboa,
1706-47
MSS. of BibUo-
1726
Not
Paris
theque Nationale of
specified
Paris, No. 10,970.
D'Addosio : Best.
Del., p. 107
Menebr^ : Juge-
1731
Insects
Thonon
ments contre les ani-
maux, p. 508
La Tradition, 1888,
1733
Vermin
Buranton
p. 363 sqq. Amira, p.
564
Appendix
333
Sources of Information
Dates
Animals
Places
Rousseaud de La-
combe : Traite des
matieres crim. D'Ad-
dosio : Best. Del., p.
I74I
Cow
Poitou
107
Ant. de Saint-Ger-
vais : Hist, des Ani-
1750
She-Ass
Vanvres
maux
A Report of the
Case of Farmer Car-
ter's Dog, Amira, p.
559
I77I
Dog
Chichester,
England
Comparon : Hist,
du Tribunal Revo-
lutionnaire de Paris.
Cf. Sorel, op. cit., p.
16
1793
>>
Paris
Filangieri : Scienza
della Legislazione
1 8th
cent.
Dogs
Italy
Det. Kong. Danske
Landhusholdnings-
Selskabs Skrifter. Ny
Saml. ii, I, 22. Amira,
P- 565-
1805-6
Vermin
Lyo in Den-
mark
Desnoyers: Re-
cherches, etc., p. 15
1826
Locusts
Clermont-
Ferrand
334
Appendix
Sources of Information
Dates
Animals
Places
Gazette des Tribun-
aux, Jan. 23, 1845
1845
Dog
Paris
» >y ]>
1864
Pig
Pletemica in
Slavonia
Krauss, quoted by
Amira, p. 573
1866
Locusts
Pozega in
Slavonia
)i » »
»
Grass-
hoppers
Vidovici in
Slavonia
Desnoyer : Recher-
ches, etc., p. 15
19th
cent.
Locusts
Catalonia
Allg. deutsche
S t rafrechts-z e i t u n g,
1861, No. 2. Also
Fertile : Gli animali
in giudizio
>j
Cock
Leeds in
England
Cretella : Gli Ani-
mali sotto processo in
FanfuUa 1891, No.
65. C/. Amira, p. 569
))
Wolf
Calabria
New York Herald
and Echo de Paris,
May 4, 1906*
1906
Dog
Delemont in
Switzerland
^ In this latest record of such prosecutions a man named Marger
was killed and robbed by Scherrer and his son, with the fierce and
effective co-operation of their dog. The three murderers were tried
and the two men sentenced to lifelong imprisonment, but the dog,
as the chief culprit, without whose complicity the crime could not
have been committed, was condemned to death.
Appendix 335
Receipt dated Jan. g, 1386, in which the hangman
of Falaise acknowledges to have been paid by the
Viscount of Falaise ten sous and ten deniers tournois
for the execution of an infanticidal sow, and also ten
sous tournois for a new glove.
Quittance originale du 9, Janvier 1386, passee devant
Guiot de Montfort, tabellion a Falaise, et donnee par
le bourreau de cette ville de la somme de dix sols et dix
deniers tournois pour sa peine et salaire d'avoir train^,
puis pendu \ la justice de Falaise une truie de I'age
de 3 ans ou environ, qui avoit mange le visage de
I'enfant de Jonnet le Maux, qui etait au bers et avoit
trois mois et environ, tellement que ledit enfant en
mourut, et de dix sols tournois pour un gant neuf
quand le bourreau fit la dite execution ; cette quittance
est donn^ a Regnaud Rigault, vicomte de Falaise; le
bourreau y declare qu'il se tient pour bien content des
dites sommes, et qu'il en tient quitte le roy et ledit
vicomte.
Charange : Dictionnaire des Titres Originaux. Paris,
1764. Tome IT. p. 72. Also Statistique de Falaise,
1827. Tome I. p. 63.
33^ Appendix
H
Receipt, dated Sept. 24, 1394, in which Jehan Micton,
hangman, acknowledges that he received the sum of fifty
sous tournois from Thomas de Juvigney, viscount of
Mortaing, for having hanged a pig which had killed and
murdered a child in the parish of Roumaygne.
A tous ceulx qui ces lettres verront ou orront,
Jehan Lours, garde du seel des obligacions de la
vicomte de Mortaing, salut, Sachent tous que par devant
Bynet de I'Espiney, clerc tabellion jurd ou siege dudit
lieu de Mortaing, fut present mestre Jehan Micton,
pendart,^ en la viconte d'Avrenches, qui recognut et
confessa avoir eu et repceu de homme sage et pourveu
Thomas de Juvigney, viconte dudit lieu de Mortaing, c'est
assavoir la somme de cinquante souls tournois pour sapaine
et salaire d'estre venue d'Avrenches jusques a Mortaing,
pour faire acomplir et pendre h. la justice dudit lieu de
Mortaing, un pore, lequel avait tn6 et meurdis un enfant
en la paroisse de Roumaygne, en ladite viconte de
Mortaing. Pour lequel fait ycelui pore fut condanney
h. estre traynd et pendu, par Jehan Pettit, lieutenant du
bailli de Co . . . . ri'n, es assises dudit lieu de Mortaing,
de laquelle somme dessus dicte le dit pendart se tint
pour bien paid, et en quita le roy nostre sire, ledit
^ In modern French pend&rd means hang-dog. M. Lejeune
states that he can recall no other instance of its use as synonymous
with bourreau or hangman. Perhaps a facetious clerk may have
deemed it applicable to a person whose office was in the present
case that of a hang-pig.
Appendix 337
viconte et tous aultres. En tesmoing de ce, nous avons
selld ces lettres dudit seel, sauf tout autre droit. C'en
fut fait I'an de grace mil trois cens quatre-vings et
quatorze, le XXIIIP jour de septembre, Signd
J. Lours. (Countersigned) Binet.
[Extract from the manuscripts of the Bibliothlque
du Roi. Vide Mhnoires, ibid. pp. 439-40.]
79
338 Appendix
I
Attestation of Symon de Baudemont, lieutenant of the
bailiff of Mantes and Meullant, made by order of the
said bailiff and the King's proctor, on March 15, 1403,
and certifying to the expenses incurred in executing a
sow that had devoured a small child.
A tous ceuls qui ces lettres verront : Symon de Baude-
mont, lieutenant a Meullant, de noble homme Mons.
Jehan, seigneur de Maintenon, chevaHer chambellan du
Roy, notre sire, et son bailli de Mante et dudit lieu de
Meullant : Salut. Savoir faisons, que pour faire et
accomplir la justice d'une truye qui avait devore un petit
enffant, a convenu faire necessairement les frais, commis-
sions et ddpens ci-apres declares, c'est k savoir : Pour
depense faite pour elle dedans le geole, six sols parisis.
Item, au maitre des hautes-oeuvres, qui vint de Paris h.
Meullant faire ladite exe'cution par le commandement et
ordonnance de nostre dit maistre le bailli et du procureur
du roi, cinquante-quatre sols parisis.
Item, pour la voiture qui la mena k la justice, six sols
parisis.
Item, pour cordes a la Her et haler, deux sols huit
deniers parisis.
Item, pour gans, deux deniers parisis,
Lesquelles parties font en somme toute soixante neuf
sols huit deniers parisis ; et tout ce que dessus est dit
nous certifions etre VTay par ces presentes scelle'es de notre
Appendix 339
seel, et a greigneur confirmation et approbation de ce y
avons fait mettre le seel de la ehatellenie dudit lieu de
Meullant, le XV^ de mars Tan 1403. Signe de Baude-
mont, avec paraffe, et au dessous est le sceau de la ehatel-
lenie de Meullant.
[Extraet from the manuscripts of M. Hdrisson, judge
of the civil court of Chartres, communicated by M.
Lejeune to the Memoires de la Societe Roy ale des Anti-
quaires de Frajice. Tome viii, pp. 433-4.]
34° Appendix
J
Receipt, dated Oct. 16, 1408, and signed by Toustain
Pincheon, jailer of the royal prisons in the town of
Pont de Larche, acknowledging the payment of nineteen
sous and six deniers tournois for food furnished to
sundry men and to one pig kept in the said prisons on
charge of crime.
Pardevant Jean Gaulvant, tabellion jurd pour le roy
nostre sire en la vicontd du Pont de Larche, fut present
Toustain Pincheon, geolier des prisons du roy notre sire
en la ville du Pont de Larche, lequel cognut avoir eu et
recue du roy nostre dit sire, par la main de honnorable
homme et saige Jehan Monnet, viconte dudit lieu du
Pont de Larche, la somme de 19 sous six deniers tour-
nois qui deus lui estoient, c'est assavoir 9 sous six deniers
tournois pour avoir trouvd (\ivr6) le pain du roi aux
prisonniers debtenus, en cas de crime, es dites prisons.
(Here the names of these prisoners are given.) If em a
ung pore admen^ es dictes prisons, le 21" jour de juing
1408 inclus, jusques au 17^ jour de juillet apres en
suivant exclut que icellui pore fu pendu par les gares a
un des posts de la justice du Vaudereuil, a quoy il avoit
estd condempne pour ledit cas par monsieur le bailly de
Rouen et les conseuls, es assises du Pont de Larche, par
lui tenues le i^^ jour dudict mois de juillet, pource que
icellui pore avoit muldry et tud ung pettit enfant, auquel
Appendix 341
temps il a xxiiii jours, valent audit pris de 2 deniers
tournois par jour, 4 sols 2 deniers, et pour avoir trouve
et bailie la corde qu'il esconvint a lier icelui pore qu'il
reschapast de ladite prison oh il avait estd mis, x deniers
tournois. Du 16 Octobre 1408.
[Derived from manuscripts of the Bibliotheque du Roi,
Vide Memoires, cit., pp. 428 and 440-1.]
342 Appendix
K
Letters patent, by which Philip the Bold, Duke of
Burgundy, on Sept 12, 1379, granted the petition of the
friar Humbert de Poutiers, prior of the town of Saint-
Marcel-lez-Jussey, and pardoned two herds of swine
which had been condemned to suffer the extreme penalty
of the law as accomplices in an infanticide committed by
three sows.
Phelippe, filz du Roi de France, due de Bourgoingue,
au bailli de noz terres au conte de Bourgoingue, salut.
Oye la supplication de frere Humbert de Poutiers,
prieur de la prieurte de la ville de Saint-Marcel-lez-Jussey,
contenant que comme le V* jour de ce present mois de
septembre, Perrinot, fils Jehan Muet, dit le Hochebet,
pourchier commun de ladite ville, gardant les pors des
habitans d'icelle ville ou finaige d'icelle, et au cry de I'un
d'iceulx pors, trois truyes estans entre lesdits pors ayent
couru sus audit Perrenot, I'ayent abattu et mis par terre
entre eulx, ainsi comme par Jehan Benoit de Norry qu'il
gardoit les pourceaulx dudit suppliant, et par le pere
dudit Perrenot a este trouve blessier a mort par lesdites
truyes, et si comme icelle Perrenot la confesse en la
presence de son dit pere e dudit Jehan Benoit, et assez
tost apres il soit eu mort. Et pour ce que ledit suppliant
auquel appartient la justice de ladite ville ne fust repris
de negligeance son maire arresta tous lesdits pores pour
en faire raison et justice en la maniere qu'il appartient, et
Appendix 343
encore les ddtient prissonniers tant ceux de ladite ville
comme partie de ceulx dudit suppliant, pour ce que dit
ledit Jehan Benoit ils furent trouvez ensemble avec lesdites
truyes, quand ledit Perrenot fut ainsi blessie. Et ledit
prieur nous ait supplie que il nous plaise consentir que en
faisant justice de trois ou quatres desdits pores le demeu-
rant soit delivrd Nous inclinans h sa requeste, avons de
grace especiale ouctroye et consenty, et par ces presentes
ouctroyons et consentons que en faisant justice et execu-
tion desdites trois truyes et de I'ung des pourceaulx dudit
prieur, que le demeurant desdits pourceaulx soit mis
a delivre, nonobstant qu'ils aient este K la mort dudit
pourchier. Si vous mandons que de notre presente
grace vous faictes et laissiez joyr et user ledit prieur et
autres qu' il appartiendra, sans les empescher au grace.
Donne a Montbar, le XII" jour de septembre de Tan
de grace mil CCC LXX IX. Ainsi signe. Par monseig-
neur le due : J^. Potier.
[Published by M. Garnier in the Revue des Societes
Savantes, Dec. 1866, pp. 476 sqq., from the archives of
Cote-d'Or and reprinted by D'Addosio in Bestie Delin-
quentiy pp. 277-8.]
344 Appendix
Sentence pronounced by the Mayor of Loens de
Chartres on the twelfth of September, 1606, condemning
Guillaume Guyart to be hanged and burned together with
a bitch. Extract from the records of the clerk's office of
Loing under the date of Sept. 12,1 606.
Entre le procureur de messieurs^ demandeur et
accusateur au principal et requdrant le proffit et adjudica-
tion de troys deffaulx et du quart d'abondant, d'une part,
et Guillaume Guyard, accuse, deffendeur et d^faillant,
d'autre part.
Veu le proces criminel, charges et informations, decret
de prise de corps, adjournement h. troys briefs jours, les
diets trois deffaulx, le diet quart d'habondant, le recolle-
ment des diets tdmoings et recognaissance faicte par les
diets thnoings de la chienne dont est question, les conclusions
dudict procureur, tout veu et eu sur ce conseil, nous
disant que lesdicts troys deffaulx et quart d'habondant ont
este bien donnes pris et obtenus contre ledict Guyard
accuse, attainct et convaincu
Pour reparation et punition duquel crime condempnons
ledict Guyard estre pendu et estrangld a une potence qui,
pour cest effet, sera dressee aux lices du March^ aux
Chevaux de ceste ville de Chartres, au lieu et endroict 011
^ Under this term are included the dean, canons, and chapter of
the Cathedral of Chartres.
^
Appendix 345
les diet sieurs ont tout droit de justice. Et auparavant
ladicte execution de mort, que ladicte chienne sera
assomme'e par I'exdcuteur de la haute justice audict lieu,
et seront les corps morts, tant dudict Guyard que de la
dicte chienne brules et mis en cendres, si le diet Guyard
peut estre pris et apprehende en sa personne, sy non pour
le regard du diet Guyard, sera la sentence execute par
effigie en un tableau qui sera mis et attache a ladicte
potence, et declarons tous et chascuns ses biens acquis et
confisques a qui il appartiendra, sur cieux prealablement
pris la somme de cent cinquante livres d'amende que
nous avons adjug^es auxdicts sieurs, sur laquelle somme
seront pris les fraicts de justice. Prononce et execute
par effigie, pour le regard du diet Guyard les jour et an
cy dessus. Signe Guyot.
[A true copy of the original extract extant in the office
of M. Herisson, judge of the civil court of Chartres, made
by M. Lejeune and communicated to the Societe Royale
des Antiquaires de France. Vide M^moires of this
Society, cit, pp. 436-7.]
346 Appendix
M
Sentence pronounced by the judge of Savigny on
Jan. 1457, condemning to death an infanticidal sow.
Also the sentence of confiscation pronounced nearly a
month later on the six pigs of the said sow for complicity
in her crime.
Jours tenus au lieu de Savigny, prbs des fouss^s du
Chastelet de dit Savigny, par noble homme Nicolas
Quarroillon, ecuier, juge dudit lieu de Savigny, et ce le
10* jour du moys de Janvier 1457, prdsens maistre
Philebert Quarret, Nicolas Grant-Guillaume, Pierre Bome,
Pierre Chailloux, Germain des Muliers, Andre Gaudriot,
Jehan Bricard, Guillaume Gabrin, Philebert Hogier, et
plusieurs autres tesmoins h. ce appell^s et requis, I'an et
jour dessus dit,
Huguemin Martin, procureur de noble damoiselle
Katherine de Barnault, dame dudit Savigny, demandeur
a I'encontre de Jehan Bailly, alias Valot dudit Savigny,
et promoteur des causes d'office dudit lieu de Savigny,
demandeur h. I'encontre de Jehan Bailly, alias Valot dudit
Savigny deffendeur, a I'encontre duquel par la voix et
organ de honorable homme et saige M"". Benoit Milot
d'Ostun, licencie en loys et bachelier en ddcret, conseillier
de monseigneur le due de Bourgoingne, a ^te dit et
propose que le mardi avant Noel dernier passe, une truye,
et six coichons ses suignens, que sont presentement
prisonniers de ladite dame, comme ce qu'ils 6\.€ prins en
Appendix 347
flagrant delit, ont commis et perpetrd mesmement ladicte
truye murtre et homicide en la personne de Jehan
Martin en aige de cinq ans, fils de Jehan Martin dudit
Savigny, pour la faulte et culpe dudit Jehan Bailly, alias
Valot, requerant ledit procureur et promoteur desdites
causes d'office de ladite justice de madite dame, que
ledit defendeur repondit es chouses dessusdites, desquelles
apparaissoit a soufifisance, et lequel par nous a este sommd
et requis ce il vouloit avoher ladite truhie et ses
suignens, sur le cas avant dit, et sur ledit cas luy a este
faicte sommacion par nous juge avant dit, pour la
premiere, deuxieme et tierce fois, que s'il vouloit rien
dire pourquoi justice ne s'en deust faire Ton estoit tout
prest de les oir en tout ce qu'il vouldrait dire touchant
la pugnycion et execution de justice que se doit faire de
ladite truhie ; veu ledit cas, lequel deffendeur a dit et
respondu qui'l ne vouloit rien dire pour le present et pour
ce ait este procede en la maniere qui s'ensuit; c'est
assavoir que pour la partie dudit demandeur, avons estd
requis instamment de dire droit en ceste cause, en la
presence dudit defendeur present et non contredisant,
pourquoy nous juge, avant dit, savoir faisons a tous que
nous avons procede et donne nostre sentence deffinitive
en la maniere que s'ensuit ; c'est assavoir que veu le cas
lequel est tel comme a est^ proposd pour la partie dudit
demandeur, et duquel appert a souffisance tant par
tesmoing que autrement dehuement hue. Aussi cotiseil
avec saiges et practiciens, et aussi considere en ce cas
I'usance et coustume du pais de Bourgoingne, aiant
Dieu devant nos yeulx, nous disons et pronungons
par notre dite sentence, ddclairons la tryue de Jehan
Martin, de Savigny, estre confisqude a la justice de Madame
de Savigny, pour estre mise a justice et au dernier
348 Appendix
supplice, et estre pendus par les pieds derriers a ung
arbre esprone en la justice de Madame de Savigny,
considere que la justice de madite dame n'est mie
presentement elevee, et icelle truye prendre mort audit
arbre espron^, et ansi le disons et pronongons par notre
dicte sentence et a droit et au regard des coichons de
ladite truye pour ce qui n'appert aucunement que
iceuls coichons ayent mangies dudit Jehan Martin,
combien que aient estes troves ensanglantes, Ton remet
la cause d'iceulx coichons aux tres jours, et avec ce Ton
est content de les rendre et bailler audit Jehan Bailly,
en baillant caucion de les rendre s'il est trove qu'il
aient mangiers dudit Jehan Martin, en paiant les
poutures, et fait Ton savoir a tous, sous peine de
I'amende et de 100 sols tournois qu'ils le dieut et
declairent dedans les autres jours, de laquelle nostre
dicte sentence, apres la prononciation d'icelle, ledit pro-
cureur de ladite dame de Savigny et promoteur des causes
d'office par la voix dudit maistre Benoist Milot, advocat
de ladite dame ; et aussi ledit procureur a requis et
demande acte de nostre dicte court a lui estre faicte,
laquelle luy avons ouctroye, et avec ce instrument, je,
Huguenin de Montgachot, clerc, notaire publicque de la
court de monseigneur le due de Bourguoigne, en la
presence des tesmoings ci-dessus nommes, je lui ai
ouctroye, ce fait Fan et jour dessus dit et presens les
dessus tesmoings. Ita est. Ainsi signe, Mongachot,
avec paraphe, et de suite est dcrit :
Item^ en oultre, nous juge dessus nomme, savoir
faisons que incontinent apres nostre dicte sentence
ainsi donnee par nous les an et jour, et en la presence
des temoings que dessus, avons somme et requis ledit
Jehan Bailli, se il vouloit avoher lesdits coichons, et
Appendix 349
se il vouloit bailler caucion pour avoir recreance
d'iceulx; lequel a dit et repondu qui ne les avohait
aucunement, et qui ni demandait rien en iceulx
coichons ; et qui s'en rapportoit a ce que en ferions ;
pourquoy sont demeurez a la dicte justice et seignorie
dudit Savigny, de laquelle chouse ledit Huguenin
Martin, procureur et promoteur des causes d'offices,
nous en a demande acte de court, lequel lui nous
avons ouctroyd et ouctroyons par ces prdsentes, et
avec ce ledict procureur de ladicte dame, a moy
notaire subescript, m'en demanda instrument, lequel
je luy ait ouctroy^ en la presence desdits tesmoings
cy-dessus nommes.
Item, en apres, nous Nicolas Quaroillon, juge avant
dit, savoir faisons a tous que incontinent apres les
chouses dessus dictes, avons faict delivrer r^alement et
de fait ladicte truye a maistre Etienne Poinceau,
maistre de la haute justice, demeurant a Chalons-sur-
Saone, pour icelle mettre a exdcucion selon la forme
et teneur de nostre dicte sentence, laquelle ddlivrance
d'icelle triihie faicte par nous comme dit est,, incontinent
ledit maistre Estienne a mend sur une chairette ladicte
truye a ung chaigne esprond, estant en la justice de ladite
dame Savigny, et en icelluy chaigne esprone, icelluy
maistre Estienne a pendu ladite truye par les piez
derriers ; en mectant a execution deue nostre dicte
sentence, selon la forme et teneur de laquelle delivrance
et execution d'icelle truye, ledit Huguenin Martin, pro-
cureur de ladicte dame de Savigny nous a demandd acte
de nostre dicte court a lui estre faicte et donnde, laquelle
luy avons ouctroyde, et avec ce a moi, notaire subscript,
m'a demandd instrument ledit procureur a luy estre
donnde, je luy ai ouctroyd en la presence des temoings
350 Appendix
cy-dessus nommez, ce fait les au et jour dessus ditz.
Ainsi sign6 Mongachot, avec paraphe.
Nearly a month later, on " the Friday after the Feast of
the Purification of Our Lady the Virgin " (which occurred
on Feb. 2.), " the six little porklets or sucklings " were
brought to trial. The following is the proch verbal.
Jours tenus au lieu de Savigny, sur la chaussde de
I'Estang dudit Savigny, par noble homme Nicolas
Quarroillon, escuier, juge dudit lieu de Savigny, pour
noble damoiselle Katherine de Barnault, dame dudit
Savigny, et ce le vendredy apres la feste de la Purification
Notre Dame Vierge, prdsens Guillaume Martin, Guiot de
Layer, Jehan Martin, Pierre Tiroux et Jehan Bailly,
tesmoings, etc.
Veue les sommacions et requisitions faicte par nous
juge de noble damoiselle Katherine de Barnault, dame
de Savigny, a Jehan Bailly alias Valot de advohe on
repudid les coichons de la truye nouvellement mise
a execution par justice a raison du murtre commis et
perpetr^ par la dicte truye en la personne de Jehan
Martin, lequel Jehan Bailli a este remis de advoher
lesdites coichons et de baillier caucion d'iceulx coichons
rendre, s'il estoit trouvd qu'ils feussions culpables du
ddlict avant diet commis par ladicte truye et de payer les
poutures, comme appert par acte de nostre dicte court,
et autres instrumens souffisans ; pourquoi le tout veu en
conseil avec saiges, ddclairons et pronuncons par nostre
sentence defiinitive, et a droit : iceulx coichons competer
et appartenir comme biens vaccans a ladite dame de
Savigny et les luy adjugeons comme raison, I'usence et
la coustume de pais le vueilt. De laquelle nostre dicte
Appendix 351
sentence, ledit procureur de ladite dame en a demand^
acta, de nostra dicte court a luy estre donnde et ouctroyee.
Avec ce en a demande instrument a moy notaire sub-
script, lequel il luy a ouctroyd en la presence des dessus
nommes. Signd Mongachot avec paraphe.
[Extract from the archives of Monjeu and Dependen-
cies, belonging to M. Lepelletier de Saint-Fargeau.
(Savigny-sur-Etang, boete 250, liasse i, 2, & 3, etc.)
Vide Memoires, cit., pp. 441-5.]
352 Appendix
N
Sentence pronounced April i8, 1499, in a criminal
prosecution instituted before the Bailiff of the Abbey of
Josaphat, in the Commune of Seves, near Chartres,
against a pig condemned to be hanged for having killed
an infant. In this case the owners of the pig were fined
eighteen francs for negligence, because the child was
their fosterling.
Le lundi 18 avril 1499.
Veu le proces criminel faict par-devant nous \ la
requeste du procureur de messieurs le religieux, abbd et
convent de losaphat, \ I'encontre de lehan Delalande
et sa femme, prisonniers esprisons de ceans, pour raison
de la mort advenue a la personne d'une jeune enfant,
nommde Gilon, agde de un an et demi ou environ ; laquelle
enfant avoit ete baillee a nourrice par sa mere : ledict
meurtre advenu et commis par un pourceau de I'aage
de trois mois ou environ, aulxdits Delalande et sa femme
appartenant ; les confessions desdicts Delalande et sa
femme ; les informations par nous et le greffier de ladite
jurisdiction faictes a la requete dudict procureur ; le tout
veu et en sur ce conseil aulx saiges, ledit Jehan Delalande
et sa femme f avons condampn'es et condampnons en r amende
envers de justice de dix-fmitfranz, qu'il a convenus pour ce
faire, tel que de raison, et a tenir prison jusqu'a plein
payement et satisfaction d'iceulx k tout le moins qu'ils
avoient bailld bonne et seure caution d'iceulx.
Et en tant que toucJu le diet pourceau^ pour les causes
Appendix 353
contenues et dtablies audict proces, nous les avons con-
dampn'e et condampnons h Hre pendu et execute par justice,
en la jurisdiction des mes diets seigneurs, par notre
sentence definitive, et a droit.
Donne sous la contre seel aux causes dudict baillage,
les an et jour que susdicts. Signe C. Briseg avec
paraphe.
[The complete record of this trial contains the minutest
details of the proceedings, ending with the execution of
the pig, and was taken from the archives of the Abbey
Josaphat at the time of the Revolution by M. B.,
Secretary-general of the department. Since then it has
disappeared ; but this copy of the original, made at that
time, is declared by M. Lejeune to be perfectly exact.
Vide Mdmoires, cit., pp. 434-5.]
33
354 Appendix
O
Sentence pronounced June 14, 1494, by the grand
mayor of the church and monastery of St. Martin de
Laon, condemning a pig to be hanged and strangled for
infanticide committed on the fee-farm of Clermont-
lez-Montcornet.
A tous ceulx qui ces prdsentes lettres verront ou orront,
Jehan Lavoisier licentie ez loix, at grand mayeur de
I'^glise et monastere de monsieur St. Martin de Laon,
ordre de Prdmontr^, et les echevins de ce meme lieu ;
comme il nous eust ete apport^ et affirm^ par le procureur-
fiscal ou syndic des religieux, abbd et convent de Saint-
Martin de Laon, qu'en la cense de Clermont-lez-Mont-
cornet, appartenant en toute justice haulte, moyenne et
basse auxdits relligieux, ung jeune pourceaulx eust
dstrangld et defacie ung jeune enfant estant au berceau,
fils de Jehan Lenfant, vachier de ladite cense de Clermont,
et de Gillon sa femme, nous advertissant et nous requdr-
ant h. cette cause, que sur ledit cas voulussions procdder,
comme justice at raison le ddsiroit et requerroit ; et que
depuis, afin de savoir et cognoitre la v€x\X.€ dudit cas,
eussion oui et examine par serment, Gillon, femme dudit
Lenfant, Jehan Benjamin, et Jehan Daudancourt, censiers
de ladite cense, lesquels nous eussent dit et affirm^ par
leur serment et conscience, que le lendemain de Pasques
dernier passe ledict Lenfant estant en la garde de ses
bestes, ladicte Gillon sa femme desjettoit de ladicte
cense, pour aller au village de Dizy , ayant delaissd
Appendix 355
en sa maison ledict petit enfant Elle le renchargea
k une sienne fiUe, agde de neuf ans pendant et
durant lequel temps ladite fille s'en alia jouer autour
de ladite cense, et laissd ledit enfant couch^ en son
berceau ; et ledit temps durant, ledit pourceaulz entra
dedans ladite maison et defigura et mangea le
visage et gorge dudit enfant Tot apres ledit
enfant, au moyen des morsures et d^visagement que lui
fit ledit pourceaulz, de ce siecle trdpassa : savoir faisons
Nous, en detestation et horreur dudit cas, et
afin d'exemplaire et garde justice, avons dit, jugd, sen-
tenci^, prenoncd et appoint^, que ledit pourceaulz esfan^
detenu prisonnier et enferme en ladite abbaye, sera par le
maistre des hautes-oeuvres, pendu et estrangle, en une
fourche de bois, aupres et joignant des fourchee patibu-
laires et haultes justices desdits relligieux, estant aupres
de leur cense d'Avin En temoing de ce nous
avons scelld ces presentes de notre seel.
Ce fut fait le quatorzieme jour de juing, I'an 1494, et
scelle en cire rouge ; et sur le dos est ecrit :
Sentence pour ung pourceaulz execute par justice,
admene en la cense de Clermont, et dtrangl^ en une
fourche les gibez d'Avin.
[M. Boileau de Maulaville, in L'Annuaire de PAisne
181 2, p. 88. Vide M^moires, cit, pp. 428 and 446-7.]
356 Appendix
Sentence pronounced, March 27, 1567, by the royal
notary and proctor of the bailiwick and bench of the
court of judicatory of SenUs, condemning a sow with
a black snout to be hanged for her cruelty and ferocity
in murdering a girl of four months, and forbidding the
inhabitants of the said seignioralty to let such beasts
run at lai^e on penalty of an arbitrary fine.
A tous ceulx qui ces prdsentes lettres verront, Jehan
Lobry, notaire royal et procureur au bailliage et siege
prdsidial de Senlis, bailly et garde et seigneurie de Saint-
Nicolas d'Acy, les le dit Senlis, pour M,M. les religieux,
prieur et coivent du diet lieu, salut ; savoir faisons :
Veu le proems extraordinairement fait a la requete du
Procureur de la seigneurie du diet Saint-Nicolas, pour
raison de la mort advenue a une jeune fille agee de
quatre mois ou environ, enfant de Lyenor Darmeige et
Magdeleine Mahieu sa femme, demeurant au diet Saint -
Nicolas, trouvde avoir est6 mangee et devorde en la tete,
main senestre et au dessus de la mamelle dextre par une
truye ayant le museau noire, appartenant a Louis Mahieu,
frere de la dite femme et son proche voisin ;
Le proces verbal de la visitation du diet enfant en la
presence de son parrain et de sa marraine qui I'ont
recogneu ;
Les informations faites pour raison du dit cas, interro-
gatoires des dits Louis Mahieu et sa femme, avec la
Appendix 357
visitation faicte de la dicte truye a I'instant du dit cas
advenu et tout considere en conseil, il a ^t^ conclu et
advisd par justice que pour la CRUAUxf; et FEROCixf;
coMMisE PAR LA DiTE TRUYE, elle sera extermin^e par
mort et pour ce faire sera pendue par I'executeur de la
haulte justice en ung arbre estant dedans les fins et
mottes de la dicte justice sur le grande chemin rendant
de Saint-Firman au dit Senlis, en faisant deffenses k tous
habitans et sujet des terres et seigneurie du dit Saint-
Nicolas de ne plus laisser echapper telle et semblables
bestes sans bonne et seure garde, sous peine d'amende
arbitraire et de pugnition corporelle s'ily dchoit, sauf et
sans prejudice a faire droit sur les conclusions prinses
par le dit Procureur a I'encontre des dits Mahieu et sa
femme ainsi que de raison, au tdmoin de quoy nous
avon scelld les prdsentes du seel de la dicte justice.
Ce fu faist le jeudi 27^ jour de Mars 1557 et ex6cut6
ledit jour par I'executeur de la haulte justice du dit
Senlis.
[Dom. Grenier, Mamiscrits de la Bibliothkque Nationak
de Paris, tome xx. p. 87. Quoted by D'Addosio, who,
however, confounds the prosecution of 1567 with that
of 1499.]
358 Appendix
Q
Sentence of death upon a bull, May 16, 1499, by the
bailiff of the Abbey of Beauprd, for furiously killing
Lucas Dupont, a young man of fourteen or fifteen years
of age.
A tous ceux qui ces presentes lettres verront, Jean
Sondar, Lieutenant du Bailly du temporel de I'^glise
& abbaye ndtre Dame de Beaupr^s de I'ordre de Cisteaux,
pour venerables & discretes personnes & mes tres-
honorez seigneurs, messeigneurs les religieux abbd &
convent de ladite abbaye, salut. Comme k la requeste
du procureur de mesdits seigneurs, & par leur justice
temporelle qu'ils ont en leur terre & seigneurie du
Caurroy e(it 6t6 nagaires prins & mis en la main d'icelle
leur justice ung thorreau de poil rouge, appartenant h.
Jean BouUet censier & fermier de mesdits seigneurs,
demeurant en leur maison & cense dudit Caurroy,
lequel thorreau dtant aux champs & sur le territoiiere
d'icelle ^glise, auroit par furiositd occis & mis a mort un
joine fils, nommd Lucas Dupont, de I'age de quatorze k
quinze ans, ou environ, serviteur dudit censier, lequel
il avoit mis a la garde de ces bestes k corne, entre les-
quelles estoit ledit thorreau. Duquel thorreau ledit
procureur de mesdits seigneurs requeroit la justice
estre faite, & qu'il fut execute jusqu'a mort inclusive-
ment par la justice de mesdits seigneurs pour occasion
de icelui crimme de omicide & de la detestation d'iceluy.
Appendix 359
Sur quoy enqueste & information eussent 6t6 faites de
la forme & maniere iceluy homicide, par laquelle ledit
procureur nous eust requis sur ce luy estre fait droit.
Savoir faisons que veu laditte enqueste & information &
sur tout en conseil & advis, nous par nostre sentence &
jugement, avons dies & jugid, que pour raison de I'omi-
cide, dont dessus est touchie, fait par ledit thorreau en
la personne d'iceluy Lucas, & pour la detestation du
crime d'iceluy homicide, ledit thorreau nomme confisque
k mesdits seigneurs sera execute jusques a mort inclusive-
ment par leurdite justice, & pendu a une fourche ou
potence es mettes de leurdite terre & seigneurie dudit
Caurroy, aupres du lieu ou solicit estre assise la justice.
Et ad ce le avons condamnd & condamnons. En
tesmoing de ce avons mis nostre seel a ces lettres qui
furent faites & pronunchies audit lieu du Caurroy en la
presence de Guillaume Gave du Mottin, Jehan Custien
I'aisnd, Jehan Henry, Jehan BouUet, hommes & sub-
jets de mesdits seigneurs, Jehan Charles, & Clement le
Carpentier, & plusieurs autres les seizieme jour de May
Tan mil quatre cens quatre-vingt-dix-neuf. Ainsi signd,
Ileugles, ad ce commis.
[The original records of this trial for homicide are in
the archives of the Abbey of Beauprd. Vide Voyage
Litteraire de deux Religieux Benedictins de la Congrega-
tion de St. Maur. Seconde Partie, pp. 166-7. Paris,
1717. The Benedictins were Dom. Edmond Martene
and Dom. Ursin Durand.]
360 Appendix
R
Scene from Racine's comedy Les Plaideurs, in which a
dog is tried and condemned to the galleys for stealing a
capon.
After the accused had been found guilty, his counsel
brings in the puppies and thus appeals to the compassion
of the court :
" Venez, famille desolde ;
Venez, pauvres enfants qu'on veut rendre orphelins ;
Venez faire parler vos esprits enfantins.
Oui, messieurs, vous voyez ici notre misere ;
Nous sommes orphelins, rendez-nous notre p^re,
Notre p^re par qui nous fftmes engendrds,
Notre p^re qui nous ....
Daudin.
Tirez, tirez, tirez.
L'Intime.
Notre p^re, messieurs ....
Daudin.
Tirez done, Quels vacarmes !
lis ont pissd partout.
L'Intime.
Monsieur, voyez nos larmes.
Daudin.
Ouf ! je me sens deja pris de compassion.
Ce que c'est qu' ^ propos toucher la passion !
Je suis bien empechd La vdritd me presse ;
Le crime est avdrd, lui-meme il le confesse.
Mais, s'il est condamnd, I'embarras est dgal ;
Voil^ bien des enfants re'duits ^ I'hopital."
Lei Plaideurs, Act iii, sc. 3.
Appendix 361
Record of the decision of the Law Faculty of the
University of Leipsic condemning a cow to death for
having killed a woman at Machern near Leipsic, July 20,
1621.
Ao 162 1 den 20 July ist Hanss Fritzchen weib
Catharina alhier zu Machern wohnende von Ihrer eigen
Mietkuhe,^ da sie gleich hochleibss schwanger gang, auff
Ihren Eigenen hofe zu Tode gestossen worden. Vber
welch vnerhorten Fall der Juncker Friederich von
Lindenau, als Erbsass diesess ortes, in der Jurisstischen
Facultet zu Leipzig sich dariiber dess Rechtes belernet :
Welche am Ende dess Vrtelss diese wort also aussgespro-
chen : So wird die Kuhe, als abschewlich thier, an Einen
abgelegenen oden ort billig gefiihret, daselbst Erschlagen
Oder Erschossen, vnnd vnabgedecht begraben. Christoph
Hain domalss zu Selstad wohnend hat sie hinder der
Schafferey Erschlagen vnd begraben, welchess geschehen
den 5. Augusti auff den Abend, nach Eintreibung dess
Hirtenss zwischen 8 vnd 9 vhren.
[Extract from the parish-register of Machern, near
Leipsic, printed in Anzeiger fur Kunde der deutschen
Vorzeit. No. 4, April 1880, col. 102.]
^ Mietkuhe, a cow pastured or wintered for pay.
BIBLIOGRAPHY
Abele von Lilienberg, Matthias : Metamorphosis
Telae Judiciariae, Das ist : Seltsame Gerichts- Handel,
etc.; 8thed., Niirnberg, 1712. ist ed., 1667. The
funny incidents narrated in this work are cited as
"queer judicial procedures " in Joh. Weidneri Apoph-
thegmata, Part in., No. 69. Abele was evidently a
great humorist, and must have been a jolly member
of the "Hochlobl. Fruchtbringende Gesellschaft," to
which he belonged.
Addosio, Carlo d' : Bestie Delinquenti. Napoli, 1892.
Agnel, Emile : Curiositds judiciaires et historiques du
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INDEX
Abbott, Rev. Lyman, re-
gards bad impulses as
suggestions of evil spirits,
76
Achan, his severe punish-
ment by Joshua, 180
Addosio, Carlo d', his Bestie
Delinquenti cited, i, 4 ;
his list of animal prose-
cutions, 135 ; on pigs as
a public nuisance in Italy,
159
iEschines, cited, 172
iEschylus, his Choephoroi
cited, 174
Ahuramazda, 57, 61, 82, 176
Alard, Jean, burned alive
as a Sodomite for coition
with a Jewess, 153
Altiat, his poem quoted, 93
Amira, Prof. Karl von, his
Thierstrafen und Thier-
processe cited, 1-3, 137
Anathemas, only effective
when formally complete,
as with all incantations
and excommunications, 4,
36 ; citations from the
Bible in proof of their
power, 25 ; render an
orchard barren and expel
eels and blood-suckers
from Lake Leman, 27 ;
turn white bread black to
punish heresy, 28 ; fatal
to swallows and flies,
which disturb religious
services, 28, 29 ; sold by
the Pope, 30 ; hurled
against noxious vermin,
37 ; made more effective
by the prompt payment
of tithes, 37 ; differ from
excommunications, 51-54;
superseded in Protestant-
ism by prayer and fasting
and in science by Paris
green, 53
Animals, prosecuted by civil
and ecclesiastical courts,
2 ; office of the Church in
repressing articulate and
rodent, 3, 5 ; as satellites
of Satan or agents of God,
5» 6, 52-57, 67 ; personi-
fication of, 10, II ; their
competency as witnesses,
1 1 ; origin of their judicial
prosecution, 12 ; as bom
criminals, 14 ; tendency
of modern penology to
efface the distinction be-
tween men and, 14, 193 ;
instances of their criminal
prosecution, 16, 18, 21,
37-50, 93-124, 134-157,
160-163 ; methods of
procedure against, 31 ;
whether legally laity or
clergy, 32 ; punitive and
37:
374
Index
preventive prosecution of,
33 ; their consciousness of
right and wrong, 35, 247 ;
false conception of the
purpose of their prose-
cution, 40 ; can be an-
athematized, but not ex-
communicated, 51 ; items
of expense in prosecuting,
49, 138, 140-143; not mere
machines, 66 ; in folk-lore,
84 ; worship of, 85 ; im-
p>erfect lists of prosecuted,
J35-137 ; burned and
buried alive, 138 ; put to
the rack to extort confes-
sion, 139; confiscation of
valuable, 164, 189 ; un-
clean flesh of executed,
169 ; imputed criminality
of, 177 ; criminals as
ferocious, 212; mental and
moral qualities of men
and, 234 ; six categories
of their criminal offences,
235 ; the safety of society
the supreme law in the
judicial punishment of
men and, 247-252
Anatolus, his "Geoponics,"
133
Angel, Emile, cited, 124
Anglo-Saxon law, its retri-
butive character, 168 ; its
cruel doctrine of acces-
sories, 178 ; on tainted
swords, 187
Angro-mainyush, 57, 59, 61,
82
Anthony, St., patron of pigs,
158
Anthropologists, criminal
researches of, 211, 215
Aquinas. See Thomas
Arcadius, his atrocious edict,
179
Ashes, modem and mediaeval
use of vermifugal, 53
Augustine, St., cited, 94, 106
Aura corrumpens in houses
and stalls, 8
Aurelian, Father, on dia-
bolical possession, 75
Avesta, on exorcisms, 36 ;
on good and evil creations,
57 ; on mad dogs, 176
Ayrault, Pierre, his protest
against animal prosecu-
tions, 109
Azpilcueta, Martin. See Dr.
Navarre.
Baal-zebub (Beelzebub),
fly-god, 84 ; his preference
for black beasts, 165
Bailly, Gaspard, his Traitd
des Monitoires cited, 52,
92-108
" Basilisk-egg," 10
Basilius, St., his insect-ex-
pelling girdle, 136
Basilovitch, Ivan, his con-
ception of retributive jus-
tice, 183
Bassos, Kassianos, prefers
rat-bane to adjuration, 132
Beasts, sweet and stenchy,
55
Bees, tainted honey of homi-
cidal, 9
Bell, banished to Siberia by
the Russian Governmentj
175
Benedikt, Prof., on the brain-
formation of criminals
Index
375
Bernard, Claude, his idea of
the physiologist, 245
Bernard, St., kills flies by
cursing them, 28
Bernardes, Manoel, his Nova
Floresta, \2ii,
Berriat-Saint-Prix, his valu-
able researches, 2, 17, 20 ;
list of prosecuted animals,
135-137
Bichat, his defective cranium,
217
Bischofberger, Dr. Theobald,
his curious theory of the
effects of unexpiated crime
on persons and property,
6-8 ; his recent brochure
in defence of exorcisms,
73
Bischoff, Prof., his hobby
refuted by the weight of
his own brain, 218
Blackstone, on deodands,
186, 189, 192
Blood-letting, as a panacea
in law and medicine, 194
" Blue Laws," an advance in
penal legislation, 209
Bodelschwingh, his bacillus
infernalis^ 91
Boehme, Jacob, his definition
of magic, 127
Boer, Nicolaus, on cohabita-
tion with a Jewess as
sodomy, 153
Bogos, homicidal beasts exe-
cuted by the, 155
Bonnivard, Francois, pre-
sides as judge in a trial
of vermin, 38
Borromeo, Carlo, his cruelty
in punishing heresy, 208
Bougeant, P^re, his Amuse-
ment Philosophique cited,
66-69 ; 80-86, 88-90, 92
Bracton, 167 ; on deodands,
186
Brain, its size not always
a measure of mental
capacity, 217-219
Browne, Dr. William Hand,
cited, 187
Buggery, instances of this
"nameless crime," 147-
153 ; she-ass acquitted
and man condemned to
death for, 150 ; in the
Carolina punished with
death by fire, 151 ; in the
Mosaic law, 152; sexual
intercourse with a Jewess
regarded as, 153
Bull, executed for murder,
161
Calvin, his conception of
God, 59
Canute, King, 178
Carolina, the, its severe
penalties, 182
Carpzov, Benedict, on sodo-
my, 151
Cattle, bewitched by bad
air, 8
Cervantes, 167
Character, factors in the
formation of, 219 ; respon-
sibility for, 239, 243
Charcot, Dr., on the curative
power of faith, 80, 225
Chassenee, Bartholomew, his
Consilia, 2, 21-23 > dis-
tinguished as a defender
of prosecuted rats, 18 ;
equal rights of rats and
Waldenses recognized by,
376
Index
20 ; his erudition, 24 ; his
absurd deductions, 26 ;
regards animals as laity
in the eye of the law, 32
Chinese, recent beheading
of idols for murder, 174
Church, the, its treatment
of noxious insects as incar-
nations of Satan and as
agents of God, 3-6 ; capital
punishment never inflicted
by, 31 ; its power to stay
the ravages of vermin un-
questioned, 50
Cicero, cited, 22, lor ; his
approval of atrocious
penalties, 178
Cock, burned at the stake
for laying eggs, 10, 11,
162 ; nature and origin of
its supposed eggs, 163-5
Cockatrice, 12, 163
Coleridge, his definition of
madman, 228
Corpses, prosecuted and exe-
cuted, no, 198, 199; can-
not inherit, no
"Corruption of blood," in
theology and law, 181
Courcelle-Seneuil, his view
of prisons, 212
Cows, executed for homicide,
169
Cranks, execution of, 249-
251
Cretella, 17
Cretins, their brains not
always abnormal, 219 ;
sentenced to death, 251
Criminality, examples of im-
puted, 177-185 ; ancient
and mediaeval conceptions
of, 200 ; punished for the
safety of society, 211, 248 ;
compared to vitriol, 212 ;
supposed physical indices
of, 213-217; casual and
constitutional, 214-223 ;
ativism the source of, 212,
215 ; the result of hypnot-
ism, 223-225 ; due to many
uncontrollable conditions,
230 ; motives underlying
animal, 235 ; animals con-
scious of, 247 ; contagious-
ness of, 252, 256
CroUanza, his record of the
prosecution of caterpillars,
122
Crosiers, vermifugal e65cacy
of, 30
Cybele, invoked against
vermin, 133
Damhouder, Jacobus,
picture of animal crimes
in his Rerwn Criniinalium
Praxis, 16 ; citations from
this work, 109, 146 ; regards
sexual intercourse with
Jews, Turks, and Saracens
as sodomy, 153
Dasturs, Parsi, Zarathushtra's
teachings degraded by the,
59 . ,
Demosthenes, cited, 172
Deodands, nature of, 186-190,
192 ; abolished in England
under Queen Victoria, 192
Devils,their damage to landed
property, 7 ; multiplied by
the spread of Christianity,
13, 80 ; destined to eternal
torments after the Last
Judgment, 68-70 ; incar-
nate in every babe, 70 ;
Index
zn
maladies produced by, 72 ;
modern inventions the de-
vices of, 229
Didymos, his "Geoponics,"
Dimitri, Prince, bell banished
to Siberia for rejoicing over
his assassination, 175
Dogs, trial and execution of
mad, 176 ; crucified in
Rome for imputed crime,
177
Dopier, Jacob, on sodomy,
152 ; on Lex talionis, 182 ;
on vampires, 197
Dove, symbol of the Holy
Ghost, 57
Draco (Drakon), his law
punishing weapons, 172
Dreyfus, his prosecution in-
stigated by a sensational
novel, 253-255
Ducol, Pierre, prosecutor of
weevils, 38
Dumas, his Count of Monte
Christo cited, 240
Duret, Jean, his Treatise on
Pains and Penalties^ 108
Ecclesiastical tribunal,
an, rejects the Mosaic law
and discusses crime from
a psychiatrical point of
view, 170
Eldrad, St., expels serpents,
50
Electricity, execution by,
210
Elk, as demon, 90
Erechtheus, punishment of
deadly weapons, 172
Erinnys, appeasing the, 174
Escheat, in Scotch law, 189
Eusebius, describes hell as
very cold, 105
Eustace, St., 56
Evolution, dogma of original
sin supplanted by the
doctrine of, 232
Excommunications, pro-
nounced against insects
by the Church, 3 ; sold at
Rome, 30 ; properly speak-
ing, animals not subject to,
51, 100; comical survivals
of, 128. ^^^ Anathemas
Exorcisms, their efficiency
recognized by Heidelberg
professors, 27 ; applied as
plasters, 72 ; superseded
by conjurations among
Protestants, 125 ; by Mo-
hammedans, 137
Falcon, Pierre, defender of
weevils, 38
Felo de se, a sort of treason,
190. See Suicide
Feuchtersleben, Baron Von,
records cases of morbid
imitation, 253
Field-mice, conjuration of,
133
Flesh of executed animals
tainted, 169
Flies as demons, 28, 86
Florian, St., the protector of
houses from fire, 136
Fly-flaps, papal, 29
Formosus, Pope, his corpse
tried and condemned for
usurpation, 198
Foscolo, Ugo, his cranium
that of an idiot, 218
Fox, diabolical nature of the
56
378
Index
Frederic the Great, his
penal reforms, 207
Fricker, Thiiring, doctor of
laws, chancellor and prose-
cutor of inger, 116
Gadflies, episcopal rescript
against, 124
Galton, on heredity, 239
Gambetta, his small and
abnormal brain, 217
Geese, sacred, rewarded at
Rome for the vigilance of
their foremothers, 177
Genius, to madness close
allied, 228
Gorres, recent case of con-
juration recorded by, 125
Gratiolet, on the brain of
the " Hottentot Venus,"
218
Greeks, ancient, ascribed
pestilence to the miasma
of unexpiated murder, 9,
174
Gregory of Tours, on bronze
dormice and serpents as
talismans, 132
Greysser, Daniel, the effici-
ency of bans not super-
natural, 128
Gross, his mis-statement con-
cerning the cock of Bile,
162
Guiteau, deterrent effect of
his execution, 250
Harpokration, Valerius,
cited, 172
Harrison, Miss, cited, 187
Hart, symbolism of the, 56
Hawks, dead, as protectors
of hens, 252
Hemmerlein, Felix. See
Malleolus
Hens, crowing, 10
Heredity, its predetermining
influence as viewed by
theologians and scientists,
232
Heymanns, Mynheer, on re-
sponsibility for character,
243
Hierarchies, their failure in
civil government, 249
Honorius, his atrocious edict,
179
Horses, condemned to death
for homicide, 162
Hubert, St., 56
Hugon, St., expels venom
from serpents by excom-
munication, 103
Hunters among savages, their
superstitious fear of killing
wild animals, 174
Hypnotism, its causal relation
to crime, 223-226 ; as the
basis of the witchcraft
delusion, 225
Idols, decapitation of, 174
Inger, prosecuted and put
under ban, 11 3-1 15; not
in Noah's Ark, 120
Insanity, degrees of, 200-203 '■>
in Italian and German law,
204-206 ; difficulty of de-
fining, 226-228 ; in English
law, 246 ; moral, 250 ; as
a shelter for crime, 256
Insects, prosecution of, 37,
41-49 ; incarnations of
demons, 86
Italy, palliation of crime in,
203, 204
Index
379
Jeanneret, Marie, her toxi-
comania, 240-246
Jews, in Christian legislation
on a par with beasts, 152,
165
John the Lamb, his curse
fatal to fish, 28
Jonson, Ben, cited, 130
Jordan, Father, casts out
devils with Lourdes water
in 1887, 74
Jorgensen, cited, 17
Joshua, his penal cruelty,
180
King Mode, his discourse
with Queen Reason, 55
Kirchenheim, Prof. Von,
urges reform of our penal
codes, 219
Koran, the, on the punish-
ment of beasts, 171
Kukis, destroy homicidal
trees, 171
Laas, his definition of judicial
punishment, 238
Lacassagne,his six categories
of crime, 235
Langevin, Pierre Gilles,
fresco of the execution of
a sow described by, 141
Lapeyronie, his dissertation
proving that cocks never
lay eggs, 163
Le Bon, on hereditary crimin-
ality, 223
Leipsic, decision of the Law
Faculty concerning a homi-
cidal cow, 169
Leo XIII., his exorcism of
Satan and apostate angels,
73
Letang, Louis, causal relation
of his novel to the Dreyfus
affair, 254
Lex talionis, striking applica-
tions of this oldest form of
penal justice, 167 ; inflicts
horrible mutilations, 182
Lilienberg, Mathias Abele
Von, his record of a dog
sentenced to prison, 175
Liszt, Prof. Von, on retributive
and preventive penalties,
237
Locusts, expelled by exor-
cisms and aspergeoires, 3,
64 ; dispersed and de-
stroyed by excommunica-
tion, 22, 93, 94 ; prosecution
of, 95-108, 136
Lohbauer, Pater Franz
Xaver, ascribes nervous
disease to diabolical
possession, 71
Lombroso, on animals as
born criminals, 14 ; op-
posed to trial by jury, 185 ;
regards tattooing, dark
thick hair and thin beards,
as signs of criminality, 213 ;
on ativism as the source of
crime, 215 ; innate crimin-
ality not eradicated by
education, 223 ; compares
the capital punishment of
cretins and cranks to that
of animals, 251
Lucifer, writhes under the
water of Lourdes, 74
Lycia, punished by imputa-
tion, 180
Majolus, cited, 86
Maledictions. See Anathemas
38o
Index
Malleolus, Felix, his theory
of exorcisms endorsed by
Heidelberg professors, 27 ;
records a prosecution of
Spanish flies, no; his
formula for banning
serpents, 121
Mangin, Arthur, cited, 16,
139
Manicheans, their doctrine
of good and evil, 60
Manouvrier, Dr., likens
Gambetta's skull to that of
a savage, 217
Mantegazza, Prof., his
" tormentatore," 245
Manu, Institutes of, 168
Marro, on metaphors as facts,
216
Mather, Cotton, records the
execution of a pious
Sodomite and eight beasts,
148
Menebrda, M. L., 2, 17 ;
his theory untenable,
40
Mephistopheles, the lord of
rodents and vermin, 85
Mithridates, experiments
with poisons, 244
Moles, prosecution of, iii-
113
Monks, as landed proprietors
in France, 158
Monomania, frequency of,
227
Morel, Claude, defender of
weevils, 38
Mornacius, his record of mad
dogs sentenced to death,
176
Morselli, Prof, on the causes
of suicide, 229
Mosaic law, the, rejected by
an ecclesiastical court, 170 ;
barbarity of, 167, 180
Murder, miasma of, 9, 174 ;
weapons tainted by, 187-
190
Mutilations, in accordance
with the Lex talionis, 176,
182
Mythology, monstrosities and
metamorphoses of classi-
cal, 64 ; in modem life, 228
Naquet, regards criminals
as no more culpable than
poisons, 212.
Narrenkotterlein, dog sen-
tenced to a, 175
Nature, imperfection of, 6r
Navarre, Dr., regards fish as
cacodemons, 90
Nebuchadnezzar, a satanic
metamorphosis, 63
Nikon, his statue punished
for manslaughter com-
mitted in self-defence,
172
Noah, God's covenant with
him required the capital
punishment of beasts, 168
Novels, morbific influence of
sensational, 253
Numa Pompilius, quoted,
106 ; his law for protecting
boundary stones, 183
Origen, believed in the
ultimate redemption of
Satan, 68
Osenbriiggen, Eduard, his
theory of the personification
of animals, 10, 17
Ovid, quoted, loi, 103
Index
381
Oxen, executed, 168 ; pun-
ished although innocent,
183
PACHACUTEZjbarbarous code
of this Peruvian Justi-
nian, 179
Papal See, trial and punish-
ment of corpses by the, 198
Pape, Guy, cited, 108
Paracelsus, on the magnetic
power of the will, 126
Pardoning power, exercise of
the, 248
Parsis, their Dasturs, 59 ;
co-workers of Ahuramazda,
61, 82 ; no doctrine of
atonement, 63
Pasteur, exterminates noxious
microbes, 62
Patriotism as a perverter of
justice, 185
Pausanias cited, 172
Penology, man and beast in
modern, 14, 193; mediaeval
and modern, 1 5, 200, 206-
2 10 ; in Italy and Germany,
203-206 ; brutality of med-
iaeval, 206-209 ; moral and
penal responsibility, 210;
still inchoate, 15, 219-223,
257 ; deterrent aims of, 211,
248, 249 ; law of the sur-
vival of the fittest in, 221-
223 ; punitive and preven-
tive, 237 ; its relation to
psycho-pathology, 248
Pereira Gomez, forerunner of
Descartes, 66
Perjury, retaliative punish-
ment of, 182
Perrodet, Jean, defender of
inger, 118
Phlebotomy. See Blood-
letting
Pico di Mirandola, quoted,
103
Piety, market value of, 7
Pigs. See Swine
Pirminius, St., his anathema
of venomous reptiles, 29
Plato, his theory of creation,
59 ; on homicidal animals,
173 ; on retributive and
preventive punishment,
237
Pliny, quoted, 103
Pollux, Julius, quoted, 172
Potter, a pious Sodomite
executed, 148
Predestination in theology
and science, 232-234
Prussia, barbarous punish-
ments, 180; opposed to
reform, 205
Prytaneion (Prytaneum), con-
demned inanimate objects
for crime, 172; but not
corpses, 199
Pufendorf, Samuel, on con-
tagiousness in crime, 256
Puritans, their penal enact-
ments, 209
Pythagoras, his doctrine of
transmigration, 87
Queen Reason, her dis-
course on animals in reply
to King Mode, 56-58
Racine, his caricature of
beast trials in Les Plai-
deurs, 166, 361
Ram, banished to Siberia, 175
Randolph, his allusion to
rhymmgrats, 130
382
Index
Rats, prosecution of, 18-21,
1 36 ; friendly letters of
advice to, 129 ; Irish cus-
tom of rhyming, 1 30
Raven, an imp of Satan, 57
Renaud d'AUeins, on equal
rights of Waldenses and
rats, 20
Responsibility, moral and
penal, 210
Reusch, Prof. Dr. Fr. Hein-
rich, denounces bishops
as promoters of super-
stition, 14
Ro-ro-ro-ro, an anti-semitic
devil cast out in 1842,
73
Rosarius, Hierolymus, de-
scribes the exposure of
crucified lions and gibbeted
wolves as a warning to
their kind, 251 ; regards
animals as often more
rational than men, 252
Satan, his earthly sove-
reignty, 60, 70 ; the doc-
trine of his final redemp-
tion, 68
Schilling, on the prosecution
of inger, 113, 120
Schlager, cited, 176
Schleswig, its punishment of
homicidal timber, 187
Schmid, Bernard, his sermon
on the devastations by
inger, 113-115
Scholasticism, quiddities of,
33
Schopenhauer, his theory of
the will, 127 ; man's re-
sponsibility for character
alone, 239, 243
Schwabenspiegel, barbarity
of this old German code,
178
Schwarz Mining, prosecutor
of moles, 112
Schweinfurter Sauhenker,
origin of the term, 147
Serpents, destroyed by St.
Eldrad, 51 ; freed from
poison by St. Hugon,
103
Shakespeare, alludes to " be-
rhymed" rats, 130; and a
wolf on the gallows, 1 57
Silius Italicus, quoted, 103
Simon, Max, on the morbid
spirit of imitation, 253
Sociology, its influence on
criminal jurisprudence, 238
Socrates, on self-perfection,
234
Sodomy. See Buggery
Soldan, cited, 17
Sparrows, put under ban
by a Protestant parson,
128
Stephen VI., Pope, adjures
locusts, 65 ; prosecutes the
corpse of his predecessor,
198 ; strangled in prison,
199
Suicide, punishment of the
wife and children of a,
190; condemned as a
crime and also recognized
as a right, 191, 192 ; due
to manifold influences,
229
Superstition, fostered by
bishops and Jesuits, 14
Swallows, anathematized for
chattering in church, 28
Swine, execution of, 16, 140-
Index
383
145,149,153-157,161,169;
as stenchy beasts pecu-
liarly attractive to devils,
56, 165 ; Gadarene, 69, 91,
165
Swords, tainted, 187
Taine, his definition of man,
214
Tarde, defines the mob as a
mad beast, 236
Tatian, his fellow-citizens
punished for his offences,
180
Tattooing, not peculiar to
criminals, 213
Termites, prosecuted by
Franciscans in Brazil and
praised by their defender
as more industrious than
the friars, 123
Tertullian, quoted, 106
Theognis, his bust punished
for murder, 172
Thomas k Becket, his bones
burned by Henry VIII.,
198
Thomas Aquinas, regarded
animals only as diabolical
incarnations, 53-55, 88,
loi, 103
Thumeysser, his bottled
scorpions and elk feared
as demons, 90
Tithes, importance of the
prompt payment of, 37, 94,
107
Tobler, G., on animal pro-
secutions in Switzerland,
1, 170
Treason, barbarously pun-
ished by Roman, Prussian,
and Judaic law, 179- 181
Trench, Richard Chevenix,
his justification of the
cursing of the fig-tree, 25
Treufels, Richard, his belief
in the exorcism at Wem-
ding in 1891, 75
Tribunals, proper office of
criminal, 211, 232, 248
Tritheim, on Satan's invisible
apparition, 166
Tschech, executed, and his
innocent daughter exiled
for his crime, 179
Tiirler, records the rejection
of the Mosaic law by the
ecclesiastical court of
Berne, 170
Vampires, superstitions con-
cerning, 195-198
Vendetta, in semi-civilized
communities, 178
Venidad, quoted, 63
Ventilation, " bewitched
kine " the result of bad, 8
Vermin. See Insects
Virgil, quoted, 26
Weevils, prosecuted for
damage to vineyards, 38-
49
Wemding, recent case of
diabolical possession in,
75
Were - wolves, incarnate
ghosts, 195 ; decree for
their extermination, 198
Weriher, Goethe's, senti-
mentalism and suicidism
produced by, 253
Winterstetter, Georg, his
rescript concerning gad-
flies, 125
384
Index
Witches in Judaic and me-
diaeval law, on a par with
animals, 145 ; rendered
harmless by burning,
196
Worms, Council of, its decree
concerning tainted honey,
9
Zarathushtra (Zoroaster),
his ethics and its workings,
57-59
Zoopsychology, in its relation
to anthropopsychology and
criminology, 237
Zupetta, on partial vitiation
of mind, 201
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